Alf v Barcalycard - RMA - 1st Credit - Connoughts - Now Mack Hall

[Mike8]

Ref NCO.RMA.

My original complaint to B/Card was about their 'agent' RMA, acting on behalf of B/C, and the harassment we got from them. B/Card basically said this was noting to do with them - take it up with RMA.

I sent in CCA request and SAR on 12 oct; FOS wrote to NCO on 15 Oct;

TS preston wrote to me on 16 Oct saying if I had a complaint they would look into it.

05 Nov - letter from B/Card with copy CCA saying my CCA request on 12 Oct to NCO/RMA had been passed to them, and copy statements would be sent in due course - Received these on 13 Nov.

So, despite RMA telling me B/Card had 'nothing more' to do with my account only deal with them - and B/Card saying that RMA are not their 'Agent' Your TS letter says that rights and duties have not been passed to NCO/RMA - so can I request to deal direct with B/Card and get rid of NCO/RMA?

[alfwithhair]

Well a letter from Barclayshark this morning relating to my CCA request to RMA.

 

Please find enclosed a copy of your application as requested.

Linda McQuiggan.

 

Well I did not request a copy of my application in the first place

This is what they have sent;

 

 

Does not look like an agreement to me.

The name and address are correct, then under that it says "My Barclaycard Visa number is" Well that number is not my Visa account number. I see no terms or conditions on what they have sent. There is also a pen written account number at the top of the second colum. I don not know this number, it deos not relate to any of my two accounts.

 

The signiture is mine and the date of signing is correct as far as I can remember, but there is no B/C signiture or date.

 

It says if you can't see the wording clearly.

 

By signing this agreement you confirm that;

 

1/ the details you have given use are correct

 

2/ we can make credit references and other enquires fowwing our normal practice when we consider your application?

 

3/ you want us to give you a barclaycard mastercard (and pin) and to replace your existing card with any Barclaycard covered by this agrement and which you are eligible for at any time.

 

4/ you have read and agree to the barclaycard conditions especially condition 15 which is about how we can use information about you.

 

So the sum up in one line they refer to this as an agreement then in the next they refer to it as an application, and there covering letter backs this up as they stated it was a copy of the application.

 

So is this a properly executed agreement or an application form?

Is is enforcable?

What it the next step.

Answers on a post card please to;

Alf

C/O CAG.

Edited December 13, 2008 by alfwithhair

[pt2537]

alf, does it contain any of this

 

B Repayments

A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

 

[alfwithhair]

alf, does it contain any of this

 

It contains none of the above, only what you see. They sent nothing else other then this one photocopied sheet.

[pt2537]

ok then will be back in around 5 mins with a reply to them

[pt2537]

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

 

 

Re: my request under the Consumer Credit Act 1974

 

Thank you for your letter dated **********, the contents of which are noted

I note that to date you have not complied with my request for a copy of the credit agreement for this alleged debt which you are pursuing me for

The Consumer Credit Act 1974 demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

 

My request remains outstanding. All you have sent is a pre-contractual application form, which does not contain the prescribed terms contained within Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). Without production of the said agreement I am unable to asses 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’.

 

I still require you to send me a true copy of the original credit agreement that you allege exists. As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

 

For the avoidance of any doubt I have included section 78(1) of the Consumer Credit Act 1974, which states…

 

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

(7) This section does not apply to a non-commercial agreement, and subsections [(4) to (5)] do not apply to a small agreement.

 

 

Clearly the agreement which was supplied in no way complies with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in s78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (3) Consumer Credit Act 1974 which states

 

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).

 

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

 

 

To clarify s61(1) states

 

(1)A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

 

(b) the document embodies all the terms of the agreement, other than implied terms, and

 

© The document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible

 

In addition the prescribed terms referred to in section 60 CCA1974 are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—

 

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced. I will re-iterate that this is clearly not a true copy of the executed agreement between ********* and myself.

 

In addition, I draw your attention to the Office of Fair Trading’s guidance on debt collection

 

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

 

What I Require.

 

I require that you send me a true copy of the executed agreement and all documents referred to in it as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist.

 

No other correspondence will be accepted

 

I trust this out lines the situation

 

Regards

 

 

there you go alf send the idjits this and this should make it clear what they have to do!!!1

[alfwithhair]

Who do I sent this to Barclayshark, (as remember they told me months ago that they do not manage the account any longer) or to the RMA planks?

[ODC]

I would send it to the idiots at RMA as after all they are the ones threatening you with all sorts.

[pt2537]

i would even send a copy to both RMA and the idjits at barclay card, address it to the person who sent you the silly application form on the last page

[alfwithhair]

Thanks lads,

Letters will be on the way later today.

Watch this space for the next exciting installment

[alfwithhair]

Well RMA/NCO have gone very quite since they received Paul letter.

Not heard nothing since 1st Dec last year from the numpties.

No contact from B/C either.

 

Ahh Bliss.

[pt2537]

lets hope it stays that way then eh Alf:)

[alfwithhair]

Thought the silence from Barclayshark was too good to be true.

This moring a reply to my letter of 03 Dec 07.

Now what they have sent it just another copy of what is in post#77, as Paul politly put it "A silly application form"

However this time there is a photo copy of some terms and condition relating I presume to the time it was taken out. These are in A3 format but there is know way of knowing if these were ever incorporated to the application form as they are implying. They still say they are enclosing a signed opening application form? and a copy of the executed credit agreement in the prescibed form? Where is is then. I see the same application form and a set of seperate T & C's?

Does the fact they have sent these T & C make any different to the fact that all they have sent is still a copy of an application form?

Would they be able to enforce what they have supplied in the courts?

Your help on this one would be very much appreciated.

Alf

[alfwithhair]

Just nudging this one.

Anyone got any comments to the lastest batch of drivel from Barclayshark?

Thanks

[Curlyben]

They did a similar thing to me as well, by sending the original application form. Well that was 4 months ago and I haven't heard anything since.

 

T&C's are largely irrelevant.

Does the "agreement" comply and contain ALL the prescribed terms.

 

 

S61(1)(a) CCA provides that, for a regulated agreement to be properly executed, it must contain all the prescribed terms of the agreement and conform to regulations under s60(1) – see Q1.14.

 

Reg 6(1) provides that the terms specified in Sch 6 to the Agreements Regulations are ‘prescribed terms’ for the purposes of s61(1)(a) and s127(3) – see Q8.2.

 

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit – see Q8.

 

* credit limit – see Q8.5

* repayments – see Q8.9.

* rate of interest – see Q8.6

 

Sch 6 was not amended by the 2004 Regulations.

 

 

Also check out Peter Bard's excellent thread on the subject: http://www.consumeractiongroup.co.uk/forum/general/103383-agreement-enforceability.html

[alfwithhair]

The separate sheet of terms & conditions contain the required terms.

But there is no signiture box for either party on them.

The application form has my signiture only on it not theres and contains NONE of the required terms.

 

It says if you can't see the wording clearly.

 

By signing this agreement you confirm that;

 

1/ the details you have given use are correct

 

2/ we can make credit references and other enquires fowwing our normal practice when we consider your application?

 

3/ you want us to give you a barclaycard mastercard (and pin) and to replace your existing card with any Barclaycard covered by this agrement and which you are eligible for at any time.

 

4/ you have read and agree to the barclaycard conditions especially condition 15 which is about how we can use information about you.

 

Plus the signiture box,

This is a Credit Agreement regulated by the Comsumer Credit Act 1974

sign it only if you want to br legally bound by its terms.

 

So how do thing stand now?

It is still the same application form as they sent before, all the have included this time is a seperate sheet of T & C.

 

One thing I did notice that I found a bit odd was at the bottom of the T & C's

"This insurance is underwritten by Barclays Insurance (Dublin) and the Barclays Assurance (Dublin) Incorporated in Ireland 265959/60. Both are subsidiaries of Barclays Bank PLC"?

 

What insurance?

 

Also I am puzzled by their statement " we enclose a copy of your executed credit agreement"

 

It is a copy of a application form and a photo copy of some T&C's which my or my not be from the time the application was made. How am I supposed to know?

 

They say the account has been terminated so they cannot supply current T&C's, didn't ask for any and are they not suppose to inform you they are terminating the account?

 

There letter rearly is as clear as mud.

I need to know where I stand with these idiots, if there is no chance of enforcing this with what they have sent I hope some kind person in the know could tell me.

 

Thanks again

Alf

[Curlyben]

*Yawn*

B'card trying to confuse as ever.

Now concerning my comments about the T&C's.

This gets a bit heavy, but here goes....

 

Oh deary me.

B'card strike out again and here's why:

 

This is taken from another thread;

Under SI 1983/1553 the prescribed terms MUST be within the signature document to be valid, having them on a seperate sheet headed T&C or similar ISN'T acceptable.

SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms MUST be within the signature document. (Column 2 schedule 6)

This applies to all agreements pre May 2005.

So basically this is unenforceable, under 127(3).

 

Just to add to my comments re terms witin signature doc.

This was covered off in Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

 

Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said

33 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 (with the benefit of legal advice if necessary) 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. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1.

[alfwithhair]

So what they have sent is Ball Hooks then?

Tell them so, or just ignore them, see waht their next move is.?

Cheers

Ben

[Curlyben]

Yep complete Bovine Excrement

 

File under ignore for now and see what they have to say next.

[alfwithhair]

Many thanks Ben.

Enjoy your easter.

[bigwolf]

I'm sorry to say but RMA do mean business. They have a firm of solicitors called Westminsters who deal on their behalf with amex's permission. RMA have warned me for several months that I should make arrangements to find the full debt from somewhere. I didn't think they would touch me, but I was served a stat demand for the full balance which I applied to set aside. Westminsters then agreed but applied for a CCJ instead, they now have this in place so are looking at placing a charge on to my house and applying for a warrant of execution to send bailiffs in. I wish I had taken their advice earlier and found the debt I owe Amex from somewhere. Now I'm totally stuffed as the debt has now increased by 1/3 already with Solicitors costs and courts fees.

 

Msg to everyone. Listen to RMA. Especially if you have an amex debt. They do have teeth and will use them. Believe me!!!!

[ODC]

RMA may mean business but without a properly executed CCA they are stuffed.

[bigwolf]

I'm sorry to say but RMA do mean business. They have a firm of solicitors called Westminsters who deal on their behalf with amex's permission. RMA have warned me for several months that I should make arrangements to find the full debt from somewhere. I didn't think they would touch me, but I was served a stat demand for the full balance which I applied to set aside. Westminsters then agreed but applied for a CCJ instead, they now have this in place so are looking at placing a charge on to my house and applying for a warrant of execution to send bailiffs in. I wish I had taken their advice earlier and found the debt I owe Amex from somewhere. Now I'm totally stuffed as the debt has now increased by 1/3 already with Solicitors costs and courts fees.

 

Msg to everyone. Listen to RMA. Especially if you have an amex debt. They do have teeth and will use them. Believe me!!!!

[ODC]

How many times are you going to post this.

 

NO CCA = NO ENFORCABLE DEBT

[bigwolf]

not really.. one way or another I have spent amex's money. I got a lot of nice things. The fact of RMA sending me a CCA doesn't change this. I signed and used the card as per T&C's of the card. I now used to owe £7000 I now owe £10500 was warned by RMA. But my own stupid fault I didn't pay any attention. At the time I just laughed at them down the phone, and told them to only deal in writing. At this point they said they would but through their Solicitors Westminsters.. If only I co-operated with RMA I wouldn't be in this mess.