Thread: DESPERATE DANIELLA v BARCLAYCARD

Hi everyone,

This time it's my Barclaycard.

They responded to the CCA by sending their current terms and conditions. I wrote back saying this was not what I wanted and now they have sent a photocopy of their

Barclaycard Conditions of Use (copy for you to keep).

It is landscape, not portrait, and has four columns, so appears to be the inside of a leaflet.

There is no reference to the CCA 1974.

The last point just says "This Agreement is governed by English law."

There are various bits about interest, monthly statement and repayments in it.

It has nothing about me - it just says the agreement is between the bank and the cardholder.

I don't ever remember asking for it. I am sure I got it as a cheque guarantee card when I opened my account with Barclays over 20 years ago.

Obviously I'm going to write back telling them it is clearly not an enforceable agreement - at least I can't see that it is - but would be grateful for your thoughts.

Thank you.

DD

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Site Team,

Can someone please move me into the Barclaycard Forum?

Thank you.

DD

Thank you.

DD

Thank you, Slick.

I've looked at that thread too. I seriously can't believe they have got an agreement at all, and if necessary will use the CPR 31.16/14 or whatever, but as what they have sent actually has no mention of CCA 1974 anywhere I think I will write back and more or less say, "Is that it?".

Will post letter here first.

DD

Hi Slick and everyone,

Realised I actually hadn't posted my letter to bcard here before I posted it to them, but it was the usual about what I had requested, NOT under S78, and ended with my question about why they were so reluctant to let me see it unless they were well aware that it didn't comply with CCA 1974/1983 regs.

I have had no reply to that letter three weeks later, but this morning within the space of ten minutes I received a letter from RMA on behalf of bcard, and then a phone call from them as well. How spooky is that? Are they in league with the postman? Anyway, I told the RMA guy that the account was in dispute and had been since early January, and I had chased up in late January, said I would email him copies of my letters to bcard, and that they had no right to pass it on to RMA when it was in dispute, and he said obviously they would need to refer it back to bcard, and went away.

Seriously though, if they sell it on when it is in dispute do I have reasons for a complaint to anyone? I had already sent the letter saying while it is in dispute you can't demand money, sell it on, etc., and rather than answer my valid questions they have sold it on.

Any suggestions?

DD

Thank you, Martin.

DD

Hi Daniella. I had Barclays send me the terms. They think that satisfies the terms of the act. Even so it is not a signed agreement. Terms do not relate to you .. So its still unenforceable under the act. They know what they are doing. Trying to frustrate people, Keep at it you have the law on your side. If they sell it on Just ignore the DCA . They have no rights to harass you without legal proof of ownership. Just write back to any DCA . Until you have proof you have the right to chase me for an alleged debt. I always call it an alleged debt. . They can shout all they like without the signed agreement containing all the right info they have no chance. Stand up for yourself as i know you shall. Best wishes Blencathra

Hi,

Update:

This morning got the weekly call from Mercers. Usual conversation - I am waiting for the credit agreement.
M: It's saying here it has been sent.
DD: No, I just got the T&Cs.
M: I will request it again.
DD: Actually I am waiting for GFish too, and what they sent me for MSDW was barely legible.
M: Well, they blow them up so you can read them.
DD: I could hardly read it and what was there referred to all sorts of conditions which weren't there, and I wrote back over six weeks ago asking them to explain the discrepancies, and haven't had a reply.

Anyway, am I going to get a legible copy of my barclaycard agreement.

M: We will send you a copy of your APPLICATION and the agreement is part of that.

DD: Well I'll have to have a look at it.

M: In the meantime it's very important you keep up payments (or it could go badly for you, etc.)

DD: I am not making any payments until I see the agreement.

M: I'll request it for you.

DD: Thank you. How long will it take?

M: I don't know, but at least two weeks.

DD: Okay, well I won't expect to hear from you until then.

THEN,

Sorry, hit the button by mistake.

Then, this evening, came home to a letter from RMA which stated:

Unless we receive suitable repayment terms with you, we will have no hesitation in referring this debt back to Barclaycard. Call us immediately.

Yay!!!

I was so excited I called immediately and said that was absolutely fabulous, and thank you so much, and I have been asking for you to do that for about three weeks, and if Barclaycard wouldn't send him his agreement, wouldn't he think it was dodgy? He was very nice and completely understood where I was coming from.

DD

Hi everyone,

First of all a really stupid idiot from RMA called last Thursday telling me I should send a £1 for the copy of the CCA. I told her I had already paid Barclays for it, and that if she wanted a copy she could ask them, and she said, "You can't expect us to do your work for you, Mrs DD." I think they would have heard me screaming at her three miles away. She hung up!

Today I got the following gobbledegook from Barclaycard which basically said they can send absolutely anything and it will count as my agreement.

I'd appreciate any pointers you can give me before I draft the reply, and when I have drafted it I'll post here before sending it. Just wondered if anyone else got exactly the same and if there is a letter which picks up on all their points about Regulation 7, etc.

Just to reiterate, all they have sent so far is a copy of their current T&Cs and a photocopy of what appears to be the inside of a leaflet -A4 folded into four - dated from the mid-80s. No application form, or anything at all that relates to me.

Dear

Reference: Section 78 of the Consumer Credit Act 1974

Barclaycard Account No.

I write further to the letter whereby you note dissatisfaction to the documents you received in relation to a request made under Section 77/78 of the CCA 1974. (Actually I didn't make the request under that.)

Firstly, credit cards are regulated under Section 78. Section 78 (1) of the Act states that the creditor shall give the debtor a copy of the executed agreeemnt and a statement of account which is practicable to refer, the letters which we send in response to a Section 78 (1) request includes this information. To cover the issue of executed agreement.

How does the Act define an "executed agreement"?

"Executed agreement" is defined in Section 189 of the Act as "a document signed by or on behalf of the parties, embodying the terms of a regulated agreement...".

What do the rules say about providing a copy?

The Consumer Credit Act (Cancellation Notices and Copies of Documents) Regulations 1983 ("the Regulations") made under the Act deal with how we are to provide a "copy" of an agreement. These Regulations provide that any copy of the agreement supplied to a debtor should be a 'true' copy. Regulation 3(2) provides that a copy may omit certain information, which allows you to be provided with a true copy, not a complete copy.

What happens if the original agreement has been varied since it was originally signed?

The Regulations also set out what should happen where the agreement has been varied since it was signed. Regulation 7 provides creditors with a choice of including in the copy of the executed Agreement either a copy of the latest notice of variation relating to each discrete term which has been varied, or an easily legible statement of the terms varied. Regulation 7 does not state that the copy of the agreement shall include a statement of the original terms as well as a statement of the varied terms. Regulation 7 allows us to provide you with a "true copy" which sets out the terms and conditions current at the time of provision of the copy.

Conclusions in relation to the document we have to provide

A "copy" of an agreement will satisfy the requirements even if the signature box and/or the signatures are not included as clarified by Regulation 3(2) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983.

The definition of "executed agreement" refers to a document embodying the terms of the regulated agreement. When this is read with Regulation 7 - for agreements that have been varied - a copy of the original agreement would not embody its terms. A copy of the agreement as varied would embody its terms.

The issue of what is an executed agreement has been interpreted in the High Court. It was held that an executed agreement begins as the credit agreement which is sent to the cardholder when they receive their credit card; therefore, establishing what is the original executed agreement. When the agreement has been varied, Regulation 7 mentioned above applies.

To summarise, if the agreement has not been varied we must send the original executed agreement; this would be the credit agreement which is currently regulated. If the credit agreement has been varied, we must send the current credit agreement as this will contain the terms of the regulated agreement. We have sent you this and the original executed agreement for reference.

To address any issue about our lack of compliance with Section 60 of the Consumer Credit Act 1974. Section 60 refers to the form and content of agreements. All Barclaycard credit agreements are in compliance with this. You may state that the application form wich we provided you, for reference, when you made a request under Section 78 does not adhere to Section 60. This is not a complete copy of your application form, but rather an excerpt to show you signed a contract with us. When you completed your application form the document would have been presented to you in full, in a legible form, and would have adhered to the requirements under Section 60 of the Consumer Credit Act 1974.

I hope this letter has helped with your concerns about the documents you have been supplied with under Section 78 of the CCA 1974. As our response fulfils the obligation under Section 78 of the CCA 1974, you should carry on paying the debt you have accrued on your account. We do not class the account as in dispute, you have been supplied with the relevant documentation under Section 78 CCA 1974, and we will carry on with collection services.



I love the bit which says "this is not a complete copy of your application form but an rather an excerpt ......... " The inside of a leaflet is my "application form"?

I think we can assume they don't have any agreement at all. Don't they have to tell me if they don't have the agreement?

Any ideas gratefully received?

Thank you.

DD

Also, what High Court ruling is he referring to?

Hi Slick,

Below is the letter I sent them in January - my response to what they sent in response to my original request for the agreement. They have completely ignored every point I raised. I'm on a number of barclaycard threads (although I haven't been quite so up to date over the past fortnight or so) but I have quite a good memory and I don't recall seeing all this stuff about Regulation 7 before. Their interpretation of Regulation 7 seems to be that they can send anything without any reference to anyone and it will be accepted as an agreement.


Dear Sirs,

I acknowledge receipt of your letter dated 9th January, enclosing what you state to be a copy of my Original Barclaycard Credit Agreement. I did not make the request for a copy of the Agreement under Section 78 of the Consumer Credit Act 1974.

What you have enclosed appears to be a copy of a leaflet, as it is headed ‘Barclaycard Conditions of Use (copy for you to keep). It is not a Credit Agreement regulated by the Consumer Credit Act 1974. In fact there is no reference to the Consumer Credit Act 1974 anywhere in these Conditions of Use. There is no reference to me either.

As you are aware, in order to comply with Section 61 of the Consumer Credit Act 1974, a document must conform to regulations made under the provisions of Section 60 (1) CCA 1974, otherwise it cannot be properly executed.

These regulations are the Consumer Credit (Agreements) Regulations 1983, SI 1983/1553, and set out the form and content of agreements.

Schedule 1 refers to the ‘Type of Agreement’. Any credit card agreements should correctly be headed “Credit Card Agreement regulated by the Consumer Credit Act 1974”.

For a form to be compliant with the Regulations it must contain within the four corners of the agreement the prescribed terms laid out in SI 1983/1553, Schedule 6, Column 2. These prescribed terms cannot be in a separate document.

As you will be aware there is a recent House of Lords authority on this matter:
Tuckey LJ in the case of Wilson and another v Hurstanger Ltd (2007) EWCA Civ 299.

I do not understand Barclaycard’s apparent reluctance to provide a copy of the Original Signed Credit Agreement, unless of course you are aware that it is not compliant with the requirements of the Consumer Credit Act 1974.

Yours sincerely,

DD