Barclaycard: trying to confirm whether a CCA is valid

[financialdunce]

I’m arguing with Barclaycard about their response to my CCA request. I believe the documents they sent me don’t come near to fulfilling their legal obligations and I’ve told them so. They’ve responded with a rather confusing point by point breakdown in support of their position that they have complied.

 

I’d very much like to post the correspondence here to get some informed opinions on their position and how I should proceed, but it’s 5 pages total attachments: should I go ahead or is that too much?

 

Apart from my own interest, the docs and opinions may be helpful for others trying to decide whether a creditor has or has not complied with the CCA, what arguments the creditor may use to support their case, and whether those arguments are spurious.

[eastlondoner]

I would be very interested to see...in a similar situation myself with two Bcard accounts!

[financialdunce]

Here you are then: enjoy!

 

I CCA’d 3 accounts. Barclaycard eventually responded with 2 letters containing the attached docs “Barclaycard CCA 1 front”, Barclaycard CCA 1 back” & Barclaycard CCA 2”. That’s it.

 

I can’t even tell from the docs which accounts they refer to. There’s no ID anywhere, date, nothing: they look to me like they were just pulled from a drawer somewhere.

 

I wrote back stating plainly that I simply don’t believe the documents are genuine, and certainly don’t fulfill a CCA request.

 

Barclaycard responded with a 2 page letter I’ve scanned and attached as “Barclaycard 1” & “Barclaycard 2”; I’ve deleted the first paragraph, which is not relevant to this issue. The letter reads to me like smoke and mirrors designed to deceive, and I don’t believe a word of it, but I’d very much like someone more knowledgeable to to pick through it so I can produce a coherent response.

 

Assuming Barclaycard’s letter is as misleading as I suspect, I’d also welcome any advice on how to proceed. I’m not feeling generous. It took many letters from me just to get this response, and Barclaycard are way over the 12 + 30 day limit for a CCA, so if they’re lying I’m quite happy to report them to as many authorities as possible, and if necessary go to court.

 

All advice very welcome.

Barclaycard CCA 1 front.pdf

Barclaycard CCA 1 back.pdf

Barclaycard CCA 2.pdf

barclaycard 1.pdf

barclaycard 2.pdf

[johnjo2]

Financialdunce

I am also new to this site. I have also CCA'd Barclaycard and HSBOS and had similar replies. It appears to me that things have moved on and that the credit card companies are beginning to rely on the 1983 regulations to avoid sending the original signed agreement. Their argument does appear valid, as they only need to send a true copy of any terms that have been varied to satisfy s78 of CCA 1974.

However, this avoids the critical issue of what were the prescribed terms you signed for when you took out the credit card?

pt2537 of the site team recently gave advice on using disclosure rules to achieve this.

I will copy below as i do not know how to link items on this site as yet.

Safe to say, this development needs careful consideration as it may totally change how we proceed.

Disclosure before proceedings start

 

31.16

 

(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started1.

 

(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started1.

(2) The application must be supported by evidence.

(3) The court may make an order under this rule only where –

(a) the respondent is likely to be a party to subsequent proceedings;

(b) the applicant is also likely to be a party to those proceedings;

© if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and

(d) disclosure before proceedings have started is desirable in order to –

(i) dispose fairly of the anticipated proceedings;

(ii) assist the dispute to be resolved without proceedings; or

(iii) save costs.

(4) An order under this rule must –

(a) specify the documents or the classes of documents which the respondent must disclose; and

(b) require him, when making disclosure, to specify any of those documents –

(i) which are no longer in his control; or

(ii) in respect of which he claims a right or duty to withhold inspection.

(5) Such an order may –

(a) require the respondent to indicate what has happened to any documents which are no longer in his control; and

(b) specify the time and place for disclosure and inspection. Thus you can ask for the documents if you believe you have a case against a proposed defendant, for example, you believe the agreement may be improperly executed and that you may have a claim for a declaration pursuant to s142 (1) Consumer Credit Act 1974. Without the original agreement you would not be able to assess if it was indeed properly executed, how do you know if the agreement was in the prescribed form? Containing the prescribed terms? Was it a multiple agreement but failed to set its terms out correctly? Was there PPI, which was not incorporated correctly into the agreement?

There are many reasons why you would need this information and remember at the time you entered into the agreement you probably weren’t aware of your rights as a consumer so you wouldn’t have checked the agreement with a fine tooth comb nor does the law expect you to, the law required the lender to get it right, to put together an agreement as required by the CCA to ensure you were told the true costs of borrowing, how much you would have to repay, when how etc

 

Unless you have the original document you wont know if it was compliant with the legislation, so you need to ask for it!!

 

If the lender fails to supply it on request, then you should write to them setting out that you need the agreement to assess if it was properly executed. You should point out to them that…

1.By disclosing the original agreement It will allow anticipated proceedings to be fairly disposed of because a cards on the table approach will be taken by each party. Currently the proposed Defendants will have failed to do this and will have ignored your requests to do so.

2.Furthermore disclosure will assist the

dispute

to be resolved without proceedings being necessary because once disclosure is given each party can see the strengths of their respective cases and informed negotiations may then be undertaken with the aim being to agree settlement without the need for proceedings to be issued.

3.It will also save costs because full proceedings may not be necessary. You will not need to continue to write unnecessary letters reminding the proposed Defendant to disclose documents. Both parties can deal with the claim more quickly and economically.

You should also enclose a copy of your original request for the documents with the second letter, that way they cannot claim not to have received your requests. Send by special delivery so that you have proof of posting and receipt.

 

If the lender fails to comply with this request or blusters about not being obliged to supply the original agreement, simply send them a final letter stating that if no response to your reasonable requests containing a full copy of your signed contract in its full and original form is forthcoming from them by 4pm on a date seven days from the date of your letter, you will make an application to the court for an order , ordering disclosure and you will lay all the correspondence before the court to show you have been more than reasonable and have tried to resolve the issue without the need to involve the court

 

[johnjo2]

I would post pt257 or another member of the site team for further advice.

[steven4064]

FD

 

What BC have sent you are various card T&Cs. THe one you have labelled 'front' has the prescribed terms on it but none of them have a signature.

 

So, what they have sent complies with s78 but is not enforceable.

[financialdunce]

FD

 

What BC have sent you are various card T&Cs. THe one you have labelled 'front' has the prescribed terms on it but none of them have a signature.

 

So, what they have sent complies with s78 but is not enforceable.

 

 

 

Thanks, but I don't quite follow. The BC letter specifies that certain details can be omitted from a CCA copy, including signatures, and still fulfill the request. The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, which they quote, seems to me to support their position.

 

So how is it not enforceable?

[the_shadow]

Thanks, but I don't quite follow. The BC letter specifies that certain details can be omitted from a CCA copy, including signatures, and still fulfill the request. The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, which they quote, seems to me to support their position.

 

So how is it not enforceable?

 

 

Because to be enforceable the document has to have various things on it... prescribed terms..etc and most importantly yours and their signature....

 

If they go to court they have to produce the signed document to get a judge to enforce the agreement.

[financialdunce]

Because to be enforceable the document has to have various things on it... prescribed terms..etc and most importantly yours and their signature....

 

If they go to court they have to produce the signed document to get a judge to enforce the agreement.

 

 

Sorry, but I still don't get it. If the prescribed terms are included, which apparently they are, and the CC Regulations 1983 allow the omission of signatures, why would they then have to produce the signatures in court?

[the_shadow]

Sorry, but I still don't get it. If the prescribed terms are included, which apparently they are, and the CC Regulations 1983 allow the omission of signatures, why would they then have to produce the signatures in court?

 

 

They are allowed to omit the signature on a "true copy" which they can send out to conform to CCA requests but for enforcement they need the "original" hence the need for a document with both sets of signatures

[lickthewallfatboy]

Barclaycard are in default with us on 2 accounts,and next month it will be a year!!