Hi, I am new to this forum and would like some advice please
I sent Barclaycard a letter dated 14/05/09 requesting a copy of my credit agreement. I received a reply dated 20/05/09 attaching a copy of my original Terms and Conditions at the time I opened my account and a copy of my current Terms & Conditions, together with confirmation of my credit limit and balance owed.
I replied to them advising I was dissatisfied and wanted a copy of my original credit agreement.
This is the reply I received
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 Notice 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 which a choice of including in the copy of the executed agreement either a copy of the latest notice of variation relating to each discreet 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.
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 you 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 rather you to provide comprehensive legal and documentary evidence to support your claim to ascertain whether response is necessary.
Barclaycard Customer Services
Any help would be appreciated