Reconstituted RBS CCA received after 10 months elapsed Fredrickson Arrow Global

[traintester]

Hi all,

 

I'm new here, hello to everybody and I hope you can help me out.

 

I received a letter from Fredrickson International in early December 2011 regarding their client Arrow Global requesting full repayment of a debt of £****. (Just under £3000).

 

This dates back from when I was a student , my world fell apart for several reasons, I could not afford to pay my student debts and so a quite bad spiral began.

 

I replied with a template letter, contents below.

 

Re:−*Account/Reference Number **************** Your ref:- ARR/********

 

This letter is a formal request pursuant to s.77/78 of the Consumer Credit Act 1974. I require you to provide me with a true copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide.*

 

I expect you to comply fully and properly with this request, within the statutory time limit. You are reminded that should you fail to comply with my request, the provisions of s.77 will apply.

 

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.*

 

Your attention is drawn to ss.5(2), 3(b),6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

 

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee.

 

With reference to the above agreement, I/we would be grateful if you would send me/us a copy of this credit agreement and a full breakdown of the account including any interest or charges applied.*

 

I/we understand that under the*Consumer Credit Act 1974 [sections 77-79],*I am/we are entitled to receive a copy of any credit agreement and a statement of account on request.*

 

I/we enclose a payment of £1 which represents the fee payable under the Consumer Credit Act 1974. Note that these funds are not to be used for any other purpose.

 

I/we understand a copy of any credit agreement along with a statement of account should be supplied within*12 working days.

 

I/we understand that under the Consumer Credit Act 1974 creditors are unable to enforce an agreement if they fail to comply with the request for a copy of the agreement and statement of account under these sections of the Act.

 

 

I/We look forward to hearing from you.

 

Yours faithfully

 

I received a reply from ARROW GLOBAL dated 22/12/2011

 

We thank you for your communication regarding this account.

 

We have referred the matter to our client and will revert to you as soon as we are in receipt of instructions.

 

In the meantime, we confirm that we have placed the account on hold.

 

Yours sincerely

 

Fredrickson International Ltd.

 

 

I then received a letter from ARROW GLOBAL dated 28/12/2011 saying

 

 

"We thank you for your letter dated 10/12/2011 addressed to our external agency Fredrickson International, which has been forwarded to us for our attention as assignees of the above account, which we received on 28/12/2011 and acknowledge your request for documentation pursuant to the Consumer Credit Act 1974.

 

We do not accept that we are the creditor as envisaged by the above statute. However, we are willing to assist in abtaining that which has been requested. We will now process your request for documentation from the creditor and will revert in due course.

 

We confirm that all collection activity will be suspended pending provision of the documents.

 

We return the payment of £1.00.

 

Your sincerely,

 

Arrow Global."

 

 

I still have the original postal order they returned.

 

I then heard nothing until today, 23/10/2012, 10 months later when I received another letter from Arrow Global,

 

"Dear Mr ******,

 

DEBT OWED TO Arrow Global Guernsey Limited

Assigned by RBS (Account number ****************)

 

In response to a request for a statement under section 78 of the Consume Credit Act 1974, we enclose:

 

1. Agreement

2. Terms and Conditions

3. Statements

 

The Office of Fair Trading deems reconstituted agreements acceptable for situations where an original copy is unobtainable. OFT guidance on requesting information about credit agreements can be found under Credit Agreements at http:/oft.gov.uk.

 

In December 2009, the High Court ruled that a true copy of an agreement does not need to be a photo copy or an exact copy of the original. A creditor is allowed to provide a reconstituted agreement, as long as that version is accurate and contains all the original information contained in the agreement, apart from a few exceptions that the law allows, which includes the signature, signature box and date of signature.

 

We confirm:

 

a. the account is in default;

b. The total sum outstanding is £****.**; and

c. The amounts which will become payable comprise interest and costs, depending on what enforcement action is taken against you;

 

Please now provide your proposal for repayment of you debt.; Failure to do so will result in the continuation of collection activity, which in your case may include litigation.

 

Telephone the number below to make arrangements to pay your debt.

*** ********

Yours sincerely,

 

Arrow Global."

 

 

 

Now I am confused, they said they were not the debtors and now they say they are.

 

They have taken a very long time to come up with the reconstituted documents, is this correct and can they go to court with this and succeed?

 

Are they allowed to put this account on hold like this? I thought there was a time limit for their replies ie. the 12 days?

 

Please can someone give me a little guidance here?

 

Thanks very much,

 

Traintester

[traintester]

Hi all,

 

I forgot to add that Arrow Global have sent me a copy of the CCA along with what is supposedly a copy of a statement from the account that has my current address on it but which I have never received.

 

 

Cheers all,

 

Traintester

[Bandit127]

When was this account opened? If it was post 6th April 2007, they have (on the face of it) complied with your S.77/78 request. The 12 days means little now.

 

If it was before then, S127(3) of the act applies and they will need the original to enforce in court.

[traintester]

This account was opened in 2002, so what do i need to put in a reply to Arrow?Is there a template available for this situation and are they likely to go away now?Thanks very much for the help.Traintester.

[Bandit127]

Before you reply to them, they claim to have send T&Cs and insinuate that they have provided a reconstructed agreement.

 

Both T&Cs have to be accurate at the time the account was opened. Please check both for factual errors that might show that they are not and report back.

 

(On the face of it) they have complied with your request and are requesting payment. What do you want to do with this account?

 

They have insinuated that the original is no longer available. I would think about testing them on that. This is important - although they have complied with your S.77/78 request, S127(3) applies in this case and they will need the original if they go to court and you defend.

[traintester]

Can you point me in the direction of the actual document where section S127(3) is so that I can have a good read and acquaint myself before I decide on a course of action... I'd like to see if I can challenge Arrow on this as I do not have the funds to pay this amount, the account will be statute barred in 7 or 8 months too.

[dpick]

Hi it is in CCA 1974 you want a copy that is pre 2006 amendments as 127(3) was repealed then but not retrospectively.

 

dpick

[traintester]

Thanks very much dpick and Bandit127, all great material.

 

Does anyone have any idea of a draft for a letter for refuting action based on the account beginning pre 2006?

 

I have examined the documents they have sent and believe that they have supplied a copy of a copy of the agreement, not a copy of the original.

 

Am I correct in believing that they need to present the original if the case comes to court and therefore they are likely to back down if challenged over this?

[traintester]

I have been looking at a judgement between

 

HFO Capital Limited Claimant

-and-

Mr Roland Wegmuller Defend posted at

 

paulatwatsonssolicitors.wordpress.com/tag/consumer-credit-act-1974/

 

which makes a lot of the difference between a signed application form and a signed terms and conditions.

 

I believe that this may apply in my case although I have to admit that this is my first foray into this kind of legal argument, could anybody put me right if I'm grossly wrong please????

 

Most of this is very wordy legalese as you'd expect but the main meat of it is points 6 to 14...

 

6. It is the defendant’s case that this credit agreement is not enforceable on the grounds that

all of the prescribed terms within the meaning of the Consumer Credit Act 1974 were not

contained in the document signed by the defendant.

7. It is common ground that the only document signed by the defendant was a Barclaycard

application form signed with the date of 25th March 1996, to be found at page 41 of the trial

bundle. It is a very poor copy of the document and parts of it have been blacked out for

reasons that no one has been able to explain. Perhaps the other striking feature is that there

is no evidence before me from anyone, either from the claimant or Barclaycard of other

similar documents from the time for me to make a comparison, or any evidence of

Barclaycard’s system back in 1996. Miss Margiotta has rightly submitted to me that I

should not be too critical of the claimant in this regard and I should bear in mind how

difficult it is to obtain such evidence so many years after the event, and I have to say I have

some sympathy with Miss Margiotta in this respect particularly as she points out to me

these matters were only raised by way of criticism from the defendant relatively recently.

However, as against that, I have to deal with this matter on the evidence before me. In the

respects that I have identified that evidence is somewhat inadequate.

8. It is submitted by the defendant that if all of the prescribed terms are not contained in the

document itself, then that is fatal to the enforceability of the agreement, and it would not be

sufficient if, for example prescribed terms were sent a few weeks later with the credit card,

which is what the defendant suggests may have been the way that the terms and conditions

were provided. I therefore have to make a finding of fact on the balance of probability as

to whether the prescribed terms and conditions were contained in that document.

9. I have to make a finding of fact in the context of the relevant law, to which I have been

most helpfully referred by both counsel in this case by their informative skeleton

arguments and also by way of oral submissions. I turn to that law now.

10. I start at section 61 of the Consumer Credit Act 1974 that provides as follows:

“(1) A regulated agreement is not properly executed unless—

(a) a document in the prescribed form itself containing all the prescribed

terms and conforming to regulations under section 60(1) is signed in the

prescribed manner both by the debtor or hirer and by or on behalf of the

creditor or owner,”

And stress is laid there by the defendant on the need for the document itself to contain all

the prescribed terms.

11. I have been pointed to certain guidance on what is meant by the phrase “a document in the

prescribed form itself containing all the prescribed terms”, and I have been referred to the

case of Emma Carey v HSBC Bank [2009] EWHC 3417 and it is the judgment of His

Honour Judge Waksman QC, sitting as a Judge of the High Court in a case of first instance.

I am told by counsel, and I have no reason to suspect that this is wrong, that the principles

set out in that case have been followed in other subsequent cases, including cases of higher

authority. His Honour Judge Waksman QC said this in relation to the agreed principles in

this area (see paragraph 173):

“173. The parties in Carey have helpfully agreed the following principles. The fourth one

was added by Mr Uff, with their agreement. No other party takes issue with them.

The OFT has formulated the matter in a slightly different way but accepts these

principles are close to its position.

(1) It is not sufficient for the piece of paper signed by the debtor merely to

cross-refer to the Prescribed Terms without a copy of those terms being

supplied to the debtor at the point of signature;

(2) A document need not be a single piece of paper;

(3) Whether several pieces of paper constitute one document is a question of

substance not form. In particular a physical connection between several pieces

of paper is not necessary in order for them to constitute one document;

…

(5) Accordingly, where the debtor’s signature and the Prescribed Terms

appear on separate pieces of paper, the questions of whether those pieces of

paper together constitute one document is a question of substance and not

form.”

At paragraph 174, His Honour Judge Waksman QC said:

“174. As a matter of law, those principles appear to me to be correct, in the context

of s61.”

12. So, what are the Prescribed Terms that must be contained in the document as so defined in

section 61(1)(a) of the Consumer Credit Act 1974 and in Carey?

13. I now turn to the Consumer Credit (Agreements) Regulations 1983. It is common ground

that these were the Regulations in force in relation to this credit agreement and set out in

Schedule 6 are various Prescribed Terms that must be included and the three relevant ones

here are under Clauses 3, 4 and 5:

“Credit Limit

3. Agreement for running-account credit. A term stating the credit limit or the

manner in which it will be

determined or that there is no credit

limit.

Rate of interest

4. Agreement for – A term stating the rate of any interest on the credit to be

provided under the agreement.

Repayments

5. Consumer credit agreements. A term stating how the debtor is to discharge his

obligations under the agreement to make the

repayments, which may be expressed by reference

to a combination of any of the following – …”

And “the following” deals with the repayment.

14. I pause there for a moment. It is worth noting that none of those three terms is actually

visible on the copy application form document in the bundle that was signed by the

defendant on 25th March 1996.

15. As to the effect of a failure to comply with those statutory obligations, I turn now to section

65(1) of the Consumer Credit Act 1974 that provides:

“An improperly-executed regulated agreement is enforceable against the debtor or

hirer on an order of the court only”.

16. However, it does not rest there because there was important additional statutory material on

this point that was in place in relation to this particular credit agreement (though since

repealed), because by Section 127(3) of the Consumer Credit Act 1974 it was provided

that:

“The court shall not make an enforcement order under section 65(1) if section

61(1)(a) was not complied with unless a document, whether or not in the prescribed

form of complying with the regulations under section 60(1) itself containing all the

prescribed terms of the agreement was signed by the debtor or hirer whether or not

in the prescribed manner.”

17. In other words, the Court is precluded from making an order granting relief from the

infringement of the statutory conditions as to the enforceability if all of the prescribed

terms that I have identified above were not contained in the signed document itself.

18. So moving to the factual issue itself, I start briefly with a matter upon which I have

received some submissions, namely the burden of proof. In submissions the defendant

conceded that there was a prima facia case established by the claimant that there was a

credit agreement in place and therefore the evidential burden of proving the index factual

issue is upon the claimant. I was referred to a first instance case in the County Court of

HFO Services Limited v Kirit Patel. It was decided by His Honour Judge Platt on 20th May

2009. Of course, I accept that this is a first instance decision and is therefore only

persuasive. Nevertheless, I found the judgment of His Honour Judge Platt to be persuasive

in that way and I would wish to take the same approach.

19. His Honour Judge Platt said at paragraph 19:

“Therefore, in my judgment, when the defendant wishes to rely on section 65, several

consequences flow. First, it is not sufficient for him simply to allege that the

agreement is not properly executed. He must specify the particular breach or

breaches of the Regulation on which he relies. The burden of proving that the

agreement has been properly executed then rests with the claimant. It is his

obligation to put before the Court evidence which he considers sufficient to satisfy

the Court on this issue.”

20. Miss Margiotta on behalf of the claimant indicates that she has not had an opportunity to

consider or reflect upon the law in this area, because the above case was only produced by

the Defendant this morning, and she wishes to reserve her position. But she did indicate

also that she accepted that it was for the claimant to show the necessary factual matter on

the balance of probabilities.

21. On this factual issue, I have read and heard evidence on the claimant’s side of the case

from Mr Jonathan Titherley, who is a litigation paralegal for the claimant’s solicitors. I

have read his two statements and heard him give evidence. On the defendant’s side, I have

read the two witness statements of the defendant, Roland Wegmuller. I have also read

numerous documents, the principal ones being the application form signed by the

defendant on 25th March 1996 (to which I have already referred). Another document of

relevance is a current a blank standard form of Barclaycard’s terms and conditions put in

the bundle by the claimant, to be found at pages 43 and 44, and it is worth noting that on

that standard blank form, the relevant prescribed terms are included. Of course, the issue

for me is whether those terms and conditions were contained in the actual document that

was signed.

22. I have already observed that it is disappointing and makes it difficult for the Court without

further evidence from Barclaycard, and Mr Titherley says, and I entirely accept Mr

Titherley’s evidence, that his client asked for this information but for whatever reason, it

was not forthcoming, and therefore there are no similar documents of the time to compare

with this one. So although I accept Mr Titherley’s evidence generally, he was unable to

give any direct evidence on whether the application form actually contained the prescribed

forms, whether on the front, back or anywhere else.

23. Mr Wegmuller gave evidence on the matter. In his witness statement, he set out the

general circumstances in which he came to sign this agreement. He said that about six

months after he had come to the United Kingdom from Spain, he saw an advertisement in a

magazine and he recalled completing the document and posting it back to Barclaycard. He

said he recalled that the application was in the form of a glossy style fold-out pamphlet. In

his witness statement he said he recalled there was no other documentation with the

application form; certainly, there was no separate booklet of terms like those the claimant

has produced in the course of these proceedings.

24. Mr Wegmuller was honest enough to concede that he had certain difficulties with his

recollection of exactly what was on the form. This is perhaps not surprising given that he

was referring back to his recollection of some sixteen years ago, and it is true to say that

there were some slight fluctuations in his evidence that were quite properly referred to by

Miss Margiotta in her submissions. Nevertheless, his evidence taken as a whole, and that is

how I have to view it, was really to the effect that whilst he could not categorically say that

there were no further textual items on the document, either on the front or on the back, he

did not believe that there were significant additions to the document, and he did not believe

that there were the prescribed terms on the document for example on the back or in the

blacked-out spaces of it.

25. The impression that I formed of Mr Wegmuller was that he was a man who was doing his

best to give a truthful and accurate recollection of what he saw, and as I say, he conceded

that it would be difficult to be absolutely precise on that. But in general terms, I was

satisfied that he was a credible witness.

26. Miss Margiotta on behalf of the claimant has made a number of submissions to support her

proposition that on the balance of probabilities it is likely that the prescribed terms were on

the form. If I may summarise her submissions in particular those I regard as her strongest

ones.

27. Firstly, she submits that Barclaycard are and were a reputable large-scale organisation who

had in 1996 a legal department and a compliance department and therefore, in effect, it is

inherently unlikely that they would make the mistake of sending out an application form in

a magazine without the prescribed terms stipulated in the Regulations to which I have

referred, particularly as the Regulations has been in force for a number of years at that

time.

28. That is a perfectly proper point for Miss Margiotta to make. However, it seems to me that

it would be wrong for me to place too great a reliance upon that, particularly as one knows

that there have been numerous more recent examples where financial institutions of similar

size have on occasions made errors in terms of compliance with their financial services

obligations.

29. Secondly, and this is also a good and proper point to be made on behalf of the claimant, if

one actually looks at the form that was signed by Mr Wegmuller, difficult though it is to

make out, one part that is plain if one looks carefully, and Mr Wegmuller agreed this, is

that he did sign a caption stating that:

“This is a Credit Agreement regulated by the Consumer Credit Act 1974. Sign only

if you wish to be bound by the terms of the agreement.”

30. Miss Margiotta submits that this sentence having been signed by the defendant (and it is

not suggested by the defendant that he had difficulties with the English language, although

he is of course of Swiss nationality originally), the likelihood is that there would have been

“some” terms and conditions somewhere on that document otherwise he would not have

signed this. However, the mere fact that there may not have been such terms and

conditions on the face of the document may not necessarily have been a critical factor in

the decision whether or not to sign this application form. The evidence that he gave was

that what was at the forefront of his mind was obtaining a credit card, rather than the detail

of the terms and conditions, which of course is something of a two-edged sword.

31. In my judgment, those were the strongest submissions. However, I do not accept that

those factors are conclusive.

32. I am satisfied on the balance of probabilities that the application form signed by the

defendant did not contain the three prescribed terms to which I have referred, and I come to

that conclusion principally for these reasons.

33. Firstly, I look at the document itself; the application form. That is the best evidence that

the claimant has been able to provide in terms of the documentation. Quite simply, there is

no reference whatsoever to any of those three prescribed terms that are required. It is

submitted that I should infer that it is more probable than not that they would have been

there, either in the blacked-out areas or on the back. I am afraid there is quite simply

insufficient evidence to enable me to draw that inference. And I repeat that matters may

have been very different if further and better evidence had been produced, either from the

claimant or Barclaycard, as to what the position was back in 1996. We do not have that

evidence and I have to deal with the evidence that is before me.

34. The second real reason why I find in favour of the defendant on this issue is that in general

terms I accept his evidence as I have set out, and having heard him give evidence today I

found him to be a credible witness.

35. Mr Turner on behalf of the defendant made various other submissions associated with the

standard terms and conditions on the blank documention. I did not find those submissions

of such force as his others and they did not play a major part in my conclusion.

36. I am satisfied on the balance of probabilities that the requisite prescribed terms and

conditions were not contained in, on or together with the document that was signed by the

defendant, and therefore I conclude that this is a credit agreement that cannot be enforced.

37. Before I leave this matter, just for the avoidance of doubt and clarity, given that Miss

Margiotta has indicated, in a slightly equivocal submission, that she wishes to reserve

herself on the burden of proof, I hereby indicate that it would have made no difference to

my ultimate conclusion upon whom the burden of proof lay because the result would have

been the same in either event.

End of judgment

[traintester]

Does the moderator think I'd be better off in LEGAL now with this?

 

Thanks