Barclaycard's response to CCA request

[izools]

Made me chuckle - no signiatures, dates, any personal information of any kind on the attached documents.

 

Even the first four digits on the black application refer to a Visa card when the account is a mastercard account.

 

Enforcable? What do you think the next step to take is?

 

Account was opened in 1995, Barclaycard had continued issuing cards on the account despite accountholder telling them not to; they refused to close the account in 2002 ish when asked to, and kept increasing the credit limit to unscrupulous limits (£7,400 at one point whilst account holder was on benefits) despite numerous requests telling them not to.

 

Card has been in a formal arrangment for over five years paying over 1% of the balance each month never missed a single payment, is stretching the budget as it is continuing to pay said 1% but they have issued letters saying they want to revert the account to a normal standing account with credit limit, card, interest, 2.5% minimum payment etc but the balance is so high it just wouldn't get paid and they are being generally strange so I figure CCAing them and contesint liability the best route to take as my mother never asked for the card in the first place anyway!

 

Edited May 21, 2009 by izools

[cerberusalert]

The first picture seems to be made up of the front & reverse of an application form. It seems as if they are trying to imply that it is all one side, which it isn't. It doesn't contain any of the prescribed terms so it is unenforceable.

 

The T&Cs which are purporting to be the reverse of the document bear no relationship.

[izools]

What would you reccomend as the reply?

 

Should I draw attention to anything in paticular?

 

Have you got a link to that "CCA Request in Default" template?

 

Thanks Mother is very happy now

[cerberusalert]

I DO NOT ACKNOWLEDGE ANY DEBT TO YOUR COMPANY

 

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 the Application Form & seperate 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 Application Form & 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 dispute continues

 

Yours faithfully

Print name do not sign

[izools]

Have sent dispute letter and SAR seperately today, both recorded.

 

Watch this space!

 

When would be a good time to seek a copy of the signed agreement persuant to CPR 31.16?

 

If there is no signed or properly executed agreement in the SAR, would it be worthwhile looking for a court injunction on Barclaycard prohibiting them from persuing the debt?

[Dinkjames]

When would be a good time to seek a copy of the signed agreement persuant to CPR 31.16?

 

Only once they have implemented legal proceedings i.e. you receive court papers from the OC or DCA.

[izools]

It's OK I've been reading this thread with great interest so I now understand the CPR 31.16 intentions more clearly.

 

Plan of attack would in that case be wait for Barclaycard to send their reponse to the Dispute letter and SAR, and if none of that contains the signed agreement make a request persuant to CPR 31.16, give them 21 days and if they reply with an unenforcable agreement or an admission that they don't hold an agreement then

 

If the debtor should form the view the agreement was improperly executed he may wish to bring proceedings for a declaration under section 142(1)(b) of the Consumer Credit Act 1974 to the effect that the agreement owing to improper execution ought not to be enforced.

Of course if Barclaycard default on the request to supply an exact copy of the signed agreement persuant to CPR 31.16 after two requests (wherin we would offer to pay reasonable costs in producing said documents) then we'd need to file a N244 getting a court order forcing them to disclose the document.

 

If they can't or they supply an unenforcable agreement then again this would be time to seek a declaration persuant to S.142(1)(b) of the CCA1974 through the courts that the "agreement" aught not to be enforced.

 

If of course at any point throughout they produce a signed and enforcable agreement just keep paying.

 

Have I understood the process correctly?

 

Is there any detriment to continue paying the arraged contribution to the debt every month or would that be seen by the court as "further acknowledging liability for the debt"?

 

Just don't want any tarnishing information on mothers Credit report, as she's been a good girl for the last few years and worked her Experian credit score to above 850 points now...

[izools]

Bumpety bump - can anyone advise?

[cerberusalert]

Have I understood the process correctly?

Yes

 

Is there any detriment to continue paying the arraged contribution to the debt every month or would that be seen by the court as "further acknowledging liability for the debt"?

If the a/c is in dispute because of their failure to produce an enforceable CCA there's not much point in continuing to make any payments because whilst they are still receiving monies it hardly gives them an incentive to comply. As for acknowledging the debt, that's not the point. The issue is whether the agreement itself is enforceable in law or not.

 

As for your mums credit rating, if she is paying minimum payments now & finding it difficult, now they intend to more than double the repayments it will be sooner rather than later that they start to default her.

[izools]

Would it be fair to say that continuing to make payments whilst the account is in dispute is a contradiction of intentions, and generally a bad idea?

[cerberusalert]

Yes

[izools]

OK so here's a quick update.

 

Sent barclaycard a dispute over their response to the CCA request, they just sent a standard reply claiming to have complied with the request.

 

Have issued a SAR no response yet.

 

Also sent this:

 

FORMAL REQUEST FOR INFORMATION

CPR Part 31.16

 

To Whom It May Concern:

 

Account number 5301

 

On 2nd May 2009 I wrote to your organisation requesting that you supply me a copy of the Agreement for my account. My request extended to the full Agreement which bore my signature.

 

I enclose a copy of the letter which was sent, for your information.

 

I note that thus far I have not received a satisfactory reply from your organisation, neither have I received a copy of the Agreement which I requested. In view of the circumstances I do not feel it unreasonable to ask for this document to be disclosed; it is not commercially sensitive nor is it a restricted document and should be easily accessible for an organisation such as yours. Therefore I would ask that you provide me with a copy of the contract which bears my signature; I require the complete document with all its parts.

 

Please confirm if you are in a position to make a copy of the Original Agreement, and to confirm if this will involve making copies of more than one page.

 

If you are in a position to make new copies from the Original Agreement , please ensure that any such fresh copies include a signed confirmation that they were copied directly from the Original, stating the date when the copies were made from the Original. Please also advise the name of the person who made the copies, so that if needed they can be called as a Witness to confirm the copies were indeed taken directly from the Original Agreement.

 

If you cannot make new copies taken directly from the Original Agreement, please confirm why not.

 

The reasons why I require this information are clearly set out within my Original letter dated 2nd May 2009, but for clarity I require this document for the following reasons:

 

1. I require this as I have reason to believe that there may be discrepancies within the Agreement which may leave it improperly executed.

 

2. I require this as I have reason to believe that the Agreement has not been properly executed or mutually agreed.

 

3. I require the document as I have reason to believe that account terms were not made clear to me and that I was not given sufficient opportunity to consider the terms which you are attempting to hold me to prior to the account facilities being made available to me. I do not feel it unreasonable to consider the possibility that the account was mis-sold and that the sales tactics were not bona fide.

 

Since this matter is likely to be subject to proceedings and given that your organisation is likely to be a defendant in any action which would be brought by me, I must draw your attention to Civil Procedure Rules part 31.16(3)©&(D) which gives the court the power to order you to disclose this document to me.

 

The disclosure of these documents will allow me to consider any claim I may have against your organisation and will allow for the matter to be dealt with possibly without the need for costly litigation. Therefore I again ask that you provide me with the documents which I have previously requested. I do not consider this request unreasonable and therefore if you fail to comply with my request I will be left no option but to make an application to ..... County Court for an order made under the provisions of CPR 31.16 ordering you to disclose the documents which I have requested.

 

Additionally I will ask the court to make an order for my costs in bringing this application and reserve the right to disclose all communications in this matter before the court, should such an application become necessary.

 

Please confirm by no later than 4pm on 22nd June 2009 that you will comply with my request, or if you will not comply please provide your reasons in writing.

 

 

 

Yours faithfully,

 

 

They send the standard CCA S.78 reply again:

 

 

 

 

So I'm firing off this one today:

 

 

To Whom It May Concern:

I write regarding your letter dated 4th June 2009. You reference Section 78 of the Consumer Credit Act 1974. I find this perplexing as the most recent letter I sent you dated 30th May was not a request pursuant to Section 78 of the Consumer Credit Act.

I made a formal request pursuant to Part 31.16 of the Civil Procedure Rules; which is a totally separate set of rules and regulations to those prescribed within the Consumer Credit Act 1974.

Whilst you may feel that you have fulfilled your obligations under S.78 of the CCA1974, by sending me an illegible, blank application form for the wrong type of credit card, this is not relevant to my most recent request.

I therefore kindly request that you refer to my most recent letter (enclosed) and read it thoroughly again and conform to my request under the provisions of the Civil Procedure Rules S. 31.16.

If you are unable to conform to the request I outlined in my previous letter, I require reasons for this in writing. If you do not hold the document that I am requesting a copy of pursuant to CPR S.31.16 I would suggest advising me of this in writing at your next available opportunity to prevent a potential miscarriage of justice at a later date.

Please note that the initial deadline provided in my letter dated 30th May, which was 4pm on 22nd June 2009, still stands. I would like to avoid having to file court papers ordering you to release this document.

Please note that whilst this request remains outstanding the account is still in dispute, as you have thus far been unable to present me with a document that proves that this account is enforceable at law. I therefore remind you of your obligations under the Consumer Credit Act, Administration of Justice Act, and Data Protection Act, that you are not permitted to enforce debt collection procedures or report account status information to the Credit Reference Agencies. At most you are permitted to mark the account as “queried” on my credit report. I trust you understand the possible repercussions of not conforming to your obligations under these acts.

 

 

Am I doing everything right so far? Watch this space I suppose!

[ccman]

I have received the same Dear Miss letter from BC and have sent a similar request under 31.16

 

Will keep you posted

 

CCMAN

[Braveheart12]

Subbing with interest.

[rainbow moon]

I have just received the same letter re section 78 of the credit act after I sent the in dispute letter - subbing with interest