credit card agreements

[roast beef]

definative answer please, does a credit card agreement have to be signed on behalf of the credit card company to be enforceable in court?

[rory32]

I have unapproved your other thread. Do not post the same question on a new thread just because after 50 minutes you have not received an answer to your question. To answer your question, technically yes it does have to be signed by the creditor, however if it is signed by the debtor then it is extremely likely that a court would enforce the agreement.

[Valhalla]

Hello Rory,

 

I've been looking for another thread which I remember seeing. It's called ( I think ) ' Is this a legally enforceable agreement ?' , but can't find it after 45 mins searching, so may I post my question here ?

 

I have received from Barclaycard the attached documents which they say is a true copy of the CCA.

 

As you will see, page 1 which I did sign, is an application form - it says so at the head of the page.

My initial reaction would be to say ' OK they only thing I signed ( back in 1979 ) was not a CCA but just an application.

However the small print says ...." I accept and agree to be bound by the Barclaycard conditions of Use ( as set out overleaf and as amended from time to time ) ".......

 

On the next page under the heading ' Barclaycard Conditions of Use ' it says 'Credit agreement regulated by the CCA 1974'

 

QUESTION

Does the application form which I signed take on the status of a proper CCA by virtue of the fact that the Conditions of Use refer to the CCA 1974 ?

 

http://i297.photobucket.com/albums/mm231/JilesH/Picture.jpg

 

http://i297.photobucket.com/albums/mm231/JilesH/Picture001.jpg

 

Thanks for your input

 

Valhalla

[rory32]

You need to increase the size of the images. They are far too small to read.

[Valhalla]

Hello Rory

 

Sorry about the small images last time.

Having wrestled with photobiukcet for 1.5 hours maybe these are better

 

Hope so

Thanks in anticipation

 

Valhalla

 

http://i297.photobucket.com/albums/mm231/JilesH/Application.jpg

 

http://i297.photobucket.com/albums/mm231/JilesH/bcardconditionsofuse.jpg

[rory32]

Well the prescribed terms can be over the page on agreements before 2005, but still have to be part of the same document. The conditions of use that they have sent you would certainly be from a seperate document and not from the document that you signed. They certainly don't relate to 1979 e.g. credit cards for students and the repayment amounts.

 

For this to be enforceable they would have to provide the conditions of use on the original application and show that they were part of the same document. Clearly they can do neither as they have not kept this information, therefore the agreement is unenforceable.

[noomill060]

Dont you just love Barclaycard?

 

Give them enough rope and they go up to B&Q, buy some timber, build a scaffold and hang themselves!

 

Your Barclaycard "agreement" has been unenforceable since 1979.

[noomill060]

Another thing- I just noticed that there is no way that the "Terms of Use" document can be from 1979- because the STD code for Northampton is given as "01604".

 

In 1979 this would have been "0604"

 

STD codes changed in 1995.

[Valhalla]

Hello Rory32 and Noomilla060,

 

Sorry not to have replied to your very helpful posts for a few days - been out of action

 

As regards the aplication form I posted via photobucket, the one which I actually signed, I have to clarify that I was not a student in 1979. I wrote 'Formerly Student ' in reply to the question - Give name and address of your former employer'

 

Does this make a difference to your opinion Rory ?

 

Also Rory, you seem to feel that the T & C must have been on a seperate sheet,. What makes you think this ?

The text just above where I signed the application form states ... '....Conditions of Use as set out overleaf ' so presumably there was something on the reverse side of the application, rather than on a seperate sheet.

 

I love the point made by noomill060 about the telephone code - what sharp eyes !

So the Conditions of Use date from 1995 or later and were clearly not the ones attached to the original application/agreement I signed.

 

I would like to think that this means that what they sent me is NOT a true copy of the agreement. Is this good enough to invalidate the agreement ( if indeed there ever was a valid agreement in the first place) ?

 

Sorry to bother you again, but if you could let me know what you think about the above I'd appreciate it.

 

Thanks

 

Valhalla

[rory32]

The text just above where I signed the application form states ... '....Conditions of Use as set out overleaf ' so presumably there was something on the reverse side of the application, rather than on a seperate sheet.

 

I used the term over the page to either mean a seperate linked page or on the reverse side of the page (either would be acceptable providing they were the original conditions of the account. These are obviously not) - sorry if I confused you.

As regards the aplication form I posted via photobucket, the one which I actually signed, I have to clarify that I was not a student in 1979. I wrote 'Formerly Student '

The only reason I highlighted that the terms and conditions mentioned students was to demoonstrate that what they have sent you is not from 1979. No credit card company would have given a credit card to an average student in 1979.

I would like to think that this means that what they sent me is NOT a true copy of the agreement. Is this good enough to invalidate the agreement ( if indeed there ever was a valid agreement in the first place) ?

What they have sent you is not enforceable a it is not a true copy of the original agreement.

[Valhalla]

Hello again to Rory32 and Noomill060

 

It's been a while since my last post about my dispute with Barclaycard, but here's is the latest situation. What do you think I should do next ?

 

To recap:

In wrote to B/card at the end of last year raising a dispute but I didn't actually make a formal section 77/78 request in my letter and I did not send any fee.

 

In reply B/card told me that they considered the agreement to be valid, said that this was their final response on the matter and sent me a copy of an application form and some T & C which were clearly not those current at the time I applied for the card back in 1979. ( I attached a photobucket copy of these docs to my earlier post and your comments on this thread suggested that what B/card had sent me was certainly not enforceable )

 

I left things a while but then on March 26th I wrote again making a formal section 77/78 request and enclosing a £1 postal order as the fee.

 

The PO was cashed and credited to the card balance and I received no reply whatsoever to my letter.

 

Last week I wrote again to Barclaycard I was a bit late in sending my letter but I don't think that changed the facts of the case.

 

I told them that they had committed a criminal offence by not replying to my lawful request in March; that the agreement was unenforceable at law etc etc ( see below )

I also wrote to Mercers who had been on the case on behalf of B/card telling them that their client had committed a criminal offence and that they could not take any action in this matter whilst the dispute continued.

 

Today I recieved a reply from B/card which said

"I see from our records that a final response was issued on January 3rd and this stated the bank's position. Whilst I am sorry that you remain dissatisified, we have nothing further to add"

They go on to suggest that I contact the Financial Ombudsman

 

Am I missing something here ?

 

They have ignored by CCA request and now their latest letter effectively confirms that they have no intention of complying with my request, nor of corresponding with me at all.

 

Surely they cannot legally do this and if they do refuse to respond to my CCA request does that not make the agreement totally unenforceable

until and unless they produce a true copy of the agreement.

 

Is this correct and if so what should I do now - anything or nothing?

If I am right and Mercers continue their shenannigans I feel like suing them for harrassmant or what ever else I can think of. Ditto for B/card as well

 

Thanks

Valhalla

 

Here's the text of what I wrote last week ( all adapted from CAG posts, thank you )

 

Dear Mr.

 

Re: CARD No. xxxxxxx IN DISPUTE

Re My request under Sections 77-79 of the Consumer Credit act 1974

I wrote to you on 26th March making a formal request under the provisions of section 77/78 of the Consumer Credit Act 1974 for a true copy of any agreement relating to the above mentioned card to be provided. My letter was sent by recorded delivery and was accompanied by a postal order for £1 which is the fee stipulated in the act. Upon receipt of my request the specified account legally entered into disputed status.

 

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 alleged account. I may ask for this on demand providing that a fee of £1.00 is paid.

 

The postal order was cash and the £1 credited to the balance on the above mentioned card instead of being used for the purpose for which it was intended. Furthermore you have ingored my lawful request and have made no reply whatsoever.

 

By ignoring my lawful request for a true copy of any credit agreement you have not fulfilled your obligations under the Consumer Credit Act 1974. In addition a full statement of this account should have been sent to me detailing all the debits and credits to the alleged account since its alleged inception to date.

 

You know that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit card agreement to be satisfied before you enter into default.

 

If the request is not satisfied after a further 30 calendar days you commit a summary criminal offence. These limits expired on 11th April and 11th May respectively and therefore this alleged account has become unenforceable at law.

 

I reserve the right to report your conduct to the Office of Fair Trading, the Financial Ombudsman and Trading Standards, Any investigation undertaken by them may affect your ability to offer credit in the future.

With regard to your letter dated 21st December 2007, with which you sent me a copy of a Barclaycard application form, please note that at that time I had made no request under the Consumer Credit Act for such documentation to be supplied.

 

Furthermore an application form does not constitute a true copy of a credit agreement that exists in relation to an agreement and the application form which you sent does not contain any of the prescribed terms that the act calls for and is not properly executed. Further the ‘Barclaycard Conditions of Use’ form, that accompanied the copy of the application form is not a copy of the original conditions of use that might have accompanied the original application form. The current ‘conditions’ sent are irrelevant.

 

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 provide such an agreement, this alleged debt remains unenforceable at law.

 

Consequently any legal action you pursue will be averred as both unlawful and vexatious. Furthermore I shall counter claim that any such action constitutes unlawful harrassment.

 

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 apply.

 

* 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.

 

To register information with a credit reference agency, you must have written consent from the data subject to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

 

Please note that you may consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this alleged account with immediate effect. I also ask you to remove any default reference to my credit file.

 

The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. Any such attempts to share my data without my consent will be met with a complaint to the Information Commissioner’s Office.

 

 

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.

 

In summary, I will not be making any payments to you until you provide me with the documents I have requested. Should you not have any signed credit agreement in relation to this alleged debt, please confirm this in writing to me.

 

I would appreciate your due diligence in this matter and look forward to your written reply.

 

Yours faithfully,

[rory32]

Certainly make a complaint to the FOS but far more importantly make a complaint to the OFT and inform them that you have done so.

[Valhalla]

Hello Rory 32 and thanks for your reply.

 

Complaint to the FOS and OFT it is then, but could you just confirm/clarify if youragree with me that

 

a) by ignoring my section77/78 CCA request B/card have effectively rendered the alleged agreement invalid and

 

b) until and unless they do produce a true copy of a properly executed agreement I can basically tell them and Mercers to p**s off

 

Thanks,

Valhalla

[rory32]

a) by ignoring my section77/78 CCA request B/card have effectively rendered the alleged agreement invalid

Sort of, yes. Until they produce a complying copy of the agreement they can't enforce the account. This usually happens quite quickly or not at all.

b) until and unless they do produce a true copy of a properly executed agreement I can basically tell them and Mercers to p**s off

Yes.