Thread: Barclaycard reply to CCA request & account in dispute letters

Hi All

After reading posts on this site I decided to send BC a CCA request:

Dear Sir/Madam

Account/Ref No: XXXXXXXXXXXXXXXX

With reference to the above agreement, I would be grateful if you would send me a full and complete copy of the original credit agreement and a full breakdown of the account including any interest or charges applied.

I understand that under the Consumer Credit Act 1974 [sections 77-79], I am entitled to receive a copy of any credit agreement and a statement of account on request.

I enclose a payment of £1 which represents the fee payable under the Consumer Credit Act 1974.

I understand a copy of any credit agreement along with a statement of account should be supplied within 12 working days.

I understand that under the Consumer Credit Act 1974 creditors are unable to enforce an agreement if they fail to comply with the request for a copy of the agreement and statement of account under these sections of the Act.

I look forward to hearing from you.

Yours faithfully


I then got this reply as twos eparate letters dated 16th & 17th Nov respectively:

1) A "thankyou for contacting us... enclosed is a copy of your Barclaycard T&Cs" - These appear to be simply a printed off generic set of T&C. there is no page numbering, dates, signatures etc and then
2) A "Reference SECTION 78 of the Consumer Credit Act 1974" letter which states:
"The information we must provide to you under the terms of the Section 78 is prescribed by the CCA 1974 and by the consumer credit (Cancellation Notices and Copies of Documents) Regulations 1983. under section 78, we must supply you with a copy of your executed agreement and a statement of account which is practicable to refer.

the current credit limit is.....

the current balance is....

the next minimum payment of is due on....

Please note a copy of your current barclaycard credit agreement will be sent under separate cover.

You will be receiving your next statement shortly which will provide you with full details of your account.

With reference to the Civil Procedure Rule (the CPR). We have provided you with sufficient information to allow you to understand our position. The CPR doesnot confer an automatic entitlement to documents before proceedings start. CPR 31.16 provides that a party may apply to the court for pre action disclosure in certain limited circumstances, which do not apply here. The application must be supported by evidence - and the usual order is for the applicant to pay the costs of the application, including the respondents costs, together with the respondents costs of complying with any order that is made as a result (CPR 48.1 (2) ).

While there is no formal onbligation on our part to provide documentation in answer to Validation of Debt correspondenve, we have undertaken steps to provide you with the contractual terms under which your financial obligations arise and a statement of account.

I am fully satisfied that the sum outstanding by you remains legally due and payable. You should continue to repay the outstanding balance owed on your account in accordance with the terms of your credit agreement. if you do not, we may register a default against you with credit reference agencies, although we will formally notify you before doing so.

This completes our obligation to you under section 78 of the consumer credit act 1974.

Yours ......."

Included with this letter were 3 single sided A4 pages: First page has:

"MAY 1995
BARCLAYCARD T/C" printed on it

The other two pages are Barclaycard conditions of use which are pasted together - some text is upside down!! There are no signatures, credit limit etc anywhere.

I was not satisfied that they had provided me with a copy of my actual / original agreement with them so I sent off the following letter:


Dear Sirs,

Account No: xxxxxxxxxxxxxxx

Re: my request under s78 of the Consumer Credit Act 1974.


Thank you for your recent letters sent to me dated 16th & 17th November 2009, the contents of which are noted. However, the reply received by me does not fulfill your requirements under the Consumer Credit Act 1974.

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account. On 11th November 2009 I made a formal request for a true signed agreement for the alleged account under the Consumer Credit Act 1974 (CCA1974) s.78. A copy of this letter is enclosed for your perusal and ease of reference.

You have failed to comply with my request, and as such the account entered default on 30th November 2009.

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 1974 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

Furthermore; you should be aware that the Consumer Credit Act allows 12 (+2) days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation. This limit has expired.

As you are no doubt aware section 77(6) states:

If the creditor fails to comply with Subsection (1) (a) He is not entitled, while the default continues, to enforce the agreement. Therefore this account has become unenforceable at law.

As you have failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, failed to send a full statement of the account and failed to provide any of the documentation requested, any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS. Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

Should you refuse to comply, you must within 30 days provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a ‘legal right’; you must outline your reasoning in this matter and state upon which legislation this reasoning depends. Should you not respond within 30 days I expect that this means you agree to remove all such data.

Furthermore you should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute. The lack of a credit agreement is a very clear dispute and as such the following applies:

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.
* You may not add further interest or any charges to the account.
* You may not pass the account to a third party.
* You may not register any information in respect of the account with any credit reference agency.
* You may not issue a default notice related to the account.

I reserve the right to report your actions to any such regulatory authorities as I see fit. You have 30 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint. I therefore request a copy of your official complaints procedure which you are obliged to supply.

I would appreciate your due diligence in this matter and look forward to hearing from you in writing within 30 days.

Yours faithfully

xxxxxxxxxxxxxx




I then received this reply on 5th December:

Barclaycard reply to Account in dispute letter – Received 5th December 2009

REFERENCE SECTION 78 of THE CREDIT CONSUMER ACT 1974
I write further to your 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 included this information. To cover the issue of executed agreement.
HOW THE ACT DEFINES 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 PROVINDING 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) regulation 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 agreements varied would 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 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 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 to this. You may state that the application form which we provided you, for reference when you made your request under section 78 does not adhere to section 60. this is not a complete copy of the 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 legible form, and would have adhered to the requirements under section 60 of the Consumer Credit Act 1974.
With reference to the Civil procedure Rules (the CPR). We have provided you with sufficient information to allow you to understand our position. The CPR does not confer an automatic entitlement to documents before proceedings start. CPR 31.16 provides that a party may apply to the court for pre action disclosure in certain limited circumstances, which do not apply here. The application must be supported by evidence – and the usual order is for the applicant to pay the costs of the application, including the respondent’s costs, together with the respondent’s costs of complying with any order that is made as a result (CPR 48.1 (2)).
While there is no formal obligation on our part to provide documentation in answer to Validation of Debt correspondence, we have undertaken steps to provide you with the contractual terms under which your financial obligations arise and a statement of account.
I am fully satisfied that the sum outstanding by you remains legally due and payable. You should continue to repay the outstanding balance owed n your account in accordance with the terms of your credit agreement. If you do not, we may register a default against you with credit reference agencies, although we will formally notify you before doing so.
I hope this letter has helped with your concerns about the documents you have been supplies with under section 78 of the Consumer Credit At 1974. As our response fulfils the obligation under section 78 of the Consumer Credit Act 1974, You should carry on paying your 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 the collection services. If you send us further correspondence questioning compliance with these areas of the 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.

Yours sincerely
xxxxx

Barclaycard customer services



I am now unsure about how to proceed - I don't accept that they have provided me with a copy of my original executed agreement and the information they provided me in response to my CCA request and as mentioned in this latest letter doesnot have any signature on it! yet they state " but rather an excerpt to show you signed a contract with us"

All that I received from BC were a standard set of current BC terms of use and a 1995 BC conditions of use. THERE ARE NO SIGNATURES ON ANY OF THESE.

How should I proceed and a template letter would be greatly appreciated as I am starting to feel out of my depth here.

I have submitted a SAR on 1st December.



one4all

many thanks Nick

Originally Posted by slick132

Have you any penalty charges

If you need your old statements to check for penalty charges,

I know this is digressing from the contents of the thread but, I was under the impression that at the moment, people cannot do anything about claiming penalty charges due to the recent high court order. (I know there are things going on in the pipeline but nothing concrete yet).

Am I missing something?

Hi one4all - I recently received the exact same letter as yours dated 5th dec, and I'm now contemplating what to do next!

Many Thanks MandM for the very useful reply.

One4

Hi all

Many thanks for the useful replies - I'm still getting used to the site so apologies if the thanks etc are a bit "all over the place".

Hi BT - I will be posting my actions and progress so watch this space. As mentioned to me by other CAGGERS (see I'm starting to use the site lingo already) you should read over other threads especially those mentioned by Nick and Slick (great double act name) in this thread.

One4all

MandM is basically the "research officer" on here (well in my opinion really as obviously there are a lot of others who do the same thing). If you need a thread to refer to most probably he will know the link.

Slick is obviously the BC Guru

I try to take the information and then do letters as deemed applicable. (Stern: "do not mess about with me" letters or "demure" letters (if I need more information and need to coax it out of you).

There is also a member who has problems with Barclays which I am trying to help. Once she gets the BC letter, intend to do one where it basically tries to cut the "Here is the template letter and you can lump it if you do not like it" that they are sending and join a formal letter with a final response letter in one (to cut out letter writing and receiving excuses from BC).

But up to now, @ the OP just follow slicks advise, send the letter, wait for reply for final response, you have template letter to fos and you have letter then to send to BC at same time as you post letter to FOS. You have to remember, this is like a jigsaw. The pieces are there. You just have to join them together.

Hello all

I have a payment due on the account in next few days and want to be sure that I do this right. My understanding from what you have suggested is:

Firstly, send BC this letter (A):

16th December 2009

Your reference: xxxxxxxxxxxxxxxxx

My account number: xxxxxxxxxxxxxxx

Dear Sirs

Further to correspondence dated 16th & 17th November and 4th December, you have still refused to supply me with a copy of my Barclaycard credit agreement.

You say that the terms and conditions you sent me fulfill the requirements imposed on you by the CCA 1974.

I believe I am entitled to a true copy of the original executed agreement and ask that you either:-

1. Supply this as requested in my original formal CCA request of 11th November 2009 and attached for your reference.

2. Confirm that you will not supply the copy agreement AND that this is your Final Response in the matter.

This will then enable me to raise a formal complaint with the fos.


Please reply within 14 calendar days from date of letter.

Secondly, at same time send FOS this letter (B):

The Financial Ombudsman Service
South Quay Plaza
183 Marsh Wall
London E14 9SR

Dear sir or madam,

Dispute with Barclaycard - A/c No xxxx xxxx xxxx xxxx

I sent a CCA request to Barclaycard on 11th November 2009 asking for a copy of the executed credit agreement for the above account and enclosed the £1 fee. I am entitled to this by virtue of s.78 Consumer Credit Act 1974.

They replied by sending me a set of terms and conditions (not specifically relating to me, or the account) saying this is all they are required to do. They do not consider the account to be in dispute and will continue with collection proceedings.

They say they are not obliged to communicate further unless I produce legal arguments to back up my assertion that I am entitled to sight of the agreement.

Would you please intervene on my behalf, by contacting Barclaycard to ask that they send me a copy of the signed executed credit agreement, to which I am entitled.

I enclose copies of relevant letters and documents for your perusal.

Your efforts in this matter will be greatly appreciated.

Yours faithfully,



Is this correct? or should I be sending BC this letter (C):

16/12/2009

Dear Sirs

Your reference: xxxxxxxxx
My reference: Account now placed in dispute

I refer to your letter dated 4/12/2009 where instead of answering to my legally submitted s.77/s.78 application you have tried to give me a lecture in what your bank believes is how the Law should be interpreted.

I regret to note the attitude that your bank has developed and I also regret to note that you have not complied with my s.77/s.78 application.

Due to this fact, please note that I am now placing the account into dispute. Furthermore, I draw to your attention that I have now written to the Financial Ombudsman Services to ask for their assistance. Said assistance is to write to you and tell you that you are bound by Law to answer properly to a formal s.77/s.78 CCA request. I presume you do know that a s.77/s.78 application is for a true copy of a signed agreement and it does not mean you can send whatever you want claiming you have a right not to comply with the Law.

Once I receive word from the Financial Ombudsman Services I will understand that about the same time you should have also heard from them. This being the case, I will be writing to you to give you 7 days to comply with my application. You are to note that should your bank then not send me a true copy of a duly executed copy of the agreement, I will then put it on record that not only will the account stay in dispute but also your bank will have gone into default.

Yours sincerely


If I send this one I am not making any reference to account in dispute letter I sent them on 1/12/2009 which generated their response on 4th December dismissing the account being in dispute.

Sorry if I am being a little slow about this but its virgin territory for me and I want to put the jigsaw together properly.

To summarise should it be letters A&B or A&C?

One4

In the first instance, IF you have a payment due and you HAVE NOT GOT EVERYTHING to show the account is in dispute, then I believe you MUST make that payment.

Will read the rest and revert back.

Originally Posted by slick132

Hi One4All,

Hi Slick, to answer your questions:

Please confirm if there are any penalty charges or PPI on this a/c. This is important as such charges will be another reason the a/c is in dispute, once you have asked for them to be repaid.

Yes, there are many many late payment charges and I sent a SAR on 1/12/09 but if you can advise me on how to inititae a claim now then that would be great. I do not have PPI



I suggest you follow my advice in post #5 above and send BC the letter seeking their Final Response. Don't write to the fos yet.

Letter you suggest is being posted this morning

If you CAN afford the payment due on this a/c and want to make it, then pay it. If you CAN'T afford the pay't, don't pay.

I cannot afford the payment - it's now few days late anyway and have contacted CCCS to get personal budget to send off with token payment letter - Would there be any benefit in sending a token payment to BC with a self drafted "circumsatnces have changed, in contact with CCCS, here is token payment ......." letter?

Just be aware that, as soon as you stop paying, BC and/or Mercers will start calling you demanding payment.

Thanks for your advice so far.

One4

Thanks M