Thread: Unenforceable Agreement - Barclaycard keep sending terms and condition!! Not the CCA I keep requesting!

Barclaycard keep sending terms and condition!!

I have written to Barclaycard now on several occasions requesting true copy of any alleged signed, executed credit agreement in relation to the above account. This is my right under Sections 77 and 78 of the Consumer Credit Act 1974 on payment of a fee of £1.00. This payment was included with my original request:
5th Feb 2000 – CCA Request Letter no replay received
24th Feb 2009 – CCA Reminder Letter received terms and conditions
9th March 2009 – CCA Request supplied with Terms & Conditions again.
24th March 2009 – Failure to supply CCA & Harassment by telephone letter.
14th April 2009 – Threat to report to Financial Ombudsman Service.
18th May 2009 – Letter to Barclaycard informing them of Report to Ombudsman.

I have since received the reply see below: Do I just leave it up to the ombudsman now as I have reported them or do I continue to write back to them as they are blatantly not following proper protocol or procedure and are now trying to baffle me with this legal type letter. Any help appreciated…….

Oh good, have you sent them the letter about not conforming to your request yet? I had exactly the same with MBNA and they were still insisting the T & C's and a blank unsigned application form were true copies of the agreement in court when they applied for summary judgement against me. Judge didn't agree and dismissed their application!

oops sorry, have just reread and see you have done all the necessary. Don't forget Trading Standards as well, you can sometimes feel you are drowning in paper but it all helps in court.

Please find below the latest letter sent by me to Barclaycard - I have already reported them to Financial Ombudsman so waiting on them to get back to me to.:

Maria Connell
Barclaycard Customer Services
Barclaycard House
PO Box 5592
Northhampton
NN4 1ZY

Thursday 28th May 2009

Account Number: **** **** **** ****

Dear Ms Connell

Re: your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

I Acknowledge receipt of your letter dated 26th May 2009 received by me 27th May 2009 with regards to your statutory response that you note you are obliged to give.

PLEASE NOTE:

Barclaycard has never sent me the Consumer Credit Agreement ever! I have only ever received 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.

You have sent me Terms & Conditions on two occasions of which on one occasion with regards to a letter dated 28th April 2009 from Abbi Finn you have stated:
"Please note, a copy of your current Barclaycard credit agreement will be sent under separate cover."

A 2nd letter was received by me from Elaine Mockler on 1st May 2009 dated 27th April containing your Barclaycard Terms & Conditions. Not the Consumer Credit Agreement as stated in the letter from Abbi Finn.

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 180 there 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 there under 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 cancellable 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.

I will also remind you that in my last letter I wrote to you with regards to:

Harassment by telephone whilst account is in dispute

FORMAL COMPLAINT UNDER THE CONSUMER CREDIT ACT 2006 COMPLAINTS PROCEDURE

I wrote in relation to the quantity and frequency of telephone calls that I have received from your company, which I deem to be personally harassing. telephone calls received to date are now in excess of 150 calls to both my home and via my mobile telephone, this is not inclusive of text messages also received; threatening to send the alleged account to debt collecting agencies.

As per my previous 6 letters I required all further correspondence from your company to be made in writing only. You have obviously failed to comply to this request.





I am of the view that your continued harassment of me by telephone puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

You have continued to harass me by telephone, you are also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading in due course.

Please treat this also as a formal complaint, and send me a copy of your company complaints procedure. Which I have asked for on several occasions!!!

Be advised that any further telephone calls from your company will be recorded.

I have given you the option of coming to a conclusion on this alleged credit agreement and was looking forward to your final decision on this complaint. This should have included your proposed actions in relation to the lack of a credit agreement. With this lack of information in mind I have already officially passed over all documentation and correspondence between us to the Financial Ombudsman Service and I will also be contacting Trading Standards, The Office of Fair Trading, OFCOM & The information commissioners office.

Yours faithfully

**************

Thanks 42 Man, I will wait 14 days from recipt of the letter I have sent above then if no reply or I receive T&C's again I will use template letter one from the link you have supplied above.

Thanks again.....

I have been looking into the possibility of taking Barclaycard to county court however as I live in Scotland this doesn't apply to me?! We have no County Courts in Scotland

What do I do now????????

Please find letter below which I will send to Barclaycard 1st thing in the morning..........

Any Help greatly appreciated ????????????????????????

FORMAL REQUEST FOR INFORMATION

CPR part 31.16

I write with regards to the above account with your organisation.

I respectfully request that you provide me by return a copy of the alleged credit agreement, which bears my signature. I require this as I have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed.

Obviously if the agreement is improperly executed I would be entitled to ask the court to consider the agreement and make a declaration of the rights of parties to the agreement.

I must stress this request is NOT made pursuant to section 78 Consumer Credit Act 1974 but is made pursuant to the Civil Procedure Rules (Pre action protocols and Part 31.16) and therefore unsigned copy will not suffice, only a copy of the original contract in its unaltered form will suffice in these circumstances.

Please confirm if you still hold a copy of my signed credit agreement and that you will provide me with this document.

I do not view this as an unreasonable request given that by supplying the document which I have asked for it will allow me to assess if my case has merit and will help to resolve matters possibly without the need to involve the court and will undoubtedly save costs on both sides

I look forward to your reply and would ask for a response by 4pm on Wednesday 23rd June 2009.

Regards xxxxxxxxxxxxxxxxxxxxxxxxx

Hi all.

The original post made me giggle, they go to GREAT lengths to explian that the rubbish they send you is some way does comply with the CCA regs. I would be so tempted to write back and say 'OR you could just send me the original enforceale signed agreement'...surely that would be a lot simplier than:-

1) Taking the original agreement
2) Removing dates, signatures and signature boxes
3) Somehow inserted the current terms into it

It all sounds like a lot of hard work for 1 pound, but WAIT, maybe just maybe they havn't got an original enforceable agreement..would the banks be lying ?..Surely not !

Anyway..I've just applied for my BC CCA, i've already got cap1 rubbish, their escuse is pretty similar although they do not waffle as much.

Why do the banks even bother, surely they know that a SAR or even CPR request will show up the actuall proper original agreement, If they even have one.

Andy

Thanks Guys, All help much appreciated.

Cheers, TC