Barclaycard - CCA Response

[ska1664]

I sent a cca request to Barclaycard back in September and I have just received their response and it said the following:

 

Thank you for contacting us. Enclosed is a copy of your Barclaycard Terms & conditions. If you need any extra information or if you've any questions then visit our website or give us a call.

 

Thanks for choosing Barclaycard we appreciate your custom.

 

Yours Sincerely

 

Elaine Mockler

Customer Service Director

 

Any advice as to what I should do next? There was nothing in with the letter except the current Terms & Conditions.

Edited February 18, 2009 by ska1664

[cymruambyth]

You could try sending the following letter. Thank you to who ever wrote the original:)

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

You have failed to respond to my legal request under section 77-79 of the Consumer Credit Act 1974 to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows:

Section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

And more importantly:

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

You will see that this quite clearly states that whilst certain items may be left out of the copy document, the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(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 there under 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 signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

 

Yours faithfully

[ska1664]

Thank you for your reply.

 

I will get this letter off in the post and see what Barclay Shark, can come up with

[ScabHunter]

You sent a CCA request in September!

 

That went into default after 12+2 days, so send an "Account In Dispute" letter.

 

Even Sharklycard usually manage to send something, although it is usually an unreadable black and white mess that looks more like a pre-1910 photograph of the night sky than it does an agreement.

 

SH

[ska1664]

Is letter appropriate to send to Barclay Shark?

 

Account In Dispute

 

Ref:

 

Dear Sir/Madam

 

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

 

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 **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

You have failed to comply with my request, and as such the account entered default on **DATE**.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.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.

 

This limit has 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.

 

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

[ScabHunter]

That is the usual letter to send.

 

However, in this case you could send Cymru's letter, because that refers specifically to them only sending terms and conditions and nothing else. Then, if they do provide their usual unenforceable CCA, THEN you could hit them with the "Account In Dispute" letter.

 

It won't make any difference to the end result, because they will either produce an enforceable agreement or they won't. It really is up to you.

 

SH

[angel_1]

subscribing as am also awaiting on a cca from bcard, too

 

good luck ciao maz

[ska1664]

Thanks all for your help & advice it is greatly appreciated.

[ska1664]

Cymru's letter sent to BarclayShark and recieved 17/11/08.

 

I await their response.

[ska1664]

Today I have received a card statement from Barclaycard but still no compliance with the cca request

[ska1664]

I have still not recieved a copy agreement from Sharklycard, all I keep recieving are credit card statements which I never received until requesting the copy of the agreement. Any idea as to why they are sending statements out again?

 

Also I have receieved this morning a copy of a letter that Sharklycard sent to Payplan could you please take a look:

 

 

Any ideas as to a suitable response to them?

 

I have emailed Payplan and told them not to pay them.

Edited July 23, 2009 by ska1664

[ska1664]

Any ideas as to a suitable letter?

[ska1664]

bump

[Josie8]

Did you do a subject access request under the Data Protection Act?

[ska1664]

No I have just sent the CCA request letter and the letter provided by cymru. Should I do an SAR?

[Josie8]

Yes because they can get away (?) with providing a true copy under s.77-9 CCA but have to provide a copy of original under a subject access request.

[ska1664]

Thanks Josie8.

 

I am a little confused. As they have not provided a copy of the agreement after the CCA request that I sent them is the account not currently unenforcable?

 

How does the SAR assist with the matter?

[Josie8]

They don't need to provide an actual copy of agreement under s.78 so if you want it you will need to subject access them.

[ska1664]

What do they have to provide when they are sent a cca request?

[Josie8]

To properly comply

 

1.unsigned true copy of original agreement containing the names and address of both parties. It doesn't have to be an actual copy.

2.copy of original T's & C's

3.Copy of latest T's & C's

4. Statement of account

 

However and here's the rub the Creditor can comply by njust sending you T's & C's BUT then he is technically bound to that document as the agreement unless the Court agrees otherwise. Realistically the Court is certain to allow a crditor to produce additional documentation at a later stage

[ska1664]

Thanks again Josie8.

 

Is there a template letter I can send?

[ska1664]

Should I not send an account in dispute letter?

[Josie8]

Subject Access Request under the Data Protection Act 1998.

 

 

 

I require all information you hold on me including the following:

 

1. a complete list of transactions and charges relating to my credit card history with xxxxxx . Alternatively, a complete set of statements that include all transactions, late payment fees, over limit fees, all interest & charges for that period will be acceptable.

 

2. a copy of my original signed consumer credit agreement and copies of any default notices issued in this period & any other documentation or information pertaining to me that you hold in your records.

 

3. Additionally, where there has been any event in my account history over this period which has required manual intervention by any member of your staff, or any other 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 business with your company.

 

If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response.

 

 

4. If this account has been sold or otherwise transferred to another organisation for administration or recovery please supply details of the sums notified by xxxx to any such organisation & a signed true copy of the Notice of Assignment. Please state whether this was absolute or equitable.

 

I enclose the statutory maximum fee of £10. You have 40 days in which to comply.

 

Yours Faithfully

Edited January 3, 2009 by Josie8

[Josie8]

Should I not send an account in dispute letter?

 

 

If you want to - they'll just ignore it though:roll:

[PriorityOne]

If Barclays haven't yet sent you a CCA in response to a legal request, then the chances are that there isn't one. The account will eventually get passed on to Mercers... their in-house team.... who will then try and intimidate you into paying, regardless of there being no Agreement.

 

I'm not sure what a Subject Access Request will achieve at this stage, unless you're looking into re-claiming charges on the account.