BS from BCard

[shinobi101]

I CCA'd barclaycard and got T&C's only, one old and one new. They had a covering letter which wasn't an agreement, but one had credit limit, current balance and stuff. The T&C's don't even identify me.

 

I sent the standard dispute letter. "Your T&C's are not a contract"

 

They sent a form letter with so much BS on it, I barely know where to start in replying. Any thoughts, or form letters for this?

 

They said all this:

 

Reference: Section 78 of The Credit Consumer Act 1974

 

I write further to the letter whereby you note dissatisfaction to

the documents you received in relation to a request made under

Section 77/78 of the Consumer Credit Act 1974.

 

Firstly, credit cards are regulated under Section 78. Section

78(1) of the Act states that the creditor shall give the debtor a

copy of the executed agreement and a statement of account which is

practicable to refer. Regarding a statement of account which is

practicable to refer, the letters which we send in response to a

Section 78(1) request includes this information. To cover the

issue of executed agreement.

 

How does the Act define an "executed agreement"?

 

"Executed agreement" is defined in section 189 of the Act as, "a

document, signed by or on behalf of the parties, embodying the

terms of a regulated agreement ".

 

What do the rules say about providing a copy?

 

The Consumer Credit (Cancellation Notices and Copies of Documents)

Regulations 1983 ("the Regulations") made under the Act deal with

how we are to provide a "copy" of an agreement. These Regulations

provide that any copy of the agreement supplied to a debtor should

be a 'true' copy. Regulation 3(2) provides that a copy may omit

certain information, which allows you to be provided with a true

copy, not a complete copy.

 

What happens if the original agreement has been varied since it

was originally signed?

 

The Regulations also set out what should happen where the

agreement has been varied since it was signed. Regulation 7

provides creditors with a choice of including in the copy of the

executed agreement either a copy of the latest notice of variation

relating to each discrete term which has been varied, or an easily

legible statement of the terms varied. Regulation 7 does not

state that the copy of the agreement shall include a statement of

the original terms as well as a statement of the varied terms.

Regulation 7 allows us to provide you with a "true copy" which

sets out the terms and conditions current at the time of provision

of the copy.

 

Conclusions in relation to the document we have to provide

 

A "copy" of an agreement will satisfy the requirements even if the

signature box and/or the signatures are not included as clarified

by Regulation 3(2) of the Consumer Credit (Cancellation Notices

and Copies of Documents) Regulations 1983.

 

The definition of "executed agreement" refers to a document

embodying the terms of the regulated agreement. When this is read

with Regulation 7 - for agreements that have been varied - a copy

of the original agreement would not embody its terms. A copy of

the agreement as varied would embody its terms.

 

The issue of what is an executed agreement has been interpreted in

the High Court. It was held that an executed agreement begins as

the credit agreement which is sent to the cardholder when they

receive their credit card; therefore, establishing what is the

original executed agreement. When the agreement has been varied,

Regulation 7 mentioned above applies.

 

To summarise, if the agreement has not been varied, we must send

the original executed agreement; this would be the credit

agreement which is currently regulated. 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.

 

To address any issue about our lack of compliance with Section 60

of the Consumer Credit Act 1974. Section 60 relates to the form

and content agreements. All Barclaycard credit agreements are in

compliance with this. You may state that the application form

which we provided you, for reference, when you made a request

under Section 78 does not adhere to Section 60. This is not a

complete copy of your application form, but rather an excerpt to

show you signed a contract with us. When you completed your

application form, the document would have been presented to you in

full, in a legible form, and would have adhered to the requirements under Section 60 of the Consumer Credit Act 1974.

 

I hope this letter has helped with your concerns about the

documents you have been supplied with under section 78 of the

Consumer Credit Act 1974. As our response fulfils the obligation

under Section 78 of the Consumer Credit Act 1974, you should carry

on paying the debt you have accrued on your account. We do not

class the account as in dispute, you have been supplied with the

relevant documentation under Section 78 of the Consumer Credit Act

1974, and we will carry on with collection services. If you send

us further correspondence questioning compliance with these areas

of law, we are not obliged to respond beyond the statutory

response we have already given you. We would require you to

provide comprehensive legal and documentary evidence to support

your claim to ascertain whether response is necessary.

[willtheywontthey]

snap.

 

Ironically they complied with my CCA over a year ago and I sent another one to annoy them and got the T+Cs only. Seems to be the 'in thing' with B'card!

[sunflower99]

Re: my request under the Consumer Credit Act 1974

Thank you for your recent letter sent to me, the contents of which are noted. I appreciate your quick response to my original letter. However, the reply received by me does not fulfill your requirements under the Consumer Credit Act 1974.

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

My request remains outstanding. An unsigned credit agreement with no personal details on it, like the one you sent in your reply, does not constitute a true copy of any credit agreement that may or may not have been signed by me on the opening of this account. A blank agreement neither confirms that I am liable for any alleged debt to you, nor gives me any chance to evaluate whether any original agreement was ‘properly executed’.[/font]

I still require you to send me a true copy of the original credit agreement that you allege exists. As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

You had until ??/??.2009 (12+2 working days after the request was made) to provide me with the true copy I requested. You are now in default of my request. Any account I hold with you is now in legal dispute. Whilst the account remains in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agency.

To register information with a credit reference agency, you must have written consent from the customer to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. Any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office the time limits, which are laid down in the Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 are clear. You must supply an executed credit agreement within 12 + 2 working days of a proper CCA request. If you fail to comply with a legitimate request the account enters a default situation.

To sum up, I will not be making any further payments to you until you provide me with the document I have requested. Whilst you remain in default of my request, you are not permitted to take any action against this account. This includes adding further charges and passing any information to the credit information industry.[/font]

I expect you to write to me confirming that the account has been closed and no further action will be taken.

I look forward to your reply.

 

Yours faithfully

[sunflower99]

Yu could hit them with above letter!

[clemma]

Sharkleys, for some reason, do not like to provide signed agreements - it's frustrating.......if they have it, then send it!!

 

I don't think it will make a jot of difference what letter you send them, they are clearly happy that what they have sent conforms to the CCA request. You may need to consider going down another route (although, it probably won't make a difference either) - http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

 

No doubt this will be passed on to the in-house DCA monkeys (whose name has escaped me.....) - if they do, then there is a fab bemused letter you can send them

[sunflower99]

Account Number

Account In Dispute

Re; Barclaycards recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I am writing to say that i made a request to Barclycard on ---2009 under section 77-9 of the Consumer Credit Act 1974 for a true copy of my agreement

I note that they have replied to the above by sending their companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that the company is still in default under the act..I wrote to Barclaycard on ----2009 informing them of this.

 

To clarify, just sending the 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 default continues

　

　

　

[shinobi101]

Thanks sunflower, I've used the second of your letters.

[shinobi101]

Barclaycard sent me a snotty reply saying what they sent me is good enough. Before I could reply, I got a phone call and a letter from Mercers:-x

 

BC have still not supplied anything resembling an agreement, and won't get paid til they do.

 

I hate Mercers with a passion, they bullied and harrassed my 78 year old mother-in-law to the point that we thought the stress would drive her into an early grave (I'm not exaggerating, her health was suffering) Anyway, I'm not prepared to deal with these scumbags for any reason.

 

Any ideas on the best way to get rid Mercers, and who to complain to (and how) would be greatly appreciated.

[reclaimit09]

I got exactly the same from the buggers on 4 disputed accounts. Anyone got any idea how to respond?

[shinobi101]

I'm thinking of a demand for contractual justification for the involvement of a 3rd party. Demanding a real contract (not just t&c's) proving any obligation to pay them anything, as well as proof of any obligation to deal with a third party.

 

I'm also thinking of writing my own T&C's! They won't like them! No claim either party is bound by them, no signatures, no name or address of contracting parties etc. If it's good enough for them, it's good enough for me.

[sunflower99]

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.

 

Yours Faithfully

[sunflower99]

You could send Barclayshark above letter which also asks for an invite to

their offices to view alleged agreement!

[shinobi101]

Sunflower99, that's brilliant. Thanks. Tipped your scales

 

Reclaimit09, Sunflower's post above should be a perfect next move for both of us

[sunflower99]

Sunflower99, that's brilliant. Thanks. Tipped your scales

 

Reclaimit09, Sunflower's post above should be a perfect next move for both of us

Hi Shinobi!

Thanks for rep! and glad to have been of help! i love sending them letters asking to see alleged original agreement especially as i believe they possible shreeded a lot of them! I sent that above letter to Barclayshark fairly recently! You will probably get some more drivel like i did in reply! but i think it worth doing as it leaves a paper trail showing you makeing every attempt to be reasonable to see if they have a correctly executed alleged original agreement! and if it ever gets to court you can show judge letters and demonstrate how unreasonable they being plus it winds them up and you making it clear you consider account iin dispute!

[shinobi101]

After telling mercers to get lost I had a letter from Scotcall saying they would make a doorstep visit. I sent them the letter below, copied to Barclaycard complaints dept and to mercers. Only heard from Barclaycard after that.

 

 

You appear to be acting on the assumption some relationship you may have with “Mercers” is in some way related to me. I am not a party to any such relationship. Mercers are a third party interloper to an alleged contract between the ens legis ‘Mr Shinobi101’ and Barclaycard. No signed contract appears to exist, and therefore no legal obligation exists between ‘Mr Shinobi101’ and Barclaycard, at least until the said contract is produced.

 

You appear to believe that a “doorstep visit” would apply sufficient psychological pressure to elicit some kind of payment, or at least agreement. This is not the case.

 

There are no circumstances under which I would do any of the following with a doorstep caller:

 

• Confirm identity

• Discuss any aspect of any financial matter

• Offer or make payment in any form

 

Furthermore, you should note that under OFT rules, you can only visit me at my home if you make an appointment and I have no wish to make such an appointment with you.

 

There is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v Sheppard & Short Ltd [1959] 2 QB 384. per Lord Evershed M.R.).

Therefore take note that I revoke license under Common Law for you, or your representatives to visit me at my property and, if you do so, you will be liable to damages for a tort of trespass and action will be taken, including but not limited to, police attendance.

 

This account is in dispute with Barclaycard and will remain so until they send a complete copy of an agreement which is enforceable under CCA1974 s127(3)

 

Attempting collection activity on a disputed account is a breach of the Consumer Protection From Unfair Trading Regulations 2008 in line with the Office Of Fair Trading's debt collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998

As Barclaycard are now in default of my Consumer Credit Act agreement request and have also breached *s10 Data Protection Act request , I consider this account to be in SERIOUS DISPUTE.

 

As you are aware while my Consumer Credit Act request remains in default enforcement action is NOT permitted, under s127 this constitutes a complete defence at law.

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

Now I would respectfully suggest that this account is returned to Barclaycard for resolution of these defaults and breaches, as you or your client cannot lawfully pursue any enforcement activities.

If you choose to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service and possible court action.

 

After taking advice, I am of the opinion that any continued pursuit is in violation of the Consumer Protection From Unfair Trading Regulations 2008 in line with the Office Of Fair Trading’s Collection Guidelines

I hope that this will not be necessary and an acceptable solution can be accomplished.

 

I trust I will hear nothing more from you before I receive a true and complete copy of a valid consumer credit agreement from Barclaycard.

If a valid agreement is received and if money is lawfully owed, a financial statement may be provided direct to Barclaycard, and a pro-rata offer may then be made, payable direct to Barclaycard. Debt Collector’s fees will not be paid as their services are not necessary in this matter. All Barclaycard need to do if they desire payment, is send the alleged agreement as requested.

Edited January 20, 2010 by shinobi101
remove personal info

[shinobi101]

I had a snotty reply from Barclaycard saying even if the agreement is unenforceable in court the normal operation of the contract still continues, and they would continue collection activity by letter phone and doorstep visits. They backed off after my reply (see next post) I still get statements, but that's all.

[shinobi101]

Issue 1: Doorstep “collections”

 

My letter of the 10th August 2009 was specifically a complaint about the threat of a “doorstep visit.” I made it extremely clear that the issues I raised will not be dealt with in that way.

 

As I stated in that letter:

 

“There are no circumstances under which I would do any of the following with a doorstep caller:

 

• Confirm identity

• Discuss any aspect of any financial matter

• Offer or make payment in any form”

 

This applies to phone calls as well. I am within my right to insist on dealing with these issues in writing, and am prepared to do so in a reasonable fashion.

 

Your response of 28 September 2009 indicates that you still intend to pursue this matter by means of personal visits or telephone calls. It should be clear from the above that this is not acceptable, and would not yield any useful result.

 

Issue 2: Third Parties

 

With regard to the involvement of any third party, the claim that a third party can be assigned to this case relies on the terms and conditions of the alleged agreement. The documentation supplied does not constitute an agreement, and therefore cannot be used to justify the intervention of a third party in this matter.

 

Issue 3: The original complaint

 

After encountering severe financial difficulties I wrote to you on 04/06/09 asking for the following:

 

1. Validation of the debt (the actual accounting);

2. Verification of your claim against me (a sworn affidavit or a hand signed invoice in accordance with The Bills of Exchange Act 1882);

3. A copy of the contract signed by both parties and therefore binding both parties. This must be an exact copy of the executed agreement in its original form.

4. Your written assurance that when the debt is fully and finally settled, the original instrument of indebtedness will immediately be returned to me in its original form.

 

Your response was a poorly photocopied terms and conditions sheet. This does not identify me, nor was it signed by me, therefore I am not bound by your terms, and you do not have any rights under them.

 

You will note that in point 3 above I ask for a full copy of the signed agreement; it was not a CCA1974 s78 request. Also note that point 1 asks for the bookkeeping records that would show if the alleged money loaned was real pre-existing money or a fraudulent fractional reserve accounting trick.

 

Summary

 

I do not have enough money to meet your claim in full.

I do not have any assets of any value.

Your failure to validate the alleged debt by proving that the money really existed instead of being “created” by nothing more than an accounting entry suggests to me that the money you claim to have lent me was in fact not real. The Federal Reserve publication “Modern Money Mechanics” supports this view.

Should I receive a meaningful response that shows your claim is genuine, then I will supply a financial statement and a pro-rata offer of payment. However, in the absence of a sensible response from you, the situation appears to be that the alleged debt is not genuine, and even if it was, I would have no legal obligation to pay it.

I would be grateful if you would now, finally, make a sincere attempt at giving me a meaningful response.

 

God’s Peace

[Bill Shidding]

Hi Shinobi, or you could just cc this back to them (post#1)-

 

We (I) would require you to

provide comprehensive legal and documentary evidence to support

your claim to ascertain whether response is necessary.

 

(Thou shalt reapeth what thou soweth.)

 

Bill

[shinobi101]

Bill, Brilliant. My next reply to them will be quite short and will include exactly that.

[sunflower99]

Hi shinobi

Glad you still giving them grief!:D

[sunflower99]

http://www.consumeractiongroup.co.uk/forum/general/242740-putting-lien-lender-banks.html

Intgeresting link! Great if it works:D

[shinobi101]

I think I've silenced them for the time being:D

 

No statements for December or January

 

It's Barclays Bank's turn now:rolleyes:

Edited February 13, 2010 by shinobi101
punctuation

[sunflower99]

Hi Shinobi

I am also getting a quite time from Barclayshark since seeing off wescot the last pondfeeder they set on me!Ii not heard a thing from them for quite a few months now! Waiting with fascination to see who they set on me next who is further down the dca food chain!

[sunflower99]

Meant to say i had Scottcall too! A man called round and started banging on our door.We ignored him though there was a worrying moment when my OH looked discreetly out of front window to get a peep at him and our dog jumped on windowsill to look out window too and started barking and his tail started banging against the window! I was terrifoed the man might think we were banging on window to attract his attention and that his mug would come looming at our window! eek,it was quite funny looking back on it as my OH started hissing at our dog to get down trying to be discreet.However lucklly the man did not go up to her window but started banging on our back gate instead! He gave up eventually and went and sat outside our house in his car for about ten minutes before driving off!:DHe did put a card in an envelope saying delivered by hand! ! (presumably) in some pathetic attempt to intimidate me! and pushed it through our letterbox saying he was from Scottcall

[shinobi101]

Hi Sunflower99, glad you've barclayshark under control:)

 

I don't like DCA's:lol: Capella are harrassing me, and CDCS are ignoring me (both sharkly's not sharklycard)

 

I'm thinking about trying to use privity of contract to get rid of them, if possible. If the DCA is not a party to the contract then they can't sue or be sued on it, unless the contract has a term which provides for this. If they can't show a contract, then there can't be term that permits their involvement, surely?

 

Posted this in legal issues, but no replies yet.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/247193-privity-contract-dcas.html