Nasty Penguin v Barclaycard

[NASTY PENGUIN]

Hello everyone, sorry to barge in but I am new to this...

I am not an English citizen, I got a Barclay card while I was living in the UK in 2005 without signing any agreement, I came back to my country in 2006 and continued to pay until last year when I started to have financial problems. It has been passed on to Mercers and they threated me to sell the debt to a collection agency in my country (EU) where they really are the pits. I requested my original signed agreement which has never been provided by them, only the Terms and Conditions. I came back to the UK last month and paid the minimum sum by cheque. Unfortunately I was supposed to start working and this didn't happen. I really believed that under the CCA 1974, the agreement is unenforceable and informed Mercers & Barclaycard who responded with the following letter :

(Does anybody know if what they are stating is correct or a bluff?)

 

:???:

 

 

BARCLAYCARD SERVICES

ACCOUNT N° XXXX

 

Ref : 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 make under section77/78 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 benen varied since it was signed. Regulation 7 provides creditors witha choice of including in the copy of the executed agreeement either a copy of the latest notice of variation relating to each discrete term which has been varied, or an easily legible statemnt 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 willl satisfy the requirements even if the signature box and/or the signatures are not included as clarified by Regulations 3(2) of the Consumer Credit (cancellation notices and copies of documents) Regulation 1983.

 

The definition of "executed agreement" refers to a document embodying the terms of the regulated agreement. When this is read with Regulation7 -for agreements that have been varied- a copy of the original agreement would not embody its terms. A copy of the agreement as vaired would embody its terms.

 

The issues 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 carholder 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.

 

With the reference to the Civil Procedure Rules (the "CPR"). We have provided you with sufficient information to allow you to understand our position. The CPR does not confer an automatic entitlement to documents before proceedings start. CPR 31.16 provides that a party may apply to the court for pre-action disclosure in certain limited circumstances, which do not apply here. The application must be supported by evidence - and the usual order is for the applicant to pay the cost of the application, including the respondent's costs, together with the respondent's costs of complying with any order that is made as a result (CPR 48.1(2)).

 

While there is no former obligation on our part to provide documentation in answer to Validation of Debt correspondance, we have undertaken steps to provide you with the contractual terms under which your financial obligations arise and a statment of account.

 

I am fully satisfied that the sum outstanding by you remains legally due and payable. You should continue to repay the oustanding balance owed on your account in accordance with the terms of your credit agreement.

If you do not, we may register a default against you with credit reference agencies, although we will formally notify you before doing so.

 

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 the collection services. If you send us further correspondance 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.

 

Yours Sincerely,

 

April Hogson

Barclaycard Customer Services.

 

:roll:

 

 

The first question is : what constitutes a "varied" agreeement? because the only variation since I took the card has been an increase in the credit limit. Since their arguments seems to revolve around this "variation", knowing that even at this time, nothing was signed by me.

They also state that they have sent me all the relevant documents, however, I have only ever received in 2 separates envelopes, the respectives standard Terms and Conditions (first one dated 2005 & 2008) after requesting a copy of my signed agreement. (which of course they do not have as I never signed one).

 

Thank you in advance for your help.

[slick132]

Hi Nasty and welcome to CAG.

 

I've moved your post into your own new thread (to avoid hijacking Leilani's thread) and you can use this from now on.

 

BC's letter to you is a standard reply which they have been using recently. What they say is correct, to some extent. They have sent you what they believe you are untitled to under s.78 CCA 1974.

 

This means they can continue to demand payments on the a/c. So, if you don't keep up the necessary payments on the a/c, they will continue to press for payments and will register late payments and maybe a Default with the UK Credit Reference Agencies.

 

However, they have not sent you a copy of your credit agreement and they would need this if they wanted to enforce the debt through the UK courts. BC are usually slow to take court action and may not do this at all.

 

I have not heard of them taking, or trying to take, enforcement action outside the UK.

 

Are there any penalty charges (like Late Payment Fees, Over Limit Fees) on this a/c. If so, we can help you reclaim these in full to reduce the balance owing on the a/c.

 

[NASTY PENGUIN]

Hello Slick,

 

Many thanks for your kind advice. However if they don't go overseas as you say, Mercers told me (before I gave them a new address in the UK)that they would sell the debt to a collection agency in my own country (EU). In my country (EU) would I have the same rights as in the UK?

Last month when I gave them my new address in the UK, I sent them a UK cheque (minimum amount) telling them that I was going to pay that every month until I could assertain one way or the other whether this agreement is enforceable or not ; is it possible that they could lift up my signature from this cheque in order to put it on a so-called signed agreement?

What would you advise that I do now in my position? As I cannot afford to take them to court to challenge them.

[slick132]

Hi NP,

 

What would you advise that I do now in my position? As I cannot afford to take them to court to challenge them.

Taking them to court is not an option anyway, even if you had the money for court fees, etc. However, in the unlikely event that they took you to court, we would normally recommend that you defend vigorously.

 

Mercers told me (before I gave them a new address in the UK)that they would sell the debt to a collection agency in my own country (EU).

Mercers will tell you absolutely anything to get you to pay them. Most of what they sat or threaten is rubbish.

 

You didn't answer the Q in my last paragraph above about penalty charges.

 

[NASTY PENGUIN]

Hi Slick,

As you can see it's been some time since I last wrote! However, the situation remains as before except that the account has now gone back to Barclaycard from Mercers. They have recently written to me to inform me that my account will be passed to a debt collector ( Mercers?) and or proceedings will be made against me in the county court...

Regarding my previous message, do you know what constitutes a "varied agreement" as this seems to be the basis for their argument that they do not have the obligation to send me a full copy of the agreement.

The only 'variation' I can recall was an increase in the credit limit, is this what they are referring to? ( Please see below )

Conclusions in relation to the document we have to provide.

 

A "copy" of an agreement willl satisfy the requirements even if the signature box and/or the signatures are not included as clarified by Regulations 3(2) of the Consumer Credit (cancellation notices and copies of documents) Regulation 1983.

 

The definition of "executed agreement" refers to a document embodying the terms of the regulated agreement. When this is read with Regulation7 -for agreements that have been varied- a copy of the original agreement would not embody its terms. A copy of the agreement as vaired would embody its terms.

Regarding your question of fees, I will address this if the outcome is not in my favour. Look forward to your reply, and thanks in advance.

[rebel11]

Hi Nasty

 

Mercers are part of Barclaycard, although they won't tell you that. In a recent case, Carey v HSBC (2009) Judge Waksman stated that where the Agreement has been

'Varied', the Creditor has to provide a copy of the Original Agreement as well as Terms and Conditions at the time of Request.

 

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2009/3417.html&query=CAREY+and+V+and+HSBC&method=boolean

 

Theres a summary at the bottom, point (4).

 

Basically Barclaycard just 'cherry pick' the bits of law they like and ignore everything elses.

[slick132]

Hi Nasty P,

 

Further to Rebel's comments, see the OFT Guide at Link No4 in my signature. This tells you how a bank can respond to your CCA request.

 

There's a good summary at the end too.

 

8-)

[NASTY PENGUIN]

Hello Rebel,

 

Thank you very much for your information. By the way Barclays let me know by letter that they intend to withdraw any funds on any of my bank accounts I have or would have with Barclays in order to repay my Barclay card.

Do they have the right to do this?

[NASTY PENGUIN]

Thank you Slick, by the way do you know if the 6 years Statute Bar only refers to UK or European law?

[slick132]

Hi NP,

 

If your BC is considered to be in arrears, BC can take any money from a Barclays Bank a/c in your name using the right to 'Set Off'. We have seen this done fairly often when a BC a/c is in arrears.

 

The Limitation Act 1980 is the UK legislation which governs time scales relating to UK banking and other financial matters. In Scotland, the normal limit is only 5 years.

 

8)