Thread: Re: Tony3x -v- Barclaycard

Personal opinion:

1: Did you get a default notice from Barclays before they got Calders involved? If not, then I would go the Default Notice route.

Answers in between your post.

Originally Posted by tony3x

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.

Letter to Calders notifying them that you have asked Barclays for an executed copy of the agreement. They have defaulted and not sent you one and, therefore there is a dispute. Then quote them the OFT guidelines regarding what cannot be done when there is a dispute. In the letter I would also tell them that "I am enclosing a copy of a letter sent to Barclaycard which is self explanatory. Please note that the fos have told Barclaycard to comply with the Law but Barclaycard are refusing to do so. Hence I now have to recomplain to the FOS".

Also add this (which is what you have referred to):

"I note that there is only an implied license under English Common Law for certain people to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.).

Take note, I revoke license under English Common Law for you, or any of your representatives to visit me at my property and if you do so without my permission, you will then be liable to damages for a tort of trespass. You would also be conspiring in a trespass if you sent someone to visit me nevertheless. Any trespassers you attempt to send therefore will be dealt with accordingly."

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

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.



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

I would go something like this: (feel free to edit as you may deem fit as this is a quick one and I will check if it needs tweaking later on)...... so do not also take this as a letter to send (unless you are happy with it). NOTE: You have to appriciate I do not know what year your agreement was and, what CCA you have sent (there are a few different ones on here).

By recorded mail

Dear Sirs

Your reference:
My reference: Account now in Pre-dispute.

I refer to your letter dated the xx/xx/2009 and I note the contents of said letter.

In your letter at paragraph (the way you have typed your letter I can only guess what the paragraphs are so you have to work it out) X you state, and I quote: "You require a true, signed copy of any credit agreement....... ".

I confirm that this is what I asked for. This is what I asked the Financial Ombudsman to assist me in obtaining and I believe this is what the Financial Ombudsman told you to send.

In your paragraph Y you state, and I quote: "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.".

May I draw to your attention the wording "enclosed a copy of your Executed agreement". I particularly refer to the word "enclosed" and the word "Executed".

In your paragraph Z you state, and I quote: "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".

In the first instance in your paragraph X you state that I asked for a copy of an "Executed agreement" and in paragraph Y you state that this is what you had sent me. Yet, in your paragraph Z you state that you do not have to send a copy of an executed agreement.

Paragraph Z highly contradicts the contents of your paragraphs X and Y.

The next issue is that you refer to the Consumer Credit Act of 1983 whereas my application was as per the Consumer Credit Act 1974 which is the act applicable to the agreement in question.

Last but not least, the Consumer credit act states:

Enforcement of certain regulated agreements and securities
127. - (3) The court shall not make an enforcement order under section 65(1) if section
61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

Now, you may be wondering why I have drawn your attention to that particular piece of legislation. Any CCA after the 1974 Act is not retrospective. Therefore Section 127(3) is still a valid defence in my particular claim.

Just in case there is any doubt too, as to the intention of the Author of the CCA 1974 when the above section was drafted, I would like to incude a quote from the author himself, Francis Bennion, from his excellent website:

Quote: As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interestng 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 a 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 Parlament 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.

Therefore, a document as you have sent me where, the signature and the date are not shown is unenforceable by Law. In short, you cannot apply for a Court claim unless you can show, to the Court, a true copy of the executed agreement. Indeed, unless you can show a copy of what is called "An agreement showing a Wet Signature" then you have no agreement whatsoever. Furthermore to all this, considering the date and the signature on the copy you sent me cannot confirm IF at all the copy you sent me is truly a genuine copy of the agreement at the time, then the copy you sent me is not acceptable. In short, the onus is on your bank to prove which agreement I signed and it is not up to I to prove what was signed.

Hence, please take this letter as a 7 day grace to send to me a True copy of the executed agreement. Failure in doing so your bank will be in default.

In the meantime, and within the same 7 days, please send me a copy of the Default Notice that you issued prior to getting Calders involved in the matter. And in addition to sending me said copy of the Default Notice, please send me a copy showing undisputable proof that this Default Notice was properly served on me.

Whilst I wait for your reply which I expect to receive within the above mentioned deadline I draw to your attention that I am also in the process of writing to the following:
1: The Financial Ombudsman to draw to their attention that you have not abided by their instructions.
2: The Office of Fair Trading, to notify them that even though the FOS drew to your attention to send the requested documentation you are refusing to do so.
3: The FSA to notify them the same as being notified to the OFT.

Yours sincerely


xxxx
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Note to OP: I would also send a letter to the FOS drawing to their attention the letter you had sent (the request for help letter), a copy of their reply, and telling them that Barclaycard are still being akward, they have not adherred to the FOS instructions and that assistance is therefore needed again possibly in a more stern letter sent to Barclaycard.