Thread: Barclaycard credit agreement - looks like a phoney PLEASE HELP!

Hi
my husband requested the CCA from Barclaycard (account is in arrears and has gone from one collection agency to another, he is getting calls every day, and is receiving threats of court action)

Barclaycard replied with this document, which is very puzzling

• quality of the copy is questionable, some sections were blanked out
• it would look like they overlapped two documents on the first page, right below the "balance transfer" text it is clear that there is one sheet covering another
• there is an alleged second page attached, but they could well have pasted together different documents
• there is no credit limit
• looks like an application form, as they are asking him if he wants to add someone else to the account

Please can someone help us understand if this is an enforceable agreement, and suggest a reply back?

Thanks!
Tinsie

Thanks for your replies...

1) I thought the agreement had to state what the limit is, not that there will be a limit and we will tell you what it is?

2) the second page has a section 2. under financial information... where is section 1?

3) there is no section on charges, yet we havee been charged charges... does this make it unenforceable?

What should I do next? Do I dispute the account? How do I call the bluff on the copy and paste of page 2?

Thanks
Tinsie

Hi Slick

yes, I have read through the link you sent (all of last night LOL), and I am still confused

Steven's guide clearly says that "the amount of the limit, or how the limit is determined, or that there is no limit" is a key term, but then shows examples of enforceable agreements where the limit is just expressed as a generic sentence "we will tell you what it is" and no reference to how it is calculated or to the actual amount.

Our goal is to stop the calls and stop any legal action, we understand the impact on credit rating, but my husband does not care. He is unemployed, has no job seeker allowance, and has a ton of these debts. He simply can't pay.

The main thing I need right now is a suggested letter on how to reply, perhaps disputing the account, and to send a SAR to assess what fees they have calculated.

This was Morgan Stanley debt originally, then it became Goldfish, now it is Barclays, and he never received any letter of assignment.

Can you kindly help us with suggesting a proper reply?

thanks much!
Tinsie

Thanks Slick
we will contact CCCS

I still would like to put the account in dispute, what they sent is a clear phoney, and I want to stop them from charging additional interest.

The basis of the dispute is that

1) the agreement seems a copy and paste of different pieces of paper, with no printer codes and no way to assess if we are talking about the same document = the frnt made no reference to key terms and conditions overleaf

2) they refer to Condition 16 on the front, which is not included anywhere on that agreement (I thought the agreement cannot refer to terms outside of it)

In addition, I would like to do a SAR.

I am not confident in my ability to wriite a proper letter on my own, can you kindly suggest some verbiage?

Thanks
Tinsie

thanks a million!

any suggested verbiage to state why I am disputing, basically the evidence that this is a cut and paste job and the lack of proof that these two pages are one and the same?

"cut and paste job" feels too layman-like

Also, isn't it a criminal offence to forge documents?

Thanks again
Tinsie

OK, here is the draft letter, any help to make it as proper as possible is very welcome, Thanks!! Tinsie

13th March 2010
Dear Sirs:
Re: Barclaycard Credit Card number xxxx, ACCOUNT IN DISPUTE
I am in receipt of your letter dated 8th March 2010 and note its contents.
Your attention is drawn to the fact that this account is now subject to a lawful serious dispute.
On 2nd March 2010, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account which bears my signature, pursuant to Section 78 of the Consumer Credit Act 1974.
Your response dated 13th November, enclosed two documents. One purporting to be a copy of my Credit Agreement, and contains my alleged signature. A second purporting to represent those Terms and Conditions in force at the inception of the alleged agreement. I have enclosed both for your reference, and annotated them as A and B respectively.
I would add that neither of these documents can be deemed a true copy of the executed agreement.
First, let me remind you what the definition of a “true copy” is according to a recent letter from the enforcement department of the OFT:
“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.”
With respect to Document A, which you are purporting to be a copy of the executed credit agreement, this appears to be a “cut and paste” job, where different documents have been overlapped and photocopied to give the impression that the key terms were on the signed form.
This is very clear on the front of the document, right below the caption “Protecting you card”, which is half illegible.
Worryingly, the fact that this section has been blanked out, means that I am unable to determine whether Payment Protection Insurance was requested at the time of application.
In addition, there is no way to determine whether, what is on the second page of Document A, is indeed part of the same one document, as you would seem to suggest.
It is quite apparent that you have taken the bottom of the first page, where my alleged signature is visible, and have overlapped it to another document, containing key terms.
In fact, there is nothing on the front of the document which indicates to note additional terms and conditions overleaf or at the bottom of the page.
Nor there is any trace of printer codes, which are typically found on commercial correspondence according to ISO standards.
In sum, Document A appears to be a (poorly) reconstructed copy of an alleged agreement signed by me, but due to the evident alterations, there is no way for me to prove that this is indeed a “true copy” of the original agreement signed by myself, nor that indeed all the terms you indicate were contained in that document.
As you know, the law requires you to clearly indicate when you provide a reconstructed copy of the credit agreement, which you have failed to do in your letter dated 8th March 2010. I am also required to remind you that documents forgery is a criminal offence.
For this reasons, I am considering a complaint to the Office of Fair Trading and to Trading Standards.

As far as Document B is concerned, this is just a generic set of terms and conditions, which bears no signature, and cannot therefore be considered a copy of the executed agreement. In addition, the terms on this document are notably different from those contained in Document A.
In sum, Document B is interesting but irrelevant for the purposed of my request.
Therefore, contrary to your assertion, you will agree that you have failed to comply with my request of a signed copy of the executed agreement pursuant to the Consumer Credit Act 1974, supplying either a reconstructed version of an alleged agreement which shows clear signs of alteration from its original version, counter to the very clear OFT guidance, or a document containing generic Terms and conditions, which cannot be linked to any agreement which you claim that I have signed.
Without production of this 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.
Request #1: I am requesting you a copy of the executed credit agreement for this account pursuant to CPR Part 31.16 in the next 14 business days from receipt of this request.
I must stress this new request is 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 unsigned copy will not suffice, only a copy of the original contract in its unaltered form will suffice in these circumstances
The reasons why I require this information is that I have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed.
Since this matter is likely to be subject to proceedings and given that your organisation is likely to be a defendant in any action which would be brought by me, I must draw your attention to Civil Procedure Rules part 31.16(3)(C)&(D) which gives the court the power to order you to disclose this document to me.
In view of the circumstances I do not feel it unreasonable to ask for this document to be disclosed, it is not commercially sensitive nor is it a restricted document and should be easily accessible for an organisation such as yours. Therefore i would ask that you provide me with a copy of the contract which bears my signature, I require the complete document with all its parts .
The disclosure of these documents will allow me to consider any claim I may have against your organisation and will allow for the matter to be dealt with possibly without the need for costly litigation.
Therefore, I ask that you provide me with the requested document latest by 1st April 2010.
Please confirm if you are in a position to make a copy of the Original Agreement, and confirm if this will involve making copies of more than one Page.
If you are in a position to make new copies from the Original Agreement, please ensure that any such fresh copes include a signed confirmation that they were copied directly from the Original, stating the date when the copies were made from the Original. Please also advise the name of the person who made the copies so that, if needed, they can be called as a Witness to confirm the copies were indeed taken directly from the Original Agreement.

Request #2: If you cannot make new copies taken directly from the Original Agreement, please confirm why not in the next 14 business days.
If you do not have the Original Agreement, then may I remind you that OFT guidelines require you to explicitly say so.
Until that time that I receive from you a signed copy of the executed original credit agreement, or a letter stating that you do not have it anymore, this account will be in serious dispute.
I remind you that CCA 74 s.78(6) provides that whilst a creditor is in default of a request made under sub-section (1) it may not enforce the alleged agreement.

Request #3: Please forward a Subject Access Request for the above account.
Please supply me with copies of all the data which you hold on me in relation to any matter and in any form and for any period of time.
Please note that I require disclosure of any personal data which you hold on me for the entire period of my dealings with you. The Subject Access is not limited to my transaction history and it is not limited merely to 6 years of historical information.
Additionally, where there has been any event in my account history over this period which has required manual intervention by any member of your staff, or any other person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my banking business with you.
If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response.
You have 40 days in which to comply. Furthermore, if I discover that you have levied disproportionate penalties or charges which are invalid under the Unfair Terms in Consumer Contracts Regulations against me, then I shall be reclaiming them together with any interest charges which you have levied on them.
Please note that I have already paid you the statutory £10 fee by check, which you have encashed on the 8th March, since your customer service representative had mistakenly advised me that this was the fee to request a Credit Agreement. Since the statutory fee to request a CCA is £1, and not the £10 you had requested, I consider that I have already paid you £9 for this Subject access request, and I enclose a check for an additional £1.

As it is your wrongdoing and mishandling of my account which has created the necessity for this Subject access request, I shall also be reclaiming the enclosed £10 DPA subject access request fee.
If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

Thanks Slick,

separating the SAR from the account in dispute reply makes a lot of sense. I will send two separate letters.

I am instead intrigued by what you say re CPR 31.16. route not being recommended as a result of the Manchester case.

I had heard about the Manchester case and been told that I do not want to be the claimant in a court case re the enforceability of my agreement (makes sense).

I have also read the thread about CPR 31.16, but I have not seen anything yet linking the two, meaning that it is not advisable to go to court for a pre-court application order because I will not get what I am asking for.

Is there any recent thread on this topic that you can point me to?

Thanks!!
Tinsie

Thanks Slick
I am sending two seprate letters (well, my OH is), one with the SAR, and the other saying that the account is in dispute and asking them to tell me if they sent me a reconstituted agreement, and if they have the original.

I wil refrain from CPR 31.16 for now, since according to OFT guidelines they are required to tell me if they do not have the original anymore, right?

If they say they have it, then I will fire a CPR LOL.

Thanks sooo much
Tinsie

Originally Posted by slick132

This was a thread to watch about CPR31.16 a while back - http://www.consumeractiongroup.co.uk...-goldfish.html

After Manchester, it seems more sensible to be reactive and defend against the bank taking you to court. As opposed to being proactive and seeking a ruling that an agreement is unenforceable.

One line of thinking is, if you think your agreement looks dodgy and/or you can't afford the payments, stop paying and let the bank do the chasing and take you to court.

Why spend time and energy trying to get sight of the agreement. Let the bank produce it if and when they take any court action.

Hi tinsie & Slick ;-) subbing away here;-)

This has been going on since September 2008, so have a read and see if it helps

http://www.consumeractiongroup.co.uk...ard-no2-c.html

Hi Tinsie,

I smiled when I read "they are required to tell me if they do not have the original".

When I heard about enforceable/unenforceable agreements on Panorama in October 2008 I thought I just had to write off to my card companies and ask them for a copy of my alleged credit card agreement and they would just send it, if they had it, or hold their hands up and admit they hadn't got it and that would be the end of it. They would then just write the debt off.

Oh dear. Wasn't I naive?

They will never admit that they don't have an enforceable agreement, or if they actually no longer have the agreement at all.

They will send something that isn't an actual agreement but they will argue that it is.

Then they will pass you on to a DCA who will demand money, make threatening phone calls, and generally harass you.

Then when you get rid of that DCA they'll put another one on to you, and so it continues.

You shouldn't start proceedings against them, unless you have lots of money and can afford a really top barrister. The Manchester test case was lost because the Claims Management Companies' barristers were hopelessly outclassed by the Banks' barristers.

After six years the debt becomes statute barred. I have done 18 months of my time. It is very boring. If I ever have enough money I will negotiate for a reduced settlement providing they remove defaults from my credit file. They sell debts to DCAs for as little as 10p in the £1.

Your optimism reminds me of me in 2008, and I wish it was as simple as getting them to admit there is no agreement or just an enforceable one, but sadly it's just not like that.

The really great thing about CAG is that you discover such an amazing, well-informed group of people who are lovely, empathetic and supportive, and at the very least you get an education on the Consumer Credit Act 1974.

(I sent off those letters after Panorama, but before discovering CAG. If I had read all the threads I've read now, I would have realized it wasn't going to be the easy ride I had envisaged.

DD

Hi, subbing with interest. I got same docs from BC for MSDW card from 2001. I initially got only generic BC T&Cs from a s78 request, then got no CCA docs with a SAR reply so followed up on SAR specifically asking BC for copy of original agreement and got same as above with BC stating that they have now sent me everything that they have.

See my thread http://www.consumeractiongroup.co.uk...RD-cca-no.html for story so far...

One4