Thread: Barclaycard CCA Advice

Hello,

I have requested twice now for Barclaycard to send a true copy of my agreeement and have received their standard response on both occasions. I have drafted together (from other posted) the letter below

Please can someone let me know if this is ok to send?

Thanks
O

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31/08/09

BY RECORDED DELIVERY
The Compliance Officer
Barclaycard
c/o Barclays Bank PLC
1 Churchill Place
London
E14 5HP



Dear Sir/Madam,


RE: Account no xxxxxxxxxxxxxxxxx
CONSUMER CREDIT ACT 1974 & Civil Procedure RULES

ACCOUNT IN SERIOUS DISPUTE

Thank you for your templated response letter dated 12th June 2009, the contents of which are noted

I note that you have replied to my previous requests under section 77-79 of the Consumer Credit Act 1974 by sending a copy of 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.

In relation to what constitutes a “true copy”, please read the details below. In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection From Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

This breach of the agreement by yourselves, 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 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 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.

Below are the relevant main points of the Law and OFT regulations while the account is in dispute and Barclaycard remain in default.

• Barclays/Barclaycard may not ask for payment against this account.
• I am not obliged to offer any payment against this account.
• Barclays/Barclaycard may not add further interest or any charges to the account
• Barclays/Barclaycard cannot register any data with a third party.
• Barclays/Barclaycard cannot take any enforcement action, including registering Defaults.
• Barclays/Barclaycard cannot pass the account on to a third party for collection.
• Barclays/Barclaycard cannot sell the account.

Your attention is also drawn to the Information Commissioners Office on Data protection, as passing details on to a third party while an account is in dispute is contrary to the Data Protection Act

I am now granting to you a further 14 days to produce a true copy of any executable agreement which bears my signature. I must stress this request is now 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 an unsigned copy will not suffice, only a copy of the original contract in its unaltered form will suffice in these circumstances.

I require this as I have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed.

Additionally I also formally request that you supply within the next 14 days the following:

(1) Confirmation of whether or not you still hold the original signed and executed document at your offices for this account and that it will be available to bring to any court should any type of legal proceedings be commenced in future.

(2) If you do have this document, why are you so reluctant to provide me with a copy?

(3) Alternatively, if you still maintain you retain the original signed Agreement with all the prescribed terms as laid down in the regulations then I request to be allowed to view this at your offices and that you contact me in writing to arrange a convenient time to view the original agreement

(4) provide any underwriting sheet or other document showing any commissions paid to you by the broker or by you to the broker. 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 am sure that you will agree that doing the above will maybe resolve this matter and would also save future court time and costs, which would be in both our interests. I would appreciate your due diligence in this matter and I look forward to hearing from you in writing.

If I do not receive a response within 14 days I will consider that the above matter is closed and that you will no longer pursue the alleged debt.

If however, you are insisting that the non enforceable reconstructed documents with Terms and Conditions that you have already supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

Please note that should you decide to go ahead with legal proceedings in the absence of such an Agreement and in defiance of the law, that these actions will be treated as both unlawful and vexatious and vigorously defended.


Yours faithfully