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Help with obtaining copy Credit Agreement from Barclaycard

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Hi, I am new to this forum and would like some advice please

 

I sent Barclaycard a letter dated 14/05/09 requesting a copy of my credit agreement. I received a reply dated 20/05/09 attaching a copy of my original Terms and Conditions at the time I opened my account and a copy of my current Terms & Conditions, together with confirmation of my credit limit and balance owed.

 

I replied to them advising I was dissatisfied and wanted a copy of my original credit agreement.

 

This is the reply I received

 

 

 

Dear xxxxxxxxxxxx

 

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 Notice 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 which a choice of including in the copy of the executed agreement either a copy of the latest notice of variation relating to each discreet 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.

 

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 you 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 rather you to provide comprehensive legal and documentary evidence to support your claim to ascertain whether response is necessary.

 

Yours sincerely

 

 

xxxxxxx

Barclaycard Customer Services

 

 

Any help would be appreciated :confused:

 

Regards

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I think the crucial part of their response lies in:

 

"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."

 

How do they intend to show that exactly?

 

I am still getting my head around all this too but as far as I understand whilst they may feel they have complied with your request, the onus is on them to prove that the prescribed terms of the agreement were contained within the four corners of whatever you signed. If you signed an application form then this is unlikely although possible. You should scan it up here after removing personal details and I'm sure an expert will be along to help in no time!

 

I am interested how this goes as I have just received a similar reply from RBS and am trying to get advice on how to proceed. I am not sure that maintaining they are in default of the request is the way to go since they may well have complied with what they sent.

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You can keep on trying to get a agreement from them but they do not have any - as yet I have not seen any agreement from them and I have been asking for 6 months, I stopped paying them 2 months ago, now they have passed me on to their in house collectors.............

 

DONT EXPECT AGREEMENTS - JUST A LONG DRAWN OUT GAME OF WRITING LETTERS AGAIN AND AGAIN.

 

BY THE WAY - THEY HAVE NO CASE IF THEY HAVE NO AGREEMENT.....why dont you save yourself some time and send them £10.00 and SAR them and see what they send you.

 

Goodluck

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Barclays DO have agreements, its just they have decided to take a blanket view of not sending any agreements out in response to s78 requests. Take a look in the Barclays forum for details of everyone (myself included) who is trying to get sight of the agreement.

 

Whether they have the OP's agreement who can say, the fact they dont send them in response to SAR's also means you never really know until it gets to an external DCA, if you s78 them theres more chance of an agreement being shown to you if they have it.

 

Only other option to see the agreement is a CPR31.16 request and court hearing to obtain disclosure.

 

S.


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The Shadow

 

I was wondering having made the request under section 77/78 and failed to obtain a true copy of the agreement and also under section 7 DPA 1998 then surely if you stopped paying having made the above requests the creditor took you to court, the court would be concerned that there was none disclosure. wont they?

 

Preaction disclosure does not apply to cases allocated to the small claims track ie (claims below £5,000). I known Judges to get angry for none disclosure which forms a part of the duty on the creditor.

 

Courts are always keen to know the how the parties have behaved prior to proceedings.

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Barclays DO have agreements, its just they have decided to take a blanket view of not sending any agreements out in response to s78 requests. Take a look in the Barclays forum for details of everyone (myself included) who is trying to get sight of the agreement.

 

Whether they have the OP's agreement who can say, the fact they dont send them in response to SAR's also means you never really know until it gets to an external DCA, if you s78 them theres more chance of an agreement being shown to you if they have it.

 

Only other option to see the agreement is a CPR31.16 request and court hearing to obtain disclosure.

 

S.

 

I recently broke my own golden rule and had a long chat with mercers barclaycards internal dca, she openly admitted that barclaycard do not keep credit agreements and are unable to produce them.

 

cds:)

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Thanks for the replies, I am not sure what to write in the letter back to them, does anyone have a template?

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