Barclays Masterloan - Enforceable Recon CCA?

[AndyOrch]

CPR 3.10 is with regards to court claim and procedures...no connection to your reconstituted agreement.

[Peterbard]

Can I just check when the agreement was signed, I mow its before 2007, but I dont remember seinga date, probably missed it, just save me going back through the thread.

 

On ‎01‎/‎04‎/‎2019 at 12:44, HSBCandMe said:

...and my paying it over the past 16  years makes no difference? The court cannot impose validity because it is pre-2007 despite the CPR?

 

Part 3.10 of the Civil Procedure Rules (CPR) provides:

 

"General power of the court to rectify matters where there has been an error of procedure

3.10 Where there has been an error of procedure such as failure to comply with a rule or a practice direction-

1. the error does not invalidate any step taken in the proceedings unless the court so orders; and

    

2. the court may make an order to remedy the error."

There is provision in the act to remedy unfair treatment, section 140, I think your case may be a good candidate, at least it could be included in any defence. As you say 16 years.

[HSBCandMe]

2003.  The recon contains no date.

[renegadeimp]

1 hour ago, HSBCandMe said:

It was an address I used at one point, not at time I took out loan. 

And that means?..... ( think about it)

[AndyOrch]

No date...incorrect address...does it actually have an agreement number ?

 

Nice to see BC Reconstitutes are improving  

[HSBCandMe]

Does the fact it is undated impact on it?

 

The recon is itself quite old now, 6 years, as I have been paying a long time.

 

 I've been too chicken to take the bank on    

 

I have sent in a fresh CCA to see if what they reproduce matches it.

 

I was hoping to catch them out.. 

 

However, Barclays have not responded to my latest CCA request which is now over a month overdue.

[renegadeimp]

Thats a good thing. WHy would you want them to respond and provide one.  If they dont provide one.. STOP PAYING THEM

[HSBCandMe]

i'm sure when they wake up they'll cobble something together, but yes, as of next instalment and 16 years on, I will stop paying them. I seem to have enough to query the validity of the recon.

[AndyOrch]

2 hours ago, HSBCandMe said:

 

Does the fact it is undated impact on it?

 

Not with regards to complying with your section 77 request....although it must be an accurate copy compiled from the data available.If they wish to enforce by it then yes it must be accurate at least with the address agreement number and date of agreement.Given your agreement is pre April 2007 then also sections 61/ 127 of the CCA1974 come into play

[dx100uk]

why not sar them now before it gets sold on

that way you'll know what they hold.

 

[Peterbard]

Yes as far as Section 78 is concerned it is not acceptable, I hesitate to say unenforceable, because as we all know that is upto the court, unlike unenforceability under section 237. All you should have to do is run down the list provided in Carey, above, if all that is not included it is not a true copy, the court shoulld enforce until a true copy is produced.

 

However

 

Just read this from the first post. If this was the case, the orriginal agreement would be completely unenforceable under section 127(3)

 

Yes as far as Section 78 is concerned it is not acceptable, I hesitate to say unenforceable, because as we all know that is upto the court, unlike unenforceability under section 237. All you should have to do is run down the list provided in Carey, above, if all that is not included it is not a true copy, the court shoulld enforce until a true copy is produced.

 

However, I see they have already been SArd?

 

Just read this from the first post. If this was the case, the original agreement would be completely unenforceable under section 127(3)

 

9. An internal email that says: “The information is correct…The Masterloan was for £15,000, drawn on X 2003 and £4,236 interest was immediately applied. This was apparently common practice for this type of loan. When the loan went to recoveries at Barclaycard, we believe the proportion of interest which did not apply – i.e. the amount relevant to the loan after the date the loan was charged off – should have been refunded. Looking at the entries to the Masterloan this was not done. Whilst there is no PPI premium to refund or any issue of a mis-sell, it would appear there will have to be some refund of interest. The exact amount will need to be calculated at the 10.9% rate….The reconstructed credit agreement is therefore correct as per the s.77 request.”

 

The total credit would contain the interest according to this, a big breach of the CCA. Also they seem to think that reconstructing the copy means making it compliant, it does not of course, it means making the information on the copy exactly the same as the original. Fraud anyone?

 

They also say this

 

0. An internal email that says: “What do we normally send for Masterloans where the original document is not available... At this moment this could result in us having to write-off the balance.”

 

They knew it was unenforceable.

 

 

My bad for not reading the whole thread

 

Just another thought.  what they have done is recalculate the APR(interst)to accommodate the sum remaining and in order to construct what would appear to be a complaint

section 77 request.

 

That sum should ave been returned to you, now ask our PPI'ers, about contractual compound interest. Because if this is the case that is what you are due on this unpaid amount.IMO

 

The info you have needs examining , but it is certainly a possibility. Wouldn't be surprised if they owed you money

[dx100uk]

Ppi on a loan is std 8% ...

credit cards could be compounded whilst their int was charged

[HSBCandMe]

Attached are 2 letters from Barclays received several years ago about an earlier complaint I raised on just these issues....

doc09188020190401171524.pdf doc09187920190401171512.pdf

[Peterbard]

1 hour ago, dx100uk said:

,Ppi on a loan is std 8% ...

credit cards could be compounded whilst their int was charged

 

I dont really want to start arguing interest on PPI DX. suffice to say the debtor on a loan will receive 8% interest compensation, yes,

However first he must be put into the situation he was in if he did not have the PPI. If a payment is missed it will increase the sum due for that month by that premium amount, the next months interest will be calculated on the last months balance thus the payment will be compounded. The repaid balance will increasingly be affect by the ppi payments until it is terminated.

I think the FOS do this by reducing your outstanding loan ball then refunding the monthly premiums, then as you say they add the compensatory 8%.

 

 

[dx100uk]

not on loans..

the interest is fixed and known 

go read the fos website its 8% statint on loans always has been.

unless its a secured loan/mortgage.

 

anyway looking at those docs looks like they changed it to a Barclaycard loan and no paperwork work was ever signed so its going nowhere 

stuff em stop payments

let them sell it on.

 

dx

 

[Peterbard]

Yes DX, because as well as getting you premium back and your 8%the loan is restructured to make up fofr the extra interst you have paid when you missed any instalment.

 

Any none of this is relevant because I was referring to the rebate which should have been forthcoming after the termination of the first agreement, under the cca. I think they mention it when the talk about money which should have been returned.

 

 

 

Yes I agree, I think , well I know that is exactly what they have done.

 

As said the copy should be a copy of what the lender was shown before and at the time of execution. The safeguard is there to ensure he knows exactly what he is buying, same with section 127(3). It is a drastic remedy imposed by Francis Beniun draftsman of that particular part of the act.

 

The creditor CANNOT enforce unless it can be shown,  even on balance of probabilities, that certain terms where available to the debtor. The previous legislation The Moneylenders Act had a similar provision,  it is also why such importance is given to the issuance and receipt of copies.

 

The point is, as per post one, on receipt of the section 77 they set about concocting a copy which would fit the facts of the loan, this is not what is required, and is more than enough IMO to render the Agreement(if there was one) irredeemably unenforceable.

 

Anyway needs to either do nothing see what happens, or write them a letter, which I would be pleased to assist with if required.

[HSBCandMe]

Thanks guys. I will be putting a letter together to Barclays and will cease making payments

 

I will post it up here for comment prior to sending.

 

However, do I put the account in formal dispute to halt debt collection activities?  But if I do that, wouldn't it mean they can't sell it on (which is what we want them to do)?

[Peterbard]

es Just say the CCA does not comply with the copy regulations under section 77 and 180 of the Consumer Credit Act 1974.

From the results of an eelier SAR it seems that when the earlier loan was terminated there was no calculation made as to rebate in regards of Section 95 of that act.

 

Since the total credit of the refinance would not have been the default balance there is no saying what figure would have been on the new agreement, indeed if any new agreement existed at all. Then we come to the original agreement, you say the interest was applied incorrectly, then surely this agreement would also been unenforceable under section 127(3) of the act.

Please confirm by return that the debt you refer to is in fact unenforceable in a court of law as per FCA guidelines. 

 

Some ideas for you

[HSBCandMe]

How's this?

Draft - Barclays.pdf

[AndyOrch]

 “as a refinance arrangement, this agreement was exclusively conducted by post and phone, in which case no cancellation rights would have applied at that time. There is no cancellation rights in the agreement because there would not have been any cancellation rights in this case. Our refinance loans have always been transacted either at branch offices or totally through the post following telephone conversations." 

 

https://www.citizensadvice.org.uk/Global/Migrated_Documents/corporate/can-you-cancel-it-final.pdf

[Peterbard]

Very good. I would lose all mention of fraud, its fine for us to say here, but ...

 

Just before the paragraph about what the copy is for something like.

 

In a reply you stated 

"We therefore consider that the copy agreement we sent to you in response to your s.77 request contains all the relevant terms, complies with all requirements applicable at the time the agreement was entered into and is therefore a true copy for the purposes of s77. Our agreement with you is therefore legally enforceable.”

 

I must remind you that the copy requirements are not there to show how the account"worked". But to show what was shown to the debtor on execution of agreement.

Calculating how the debt worked after the event does not do this.

In Carey the court stated that a copy can be re-created from other sources, he meant other written sources, not a calculation after the agreement was issued see under

d. This exercise is not a mere formality. The creditor will need to check carefully that the details of the debtor at the time are correct and that those are the particular terms (including prescribed terms) that he/she agreed to. This is to ensure that it is an honest and accurate copy.

 

I would also cut down the PPI content. just say , I

would also complain bout how the PPI was calculated the FSO say that I should be put back into the position I would have been in, that is before any other sums are refunded, since the balance of the account was inaccurate(wrongful inclusion/disemination of interest) perhaps you should illustrate how this was achieved.

 

On ‎02‎/‎04‎/‎2019 at 10:18, Andyorch said:

 “as a refinance arrangement, this agreement was exclusively conducted by post and phone, in which case no cancellation rights would have applied at that time. There is no cancellation rights in the agreement because there would not have been any cancellation rights in this case. Our refinance loans have always been transacted either at branch offices or totally through the post following telephone conversations." 

 

https://www.citizensadvice.org.uk/Global/Migrated_Documents/corporate/can-you-cancel-it-final.pdf

Hi Andy, I think they mean nothing under the act. I would have to check if that is true. Previously I said the Distance selling rules had been adopted, I was incorrect. I had an idea the agreement was after 2004 .

[AndyOrch]

https://www.legislation.gov.uk/ukpga/1974/39/section/67

 

And pages 49 & 53

 

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/422707/bis-10-1053-consumer-credit-directive-guidance.pdf

[AndyOrch]

And section 10 of the following...

 

http://www.legislation.gov.uk/uksi/2013/3134/made

[HSBCandMe]

I'm sure I'm being a bit thick here but ref CCA s.67 are you saying the bank are right about there being no requirement for cancellation clause? 

 

Also, ref s.10 Consumer Contracts SI, this is 2013 and presumably is not retrospective?

 

[Peterbard]

 

 

7 minutes ago, Andyorch said:

And section 10 of the following...

 

http://www.legislation.gov.uk/uksi/2013/3134/made

Hi  Andi. Dont forget this is an old agreement, you need to refer to the original CCA. I believe this agreement was sent by post where you signed and returned it? If this is the case there should have been a copy in there for you to keep. 

 

As far as being cancellable is concerned as you say this is the section.  

d agreement may be cancelled by the debtor or hirer in accordance with this Part if the antecedent negotiations included oral representations made when in the presence of the debtor or hirer by an individual acting as, or on behalf of, the negotiator, unless—

(