Barclaycard Cca Received! - Claim now issued ***SETTLED***

[tosh1]

had a replay from the email that I sent this morning. they have forwarded my responce to the relecant department.

[Desperate Daniella]

Hi tosh,

 

Which post has a copy of the agreement?

 

DDx

[tosh1]

i am in the process of doing the cpr. do i sar them as well?

[car2403]

What you have there (via Caro) is an application form with no prescribed terms - irredeemably unenforceable under s.127(3) CCA as it was taken out in 2003.

 

Did you receive anything else from them that has credit limit, interest rates and payment terms on it that may be 'linked' to the document you've shared so far? If not, they don't have a hope in enforcing in Court.

[tosh1]

What about the Carey v HSBC case where judges are excepting unforceable cca agreements?

[car2403]

What about the Carey v HSBC case where judges are excepting unforceable cca agreements?

 

That was about recon agreements complying with CCA requests - this is totally different. They haven't even attempted to recreate 'an' agreement, here.

[tosh1]

On post 18, i recieved a letter from bc. is that varied?

[caro]

Comments on post 18:-

 

ok. I have received a letter (below which I just tyoed in as my scanner is broken) from bc today -

 

I write further to the letter whereby you note disatisfaction to the documents you received 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 stated that the creditor shall give the debter a copy of the excuted 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 responce 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...'

 

The application that they sent is only signed by you and not by or on behalf of any other parties.

 

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 the agreeent. These regualtions provide that any copy of the agreement supplied to a debter 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.

 

It is a copy of the application and not an agreement.

 

WHAT HAPPENS IF THE ORIGINAL AGREEMENT HAS BEEN VARIED SINCE IT WAS ORIGINALLY SIGNED?

 

The regulation also set out what should happen where the agreement has been varied since it was signed. Regulation 7 provides creditors with a choice of including in the copy of the executed agreement either a copy of the latest notice of variation relating to each discrete term which has not been 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.

 

 

The copy does not include either original or varied terms. I think that you have a copy of some terms and conditions. Were these sent with the application? I'm just wondering if they might try and say that by sending those they have complied. If so, it still doesn't make the application an agreement.

 

CONCLUSION 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 Notice and copies of documents) Regulations 1983

 

I still say it's an application and not a "'copy' of an agreement".

 

The definition of 'executed agreement' refers to a document embodying the terms of the regulated agreement. When this is read with with Regulation 7 - for agreements that have been varied - a copy of the original agreement would not embody its terms. A copy of the agreement as varied would embody its terms.

 

There is nothing in the application "embodying the terms", varied or otherwise. Just because someone applies for credit, it cannot be assumed that the application was accepted or otherwise.

 

The issue of what is an executed agreeent has been interpreted in th High Court. It was held that an executed agreement begins as a 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 benn varied, Regulation 7 mentioned above applies.

 

You would not have received the credit card when you signed the application that they sent.

 

To summarise, if the agreement has not been varied, we must send the origanal 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.

 

This does not make what they sent an agreement. It's an application. I ask again though, did they send any T&C's with the copy of the application? My reason for asking is in case they should try and say that what they sent satisfies what they needed to send. You need to be ready with an answer if they try and bluff this in court.

 

I hope this letter has helped 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 Consumenr Credit Act 1974, you should carry on paying the debt you have accured on your account. We do not class the account in dispute, as you have been supplied with the relevent documentation under Section 78 of the Consumenr Credit Act 1974 and we will carry on with collection serices.

 

That might be their opinion, but personally I would say that the account is still in dispute due to their failure to comply with your CCA request.

 

Yours Sincerly

 

Court Orders and Disclosures.

 

My comments in red are my simply the way I see it as a non-legal person. I have also made the assumption that what they've said about the various sections of the act are correct.

 

IMHO this letter was devised to make you think they've done what they have to to fulfil their obligations under the Consumer Credit Act to make you think you should be paying.

 

If this gets to court I would suggest that you argue these points. Make it very clear that you have offered to make payments despite their failure to comply with your request for a copy of the agreement. Also make clear that you only want to pay back what you believe that you owe, and you haven't been provided with the information that you need to assess accurately what this is either before or since they started the court claim. You think they may have added items that you don't think you owe in their claim, which has not been clearly particularised. You aren't even clear if they've added PPI from what was sent, and you aren't sure if they have added it whether it was mis-sold. There is also the matter of charges that they may have added which further cloud the issue.

 

As I'm not the best on CCA stuff, I hope that others will feel free to comment.

[car2403]

An application can be an agreement, but it needs to contain the prescribed terms - if they were sent, but aren't part of the document ("the application") then it's unenforceable.

 

Don't worry about them not signing it, as that wouldn't make it unenforceable, only enforceable by a Court order. (s.65)

 

The letter in post 18 is misleading. Dangerous for them given the issues in CPUTR in the link I posted about

[caro]

So even if they sent T&Cs, they aren't part of the application/agreement so irrelevant. Thanks for the clarification Car.

[tosh1]

so i am in the process of doing the cpr should i then also the sar to them also?

 

Just so that I understand. They currently have an unforceable agreement which is an application form, I have not recieved any paperwork with credit limits or interest rates on there.

 

I am willing to pay but just what I owe and nothing more. How would/could i defend this?

[tosh1]

hi

 

I want to send this off to Howard to organise my defence. can someone please give it the once over.

I have already told the court the i have acknowledged it and will be defending. Do i need to send them anything else?

 

 

 

Dear Sir,

 

Re: v Case No:

CPR 31.14 Request

 

On 12/08/11 I received the Claim Form in this case issued by you out of Northampton County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of the documents mentioned in your Particulars of Claim:

 

1 The Agreement. A copy of the signed, executed Credit Agreement regulated by the Consumer Credit Act 1974. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the signed originals should be available at the hearing. Further, that any general conditions incorporated in the contract, both at inception and as amended, should also be attached.

 

2 The Notice of Assignment included proof of delivery and method.

 

3 The Default Notice - a true copy of the Default Notice, and /or a copy of the relevant communications log showing issuance, plus proof and method of posting.

 

4 A full statement of account showing how the amount claimed is calculated

5, As you have fully complied to my request of an SAR you have 28 days in which to do so.

 

Please ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter, in compliance with CPR 31.15(b).

Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

Yours faithfully

[car2403]

Do the SAR as well, why not...

 

The application form is currently unenforceable as it doesn't contain the prescribed terms. Replies to the CPR/SAR will confirm this.

 

If you're willing to pay, this will mean you start from a strong negotiation position on the outstanding balance - they won't want an unenforceable debt on their books, so any reasonable attempt at settlement should get them thinking. I'd say a without prejudice offer of something you can afford, along with a defence to their claim, should do the trick

 

Let's worry about the defence when you need it - you can't do anything until the CPR has been responded to. If they drag their feet, we'll be notifying the Court and asking for extra time to defend, or forcing their compliance with your CPR request if need be... Patience, my young padawan...

[tosh1]

Thanks Car2403.

 

I am currently filling in the defence claim form to send back to Northampton. Should I not fill this in?

[car2403]

Not until they sufficiently particularise their claim and provide you with the supporting documentation, no. We'll just need to know when they've replied to your requests for more information or if there's 4/5 days before the Defence is due at this stage.

 

In meantime, look back over the thread and make sure you understand everything that has happened so far. It's the use of this time to 'prepare' yourself for your arguments at a later date that will get you more comfortable with what to expect, etc, in the process to come.

[tosh1]

OK. The cpr request is ready and will be posted tomorrow. I will wait to post the defence to Northampton Court. Thanks for everyones help so far.

[caro]

Car, do you think that tosh should also ask for the termination notice. Also the letter says that they've fully complied with the SAR which I don't believe they have, or why do a new one?

 

I also wonder if 14 days to respond to the CPR is enough instead of the 28 mentioned in the letter.

 

Shouldn't Tosh be asking for an extension to the time to defend too?

[tosh1]

This is the letter that is ready to post -

How would I go about getting an extension from the court?

On 12/08/11 I received the Claim Form in this case issued by you out of Northampton County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest your entire claim.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of the documents mentioned in your Particulars of Claim:

 

1 The Agreement. A copy of the signed, executed Credit Agreement regulated by the Consumer Credit Act 1974. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the signed originals should be available at the hearing. Further, that any general conditions incorporated in the contract, both at inception and as amended, should also be attached.

 

2 The Notice of Assignment included proof of delivery and method.

 

3 The Default Notice - a true copy of the Default Notice, and /or a copy of the relevant communications log showing issuance, plus proof and method of posting.

 

4 A full statement of account showing how the amount claimed is calculated

 

 

 

Please ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter, in compliance with CPR 31.15(b).

Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 requests.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

[tosh1]

I'm working out that dates. I think im going to need an extension. 7 days from the date they recieve it which if they recieve it on Tuesday 30th which will only give me 3 working days to file a defence and get this sent off to Northampton. What do you think?

[caro]

This is the letter that is ready to post -

 

How would I go about getting an extension from the court?

 

On 12/08/11 I received the Claim Form in this case issued by you out of Northampton County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest your entire claim.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of the documents mentioned in your Particulars of Claim:

 

1 The Agreement. A copy of the signed, executed Credit Agreement regulated by the Consumer Credit Act 1974. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the signed originals should be available at the hearing. Further, that any general conditions incorporated in the contract, both at inception and as amended, should also be attached.

 

2 The Notice of Assignment included proof of delivery and method.

 

3 The Default Notice - a true copy of the Default Notice, and /or a copy of the relevant communications log showing issuance, plus proof and method of posting.

 

4 The Termination Notice

 

5 A full statement of account showing how the amount claimed is calculated

 

 

 

Please ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter, in compliance with CPR 31.15(b).

Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 requests.

 

I wouldn't offer to pay for their costs.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order. Please confirm in writing your agreement to the extension of time to file my defence.

 

I do hope this will not be necessary and look forward to hearing from you.

 

In the letter you have already asked for 14 days from the date of their compliance with your CPR. I would be inclined to give them 14 days to comply and ask them for 28 days from that date. When you have their agreement in writing let the court know about it.

[tosh1]

thanks caro.

[car2403]

Car, do you think that tosh should also ask for the termination notice. Also the letter says that they've fully complied with the SAR which I don't believe they have, or why do a new one?

 

I also wonder if 14 days to respond to the CPR is enough instead of the 28 mentioned in the letter.

 

Shouldn't Tosh be asking for an extension to the time to defend too?

 

Has there already been a SAR done?

 

14 days is more than enough.

 

We will need the term notice.

 

We know this game, Caro, don't we... They won't reply in time, we can't ask for additional time to defend, so we'll try a holding defence to comply with the court's orders and seek to amend when (if!) they do comply, me thinks...

[tosh1]

Hi Car2403. The SAR stuff is computer printouts. I don't understand how to read these.It does not show interest, ppi and bank chanrges.

 

Posted the cpr reqest this morning to Howard.

[car2403]

Yes, the problem is that the DPA covers data - data is what they've sent. They should be supplying information to allow you to decipher it, however.I'm guessing a response to the CPR request will 'fill the gaps'.In reply to your CCA request, though, they should be supplying statements showing how the account balances are made up - see s.78(1)(a), (b) and s.78(4).

[tosh1]

Contacted the court today and they advised that I have until the 12th September to submit the defence. Does this sound correct?