CCA Request to Barclays

[seriously fed up]

Thanks Slick - will do. The unlawful penalties were sorted about a year ago (deducted from account balance), but other than what I have already done, the SAR is about the only other thing that is going to enable me to find out what they have, and if they only have one side of a mailer application, its not very much is it?

Will let you know when/if they get back to me (either as a result of SAR, or RW).

Thanks for taking the time to help and advise. Appreciate it

SFU

[slick132]

They are unlikely to address the issue of your credit agreement when responding to the SAR because the agreement is more specifically d/w by way of a CCA request citing s.78 CCA 1974.

 

Are you expecting there to be more recent penalty charges on the a/c, which have not been refunded.

 

[seriously fed up]

Not as far as I know, though its been ages since they sent a statement. The SAR has gone so if there are we can see then. As for using CCA S78, what they sent me (ALL they sent me) was the document that I posted on 22nd December. Other than that, an earlier CCA produced a set of T&Cs that just cant relate to what they sent last month - for one thing it runs to about three or four pages, so if they are going to have to send copies for every time the T&Cs changed to trace it back to the original, they will have to deforest half of Brazil.

So, I will get off the letter, along with information about the SAR to them tomorrow and post again when I get a response (in writing) and/or when B'card respond to the SAR.

You are right of course that the credit agreement is dealt with more specifically by way of s78 (judge Waksman notwithstanding!), but I CCAd another lender and only got back a set of unsigned T&Cs. So a bit later I sent them a SAR, and this got them to own up that they didnt have the "application form" - their words. If they had had it, you can bet it would have been the "executed agreement".

Thanks again Slick for your interest and help

[seriously fed up]

Hi the attached letter came today in reply to the letter I set out in post #10.

Cant say their reply is not to the point, but in its specifics it hardly addresses what I said, which is that basically what they had sent me had no prescribed terms, and what the consequences of this would be.

Even though they dont seem to want debate, I am inclined to respond to them by pointing out that

 

1. in the recent case of Carey v HSBC, Judge Waksman states (sub para 4 of paragraph 234) "If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;". They have never provided, certainly original terms and conditions - they did send terms and conditions at one point (before the photocopied "agreement" turned up), but these ran to something like four pages of A4. If you look at the document they sent most recently, these four A4 pages would have to fit on something like half a page of A5 (or maybe A6 - it certainly isnt A4). So even in terms of satisfying a S78 request they havent done that
   
2. What do they mean by "satisfies our client's requirements under the Consumer Credit Act. If they mean "we could take this to court and enforce"? Well they couldnt, because
   

 

• 1 above - they havent satisfied even Waksman's dodgy requirements for s78
  
• s61 requires that "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". There are no prescribed terms in sight, and its impossible to determine if the document conforms to the Agreement Regs as all we have is the form which you can see in the first post. On the other hand, these Regs didnt come into force until 1985, but this was signed in 1977 But putting that to one side it doesnt fulfil s61, and (even without the regs being in place) doesnt fulfil s60 (where is there anything about rights and duties, charge for credit and so on), and thus it would fall foul of s127 (3).
  

Other than that, I suppose the one thing we do agree on there is little point in further debate!

I have got a SAR in with Barclaycard but I hadnt signed the cheque! Probably lay in their office over Christmas, so only signed it about a week ago, so unlikely I will see anything from this before end February.

Points of view about how to deal with Robin Way would be very welcome - the above/ something different/ ignore them.

Thanks as always

SFU

Edited January 22, 2010 by seriously fed up

[slick132]

Hmm, their letter is succinct, if nothing else.

 

I'd do no more until you have the SAR response - decide what to do then in light of whether any more penalty charges show up.

 

[seriously fed up]

cheers slick - I will do that. Save me a stamp if nothing else

thanks again

SFU

[seriously fed up]

SAR came in today. Nothing dramatic in it as far as I can see

 

1. what must be every letter they have sent me - what an imagination the person who thinks up the threatograms must have. If anyone wants proof positive of the connection between Barclaycard and Mercers, just get in touch as all the threatograms from Mercers were there as well
   
2. they have refunded all the fees - though against the balance of the account and not to me
   
3. details of the all the phone calls and their collection activitites. Very interesting but I dont think it will help me very much - I will have a look through it in due course, but if someone could make some suggestions about what to look out for here, that would be a big help, because there is a lot of information but none of it looks to have much value
   
4. perhaps the biggest thing was the confirmation in their letter of 16th December last year that what they provided was "a copy of the original APPLICATION form" (my emphasis btw).
   
5. before this, not heard a dicky bird since their very to the point letter about a month ago.
   

Any words of guidance, Slick (or anyone else) warmly welcomed

SFU:).

[slick132]

Hi SFU,

 

If they've refunded all penalty charges to date, there's little else to do, apart from pursuing a copy of the credit agreement.

 

[slick132]

Sorry, of course you have a copy of their "agreement" which is unenforceable.

 

So now you have to decide whether to continue paying towards the a/c, or not.

 

[seriously fed up]

Yes, I hope its unenforceable - that certainly seemed to be the weight of opinion when it first arrived (post 1 on this thread)

I havent been paying them for a bit anyway. I have made known to them my view of what they have sent me. So I suppose its wait to see what they do next

[seriously fed up]

had a letter from Horrible Farrelly, which I wont bother posting up as it doesnt say much beyond that they have advised their client to commence court action against me, and that I can prevent this if I will either cough up or make a payment proposal with a "simple statement of means and any circumstances i might want them to consider". Uh huh!

So, they are getting a letter back telling them their agreement is an application form without sight of a single prescribed term, and hasnt even been executed (s63), and that I will robustly defend on these grounds, bringing the correspondence where I have told Robinway and b******card this (several times now), requesting the claim be set aside as an abuse of process and seeking costs.

Any comments

Anyone had much to do with this mob?

[slick132]

What's the real name of xxxxxx Farrelly ? I don't recognise them.

 

My only suggestion is that you don't mention having the claim Set Aside, as you would only seek this if a CCJ is actually made against you.

 

You can simply say that any court action will be robustly defended.

 

[seriously fed up]

Horwich Farrelly - this is their website Horwich Farrelly Solicitors - the address here though isnt the one on the letter, which was the same as Robinson Way (probably coincidence? )

Yes the phrase "robust defence" will be used and take your point about set aside. What I didnt mention to them is that if they bring an action via Northampton, part of the defence that I didnt mention to them will be that the Civil Jurisdiction Act 1982 will apply to me (as Groucho Marx said "why give a sucker an even break?"). All they have to do is read and have even a rudimentary understanding of my post code.

[seriousfred]

what is the the Civil Jurisdiction Act 1982?

[seriously fed up]

It deals with where actions may be brought (actually its the civil jurisdiction and judgements act 1982 - sorry). Basically, a lender can bring an action only where you reside (which is why its important if in England to get the case transferred to your local court from Northampton, if that's where they have raised the case - as many do - unless of course you live in Northampton!), BUT if we are raising a case against a lender we, as consumers, can raise it at their local court or our own local court (our choice). It also means that judgements in an English/ Welsh court (other than the Supreme court which is UK) dont have effect in Scotland because it has its own legal system. This is despite whatever it might say in T&Cs about the law of England.

[seriously fed up]

Been away from this one for a bit - thank goodness - but I got a long letter from them today which I would appreciate some comment. I have attached this as a pdf - there are three pages (though some space in between to cut out personal bits) as well as the agreement (or should that be application form?).

 

What I take them to be saying is that they have now complied with S78. In this I am a wee bit confused as they have sent me - as well as (but quite separately) sent a set of T&Cs that dont have a name or address on them and look as if they are from 2000 (that seems to be the date printed at the end). Check the letter out please, everything refers to s78, Carey v HSBC etc.

 

Where it gets interesting is at the top of page 3 where they seem to be saying that what they have sent complies with s61 (interestingly no particular part - just s61). Of course it could be said that "they would say that". But they didnt have to (which is more worrying). However, their reference to paragraph 230 of Carey is illuminating. To save you going and finding a copy and finding the paragraph, its copied below

"Mrs Thompson says that to contend, as Barclays undoubtedly have, that "you have no evidence" is inappropriate in the context of a strike-out or summary judgment application which should only be granted if, as a matter of law, there is no case. But that seems to me to misunderstand the nature of these applications. They have at their heart the point that there is no evidence or plea from Mr Yunis at all as to what he said he did or did not do, or sign or did not sign, in respect of the agreement in question and that it is insufficient, without more, to point to the absence of a signed, or any proper s78 copy as a foundation for a plea of an IEA. That is an entirely appropriate point to be considered on applications such as this. And as with Adris and essentially for the same reasons, I consider that it is well-founded."

 

In other words, IF I READ THEIR LETTER CORRECTLY, and understand paragraph 230 correctly, what they are saying is that if I bring an action to have the agreement declared unenforceable, then I would lose. They are probably right, given Carey. However, were THEY to bring an action against me, it does seem to me that they would have to show that they have satisfied s61 (1a) that "61.—(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,"

If you look at the document they have sent me, then my view is that they cant succeed with a claim like this (assuming the judge knows the law).

 

The following paragraph is interesting as well, as here they own up to the problem of their "application form" (interesting they own up to this as arguably this could screw them under s59), but seek redemption on the basis that this document would have the T&Cs on the other side. I suspect if they could prove this then I would have heard from them by now.

Can I ask a favour of fellow CAGers

 

 

1. could someone wiser than I give an opinion on the above analysis?
   
2. suggest what I might do next? They seem to be saying "well you wont beat us if you take us to court". I suspect they are right and have no intention of doing this. How should I reply
   


1. another letter repeating the problems with what they have sent, expecting no reply as they have said there wont be any more?
   
2. another letter merely saying that I note their comments?
   
3. another letter which states that I have no intention of taking them to court and leaving it at that?
   
4. nothing at all.
   

 

I would be very grateful if some kind souls could advise me re this. Thanks

SFU

bcard.pdf

[slick132]

Hi SFU,

 

I think your take on this is pretty accurate.

 

Basically, they are saying they've complied with the requirements imposed by s.78, which is mainly true although you could argue that they should supply a set of T&C's for each occasion when the Terms changed. However, that would merely extend the argument and most likely get you nowhere.

 

I assume the important Prescribed Terms are missing from the agreement/application. If so, they would struggle to win a court claim against you depending, of course, on the judge on the day.

 

Their opinion about the T&C's being on the reverse of the application and the document being legible at the time of signature are nonsense.

 

So, as you say, you would fail if you took BC to court seeking a ruling of unenforceability because of the Carey case.

 

But if they took you to court with the application posted in the pdf file you attached above, they should fail.

 

You're now at the classic impasse with BC about this and you have to decide whether to:-

 

1. Continue to service the a/c normally.

 

2. Stop paying and see what action they take.

 

They rarely take cases to court and would spend many months, perhaps years, pursuing the debt with their DCA's. So if you stop paying the a/c, you'll also end up with a Default against your credit records.

 

[seriously fed up]

Yes, not a sign of a prescribed term - anything I concealed was purely personal (name/ address etc). I think that's their point about these things being on the back.

thanks for taking the time to stop by and offer your opinion. Appreciate it very much

SFU

[Peterbard]

HI

I think if anything the Carey case clarified the fact that a failure to comply with a section 78 request cannot be used as proof positive of a IEA.

Subsequent and in previous cases in the county courts up and down the land where witness statements have been accepted as evidence of the presence of prescribed terms on the rear of agreements would made make the suggestion that they where not there on yours unlikely to succeed.

The suggestion that “heresy” can somehow be used to counter this testimony is nonsense.

In my view the only possibility of success in one of these cases Is to make a positive declaration on your defence that you did not sign an agreement or (more riskily) that there was definitely no T and C s with the agreement you signed and you where understanding that this was an invitation to treat or application.(s59)

Just saying you could not remember seeing or you don’t think they where there will not be good enough in my view, it must be remembered that although the burden pf proof will be on them they only have to prove correctly executed agreement on the balance of probabilities so you must give your argument as much weight as possible.

As an afterthought and in consideration of slick s last post, I would agree with the comments about creditors being reluctant to chase defaulted accounts into court.

It is a common misconception on here that a device for challenging a creditor on an agreement is correct because the creditor does not enforce.

Contrary to popular opinion creditors do not like to enforce. Why would they thy have already lost the amount owed ,they have to pay for their representation, then if and when they win the judge gives the their money plus costs back at £3 a month because that is all the debtor can afford to pay, that does not mean they think they will lose necessarily.

That is why they employ DCA’s .

Peter

[seriously fed up]

Thanks Peter - this may be heresy, but i do agree with you about the likelihood of success if I took BC to court, which is why I wont. I will leave the burden of proof for them. As for a witness statement, this account is so old that it qualifies for Billy Connolly's description of "a lot of hair ago".

[seriously fed up]

I had a letter today from Cabot (attachments Cabot and Cabot 2), who had bought an old Barclaycard account. They seem to be making three points, and I propose to respond to them as follows, but wanted to check that I am right and this is the best way of dealing with them

 

1. they claim to have bought the account, but as you will see they are suggesting that they dont have any documents from BC, so I should get on to BC myself and work with them. But my understanding is that if they buy the rights under the "agreement", they also buy the duties, one of which is to provide me with the documents I require. Am I right in this?
   
2. their second point concerns the statement in the application form (attachment bc) to the effect that I agree to be bound by the t&cs (as set out overleaf and amended from time to time) - however, the attachment (bcard) - other than a screen dump of current T&Cs with my name typed on the top - is ALL i have ever had from BC - so they have never provided the T&Cs "as set out overleaf", so we have no way of knowing what these were and whether they were compliant. This seems so obvious to me that I feel I must be missing something, but what?
   
3. are they hiding behind "BC have complied with your request" - top of page 2. In terms of s78, they possibly have. But that's not the same as s61.
   

Before writing back to them, I would appreciate some input, especially from experienced Caboters. Thanks

SFU

cabot.pdf

cabot2.pdf

bcard.pdf

[blueda]

Hi SFU 1. i totally agree with you, when they buy the rights they also buy the duties and provide proof.

[firstship]

Hi SFU.if Cabot state they own the debt fine,did Barclaycard say they had sold the debt by way of a letter of Assignment.

 

Did Cabot send you a letter of Assignment confirming the purchase of the debt from BC

 

If the answer to one or both is No then they are required to do so before proceeding in the manner you indicate

 

As Cabot say they own the debt,but want you to deal with Barclaycard to obtain all information,this is rubbish

 

Send Cabot a CCA 1974 request with your £1 + recorded delivery,if they own the debt they should have the information

 

I note from your attached files that you have CCAd in the past BC direct and got the usual T&Cs and a copy of the application form, thats OK but its not what you asked for.

 

So make Cabot work for it CCA them after they have supplied the Letter of Assignment

 

FS

Edited February 2, 2011 by firstship

[IdaInFife]

1. Yes

2. Considering the address would be on the back to post it back where would the t and c's have been?

3 Yes again.

 

I am not an experience caboter but will get someone to have a nosey

[spamheed]

Good morning SFU

 

I had a letter today from Cabot (attachments Cabot and Cabot 2), who had bought an old Barclaycard account. They seem to be making three points, and I propose to respond to them as follows, but wanted to check that I am right and this is the best way of dealing with them

 

 

1. they claim to have bought the account, but as you will see they are suggesting that they dont have any documents from BC, so I should get on to BC myself and work with them. But my understanding is that if they buy the rights under the "agreement", they also buy the duties, one of which is to provide me with the documents I require. Am I right in this? If they have not bought both the rights and the duties, then they are not the creditor as defined in CCA and have no right of action, however since this is still the early days, you need to pin this down and get them to state very clearly in writing the details of the assignment
   
2. their second point concerns the statement in the application form (attachment bc) to the effect that I agree to be bound by the t&cs (as set out overleaf and amended from time to time) - however, the attachment (bcard) - other than a screen dump of current T&Cs with my name typed on the top - is ALL i have ever had from BC - so they have never provided the T&Cs "as set out overleaf", so we have no way of knowing what these were and whether they were compliant. This seems so obvious to me that I feel I must be missing something, but what? As you are clearly aware, fulfilling s78 is in now way enough, you need concrete evidence of their ownership and also of your liability
   
3. are they hiding behind "BC have complied with your request" - top of page 2. In terms of s78, they possibly have. But that's not the same as s61. You already know the answer to this one :o)
   

Before writing back to them, I would appreciate some input, especially from experienced Caboters. Thanks

SFU

 

When dealing with cabot it is clear that the devil is in the detail. send the Original Creditor a SAR immediately, it could be the best £10 you ever spend, the OC would have recorded everything against your account making it very difficult for Cabot to now do that twisty Turny thing they like to do with the truth

 

You need to make them prove firstly that the assignment is lawful, so ensure any communication clearly state that you do not acknowledge any debt with them and will continue to do so until they provide sight of the Notice of Assignment and Deed of assignment as laid out in the Law of Property

 

Then there is the type of assignment, if as they say they do not carry the duties of the agreement, then the assignment must be an equitable assignment and they are clearly not the creditor

If the assignment is absolute, then they are the creditor and are responsible for the fulfillment of any requests that would normally be made against the creditor.

 

Cabot seem to get confused in this matter, I had letters (CCA18) from them stating that they had an absolute assignment, yet in a signed statement of fact they stated that they did not carry the resposibilities of the agreement.

 

fulfilling a s78 goes nowhere near proving anything as the law now allows reproductions to be produced.

You need to have Cabot provide you with clear evidence that they have ownership of your account, this would be via the assignment, without this they are nothing more than a fat lad at the door demanding unknown monies.

 

 

• You also need to have Cabot provide you with proof of your liability, this would be done via a true copy of the agreement, not a repro or otherwise,
  
• statements of account should also be provided by Cabot to prove that the amount they are claiming is correct.
  
• Has the account had a default placed against it?you need to see the default notice
  
• Is there PPI on the account? was it missold? have you seen a copy of the T&C for the PPI? if so, get it claimed immediately - my recent claim was discontinued in part because the PPI T&C specifically excluded my profession.
  
• Are there any unlawful charges against the account? get them reclaimed immediately (from the OC)
  

you say it's an old barclaycard account - how old exactly? how long since you acknowledged it or made a payment against it?

 

what sort of figure are they claiming? (just a ballpark figure will do - don't be specific)

Do you still have communications from BC about the transfer/sale of this account?

 

Have you made any s78 requests to BC?

Edited February 3, 2011 by spamheed