Thread: Tony3x -v- Barclaycard

Hi, sorry to hijack but, after reading this and many other threads, I am trying to work out my next course of action.

I have recieved the standard reply as below. The bits that concern me are in blue. Also I have never received a copy of the application form as thye have stated. I have been making reduced payments for a while now, and seemed to have seen off Mercers & Calders for the time being, was thinking of stopping payments all together.

All advice appreciated.

Reference; Section 78 of The Credit Consumer Act 1974
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 Consumer Credit Act 1974.
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 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 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 (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 relates to the form and content 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 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 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 response is necessary.

Thanks Slick,

Is there a standard template for an fos complaint. I have looked but cannot seem to find one - it may be me but the threads seem to be merging into one now, I have read so many.

thanks

Tony

Thanks for your help.

Thanks Slick,

Got all my copies done today, letters go tomorrow. Will update as soon as I hear.

Received 3 replies from the fos quoting the usual ' we are experiencing very high volume of enquiries' etc.

Will now write to Barclaycard to explain that I have complained to the FOS and the accounts ARE in dispute and I will be withholding payments until my complain is resolved.

Hi


I have exactly the same issue

http://www.consumeractiongroup.co.uk...ml#post2612122

and even though I am behind you on this I was thinking about sending the Letter No 3 CCA Query to keep them on the back foot but only when th 12+2 day timescale has lapsed in my case around 7th Dec.

Unenforceability & Template Letters II - MoneySavingExpert.com Forums

I dont know if you are aware of these template letters if not you have made my day in that I seem to be sponging info from everybody without assisting others.

I was also thinking about hitting them with a SAR request to keep the ball rolling.


Steve

If you pop onto my thread now and again maybe we might be able to help each other.

I have now written to Barclaycard to explain that I still consider the accounts to be in dispute and have asked the fos to intervene on my behalf.

However today I received a letter (or should I say demand) from Calders. Have written back with the following:

Dear Ms King,
Further to your demand for payment dated 1st December 2009 I would like to raise a few points:
1)I previously wrote to Calders on 31/10/2009 – I have yet to receive a reply from you.
2)You have stated that I have not complied with the recent Default Notice – I have never received a default notice. If you did indeed send one can you resend by some form of registered post to make sure I receive it.
3)The account is currently in default as Barclaycard have yet to supply me with a copy of the executed credit agreement.
4)I have contacted the FOS to intervene on my behalf as Barclaycard, and companies associated with it, have not complied with any request I have made to supply a copy of the executed credit agreement.
5)You may be aware of the following announcement of a draft guidance made by the OFT today: The OFT's draft guidance says: "No communications or requests for payment should in any way threaten court action or other enforcement of the debt where the creditor or owner is aware that it cannot and will not be entitled so to enforce the agreement."
"The creditor or owner should make it clear in communications to the debtor that the debt is in fact unenforceable," it adds.
The guidance goes on to warn that: "To mislead debtors into making payment may in certain circumstances amount to an unfair commercial practice under the Consumer Protection From Unfair Trading Regulations 2008."

As I have yet to be supplied with a copy of the executed credit agreement the above may apply.

I look forward to receiving your written response.


Now lets see what there next move is.

Originally Posted by tony3x

I have now written to Barclaycard to explain that I still consider the accounts to be in dispute and have asked the fos to intervene on my behalf.

However today I received a letter (or should I say demand) from Calders. Have written back with the following:

Dear Ms King,
Further to your demand for payment dated 1st December 2009 I would like to raise a few points:
1)I previously wrote to Calders on 31/10/2009 – I have yet to receive a reply from you. <--- I dont agree with that. You have now accepted Calders as being able to write to you whereas if you had written to them telling them that a: the account is in dispute with Barclays and b: OFT guidelines says they should not have been involved then they should be out of the equation.
2)You have stated that I have not complied with the recent Default Notice – I have never received a default notice. If you did indeed send one can you resend by some form of registered post to make sure I receive it. <-- I dont also agree with that one. You should have asked for a true copy of the default notice and a copy of the proof of delivery. Then again, IF they send a new one, you can claim that the default notice was sent AFTER Calders started asking for the full amount and hence, the agreement was unlawfull rescinded and is therefore unenforceable but that should have been asked from Barclays to supply that information.
3)The account is currently in default as Barclaycard have yet to supply me with a copy of the executed credit agreement. <-- As in no 1.
4)I have contacted the FOS to intervene on my behalf as Barclaycard, and companies associated with it, have not complied with any request I have made to supply a copy of the executed credit agreement.<-- As in no 1.
5)You may be aware of the following announcement of a draft guidance made by the OFT today: The OFT's draft guidance says: "No communications or requests for payment should in any way threaten court action or other enforcement of the debt where the creditor or owner is aware that it cannot and will not be entitled so to enforce the agreement."
"The creditor or owner should make it clear in communications to the debtor that the debt is in fact unenforceable," it adds. <-- Draft guideance is the same as a green paper by the Goverment. You should have referred them to the OFT unfair practices guideline i.e. They should not be involved in the first place as the account is in dispute.
The guidance goes on to warn that: "To mislead debtors into making payment may in certain circumstances amount to an unfair commercial practice under the Consumer Protection From Unfair Trading Regulations 2008."

As I have yet to be supplied with a copy of the executed credit agreement the above may apply. <--- "May apply"? You should either say "applies" or not write it at all. To say "may apply" mean you are undecisive. You have to be in control and show them you are not somebody to mess about with.

I look forward to receiving your written response.


Now lets see what there next move is.

Comments posted. Hope they help.

Thanks for your comments Nick.

I have not had a reply from Calders and probably unlikely to get one as when they phoned today they told me they only communicate by phone. As I will not answer any security questions they will not discuss my case. They asked me to call them as I will not need to answer the security questions but I politely declined. I did point out that if I were to phone them (unlikely) I would only do so if they supplied a geographical number - the girl I spoke to asked what it was .

I have now had a reply from The fos on one of my cases stating that they have written to Barclays who should now contact me. It also says that if I do not hear from them within the next few days I may want to write to them, at an address in Stockton on Tees, and mention that the FOS have written to them. They now have 8 weeks to respond.

I have now received the following:

1) Letter from Calders saying that they have no alternative but to pass my account to a local representative who may call at my home - looks like the letter denying them permission to call is needed.

2) Letter from BC after contact from the fos.11 December 2009

Reference: Dear Mr
I write further to the complaint you raised with the Financial Ombudsman Service.
You claim that Barclaycard has not provided you with the information you requested previously. You require a true, signed copy of any credit agreement that exists in relation to your Barclaycard account, in accordance with Section 78 of the Consumer Credit Act 1974.
Our previous letter dated 27 August 2009 enclosed a copy of your Executed Agreement with the Barclaycard terms and conditions at the time you entered into your agreement. This is in the prescribed form which embodied the full terms and conditions of your Credit Agreement in accordance with the terms of Section 61 of the CCA 1974.
A copy of the current Barclaycard Conditions was also sent to you under separate cover.
In requesting a signed copy of your Executed Agreement, we make reference to the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 which states that there is no requirement for the copy of an Executed Agreement to contain any signature box, any date or signature.
We believe that the information sent to you on 27 August 2009 completes our obligation to supply the information and copy documents under Section 78 of the CCA 1974. We would also refer you to the Barclaycard Conditions for an explanation of what Barclaycard is, and is not, allowed to do in relation to your account


In the circumstances, we confirm that Barclaycard will be pursuing your outstanding debt in accordance with the Barclaycard Conditions. Your balance is now £xxxxx and you should continue to pay your account in accordance with your monthly statements. However, if you are experiencing any financial difficulty, please contact us so that we can arrange a mutually acceptable repayment agreement. I very much hope that I have fully resolved your complaint but I am obliged to tell you that at this stage you do have the option to ask the Financial Ombudsman Service to review your complaint further, if you so wish.
Please find enclosed their leaflet which explains how they deal with complaints. For the purposes of the Financial Ombudsman Service you may regard this letter as our "Final Response" to your complaint.
Yours sincerely


Mark Hutchinson
Customer Relationship Manager
Enc: Financial Ombudsman Service - "Explanatory Leaflet".


I suppose the way forward would be to complete the claim form for the FOS but before I do some guidance would be appreciated.

Have edited the letter and do not think there is anything else I can add.

Open to any suggestions. (Except rude ones of course).

Current status:
Card 1 - reply from fos asking me to complete complaint form and return.

Card 2 - reply from FOS asking me to complete complaint form and return. Also received a letter from Calders offering a 'settlement opportunity' - dated 22/12 giving me 5 days to call them, arrived 30/12!!

Card 3 - reply from FOS asking me to complete complaint form if unsatisfactory response received from BC. Final response received, now to return the complaint form.

A couple of questions.
1) Does the fact that Calders have offered a settlement mean that they feel that enforceable court action is unlikely and should I reply to them and ask for the details in writing.
2) Does the recent ruling in Manchester relating to reconstituted agreements now have a bearing on anything.

thanks