English Law??

[Rycord]

Hi Everyone,

 

Like many others I have recently CCA'd Barclaycard and got their standard response of Terms & Conditions supposedly from when I opened the account in 1995 and a current set.

 

I have since read that Civil Procedure Rules can be used to obtain a copy of the original agreement if they have one but that I can't use them as these rules do not apply in Scotland.

 

I have just had a look over the Terms & Conditions and something jumped out at me. The 1995 set say "This agreement is governed by English Law" the current set say "The terms of this agreement, and our dealings with you with a view to entering into this agreement, are governed by English Law and subject to the exclusive juristiction of the English courts".

 

Does that mean they couldn't take the issue of enforcement to a Scottish court? Would they be able to summon me to an English court?

 

Any thoughts or advice is much appreciated.

 

Thanks

Ry

[blueda]

I dont have direct experience with civil procedure, but i have never heard of an English court being able to summons anyone from Scotland to a civil case, in fact no court can force you to appear for this, they would just make a decision in your absence.

[IdaInFife]

they cannot summon you to an English court but they can issue proceeding up here. Governing and enforcing are two different concepts

 

 

idax

[Rycord]

Thanks blueda & Ida,

 

It was the "exclusive juristiction" bit that got me thinking.

 

I'll see what they do next then most likely send a SAR unless you advise anything else.

 

Any thoughts on the chances of them having an agreement from 1995?

 

Cheers

 

Ry

[IdaInFife]

if they just sent you standard t and c's with no look of cca then you can send them:

 

Dear Sirs,

Account no xxxxxxxxxxxxxx

 

Re: my request under the Consumer Credit Act 1974

This account is in Dispute .

On xx/xx/2007 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied were current terms and conditions which did not comply with the requirements of the Consumer Credit Act 1974.

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states

127(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).

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

2.6 Examples of unfair practices are as follows:

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

Since the agreement is unenforceable and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for your client to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

I respectfully request a response to this letter in 14 days

 

I trust this out lines the situation

 

ida x

[Rycord]

Much appreciated Ida.

 

I'll send that off.

 

Ry

[Rycord]

Hi Ida,

 

Received strange (but getting my hopes up) letter from Barclaycard today.

 

It reads word for word:

 

"Thank you for your request for information under section 78 of the Consumer Credit Act 1974.

Based on the information you have given we are unable to locate your client's account details. Please provide further information to allow us to proceed with your request such as previous addresses or Barclaycard Account Numbers."

 

I have only ever had 1 account and 1 change of address that they are well aware of. Sneakily they havent put my name,address or account no. on ths lettter, even the envelope was handwritten.

 

Any ideas on how to respond?

 

Thanks again

Ry

[IdaInFife]

Dear Barclaycard,

 

Thanks you for your letter dated xx/xx/xx but I suspect that this has been sent to me in error.

 

You state " Based on the information you have given we are unable to locate your client's account details". I am the person named on the corresspondance (sp?) and already provided you with details that you have supplied to me in past corresspondance.

 

Please be advised that my request under the Consumer Credit Act 1974 still stands and will default on xx/xx/xx.

 

I await your response,

 

ida x

[Rycord]

Thanks Ida,

 

I was all ready to go guns blazing into a "you have confirmed you cannot locate the agreement therefore debt should be written off" type letter.

 

Too soon for that?

 

Cheers

Ry

[IdaInFife]

they won't write it off it will always be there.

 

just let them know you knwo your rights about cca, it's a stalling tactic

 

ida x