LBA from Optima Leagal Services*WON* DISCONTINUED BY CONSENT*****

[Curlyben]

The T&C that could relate to ANY account !!!

[pt2537]

exactley my thought ben

[pt2537]

viano,

 

IMHO its TOTALLY UNENFORCABLE

 

For the reasons stated in post 5 it does not comply with the regulations as to the legibility of hte copy document

 

Regards

paul

[Curlyben]

As PT mentioned earlier ALL the prescribed terms must be within the agreement and NOT on a separate sheet for pre 2005 agreements.

Also they must be BEFORE the signatures.

 

Don't worry Viano this is well and truly unenforceable.

[pt2537]

they have more chance of enforcing an IOU on a post it note

[pt2537]

and i note its an application for 2 seperate credit tokens, hmm not sure that would be right?

[Viano]

Thanks again peeps.

 

Viano

[42man]

Interesting to see Barclaycard producing these old documents from the early 90's....I wonder if this is from a microfiche, and that they would not be able to produce the original in court ? (albeit the document above is an application form)

[Aspirante]

Just a quickie, why should you not sign the letter?

Asp.

[42man]

It has been alleged that some DCA's will cut and paste your signature !!!

[pt2537]

because it leaves the possibility open that someone may get a little photoshop happy if they dont have a signed credit agreement and scan the signature onto a credit agreement then try and pass it of as legit, if they dont have your signature they cant do it

 

Thats why basically

 

Regards

paul

[shane5408]

Hiya,

 

yep totally agree, on the basis of what they have sent this is unenforcable. your next step is to contact trading standards and make a complaint as Paul advised earlier. the lba you received from Optima could just be another scare tactic, I would just sit tight for now, should any claim be filed all you would need do is send a letter to the claimant under CPR rules requesting exactly what they are relying on in court as an enforcable agreement, then when they send you the same app form as above you have a complete defence and possiblly even a counterclaim for harrassment and damages should you really want to nail them to the wall!

 

 

 

kind regards,

shane

[Viano]

I received this letter this week-end from Barclaycard (Letter dated 08.11.07) in reply to a letter written to them on the 27.9.07, stating that I had not yet received a true copy of a CCA. Template supplied by C.B.

 

"I write further to your letter dated 27th September 2007. The contents have been noted.

 

As far as our records show the Bank has complied with your request under Section 78 of the Consumer Credit Act 1974 in our letter dated 7 August 2007 when we enclosed the relevant documentation as they were when you originally opened both your Barclaycard and Mastercard Accounts.

 

At the time you applied for your credit cards the executed agreement was incorporated into the application form. You signed a credit agreement 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 Act. The prescribed full terms and conditions of your agreement were set out on the reverse of or otherwise incorperated into the application form and were specificallly referred to in the credir agreement section which containsyour signature.

 

In the case of the Creditor or Debtor signature box or signatures, the Consumer Credit (Cancellation Notices and Copies of Documents) regulations 1983 state that there is no requirement for the copy of an Executed Agreement to contain any signature box, any date and signature.

 

The document forwarded to you is in the prescribed format under the 1983 Regulations prior to the 1 June 2005

 

Having complied with your request, both accounts are enforceable in the circumstances therefor our collection and recovery policiesare applicable to your outstanding debts.

 

Your concerns under the Data Protection Act have been referred and you should by now have the relevant respond from my colleageus regarding this matter.

 

Yours sincerely

 

S. S.

Court Orders And Diclosure Manager"

 

The "agreement" & T's & C's are the same as those posted above.

Please note the dates, this letter is not a responce to the subject of this post!

 

Sorry this post is confused, but so am I.

 

Please HELP!

[pt2537]

From what i can see of the Agreement you have had posted by Shane my opinion has not changed. it is not legible and they need to remedy this before they have complied with the CCA and regs

 

they seem to like to quote the copy doc regs where it suits them

 

well they are right in whatthey are saying but and its a BIG but the Consumer Credit (Cancellation Notices and Copies of Documents)

Regulations 1983 (SI 1983/1557)

 

 

Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983

Made - - - 24th October 1983

Authority: Consumer Credit Act 1974, ss 58(1), 64(1), 180, 182(2), 189(1)

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Cancellation Notices and Copies of Documents)

Regulations 1983 (SI 1983/1557)/1 Citation, commencement and interpretation

 

1 Citation, commencement and interpretation

(1) These Regulations may be cited as the Consumer Credit (Cancellation Notices and Copies of Documents)

Regulations 1983 and shall come into operation on 19th May 1985.

(2) In these Regulations--

"the Act" means the Consumer Credit Act 1974;

"Agreements Regulations" means the Consumer Credit (Agreements) Regulations 1983 and any reference to any

provision of those Regulations includes in the case of modifying agreements which are, or are treated as, regulated

agreements a reference to Regulation 7 of, and the appropriate paragraph of Schedule 8 to, those Regulations;

"cancellable agreement" includes an agreement which is a modifying agreement treated under section 82(5) of the Act

as a cancellable agreement; and

"lettering" includes figures and symbols.

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Cancellation Notices and Copies of Documents)

Regulations 1983 (SI 1983/1557)/2 Legibility of notices and copy documents and wording of prescribed Forms

 

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed

agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety

under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily

distinguishable from the .

(2) The wording of any Form prescribed by these Regulations shall be reproduced in copies of unexecuted or executed

agreements or in Notices of Cancellation Rights sent [by an appropriate method] under section 64(1)(b) or (2) of the Act

without any alteration or addition, except that--

(a) the creditor or owner may enter the name and address of the debtor or hirer in any Cancellation Form prescribed

by these Regulations; and

(b) every Form shall be completed in accordance with any footnote.

(3) Any such footnote shall not be treated as part of any Form prescribed by these Regulations and may be reproduced

in addition to any such Form.

(4) Where any such footnote requires any words to be omitted, those words shall be omitted or deleted.

(5) Where words are shown in capital letters in any Form prescribed in Parts I to IV of the Schedule to these

Regulations and are reproduced in copies of unexecuted or executed agreements they shall be afforded more prominence

(whether by capital letters, underlining, large or bold print or otherwise) than any other lettering in that Form except

lettering inserted in accordance with paragraph (2) above and no less prominence than that given to any other information

in the copy apart from the heading to the agreement or copy, the annual percentage rate of charge for credit, trade names,

names of parties to the agreement or lettering in the document inserted in handwriting.

(6) Where words are shown in capital letters in any Form prescribed in Part VI of the Schedule to these Regulations

and are reproduced in Notices of Cancellation Rights sent [by an appropriate method] under section 64(1)(b) or (2) of the

Act they shall be afforded more prominence (whether by capital letters, underlining, large or bold print or otherwise) than

any other lettering in that Form except lettering inserted in accordance with paragraph (2) above.

 

 

3 General requirements as to form and content of copy documents

(1) Subject to the following provisions of these Regulations, every copy of an executed agreement, security instrument

or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act

shall be a true copy thereof.

(2) There may be omitted from any such copy--

(a) any information included in an executed agreement, security instrument or other document relating to the debtor,

hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the

Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancellable executed

agreement delivered to the debtor under section 63(1) of the Act, the date of the signature by the debtor of an

agreement to which section 68(b) of the Act applies);

© in the case of any copy of an unexecuted agreement delivered or sent to the debtor or hirer under section 62 of

the Act, the name and address of the debtor or hirer; and

[(d) in the case of any copy of an executed agreement given to the debtor under section 77(1) of the Act for fixedsum

credit, or under section 78(1) for running-account credit, under which a person takes any articles in pawn, any

description of the article taken in pawn.]

 

 

 

 

that is the most important parts of the regs for these purposes.

 

so you can browse over them and see for yourself what they have to comply with.

 

if you need any help at all let us know

 

regards

paul

[Viano]

PT, thank for the quick reply, I will have a read.

 

Viano

[Viano]

PT, can you clarify a point for me please, was what I receieved a copy of the agreement, or a copy of an application? And, albeit I understand that what they sent me is unreadable where does the Cancellation Notice come in to play?

 

Viano

[Edz11]

I am not an expert - but, there is a dirty big crease in your application form but there aint one in the terms and conditions. I wouldn't put a tenner on them being one and the same document...

[Viano]

Received this week-end from Optima:

 

Dear Sirs 29 November 2007

 

Barclays Bank Plc Barclaycard

 

We refer to the above matter and your recent letter that (templated by CB) was forwarded to our client who advised that yoy defaulted on the agreement with them.

 

We have therefore been instucted by them to continue with legal action.

 

Our client is however willing to resolve the matter should you be able to offer the full outstanding balance within 3 months or a short settlement of around 80%.

 

Should one of these offers not be forwarded to this office within 7 days of the date of this letter we shall have no alternative but to proceed without further notice.

 

Yours faithfully

 

Optima Legal Services

 

What do I do now? - please.

 

Viano

[Curlyben]

Well as they don't have an enforceable and have also ignored your CPR letter, personally I would ignore them and wait for the court claim.

A non-enforceable application is a simple defence under CCA 74 s127(3).

 

At the end of the day the choice is yours, we can only advise.

 

I'd be inclined to throw this at B'card:

 

Account In Dispute

 

Ref:

 

Dear Sir/Madam

 

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

 

I note that you have sent me a copy of the application form for this account.You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On the **DATE** I wrote to you requesting a copy of the credit agreement and other information under the Consumer Credit Act 1974 (Sections 77-79).

 

On **DATE** a member of your staff signed for delivery of my written request and I have an electronic proof of delivery showing their signature and the date.

 

To date you have failed to comply with these requests in any way, whether by confirmation of receipt of the request or by supplying the requested documents.

 

These documents I requested should be readily available as proof of your legal right to collect this account under the Consumer Credit Act 1974.

 

In my letter of the **DATE** I made a formal request for a copy of the signed, executed credit agreement for the above account under section 77(1) of the Consumer Credit Act 1974. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore

 

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

 

If that request is not satisfied after a further 30 calendar days your client commits a summary criminal offence.

 

These limits have expired.

 

As you are no doubt aware section 77(6) states:

 

If the creditor 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.

 

Therefore this account has become unenforceable at law.

 

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

BLAH

[pt2537]

PT, can you clarify a point for me please, was what I receieved a copy of the agreement, or a copy of an application? And, albeit I understand that what they sent me is unreadable where does the Cancellation Notice come in to play?

 

Viano

Hi Viano.

 

my apologies for missing this message

 

what exactly do you mean with regards to cancellation notice?

 

regards

paul

[Viano]

Thanks Ben for the quick reply, I will send that letter and see what happens!

 

PT I shall refer back to my posts to find out what I was talking about, I think it was something in a legal script you sent me.

 

Viano

[pt2537]

Hi Viano,

 

ok i guess you're referring to the Cancellation notices and copy documents regulations the relevent part that i posted for you was relating to the legibility of the copy documents.

 

the actual regulations covers quite a broad range of things but not all of them are relevent to your case here so the cancellation notices part may not be relevent

 

 

regards

paul

[Viano]

Hi team, I have received a claim form this morning, what do I do now?

 

Viano

[pt2537]

right, first thing to do as a matter of urgency

 

we need to know what teh particulars of claim say? remove all personal details but we need to know what tehy are claiming,

 

is the claim form stamped with a court stamp? some DCAs have been known to use scare tactics by sending claim forms which are not stamped and therefore not legitimate

 

if you can let us know what the claim form says that would give us something to work with

 

regards

paul

[pt2537]

In the XXXX County Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

Dear XXX

 

REQUEST FOR INFORMATION

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. Where there has been any event in my account history over this period which has required manual intervention by any 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 account formerly held with *********.(AMEND TO THE COMPANY NAME)

c. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

d.Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

g. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

h. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

i. Copies of statements for the entire duration of the credit agreement.

 

3. Any other documents you seek to rely on in court.

 

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

Yours sincerely,

 

XXXX (type, don't sign).

 

 

then next job is send this letter BY NOTHING LESS that Special delivery to the solicitors who have filed the claim against you. their details should be on the claim form