Response to CCA request from Barclaycard - what next?

[Gilly78]

Right i'll cut straight to the chase. Received a reply from Barclaycard regarding a CCA request I sent (to Calder Financial). The reply consists of what seems to be a standard 2 page letter, a rather poor quality photocopy of an application form and a photocopy of some T&C's. (see images)

 

Letter page 1: http://i158.photobucket.com/albums/t102/richrichard_2007/letter1.jpg

Letter page 2: http://i158.photobucket.com/albums/t102/richrichard_2007/letter2.jpg

Application form: http://i158.photobucket.com/albums/t102/richrichard_2007/appform.jpg

Conditions: http://i158.photobucket.com/albums/t102/richrichard_2007/conds.jpg

 

Does this mean they have now complied with the CCA request? I am rather unsure as to what the next step is, any advice much appreciated.

[cerberusalert]

Besides it stating that it is an application not an agreement, as it is not legible anyway it doesn't satisfy your CCA request. Send them Scots letter;

 

 

 

 

Re: my request under the Consumer Credit Act 1974

 

Thank you for your recent letter sent to me, the contents of which are noted. I appreciate your quick response to my original letter. However, the reply received by me does not fulfil your requirements under the Consumer Credit Act 1974.

 

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

 

My request remains outstanding. An application form, like the one you sent in your reply, does not constitute a true copy of any credit agreement that may or may not have been signed by me on the opening of this account. A application neither confirms that I am liable for any alleged debt to you, nor gives me any chance to evaluate whether any original agreement was ‘properly executed’.

 

I still require you to send me a true copy of the original credit agreement that you allege exists. 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 produce such an agreement, this alleged debt is not enforceable in law.

 

You had until XX/XX/2008 to provide me with the true copy I requested. You are now in default of my request. Any account I hold with you is now in legal dispute. Whilst the account remains in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agency.

 

To register information with a credit reference agency, you must have written consent from the customer 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.

 

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 Commissioners Office

 

To sum up, I will not be making any further payments to you until you provide me with the document I have requested. Whilst you remain in default of my request, you are not permitted to take any action against this account. This includes adding further charges and passing any information to the credit reference agencies.

 

Should you not have any signed credit agreement in relation to this alleged debt, please confirm this in writing to me.

 

 

I look forward to your reply.

 

Yours faithfully

 

**amend to suit your circumstances.**

[Gilly78]

Will do, thanks.

[Gilly78]

Right this is what they sent me (eventually)

 

http://i158.photobucket.com/albums/t102/richrichard_2007/bc_letter.jpg

http://i158.photobucket.com/albums/t102/richrichard_2007/agreement1.jpg

http://i158.photobucket.com/albums/t102/richrichard_2007/agreement2.jpg

 

surely this still doesnt comply with my original CCA request? What the hell are they playing at - running round in circles because they cannot supply what I am asking for perhaps.

 

All advice welcome

 

cheers

[davey77]

That's just recent terms and conditions then. It states £10 fee.. certainly not in effect in 1998 when you applied.

 

A credit agreement should contain the Prescribed Terms embodied within the signature document.

 

The application form is difficult to read. Can you see what it states in the grey area on the right hand side?

 

Even if they call the latest docs an 'agreement' there is no signature.

Edited February 25, 2009 by davey77
adding text

[clemma]

Looks that way. They have just sent you some terms and conditions that in no way apply to you. Send this letter if you wish:

 

Dear Sirs,

 

Account Number: XXX

 

Re: your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I note that you have replied to the above by sending your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

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;

As you will know 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 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 cancelable 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

[davey77]

If what they have sent is illegible in any way then it means they have not complied with s78(1) and are therefore in default under s78(6).

[beachcomber60]

Gilly,

 

Exactly the same as they sent me - only your copy is slightly better quality.

 

Ignored all dispute letters, telephone harrasment letters & SAR non compliance letter (including one LBA letter), so I think I will have to

persue the cca via the CPR route.

 

Beachy

[davey77]

For your info:

 

s61 CCA - Signing of agreement:

(1) A regulated agreement is not properly executed unless—

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

s127(3) CCA:

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

[Gilly78]

Thanks for the responses guys

 

That's just recent terms and conditions then. It states £10 fee.. certainly not in effect in 1998 when you applied.

 

A credit agreement should contain the Prescribed Terms embodied within the signature document.

 

The application form is difficult to read. Can you see what it states in the grey area on the right hand side?

 

Even if they call the latest docs an 'agreement' there is no signature.

 

The grey area is totally unreadable. Even though I don't have a scanner and had to take pictures using my phone the copy they sent was no better. And as you say on the 'agreement' there is no signature.

 

So I guess that means they are in default? Should I just sent the letter suggested by clemma and see what they say to that?

[clemma]

Yep - whisk that letter away to them

[davey77]

Yep - whisk that letter away to them

 

Whisk away

 

May be worth mentioning later the illegibility issue and the fact a great big barcode stamp is stuck over some wording although that could be left for now to see what their response is first. (Although we know what they will say i suspect.)

 

Don't play all your cards just yet. That letter should get them thinking.

[clemma]

That letter should get them thinking.

 

Yep - sommat along the lines of "oh s**t, what now". I wonder if an offer of full and final will come through next, or a hefty 50% reduction.......if so, you KNOW they have nothing

[beachcomber60]

Love that letter.

 

Just a point of enquiry - the cca that they sent me is exactly the same as Gilly's, could someone enlighten me as to when barclayshark started charging o/l & l/p charges to the account only there is no mention of these charges on the 'alledged' cca. Mine was pre 2000.

 

Beachy

 

PS There is no signature box accepting the agreement - only a cancellation box

Edited February 26, 2009 by beachcomber60
PS added

[Gilly78]

Righty ho, i'll get the letter whisked off asap - be interesting to see what they try next

 

thanks again folks.

[Gilly78]

Eventually....

 

I sent the letter suggested in post#6 on the 27th of Feb, 3 months later I get...

 

 

BARCLAYCARD SERVICES

ACCOUNT NUMBER: XXXX XXXX XXXX XXXX

 

Reference: Section 78 of The Credit Consumer Act 1974

 

I write further to the letter whereby you note non receipt of requested documents in relation to a request made under Section 77/78 of the Consumer Credit Act 1974.

 

I can confirm that the documents required to complete our obligation to you under Section 78 of the Consumer Credit Act 1974 were sent to you on the 19.02.09.

 

Yours sincerely

 

Danny Dinsdale

 

Barclaycard Customer Services

 

 

So it seems after taking 3 months to think about it what this **** is saying is that as far as they are concerned what they sent me in post #4 is ok? (Rapidly losing the will to live...)

 

Any more advice always welcome.

[meerkatsmimm]

If you want to force their hand and see if they have it, you must CPR 31.16 them now.

 

Although my arguement continues to be, if they have a signed and enforceable agreement, why not just send it to you?

 

We have CCA'd, CPR'd letter 1 and SAR'd them, and other than unrelated T&C's many months ago, they have failed to supply anything else (or even a response to the CPR/SAR).

 

They even managed to send my mum a letter saying something along the lines of 'we hope you find this information useful' - yet aside from their 4 sentence letter, the envelope was blank.

 

Oh barclaycard, make our day and go away....