Thread: One4all v barclaycard - CCA or no CCA?

Hi One4all,

For reasons that I don't need to go into here, I suggest you use this letter to seek a Final Response from BC - http://www.consumeractiongroup.co.uk...ml#post2644426

When you get BC's response, make a complaint to the fos based on my draft letter here - http://www.consumeractiongroup.co.uk...ml#post2575342

As BC have responded with their T&C's, the a/c may not necessarily be In Dispute.

However, you have good reason to consider it IS in dispute, and can treat it so. BC, of course, don't agree but that's their problem.

Send the token pay't to BC as a GOGW as you suggest.

Hi All

Just want to get an opinion on the following:

BC sent me two sets of T&Cs; A MS set from 2001 and BC set from late 2008.

I have just noticed that The MS T&Cs refer in "credit charges" section to 0% APR on balance transfers made by 01/02/02 I didnot get the card until 2006 and these are not the same as the MS card conditions leaflet I received with the MS card

I have already sent letter to seek a Final Response from BC - http://www.consumeractiongroup.co.uk...ml#post2644426

Is there anything else I should be doing or should I wait until the 14 days is up and then act?

I'd wait just now, for their response to your last letter.

You'll maybe have to give them a few days extra to allow for the Silly Season.

Hi, here is an update on BC response to letter suggested by Slick132 - http://www.consumeractiongroup.co.uk...ml#post2644426

Got letter dated 23/12/09 stating:

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 also got my SAR reply on 9/1/10 and there is no CCA or T&Cs at all even though I asked " I formally request that you forward me a true record of any Data held by your organisation relating to myself for any and all accounts held currently or in the past with your company. This should include, but not be limited to all transaction lists, agreements and statements." All I got are copy statements.

So what should I do now? Help!

One4

I see that BC have failed to use the magic words ".... you may consider this letter to be our final response."

However, given that you asked them for this and they failed to oblige by confirming it is their final response, I suggest you now complain to the fos as per my draft letter in Tony3x's thread, linked in post #2 above.

Re the SAR reply, have you got enough data to quantify all penalty charges made to the a/c in the last 6 years.

Yes, write to BC thanking them for the doc's supplied but point out that data is missing between xxdate and xxdate and would they kindly supply this within 14 days as it should have been included with the SAR response.

Also, mention that you also expected a copy of the key document to the account, the credit agreement, particularly as the failed to provide it in response to your CCA request. Tell them, if they fail to supply it, formal complaints will be made to the ICO and/or the fos.

Hi All

Here is an update.

I sent BC this in December:

Dear Sirs

Further to correspondence dated 17th November 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.

I then sent them this letter with minimum payment to keep account up to date:

22nd December 2009


Ref Account: XXXXXXXXXXXXXXXX

Dear Sirs

Please find enclosed a cheque for £XXXX to bring the account up to date. This payment is made solely as a good will gesture on my part whilst awaiting satisfactory responses from Barclaycard regarding the existence of a properly executed Consumer Credit Act agreement and a claim for the refund of all late payment and penalty charges against my account since its inception.

In making this payment I am not acknowledging liability or ownership for any debt and should I not receive satisfactory responses regarding the above I will be requesting the return of this amount and will be seeking legal advice regarding the matter.


Yours sincerely

I got no reply but they did of course cash the payment. I got my SAR response on 9/1/10 with no CCA, just generic T&Cs.

Meanwhile I had sent BC this:


4th January 2010

Account number: XXXXXXXXXXXXXXXXXXXXXXXX

Reference: Barclaycard

Dear Sirs,

I am writing to insist that you refund all of the penalty charges incurred on the above account(s) since inception including all charges for Morgan Stanley account number XXXXXXXXXXXXX. These are listed as “Late Payment Charge” and “Exceeded Limit Charge” amongst others.

I am aware that these charges are unlawful at Common Law & Statute. This is further reinforced by the Office of Fair Trading report of 05/04/06 which concluded that these charges are unfair to the consumer. In addition, following a recent Freedom of Information request to the Office of Fair Trading I was informed that:

“Following consultation with eight leading credit card issuers we have concluded that default charges in most credit card contracts across the sector are highly unfair in terms of the UnfairTerms in Consumer Contracts Regulations (UTCCRs) and therefore unlikely to be enforceable against consumers”

If you believe that they are not penalties, then will you please demonstrate this by giving me a full breakdown of the costs you have incurred as a result of my breaches, in order to prove to me that your penalties really do reflect your actual losses.

I therefore insist that you refund to me, by way of cheque, the total amount of all charges incurred plus any interest accrued at the contractual rate thereon. I will not accept partial repayment nor will I accept that the Office of Fair Trading report of 05/04/06 deemed £12 to be an acceptable charge, as it clearly did not. I will give you 14 days to reply to me accepting, unconditionally, my request in principle and letting me know a date by which I will receive a refund in full which would return me to the position had these charges and interest thereon not been incurred.

To accompany your refund, I require a full breakdown of the charges you are refunding and details of how you have determined the amount of refund, including the original amount charged, the date which they were unlawfully applied to my account(s) and the amount of contractual interest you are paying for each refunded charge.


If you do not respond, or you do not respond positively, within this time period, I shall refer the matter directly to the Financial Ombudsman and Office of Fair Trading for further investigation.

Should I not receive satisfaction in this way, I shall then seek recovery by way of a county court claim against you.

Yours faithfully,

I got no response!! so I sent BC these letters:

letter 1)

10th March 2010

Account number: XXXXXXXXXXXXXXXXXXXXXXX

Reference: Account in serious dispute

Dear Sirs,


Further to my letter to you dated 4th January 2010 and attached for your reference, I have not received any reply and I now write to inform you that as a final gesture of goodwill I will give you 7 days from date of this letter to comply with my letter of 4th January 2010 and reply accepting, unconditionally, my request in principle and letting me know a date by which I will receive a refund in full which would return me to the position had these charges and interest thereon not been incurred.


Please be advised that I have received a Subject access request reply from you for this account and will check the accuracy of your refund against all provided records.






This account has now been the subject of a lawful serious dispute since 19th December 2009. While this account remains in serious dispute, the relevant main points of the Law and OFT regulations while the account is in this state and Barclaycard remain in default are:

• You may not ask for payment against this account.
• I am not obliged to offer any payment against this account.
• You cannot register any data with a third party.
• You cannot take any enforcement action, including registering Defaults.
• You cannot pass the account on to a third party for collection.
• You cannot sell the account.

Despite this you have:

• Persistently made requests for payment
• Registered data with a third party by placing arrears notes on my credit file
• Added interest to the account
• Charged late payment / default fees
• Failed to reply to my previous letter (4/1/10)

It is very surprising and perhaps even mischievous that you have to date shown such disregard for the relevant main points of the Law, OFT regulations and my entirely reasonable requests. I have written to you separately regarding this.

If you do not respond to this letter, or you do not respond positively, within the required time period, I shall refer the matter directly to the Financial Ombudsman and Office of Fair Trading for further investigation.

Should I not receive satisfaction in this way, I shall then seek recovery by way of a County Court claim against you.

Please state my account number on your reply.


Yours faithfully,


I still have not received any reply to letter 1) above.


Letter 2)


10th March 2010.

Dear Sirs

My Reference: ACCOUNT IN DISPUTE

Re account no XXXXXXXXXXXXXXXXXXXXX
I write regarding recent communication regarding the above account. Based on the information you provided in your letter dated 17/11/09 and in your response to a Subject access request, I acknowledge no debt to your organisation.

Further to my request under the Consumer Credit Act 1974 [sections 77-79], your attention is drawn to the fact that this account has been from 17th November 2009 subject to a lawful serious dispute.

On 10th November 2009, I requested that you supply me a full and complete copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78; a copy of this request is enclosed. You failed to comply with my request, supplying only copies of two different generic terms & conditions of use, which cannot be linked to me in any way or to any agreement which you allege that I have signed. Then in your response to a Subject Access Request dated 6th and 7th January 2010 you provided no evidence at all of an executed credit agreement between me and Barclaycard regarding the above account number.

Contrary to your assertion in your letter to me dated 17th November 2009 Barclaycard have not complied with the terms of CCA 1974 s78 by providing me with a copy of my executed agreement. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me, for pre 2007 agreements. As you will be further aware, an agreement must be in the correct form, contain the prescribed terms and is not executed, until signed by both parties, so the documents that you have supplied, being simply copies of generic terms and conditions of use, which cannot be linked to me in any way cannot be a True Copy of an Executed Agreement. Barclaycard have therefore been in default of the CCA s78 request since 17th November 2009.

A Subject Access Request requires you to send a record of any data held by your organization. Therefore I must conclude from your response that you do not possess an executed credit agreement relating to the above account.

Without production of any agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.


In an effort to assist you, Let me explain here, what a true copy is:

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 e.g. 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.”

I also refer you to the information below.

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote “As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”






While this account has been in dispute from 17th November and remains in serious dispute, the relevant main points of the Law and OFT regulations while the account is in this state and Barclaycard remain in default are:

• You may not ask for payment against this account.
• I am not obliged to offer any payment against this account.
• You cannot register any data with a third party.
• You cannot take any enforcement action, including registering Defaults.
• You cannot pass the account on to a third party for collection.
• You cannot sell the account.

Despite this Barclaycard have:

• Persistently made requests for payment
• Registered data with a third party – arrears notes on my credit file
• Added interest to the account
• Charged late payment / default fees

This is totally unacceptable and I insist that you now:

• Remove arrears / derogatory notes from my credit file
• Refund all interest charged on account since 19th December 2009
• Refund all late payment / default fees and interest since 19th December 2009
• Cease making requests for payment until you have fully complied with my request for a copy of the executed agreement

• 
  
  

As a final gesture of goodwill I am now granting you a further 7 days to produce a copy of an executable agreement. After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt. If you are insisting that the documents, that you have supplied, is the only alleged agreement in your possession then please state so clearly in your reply and if this is the case then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.


I await your response.


Yours faithfully

Last week I got this letter which is exactly the same as the one they previously sent me dated 17th November 2009!!


A "Reference SECTION 78 of the Consumer Credit Act 1974" letter which states:

"I write further to your letter requesting a copy of your executed agreement for the above account.
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 obligation 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 ......."

However, this time BC have sent me a reconstructed / reconstituted MSDW "confirmation form" on one page and other prescribed terms on second page. These are different from T&C previously sent in their initial CCA s78 reply. They also sent separately a copy of current T&Cs.

http://i830.photobucket.com/albums/z...ionamended.jpg



the blacked out sections contain my personal details - there is a signature and date.

However, I had followed up on their SAR response with:


5th March 2010

Account numbers: XXXXXXXXXXXXXXXXXXXXX and XXXXXXXXXX

Thank you for the documents supplied in response to my Subject Access Request (SAR), a copy of which is enclosed for your reference.

Unfortunately even though I have allowed you considerable additional time you have failed to provide me with a full and complete response to my request for any data held because there is specific data missing which should have been included in your response.

To properly and fully comply with my Subject Access Request can you kindly providelegible and complete copies of key documents for the accounts, namely the original credit agreements to be included in your response, particularly as you failed to provide them in my earlier CCA requests for each of the accounts.

Please note that I will only accept copies of the actual original agreement executed when the accounts were opened as a satisfactory response.

Please state in your response that you have now provided a full and complete record of any Data held by your organisation relating to myself for any and all accounts held currently or in the past with your company.

Should you fail to provide all of the above within 14 days, from date of this letter, I will be making formal complaints to The Information Commissioners Office and Financial Ombudsman Service.


Yours sincerely


I got a reply last week which contained the same reconstituted / reconstructed copy of a MSDW application form as above sent on 15th march. They state in this letter that " I can confrim that our response to you on 7th january included all information we hold in relation to your accounts. we donot usually include a copy application in our response to a SAR. All application information is included in the system print-outs sent to you previously, however, i have enclosed a copy of the application forms for your reference."

So BC have provided me with a reconstituted (cut n paste) agreement from an application form in their latest response to a s78 request which has different T&Cs including "credit charges" section from those provided in their initial s78 reply and have now provided the same reconstruction in response to a SAR response follow up. They have also confirmed in their SAR letter that they have now sent me everything that they have.

Despite all of this happening and my account being in dispute I received a "Default" letter from mercers last Friday demanding payment etc!! I havenot made any payment since December but am planning on offering token payments due to my financial circumstances - have got budget etc from CCCS.
I now need to know:
a) if persons more knowledgeable than myself consider the provided documentation as a properly executed agreement
b) what should I now be saying to mercers / BC

so that i can proceed accordingly.

Comments please.

One4

subbing