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After requesting my agreement under CCA in December and with lots of arguments with Mercers coupled with them sending just T&Cs 4 times and Barclaycard and Mercers stating that they did not send out agreements, I complained to the financial Ombudsman. They wrote to Barclays and would you believe it... one week later an application form/agreement arrives on my doorstep (microfiched!). the copy is so bad is wont scan so can't show on this thread! there is definately no prescribed terms i.e. credit limit, no frequency of payment or interest rate. Does anybody have a sample letter i could use to help me in my plight!!! I want to fight this all the way but am now getting stuck. Grateful for any advice you could offer.
Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974
I note that you have replied to the above by sending a copy of an application form and your companies current terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.
To clarify, just sending the terms and conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.
This breach of the agreement can be demonstrated as follows;
As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.
Before leaving section 180there are two other sections that should be remembered these are:
Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;
And more importantly
Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.
You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.
Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.
The regulations state:
(2) There may be omitted from any such copy-
(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;
(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);
It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.
The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.
Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.
It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.
I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues
You should also refer to their duty to provide a legible copy.
Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.
Just to confirm, FG's letter above must be amended to suit because it was written for a different scenario.
I suggest the following but amend if necessary to suit your case:-
Dear sir or madam,
Account Number: XXX
Re; Your reply to my request under section 77-79 of the Consumer Credit Act 1974
I note that, following intervention by the fos, you have replied to my CCA request by sending a copy of an illegible application form. This is not sufficient to comply with my formal request and your company is still in default under the act.
To clarify, the copy document must be a “true copy” of the credit agreement. It is also a requirement that the document must be legible.
As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.
Before leaving section 180, there are two other sections that should be remembered, namely:-
Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;
And more importantly
Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.
You will see that this quite clearly states that whilst certain items may be left out of the copy document, the rest of the document must be in the form, and contain all items, as prescribed by the regulations.
Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.
The regulations state: (2) There may be omitted from any such copy- (a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy; (b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);
It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.
The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this, as I have demonstrated, also applies to the copy of any such agreement with the above mentioned proviso.
Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.
It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.
I now require that you provide, within 14 days, a true copy of the credit agreement or that you confirm you are unable to do so.
I must remind you that, while the request has not been complied with, the default continues and you may not take action to collect the alleged debt, or pass it to any DCA to collect.
The document you have provided is not enforceable by a court and any court action taken to enforce payment will be vigorously defended.
Any help and advice is offered in good faith, based solely on my own knowledge and on experience gathered from this site. I am not qualified to offer legal or financial advice, which you should seek from an expert before making any important decisions. My opinions are therefore offered without liability.
Thanks so much for your replies, will adapt letter and send to them. As I did complain to the financial obmudsman regarding this compalint should i contact them as well to let them know that i am now satisfied with the response? I will keep you posted to the progress of this. thanks again Bradley68
Any help and advice is offered in good faith, based solely on my own knowledge and on experience gathered from this site. I am not qualified to offer legal or financial advice, which you should seek from an expert before making any important decisions. My opinions are therefore offered without liability.
subbing as I've just sent my complaint to the fos.
BH.
Halifax Current Account £1583 WON 2007
Egg Credit Card £1822 WON 2008
BarclayCard £982 WON 2008
Natwest Current Account £2133 WON 2006
IF Accounts £1728 WON 2007[/SIZE]
MBNA CCA request sent 10.2.09
BarclayCard CCA request 10.2.09
Barclays Bank SAR 16.2.09[/SIZE]
Letter received from Barclaycard the same day I sent my response letter as adviced by Slick to Barclaycard. anybody any good responses I could send to this!? i have had to re-type is as couldn't scan onto the thread. Advice appreciated PLEASE!!!!!!!! thanks
Dear Bradley68
Account no: xxxxxxxxxx
Reference: Section 78 of The Credit consumer Act 1974
I write further to the letter whereby you note dissatisfaction to the documents you recieved in relation to a request made under Section 77/78 of the consumer credit act 1974.
Firstly, credit cards are regulated under section 78. Seciton 78(1) of the Act states that the creditor shall give the debtor a copy of the executed agreement and a statement of account which is practicable to refer. Regarding 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 this 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 (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. Regulations 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 regulation 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.
Conclusuins 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 exeucted 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.
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 received 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 is 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 abour our lack of compliance with Section 60 of the Consumer Credit Act 1974. Section 60 relates to the forms and content of agreements. All Barclaycard credit agreements are in compliance with this.
You may state that the application form which we provided you, for reference, when you made a request under Section 78 does not adhere. 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 consumer credit act 1974. As our response fulfils the obligation under section 78 of the consumer credit act 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 of the consumer credit act 1974 and we will carry on with collection services. If you send us further correspondence questioning compliance with these areas of law, we are not obliged to respond beyond the statutory response we have already given you. We would require you to provide comprehensive legal and documentary evidence to support your claim to ascertain whether further response is necessary
BC's letter is clearly NOT a response to the letter you sent - they must have crossed in the post.
Their letter is a standard response and does NOT make the "agreement" which they sent you enforceable. This issue can only be properly decided by a court and I think the ball is still in their court.
Any help and advice is offered in good faith, based solely on my own knowledge and on experience gathered from this site. I am not qualified to offer legal or financial advice, which you should seek from an expert before making any important decisions. My opinions are therefore offered without liability.
Had a response to my letter I sent to Barclaycard. Interestingly, they have not addressed my issues as i raised in Slicks letter, they just more or less re-sent there initially letter that I have posted on this thread. any good responses I could give???? Is there anything else I could do as in taking them to court as the document is unenforceable? suggestions/ideas would be fab. thanks
I refer to my letter to you dated xxdate (the 1 in post 3) and to your reply dated xxdate.
You have failed to properly address the specific points raised by me, in considerable detail, about your failure to provide a properly executed and enforceable credit agreement.
I now require that you address my contentions properly and either:-
1. Provide a proper copy of an enforceable credit agreement,
OR
2. Confirm that you have no enforceable credit agreement, in which case you will reduce the account balance to zero and remove all data regarding the account from any credit reference agencies concerned.
If you fail to respond adequately within 14 days, I will make an Application to court for an injunction to stop you pursuing the alleged debt.
Any help and advice is offered in good faith, based solely on my own knowledge and on experience gathered from this site. I am not qualified to offer legal or financial advice, which you should seek from an expert before making any important decisions. My opinions are therefore offered without liability.
Thanks Slick. Will be sending this letter asap. How easy is it to make an application to court for an injunction to stop them purusing the alleged debt? Really want to nail them sooner rather than later!!! thanks for advice
Any help and advice is offered in good faith, based solely on my own knowledge and on experience gathered from this site. I am not qualified to offer legal or financial advice, which you should seek from an expert before making any important decisions. My opinions are therefore offered without liability.
hi had holding letter from bc said they will respond latest 10th july mercers gave it back to bc. received letter from calders sent them tweaked letter we sent mercers so wait and see
Just in case anyone at BC have forgotten, it's a breach of the OFT debt collection Guidelines for them to refer the a/c to anyone else to collect whilst the a/c is In Dispute.
See Link No3 in my signature below. Sections 2.6(h); 2.8(i) and 2.8.(k) would apply.
Any help and advice is offered in good faith, based solely on my own knowledge and on experience gathered from this site. I am not qualified to offer legal or financial advice, which you should seek from an expert before making any important decisions. My opinions are therefore offered without liability.
As an update have received another holding letter from customer relations saying they are dealing with my complaint and are fully investigating and hope to resolve matters by 24th July 2009. this follows a previous letter whereby they said the same thing and would have an answer by 10th July 2009.
Keep everyone posted.
No respone from Calders following our letter to them either!
HI
BC past deadline any suggestions as what to do next. do we deny any debt because of unenforceable agreement or just go to court or wait for them to take us to court
help
bradley68
Barclaycard Vs Bradley68
. They wrote to Barclays and would you believe it... one week later an application form/agreement arrives on my doorstep (microfiched!). the copy is so bad is wont scan so can't show on this thread! there is definately no prescribed terms i.e. credit limit, no frequency of payment or interest
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