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CCA Request to Barclays

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I made a CCA request to Barclays on 17th March. They have responded with a letter (no CCA, though they do say that this is coming separately)in whcih they say that as my account was opened before19th May 1985 they only have to send a "copy of your current executed agreement".

Is this right? Or the usual windups? If the former, how should I respond as they surely wont have any problem coming up with an unsigned copy of current details?

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Hi SFU,

 

Is this for a bank current a/c or a Barclaycard.

 

:)


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I've moved you int the BC forum and have sought advice about BC's response to your CCA request.

 

We'll come back on this.

 

:)


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Sorry about the delay.

 

Pt has come up with the following which I hope will be of use:-

 

9 Copies of old agreements and security instruments where the agreement or security instrument has been lost etc

Any copy of an executed agreement made before 19th May 1985 or of a security instrument relating to security provided

before that date which is given to the debtor, hirer or surety under any provision of the Act on or after that date may

comprise an easily legible statement of the current terms of the agreement or security as the case may be insofar as they

are known to the creditor or owner where, due to an accident or some other cause beyond his control, the creditor or

owner does not have in his possession the executed agreement or security instrument or any copy thereof.

 

Consumer Credit (Cancellation Notices and Copies of Documents)

Regulations 1983 (SI 1983/1557)


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So does this mean that all they have to do is come up with current T&Cs, even if I havent signed it? :-x

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Hi SFU,

 

From my own interpretation of Pt's information posted above, my next move would be to write further to BC:-

 

Dear sir or madam,

Account No xxxx

I refer to your letter dated xxx and must ask why have you failed to send a copy of the original signed credit agreement.

I understand from the CCA 1983 Regulations that you should still provide me with a copy of the original signed agreement. If you cannot do this, I require to know for what reason you are unable to provide this document.

Please let me have your urgent response, as I do not believe you have fulfilled your obligation to reply properly to my original request.

Yours faithfully,

  • Haha 1

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I have requested on times without number a copy of my agreement with Barclaycard, without success. However, today a letter rolled with a copy which is attached below (pdf)

There are a number of issues on which I would appreciate advice:

 

  1. the agreement goes back to 1977. How much difference does this make?
  2. the agreement makes no reference to the Consumer Credit Act, though as we all know it was passed three years before the agreement was entered into
  3. it makes reference - see box for applicant's sig (near bottom) - to me agreeing to be bound by Barclaycard conditions of use (as set out overleaf and amended from time to time etc). They have in the past sent me terms and conditions (which include the prescribed terms but have no signature) but these cannot be the ones that are being referred to in the form that they have sent me. For one thing the T&Cs that they sent earlier are on two sides of A4, so with the "geography" of this form ("fold and fasten securely with gummed strip", it says at the bottom) I dont think these can be the original T&Cs. For sure the document that they have sent me today doesnt include any terms or conditions, prescribed or otherwise.

So what I would much appreciate advice on is

 

  • what difference does the age of the account and the absence of references to the Consumer Credit Act 1974 make, if any?
  • I am inclined to write back to them asking for a copy of the conditions of use that are referred to in the document that they have supplied now.

I have had a "formal demand for payment" from Robinson Way - usual threatogram - "we may take legal action to recover". Just want to be sure where I stand, because the form is pretty useless and its interesting that they havent come up with the original T&Cs. But the age of the thing is spooking me.

Thanks

Seriously Fed Up

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Hi SFU,

 

You should read the guide to Credit Agreements linked in my signature.

 

I can't see how this could be construed as a credit agreement at all. It is missing the Prescribed Terms.

 

Have you sent a letter yet, to confirm that you consider the a/c to be unenforceable and In Dispute.

 

Are there any penalty charges or mis-sold PPI on the a/c which you can reclaim.

 

Are you paying toward the a/c at all, and what result do you want with the a/c?

 

:)


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Thanks for getting back to me Shadow.

I could see the lack of prescribed terms in the form. I mean it doesnt even refer to the Consumer Credit Act for one thing. But that in some ways is the root of my concern - given the age of the account (1977, believe it or not) would the Consumer Credit Act (the 1974 one obviously) apply then in the way that it would now? For instance, the 1983 Regs (1983/1553, which deal with the formatting of agreements) obviously hadnt even been written, and didnt come into effect till 1985. On the other hand, what they have sent is plainly in breach of the Act even in its basic 1974 form - there is for instance, no right to cancel on the document (s64) or the amount of credit (s60) or failing this how it will be determined. But this, it seems to me, is a good deal less clear than if the 1983 regs were in place. Its how much that might affect my position that concerns me.

I CCAd them via Calders in the middle of March this year, so its been dispute since then as the best they could come up with at that time was a copy of standard T&Cs (unsigned obviously), which, as I said, just dont match up with the form they have sent me in the last few days.

There was never any PPI. I did harass them for the fees they had added, which they took off back in the summer.

Outcome - for them to understand that they dont have the legal documents they require to enforce the account and to go away, or at least make a reasonable offer for a reduced F&F.

What I was thinking about doing in the first instance was to challenge them to produce the T&Cs that they refer to at the end of the form they have sent to me. On the one hand, they may not have saved this (is what they have sent a copy of a facsimile copy of the original, but they didnt bother with the T&Cs). If they havent got this then it would seem to me they are truly scuppered. Even if they do there would be a question of these not being on the same page as the signature document (though the former would be preferable), not to mention whether or not they have the presribed terms in place? Does this sound a good plan?

One other thing. This form came about as a result of a letter that I sent to Robinson Way who had sent a "formal demand" ("we may initiate legal action"), but in the interim I sent Barclays a SAR. Might it be better to wait to see what this brings out?

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From what I see, I think you should certainly wait and see what comes back from your SAR.

 

Also, because what they've supplied doesn't appear to be enforceable, I'd write to BC confirming they have failed to provide an enforceable credit agreement and that you will make no further payments toward the a/c until they provide the proper document.

 

Be aware that, as they have complied with their requirement to respond to your CCA, the a/c is not in dispute according to CCA1974. So they'll continue with collection activity.

 

Leave the ball in their court and see what they do about it, unless you want to be more pro-active and seek a court ruling yourself.


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1977 means they only have to provide the latest terms & conditions


You may receive different advice to your query as people have different experiences and opinions. Please use your own judgement in deciding whose advice to take.

 

If in doubt seek advice from a qualified insured professional. Any advice I have offered you is done so on an informal basis, without prejudice or liability.

 

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I think I will take your advice Slick and wait to see what the SAR throws up, but write to them in the meantime advising them that in my view what they have sent is by no means enforceable as there is not a single prescribed term to be seen on it.

At the same time, Josie8's point is an illustration of what is causing me concern. The application form (for this is what it is) they have sent me does say that I accept and agree to be bound by their terms and conditions as amended from time to time. But what was the agreement at the time of signature? And, even if we take Josie8's point if the agreement has to be within four corners - or even more strictly on the same page as the signature - does this not make it unenforceable?

Moreover, even if we look at the Consumer Credit Act 1974, unvarnished by the 1983 regulations, there are still requirements that lead to s127(3). For instance in s60(1) it is still a requirement that the debtor will be made aware of the rights and duties conferred on him by the agreement; protection and remedies available under the 1974 Act. What they have sent doesnt even refer to the 1974 Act. Now it might well be argued that s60 only refers to the regulations that should be drawn up by the Secy of State and not the rights of the debtor. But surely during this period between 1974 and 1985 (when the 1983 regulations came into force) the intention of the Act should operaate.

Moreover, accepting that Josie8 is correct in supposing that they only need to come up with current T&Cs (presumably for historical reasons - ie too long ago for us to come up with them), there are two considerations here:

 

  1. if they are going to rely on current T&Cs (2009), then surely the 1983 regulations ought to apply (as the agreement was entered into before 2007)
  2. if you look closely at the application form they have sent, it refers to the T&Cs being on the other side ("as set out overleaf" - there is then a ref to folding and sealing with the gummed strip). So if they have the original document, providing the T&Cs shouldnt be that difficult - they will be on the other side of what they have sent. Unless they dont have the original - they have sent a copy of a copy?

Sorry to go on - just thinking out loud.

The SAR probably wont produce anything before the end of next month (they have forty days and it was sent at the beginning of December). I will get back with details of anything new that is relevant when it arrives. However, I hope I have conveyed what is concerning me - given that the agreement was entered into between the passage of the 74 Act and the subsequent Regulations (not published till 83 and in force only from 85) how much difference does this make? Its quite an unusual one with little guidance that I can see so any thoughts are welcome.

Other than that, I hope everyone has a happy Christmas.

SFU:wink:

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I would think that the only thing on the back of that page would have been an address to return the prepaid application form to !

 

I have long argued that without the original terms and conditions, how is one to know if there was any right to amend or vary them.


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Certainly i wouldnt expect it to extend to very much at all since at least half of the back would be an address for returning the application.

If though it was, as you say, just an address then that would be a reason for them not to let on at this point. But it was even half a page given over to T&CS, if they have it, why not send it? I THINK I am right in saying that if they want to enforce then they have to produce the original and not a copy? So we would have to see what is one the back then?

Thanks for your time Citizen B, Josie8 and Slick at what is a busy time of year for us all on a personal level. Merry Christmas

SFU :)

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Remember, they may only be obliged to produce T&C's in response to a CCA request and the production of them may fulfil their obligations under CCA 1974.

 

But those T&C's do NOT constitute an enforceable credit agreement.

 

:)


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Thanks Slick.

Actually they did this back in April - I did a thread on that at the time http://www.consumeractiongroup.co.uk/forum/barclaycard/192516-cca-request-barclays.html - perhaps I should have revived it? :| I sent the letter that you suggested - they didnt reply. Indeed they were quiet for about six months before setting Robinson Way on me. What they sent back then bears no relationship to the form they sent last week.

Take your point that what they have sent might satisfy s78 - though given that last week's form has no agreement (really no more than my personal details) and the T&Cs they sent are clearly not those applying at the time of the form - its arguable that they havent sent a copy of the original agreement - only part of it. But I am pretty sure they wont see it that way. I have prepared a letter to send to them

Dear Sir,

On date in March 2009, under s.78 of the Consumer Credit Act 1974 I made a request of Barclaycard for a copy of a true, executed copy of any Credit Agreement between us. However, this only brought forward an unsigned copy of Terms and Conditions. Your failure to provide a true, executed copy of any Credit Agreement clearly put the alleged into dispute.

However, on November 2009 Barclaycard committed an offence when, despite the account being in dispute, I received a” formal demand” for payment (threatening legal action) from Barclaycard, via Robinson Way and I again requested a true copy of my Credit Agreement in the same manner described earlier. Robinson Way acknowledged my s.78 CCA request, and on December 2009, I received a copy of my original application form. The document provided is quite clearly not a Credit Agreement as it contains none of the Prescribed Terms as specified in s.60

S.60 Form and content of agreements

(1) The Secretary of State shall make regulations as to the form and content of documents embodying regulated agreements, and the regulations shall contain such provisions as appear to him appropriate with a view to ensuring that the debtor or hirer is made aware of—

(a) the rights and duties conferred or imposed on him by the agreement,

(b) the amount and rate of the total charge for credit (in the case of a consumer credit agreement),

© the protection and remedies available to him under this Act, and

(d) any other matters which, in the opinion of the Secretary of State, it is desirable for him to know about in connection with the agreement.

(2) Regulations under subsection (1) may in particular—

(a) require specified information to be included in the prescribed manner in documents, and other specified material to be excluded;

(b) contain requirements to ensure that specified information is clearly brought to the attention of the debtor or hirer, and that one part of a document is not given insufficient or excessive prominence compared with another.

Moreover the document you have sent is not properly executed as specified in s.61

s.61 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.

It is clear from your failure to supply me with such on demand, that no enforceable Credit Agreement exists, nor has ever existed, between myself and Barclaycard.In the absence of any Credit Agreement, any alleged debt is unenforceable under s.127 (3) of the Consumer Credit Act 1974.

(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).

I require the following assurances from you:

a) that within 7 days Barclays Bank PLC t/a Barclaycard will cease to process my data to third parties and that all Default Notices in my name be removed from all credit reference agencies.

b) that within 7 days Barclays Bank PLC t/a Barclaycard will provide me with a statement of account showing my balance as zero.

 

 

Failure to do so will leave me no option but to inform Trading Standards, and the Office of Fair Trading.

 

Should it be that this matter has to proceed to litigation, and as I consider those documents provided to me already to be so deficient as to be unenforceable I would therefore request copies of any documents that you would rely on as proof that a properly executed agreement, complying in all respects with the form and content requirements of the CCA and signed by both parties, in respect of the alleged debt.

I look forward to your reply.

 

Yours Sincerely,

I dont know how much good this will do in the sense of getting them to go away. But I think it sets out my position quite clearly. If you have any observations I would be glad to hear them as I dont plan to send this to them until next week.

Thanks for your help on this. SFU:)

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..... on November 2009 Barclaycard committed an offence .....

 

Did you write this yourself or is this from a template letter.


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Manchester Judgment was delivered on 23 December.

 

Check this thread out. Claim Stayed – Due to Unenforceable CCA Test Cases.


You may receive different advice to your query as people have different experiences and opinions. Please use your own judgement in deciding whose advice to take.

 

If in doubt seek advice from a qualified insured professional. Any advice I have offered you is done so on an informal basis, without prejudice or liability.

 

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Oooo, thanks Josie.

 

Will check that out tomorrow. :D


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copied it from somewhere and edited it. Not seriously enough edited? I left the wee bit in about offence just for a bit more aggression. I dont know that i would know who to complain to.

Josie, I have read the Manchester judgement, and I think this sets up an interesting wee problem for B'card (and by extension the rest of them). I have actually been quite successful in getting application forms (invariably with no prescribed terms!) back from lenders. The B'card one that is the subject of this thread is particularly, but not hellishly, bad (if you follow the distinction - sort of 1 out of 10 rather than the usual 3). Now, if we follow Slick's view that no way is this enforceable, due to the absence of prescribed terms, it would seem to me that they could hardly do a reconstitution, which, lets face it, would be more than advantageous to them. Could they? I would say they sent me this as a true copy already, and yes that is my sig.

What could get difficult is where you have had nothing back (three or four cases of that) and they try the reconstitution and "it would be normal procedure to require the debtor to sign this highly advantageous to the bank document"

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Manchester Test case being dissected in the following thread.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/240186-dissecting-manchester-test-case.html

 

HTH


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Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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Cheers Citizen. I am afraid that I spent too much of my Christmas/ New Year on that thread, but, i hope, to good effect.

Perhaps i was too pessimistic in my last posting (30th December) as a closer reading of the judgement makes pretty clear that for enforcement, the lender would have to produce an original to show what was agreed, and if this is all they can produce of that original (and you might be right - 25th December - the back might be no more than a return address) then they have had it.

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Just had Robinson Way on the phone (not that I spoke to them mind), so I think the letter set out in post on 29th December (but not sent yet) will have to get wheeled out. Any comments/ suggested changes anyone?

No SAR output from B'card as yet (but even within the terms of DPA they have till about the end of this month).

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Send your letter to Rob'n Way and see if they respond to it at all.

 

Add to it that you are awaiting a response to your SAR which should provide details of unlawful penalty charges included in the a/c balance (if this is the case). Acordingly this will be a further matter which places the a/c in serious dispute. :)


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