RTR vs Barclaycard

[RoadToRecovery]

(This was originally Morgan Stanley -> Goldfish)

 

Will list everything chronologically (date of action / date on letter)

 

23rd May / 23rd May: Sent CCA request,

 

2nd June / 1st June: Received a letter stating I would receive a copy of my executed agreement under seperate cover.

 

5th June/ 31st May: Then received a copy of the current terms and conditions and if I require any further information to use their website.

 

Not sure of the importance of the dates on their letters but the one date 31st May arrived days after the letter dated 1st June? From reading some of the threads, it seems like this is their standard response to send only the current T&C's

[the_shadow]

(This was originally Morgan Stanley -> Goldfish)

 

Will list everything chronologically (date of action / date on letter)

 

23rd May / 23rd May: Sent CCA request,

 

2nd June / 1st June: Received a letter stating I would receive a copy of my executed agreement under seperate cover.

 

5th June/ 31st May: Then received a copy of the current terms and conditions and if I require any further information to use their website.

 

Not sure of the importance of the dates on their letters but the one date 31st May arrived days after the letter dated 1st June? From reading some of the threads, it seems like this is their standard response to send only the current T&C's

 

Yep thats all Barclays will send in response to a s78 request.

 

Are there unfair charges you could claim back on this account? Have you thought about going for a SAR and then claiming these back first?

 

If you want to see your agreement then your going to have to follow the CPR method of obtaining it. This will involve a court hearing to get the agreement.

 

Follow this link -->http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

 

S.

[RoadToRecovery]

Thanks for the reply. I'm not sure there has been any unfair charges as I always paid on time within limit. Only interest and balance transfer fees.

 

I have been reading the thread you linked to with great fascination. There are some real clever fellows on these forums which is a godsend to the less clued up users like me. Hopefully in a few months time I will be able to help others who are newbies

[the_shadow]

Thanks for the reply. I'm not sure there has been any unfair charges as I always paid on time within limit. Only interest and balance transfer fees.

 

I have been reading the thread you linked to with great fascination. There are some real clever fellows on these forums which is a godsend to the less clued up users like me. Hopefully in a few months time I will be able to help others who are newbies

 

Hi RtR.

 

There could be another possible way to get sight of the agreement, another CAGGER made a complaint to FOS about Barclaysharks reluctance to send out the actual agreement and the FOS upheld the complaint. Could be another possible route which doesnt involve court.

 

S.

[RoadToRecovery]

The deadline for the original CCA request has passed last Friday, not suprisingly received nothing more from BC.

 

 

I have read with interest the thread regarding the BC CPR request victory (http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/165349-smt37-morgan-stanley-goldfish-12.html)

 

 

Is there anything more I need to do before sending an account in dispute letter?

[slick132]

Hi RTR,

 

If the deadline has passed, send the A/c In Dispute letter.

 

Then decide whether to tackle them using the CPR strategy or complain to the FOS.

 

The FOS route may not be appropriate as they haven't refused to supply the agreement yet. Also, this may be a slower process and it's still early to say if this works reliably. It is, however, free to make a complaint to the FOS.

[RoadToRecovery]

Why do the CC companies tell deliberate lies in their letters?

 

I have received a load of waffle letter twice in which they state;

 

"If the credit agreement has been varied, we must send the current credit agreement as this will contain the terms of the regulated agreement. We have sent you this and the original executed agreement for reference"

 

They haven't sent the original executed agreement at all. I have received several letters promising to send the agreement under seperate cover yet receive nthing but waffle.

 

Do they send all this stuff to try and confuse the hell out of people?

 

I am going to persue the CPR route as from now.

Edited July 7, 2009 by RoadToRecovery
spelling!

[RoadToRecovery]

Taken this letter below from another thread, and will include the information that follows as a second page as Barclaycard have previously said they will not discuss the matter further unless I quote case law.

 

 

Dear Sir/Madam

Account Number

ACCOUNT IN DISPUTE

Contrary to assertions made by (NAME OF THE PERSON WHO SIGNED LETTER) in a letter dated 26 May 2009, Barclaycard has still failed to comply with its obligations under section 78 of the Consumer Credit Act.

 

The set of documents included in your letter however, do not absolve Barclaycard of its obligations under section 78 of the 1974 Act.

 

Regulation 3(1) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557) requires the provision of a true copy of an agreement. Although this need not be an exact copy and certain information may be omitted from a true copy, it must still be a true copy rather than a conjectured reconstruction and the information that may be omitted is strictly specified.

 

However, it is not the case that information need only be provided in relation to an agreement as varied or that only the most recent version of the terms and conditions applicable to an agreement need be provided.

 

Seeking to rely on regulation 7 in supporting that position is to overlook both the distinctions between the wording regulation 7 on one hand and regulations 8 and 9 on the other.

 

Although regulations 8 and 9 use the word "comprise", regulation 7 uses the word "include". It provides that copies provided in accordance with any section other than section 85 shall include either an easily legible copy of the latest notice of variation or an easily legible statement of the terms of the agreement as varied.

 

Barclaycard would only have been entitled to provide a statement of the current terms of the agreement in lieu of a true copy of the executed agreement in the very limited circumstances in which regulation 9 applies (ie to agreements entered into prior to 1985).

 

Neither regulation 8 nor 9 applies in this instance, so the information provided must include the current terms and conditions and not merely comprise the current terms and conditions.

 

Accordingly, Barclaycard was (and is still) obliged to provide a true copy of the terms and conditions referred to in any application form in their original form, in addition to the current terms and conditions that have been provided.

 

I would be obliged if these could now be provided without further delay or prevarication.

 

In the meantime, the effect of section 78(6) of the Consumer Credit Act 1974 is that Barclaycard is precluded from taking any enforcement action whatsoever in relation to the account.

 

 

You are reminded that should litigation be your preferred course of action you will be required to provide the original document for the Court and that the courts powers to enforce an agreement that is not properly executed and that was entered into before 2007 are limited by section 127(3) of the consumer Credit Act 1974 .

I really think that the best way forward to resolve this matter to both our satisfaction would be for you to-

 

 

(1) Confirm whether or not you still hold the original signed and executed document at your offices for this account and that it will be available to bring to any court should any type of legal proceedings be commenced in future.

 

 

(2) Send me a true exact signed copy of this original agreement if you still hold it.

 

 

(3) Alternatively, if you still maintain you retain the original signed Agreement with all the prescribed terms as laid down in the regulations then I request to be allowed to view this at your offices and that you contact me in writing to arrange a convenient time to view the original agreement

 

 

I am sure that you will agree that doing the above will maybe resolve this matter and would also save future court time and costs, which would be in both our interests. I would appreciate your due diligence in this matter and I look forward to hearing from you in writing.

 

 

Information courtesy of another thread quoting response from trading standards which I will include;

 

 

THE CONSUMER CREDIT ACT 1974 - Sections 77 and 78

 

Summary

 

On request and when accompanied by £1, a consumer has the right to:

a copy of their executed agreement

 

any other document referred to in it

 

a statement showing

 

the total sum paid under the agreement by the debtor

 

the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due, and

 

the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due. If the creditor is unable to give this information, he can state instead how the dates and amounts fall to be ascertained.

 

The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement e.g. the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this – to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.

 

In our view a

debt collector who has bought the debt is the ‘creditor’ and as such takes on the liabilities of section 77.

Under section 77(4), if the creditor is unable to provide this information, he is not entitled to enforce the debt while he remains in default.

 

Legal Argument

 

A copy of the executed agreement

Under the prescribed condition, section 77 of the Act requires the debtor to ‘…give the debtor a copy of the executed agreement (if any)….’. The ‘if any’ most naturally refers to the exception for agreements older than1985.

 

Where a creditor receives a request to supply a copy of the executed agreement, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (‘1983 regs’) apply. Regulation 3(1) sets out the basic position that ‘every copy of an executed agreement… shall be a true copy’.

 

Regulation 3(2) goes on to concede that there may be omitted from this true copy various information such as details which are not required to be in the agreement by law: the signature box, signature and date of signature. In our view the effect of

 

Regulation 3(2) is that the creditor is only obliged to send out a generic copy of the agreement the debtor has signed up to. The creditor is not obliged to make an actual photocopy of the agreement.

 

However, the copy does have to be a ‘true copy’. This is a technical term, which has been discussed in a number of cases, mostly relating to bills of sale and the need to register a ‘true copy’ of the bill with the High Court. These cases come from the days before typewriters, when copies were made by hand. The consequences of filing a copy which was not a true copy were severe, since the bill would then be void and the creditor deprived of his security.

 

Meaning of ‘true copy’

 

In this context, the courts decided that a ‘true copy’ need not necessarily be an ‘exact copy,’ but it must be ‘so true that nobody reading it can by any possibility misunderstand it’ or be misled by it

 

(In re Hewer ex parte Kahen (1882) LR 21 Ch.D. 871 at 875). The copy must contain ‘every material provision which is contained in the original’ (except that if the defect is made good by reading the document as a whole, the omission will not be fatal) (Court of Appeal in Burchell v Thompson [1920] 2 KB 80 at 98-99). Further, it is not sufficient for the copy merely ‘to state with complete accuracy in a summary form the effect of the stipulations contained in the original. It is not merely a document that is to state the true legal effect of the original; it is to be a copy of the original’ (per Atkin LJ in Burchell at 105).

 

Hewer, ex parte Kahen

- the filed copy of the bill omitted the precise day of the month on which payment was to be made. The court held this was trivial, and no debtor would be misled by it.

 

Sharp v McHenry

(1888 ) LR 38 Ch.D. 427 - the copy contained blanks which were not in the original. The court decided that the blanks were unimportant, since the omitted words were not required for the original bill to be valid.

 

Burchell v Thompson

[1920] 2 KB 80 - the copy failed to include the words ‘per annum’ after the interest rate of 55%. The reader of the copy would have to guess whether the interest was per annum, per month or something else but as one could sensibly assume, correctly, that it was per annum it was a true copy.

 

Commercial Credit Company of Canada Ltd v Fulton

[1923] AC 798 - suggested further that where there are a raft of smaller differences in a bill of exchange copy, this could prevent it being a true copy. However where the differences were such as to make the copy contract actually different to the original, the copy will not be true. Lord Sumner, speaking of the man who may wish to refer to the copy, concluded that ‘the Act promises him … a true copy, not a puzzle. He is to inspect it, not to recover the original by a process of conjectural emendation’ (at 807).

 

 

Is there any reason NOT to send a letter based on this information?

 

tia

 

RTR

[slick132]

Looks good - where is it from.

 

[RoadToRecovery]

Hi slick.

 

The letter was originally on sunflowers Barclaycard thread.

 

The stuff with the legal cases is from a post by citizen b. It was a response from the OFT / FOS regarding a complaint about lack of CCA compliance.

 

Should I have asked the respective thread owners or posters before using the stuff posted above? Apologies if this is the case. I haven't sent anything yet, just been looking for any precedent with regard to this current T&C's used to satisfy a CCA request issue.

[slick132]

Should I have asked the respective thread owners or posters

No, that wasn't my reasoning at all. Was just interested to know the source.

[evancosmo]

subbing

[RoadToRecovery]

Nothing happened on this for months, other than regular calls from Mercers and a visit from Power2Contact.

 

Mercers continue to say the debt will be sold on which as yet hasn't happened. It would be bad business for any DCA to buy a debt without an original contract, imho.

[slick132]

Hi RTR,

 

Since the posts above from earlier this year, we have seen some successes in having the FOS intervene and get the OC to produce whatever credit agreement they hold.

 

See here - http://www.consumeractiongroup.co.uk/forum/barclaycard/231901-tony3x-barclaycard.html

 

So the good news is, this has been successful in a number of cases.

 

But the bad news is the FOS are so slow.

[RoadToRecovery]

Bizarely I recieved a reply from the FOS today!!!!

 

I had given up hope and was thinking I would have to send the forms again.

 

"Acknowledgement

 

Thank you for your correspondence, which has been received safely.

 

We are currently receiving very high volumes of enquiries and we will provide you with a full response as soon as we can."

 

and another couple of lines about ref numbers.

 

I originally read that another user had used this method and finally received an applications form and an admission that Barclaycard held nothing more than the application form.

 

Thanks for the reply.

[bazaar]

Ultimately, you require the statement from them that they do not hold your agreement,

As you know, this wont happen easily, they use mercers to try and trick you into paying something. Mercers will lie over the phone to you to achieve this.

You'll also get many many threats.

I hope you sent P2P packing.

So, although its a long process, you need to go through all the rigmorole of sending legal requests, ( which they, in their wisdom ignore).

This gets your papertrail in order before court.

Youve got to have at least (IMHO) gotton to the stage where the account is in dispute, then any DCA that comes along later, you can tell where to get off due to the dispute.

Rather than sending you the correct paperwork ( Which mostly, they dont have) they will sell this on in the hope you'll pay up.

Youre in a good position now, because you have a case number from FOS. So any threatograms can now have this case number in bright red letters at the top

[RoadToRecovery]

Incredibly I received my application form / agreement from bc. I have read through a few threads and gone through the enforceable / non enforecable agreements thread and am unsure about this one?

 

The quality here is virtually as good as it is on my desk now. There is no credit limit, just the term we will set your credit limit from time to time.

 

Any input would be greatly appreciated.

 

tia

 

 

..

 

 

..

[middenmess]

Easily legible is one of the required criteria which this isn't.

 

 

Bit of a novelty on here to actually see something titled 'Agreement!'

 

Then they go and spoil it by having a box [newly inserted??] at the bottom saying..

 

 

'To Apply For Your Morgan Stanley Card'

Edited December 3, 2009 by middenmess
missing text

[slick132]

Hi RTR,

 

I can't make out the actual wording or figures in key places such as Credit Limit, Repayments and APR, although the entries appear to be there.

 

Can you read the detail on the copy sent.

[RoadToRecovery]

Thanks for the replies.

 

I just spent a hour decrypting and typing out the text and found a copy of the agreement at the back of the terms & conditions which shows all the text I was trying to read.:roll:

 

Is this a kosher agreement?

 

tia

 

[middenmess]

What does it say at 'Total Charge For Credit--'D''

 

When did you take out the card as late charge fee says £12 which I believe came in around 2006?

[bazaar]

As pointed out in earlier post, the 'agreement' looks like an old microfiche, but the Morgan Stanley is clear as day. Seems to be a cut and shut job to me.

Maybe someone has a similar agreement from BC. So in effect they use the BC T&C's then paste over the BC Logo.

Just a thought, but strict proof might be needed here.

[RoadToRecovery]

What does it say at 'Total Charge For Credit--'D''

 

 

When did you take out the card as late charge fee says £12 which I believe came in around 2006?

 

 

D On Purchases £123.63, being interest only on an example £1500 repaid over one year.

 

 

Card was taken out in January 2007

[slick132]

Well that is slightly more legible but is NOT part of the credit agreement.

 

The doc't in post #17 has only 2 sides, both of which you have shown. So the clearer sheet in post #20above can't be part of the credit agreement.

 

On balance, despite the problems with legibility, I would say the doc't in post #17 is likely to be enforced if they went to court.

 

Please confirm if your signature is on part 2 of the doc't in post #17.

[RoadToRecovery]

My signature was in the box on part 2

 

 

Wonder why they never sent this agreement previously, have been asking since May.