Barclaycard CCA documents enclosed

[davefirewalker]

My opimion FWIW, is that the terms seem to be there on the 2nd sheet.

if this is linked to the first then you will have a problem.

 

All other things are ancilliary......making the agreement enforceable by court order......but ultimately enforceable.

 

If that doc has

 

credit limit...or "we will determine it and tell you

repayment schedule....(min charge or n% once a month etc)

interest rate or examples of interest and apr (and we may vary the interest etc)

 

then I would say that you are on a sticky wicket

 

just my oppinion

 

Dave

[Pinky69]

What is on the second sheet are the Terms and Conditions, as opposed to the prescribed terms ie the credit amount and interest rate specifically relating to that account. They are nowhere to be seen on any of the sheets and they must be in the same section as the signature.

[Slartibartfast]

Slarti - do you have access to the 1983 regs? No one seems to be able to find it. I need to study it further in depth to work on a paticularly difficult credit agreement I am currently disputing - thanks

 

Unfortunately I have only snippets gleaned here and would like to have a hard copy myself.

[Slartibartfast]

Pinky, just found this post

[davefirewalker]

What is on the second sheet are the Terms and Conditions, as opposed to the prescribed terms ie the credit amount and interest rate specifically relating to that account. They are nowhere to be seen on any of the sheets and they must be in the same section as the signature.

 

unfortunately those terms are there........

 

they do not need a specific rate they can say "we will decide the rate and inform you"

 

they can chose the repayments and schedule by saying " min payment of N% or £5 per month, we will let you know on what date.

 

they can give examples of APR..if you borrow £1000 for 12 months = N%apr

 

That doc has it....sorry

 

I would love to say yes you can get away with it....but I dont think you can...

 

Dave

[Pinky69]

The credit limit and interest rate specific to this account are nowhere to be seen and if they existed they would have to be in the same section as the signature. Section 6 of the Consumer Credit (Agrements) Regulations is quite specific.

 

Slarti - thanks for that - just what i was looking for!

[car2403]

The credit limit and interest rate specific to this account are nowhere to be seen and if they existed they would have to be in the same section as the signature. Section 6 of the Consumer Credit (Agrements) Regulations is quite specific.

 

Slarti - thanks for that - just what i was looking for!

 

Sorry Pinky, I'd have to agree with Dave's interpretation of the agreement - enforceable as it has the prescribed terms and is signed by the debtor.

 

The missing creditors signature makes the agreement improperly executed, enforceable with a Court order, at best - this is because a "signature" as us lay-people understand it isn't necessary, as the legal definition of "signature" means something along the lines of "a written intention to create legal relations by entering in to an agreement to do something", or whatever. IMHO, the fact the agreement gave benefit to the debtor (they could draw on the account) and they've made payments under it, is evidence enough of the intention of the creditor to enter in to the agreement.

 

Also, there is nothing to say that the prescribed terms has to be on the same page of the signature - just that they have to be contained within the same document. The onus here is on the creditor to prove it is, so if there's different reference numbers on the prescribed terms/signature pages, it all adds weight to the argument against enforcement - ultimately, a Judge (not you or I) will make the decision as to whether the agreement is unenforceable for this, or any other reason, as it's a matter of fact, so bear this in mind when considering your next step, I say.

 

Incidentally, has this agreement been Defaulted? If it has and you've paid collection fees, challenge the Default Notice (as it contained those fees, which are unlawful until proven otherwise) as this could mean the arguments over the agreement are relevant, as an unlawful Default Notice is a rescisson of contract anyway. In fact, being unlawfully Defaulted means you can argue you were prejudiced under s.127(1), which makes arguments over the technicalities of the agreement irrelevant anyway, as the outcome would be the same given recent House of Lords/Court of Appeal decisions.

[JB_]

The missing creditors signature makes the agreement improperly executed, enforceable with a Court order, at best - this is because a "signature" as us lay-people understand it isn't necessary, as the legal definition of "signature" means something along the lines of "a written intention to create legal relations by entering in to an agreement to do something", or whatever. IMHO, the fact the agreement gave benefit to the debtor (they could draw on the account) and they've made payments under it, is evidence enough of the intention of the creditor to enter in to the agreement.

 

While I appreciate your point I am not convinced that "acceptance by conduct" is alone sufficient for this situation. To argue this, you would have to convince a court that the specific requirement laid down by Parliament to include a signature box(1) is not sufficient to suggest Parliament wished the signature box to be used. I am not sure you would get far with this argument.

 

Edited to add:

 

Apparantly, while there are many Statutes that mention signatures, only 15 contain a definition of "signature", with 12 of those definitions being consistent. There is no definition in the Interpretations Act.(2)These tend to be along the lines of;

‘signature’ includes a facsimile of a signature by whatever process reproduced

Case law in instances of non-defined signature requirements suggests that where a ‘personal signature’ is required some form of the signatory’s name is usually required.(3) This includes situatons where a form was faxed across - although the recipient did not have the original the copy was still held to be 'signed' for the purposes.(4) This case also found (albeit obiter) that where a signed form was scanned and the file later printed by the recipient, the copy was also considered to hold a legal signature.

Ok, maybe I'm going into a little over-kill on this While it's fascinating, I do not want to take the OP's thread off-tangent. Apologies if I have done that.

 

---------------------

(1) Consumer Credit (Agreements) Regulations 1983 (As Amended) r 4(e)

(2) Reed C, 'Digital Information Law, Centre for Commercial Law Studies', 1996

(3) Goodman v J.Eban [1954] 1 All ER 763, [1954] 1 QB 550

(4) Re a debtor (No. 2021 of 1995) [1996] 2 All ER 345

[davefirewalker]

While I appreciate your point I am not convinced that "acceptance by conduct" is alone sufficient for this situation. To argue this, you would have to convince a court that the specific requirement laid down by Parliament to include a signature box(1) is not sufficient to suggest Parliament wished the signature box to be used. I am not sure you would get far with this argument.[\quote]

 

hi

 

the 1983 regs dont mention a sig box for the creditor ...only that he must sign outside the debtors sig box

 

) The signature of the said document shall be made in the following manner—

by the debtor or hirer, or by or on behalf of the debtor or hirer in the case of a partnership

(a)

or an unincorporated body of persons, in the space in the document indicated for the purpose,

and, subject to subparagraph © below, the date of the signature shall be inserted in the space in

the document indicated for the purpose;

(b) by the creditor or owner, or by a person on his behalf, outside any signature box in which

the debtor or hirer may sign and, subject to sub-paragraph © below, the date of the signature

shall be inserted outside any such signature box;

© in the case of a regulated agreement which is not a cancellable agreement, the date on

which the unexecuted agreement becomes an executed agreement may be inserted in the

document and in such a case any other date specified in paragraphs (a) and (b) above need not

be inserted; and

 

 

rgds

 

dave

[JB_]

I think the entire discussion hinges on a simple yet overlooked issue - my ability to read correctly. Somehow I read "debtor" where someone was actually discussing the "creditor" My apologies to all involved

[car2403]

Re: missing creditors signature, read my thread here from post #88-#101 for more info;

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/110146-car2403-hfc-bank-default-5.html#post1215608

[lisagav69]

I really do appriciate everyone's involvment & opinions on this thread. It's made very interesting reading but it feels like my head is about to explode with all this information.

 

I am going to accept that this document is enforcable. I've read ways to try and avoid this but I know I am not confident enough in myself that if it ever did get to court, that I could defend it succsessfully.

 

I have a few questions though if I may?

 

My CCA request went to Mercers, and BC themselves supplied to documents. Now I know Mercers are inhouse ofr BC so does that mean that although they don't hold the agreement as such, I still have to pay tham as opposed to BC? Would much prefer to deal with BC. I have recieved the standard 48hr warning letters from Mercers and would love to tell them to take a hike and go through BC but don't know if I can?

 

That aside, do I now send Mercers/BC details of outgoings/incomings and an offer of payments?

 

Also, I'm sure I read about this somewhere else but damned if I can find it again. The card was in my name with my husband as an additional holder. Now that makes the debt unsecured in just my name so does that mean that his wages are to not be included? They've had a income sheet off me before which included his wages. Would really love some opinions on this!

 

Thank you to everyone once again

[Rtech]

Even though your OH had/has a card..the account is in your name,and therefore you are responsible,and it is you who have to pay it.I presume on the initial application,your husbands wages were not entered into the amount you earned,so consequently,what he earns now ,would seem to have no bearing on this.But that is my opinion only,and there may be a more legal orientation,but sure someone will point it out if there is.

Good luck

[lisagav69]

Thank you for the quick reply. You've backed up what I thought but as you said, hopefully someone can shed the 'legal' light on this one. We are married though so does that make a difference?

All that goes into my bank account is child benefit/child tax credit (approx £100 a month) so this could get interesting!

 

I was paying £33 a month up until now as had included hubbys wages as they said I had to tell them the 'household' income and not just mine

[Rtech]

Your Family tax credit is 'means tested' is it not(or so my son tells me),

and from the info you give them,which must include your husbands income,the Government have made an award to you,based on that info.

If it were me,I would be tempted to call the DCA's bluff,and tell them,in writing,ensuring you keep a copy,and sending it recorded delivery,that based on your circumstances you are offering what you can afford.Shoulld they not wish to accept that,then tell them to take you to court.

Their response to this,would in no small way determine if;-

a) they think they have an enforceable agreement ,the ORIGINAL which they would need to produce,if called upon.

b)The letter from you would show any Court that you are trying to be reasonable and responsible,and that being the case,a nominal sum of perhaps £5 or lower.per month may be awarded to the DCA...IF and it is a big IF,they want to go down that road.

[car2403]

Don't forget that you don't need their permission to pay what you can afford - send them the payments and they won't come back, I promise.

 

It will also look good if they do take you to Court and you can prove that's all you can afford as they Judge will see the claim is vexatious and could take action against them as a result.

[Peterbard]

Hi

The Prescribed terms of the agremeement do not unfortunately have to be on the same page as the signature in a pre 2005 agreements nor do the no interspersing rules apply, the 1983/1553 allow the signature to be contained anywhere within the agreement document which could run over several pages.

 

This oversight was remedied in the 2004/1482 regulations which includes the stipulation that the signature are contained within the solid block together with the other schedule 1 etc.information.

 

Best regards

Peter

[sansho]

Hi all, did any of you read the first page of the application form containing the personal details properly.

 

My eyesight is not that good but somewhere in the application form in the section titled "Barclaycard Visa Card / Mastercard" there is a written statement as follows "....you have read and agreed to the Bsarclaycard Conditions, especially condition 15 which is about how we use your information..".

 

It is quite odd, I cannot find this "condition 15 - how we use your information" in the two other documents that are supposedly the Terms and Conditions. Am I going blind ... surely the implications here are that of a conjectured reconstruction.

 

IMHO this agreement is unenforceable in my opinion. I think Pinky still has ammo to fire...

[slick132]

This thread has ended up in BC forum after reshuffle 2 weeks back.

 

I'll get it put back to Debt Coll'n forum.

[elsinore]

Thread moved:)

 

Els

[slick132]

Just to confirm,

 

Rory's had a look here and said it looks like they've supplied an application form and T&C's from elsewhere - which would make the debt unenforceable based on the response received so far.

[honey5]

subbing, sorry minds been elsewhere

honey x

[ncf355]

unfortunately those terms are there........

 

they do not need a specific rate they can say "we will decide the rate and inform you"

 

they can chose the repayments and schedule by saying " min payment of N% or £5 per month, we will let you know on what date.

 

they can give examples of APR..if you borrow £1000 for 12 months = N%apr

 

That doc has it....sorry

 

I would love to say yes you can get away with it....but I dont think you can...

 

Dave

 

 

Hi Dave,

 

can you explain you comment on the interest rate please?

 

Its just that I dont see how they can present several interest rates and rely on either one, when its been made clear the tolerances for APR within an executed agreement or so minute (cant remember exactly, but its something like 1% above or .1% below)

 

So in other words you could claim on this example (the scan above) that a prescribed term (interest) was not stated correctly, therefore its unenforceable with or without a court order via S127(3)

[manicblonde]

Very informative thread. My Parents are in a similar situation. I will update my thread when I get any news fron Barclaycard.

[car2403]

Hi Dave,

 

can you explain you comment on the interest rate please?

 

Its just that I dont see how they can present several interest rates and rely on either one, when its been made clear the tolerances for APR within an executed agreement or so minute (cant remember exactly, but its something like 1% above or .1% below)

 

So in other words you could claim on this example (the scan above) that a prescribed term (interest) was not stated correctly, therefore its unenforceable with or without a court order via S127(3)

 

The agreement needs to contain the interest rate, or a statement as to how it will be determined.

 

If there is no rate, but it states something like the above, all they are required to show is that the information was given - in the form of statements and the like usually.

 

The tolerances in displaying APR don't apply where the APR isn't stated.

 

(s.77/s.78 CCA 1974 and the Consumer Credit (agreement) regulations 1983, as amended by the 2004 regulations)