Barclays Masterloan - Enforceable Recon CCA?

[AndyOrch]

a)the Consumer Protection (Distance Selling) Regulations 2000(1);

(b)the Cancellation of Contracts made in a Consumer’s Home or Place of Work etc Regulations 2008(2).

[Peterbard]

7 minutes ago, HSBCandMe said:

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?

 

WE had a problem with this regarding credit card flyers picked up at petrol station and filled in.

No antecedent negotiations you see, so no cancellation rights.

In your case, I am sure you will say the agreements were discussed face to face with the creditor, if not you may be in the same boat, look up antecedent negotiations and see if telephone conversations apply, got a feeling they dont..

[HSBCandMe]

Consumer Protection (Distance Selling) Regulations 2000. They apply to contracts  "concluded between a supplier and a consumer under an organised distance sales or services provision scheme run by the supplier who, for the purposes of the contract, makes use of one or more means of distance communication" up to and including the moment the contract is agreed. The legislation provides rights to the consumer and obligations which the seller must fulfill.

 

 If the supplier has provided all the information to be communicated before contract formation, the consumer has an automatic right to cancel and rescind a contract at any time from its formation until seven working days after the goods are delivered; or for service contracts, seven working days after the contract is formed (which might be before the service was to have been performed)^]

 

Where the supplier has not provided the consumer with all the required information, the consumer has an automatic right to rescind the contract within three months and seven days of delivery of the goods.

 

Burden of proof problem for me then isn't it?  At least on the cancellation rights.  The grounds for unenforceability still stand on the other heads we discussed?

 

So how does this read?  Any good? 

Draft - Barclays.pdf

[Peterbard]

Hi Distant Sales, sorry It doesn't apply to credit, it is for sales or services only.

 

As I said earlier its the Distance Marketing Regs that applied to credit but those didn't come in till 2004, went when the FCA took over

[AndyOrch]

IMHO possibly too much information as to why the reconstituted version is nonsense ...you have their own admittance detailed in DSAR as to why the agreement is unenforcible..do you really need to point out and make them aware of its failings and give them further opportunity to correct it.

 

Simply cease payments and wait for it to be sold on...your on the higher ground with a Debt Buyer...because they are clueless.....assuming it is ever assigned.

 

Andy

[HSBCandMe]

2 minutes ago, Andyorch said:

..do you really need to point out and make them aware of its failings and give them further opportunity to correct it.

 

 

Can they correct it, pre-2007 CCA, if they sent a 'true copy' already? 

[AndyOrch]

They can do anything and a court will fall for it.

[Peterbard]

Hi Yes V good.

 

Delete the distance selling stuff, take a day away and come back to it,(its what I do). It needs condensing, stuff can be thrown out without detriment and there is a little duplication, listen to the advice on here, but make your own mind up, good luck off for a bit. PB

 

just came across this, I wrote it 12 years ago,  under the name Peterbard. no one knew much about enforceability back then, so a little dated, but the facts are true enough. Give or take

 

 

[HSBCandMe]

“If the agreement is none cancellable one then there must be a date of execution on the agreement but there need not be a date on either signature.”

 

There is no date on my recon CCA. Relevant to enforceability? 

 

Also as a recon it’s unsigned 

 

[Peterbard]

Not much case law back then, so we didn't know how courts would react to minor breaches like this, now we do, they ignore them.

[AndyOrch]

I always assumed that all credit agreements had cancellation rights /cooling off periods if not signed on the creditors premises....except for Mortgages etc.

 

Under todays legislation ......If you entered into the contract over the phone, online or on your doorstep, you have 14 calendar days to cancel the contract under the Consumer Contracts Regulations. 

 

also ...https://www.handbook.fca.org.uk/handbook/CONC/11/1.html

 

and... https://www.legislation.gov.uk/ukpga/1974/39/part/V/crossheading/cancellation-of-certain-agreements-within-coolingoff-period

[HSBCandMe]

Peter, I think you said in one post that the total credit in my reconstructed CCA contained the interest that should have been rebated, and this is in breach of the Act.  

 

can you identify the section in the Act Barclays were in breach of?

 

Its all unenforceable anyway as already advised...interest and rebates are irrelevant...they dont have a copy of the original. 

 

I want to be clear about ref the recon:

 

The loan was £15K plus £4356 interest preloaded to it. Monthly repayments were £322.60. So that makes 10.9% APR doesn't it?   What do you mean when you say they calculated the APR to be compliant with the s.77 request?  Surely the recon reflects the 2003 original and they didn't;'t work it our after the event?

 

Or have I missed something?

 

Where I'm coming from is the unenforceability issue ref the interest being out contra 127(3).  but is it?

 

they do not have to poses the original agreement, they can populate a template from other sources to produce a compliant copy.

 

All, I think, I have on this that is non-compliant is the address, which was not mine at that time.  The original CCA would have had that, hence its central importance?

[dx100uk]

no they cant!! they have to produce the signed original to be success in court

been saying this since the 1st 10 posts ...we are now at post  63

..what part of things are you not understanding??

[HSBCandMe]

I can’t be alone in being confused by it all. I’m not familiar with this stuff. The confusion arises from being told they don’t need the original for enforceability and then they do. Then that interest and rebate made a difference, which it doesn’t. If I am alone in that confusion I can only apologise. : -( 

[AndyOrch]

I think its a case of knowing whose advice is reliable and correct  

 

But yes its very confusing Consumer Law if your new to it......Thats why the Solicitors charge big bucks if you seek their advice.

[dx100uk]

the trick with any forum is to read other like topics [threads] using the custom google search here.

and not be told by those who think they have their interpretation correct upon the issue you have.

that way no-one can influence your thought process in your decision

 

you have to realise that though no t necessarily relating to this particular thread

...some members have issues with other members and will follow them around disrupting threads they post on at the sad expence of the original poster who only came here for help..not get involved in browny points scoring...

[Peterbard]

On ‎03‎/‎04‎/‎2019 at 14:46, HSBCandMe said:

Peter, I think you said in one post that the total credit in my reconstructed CCA contained the interest that should have been rebated, and this is in breach of the Act.  

 

can you identify the section in the Act Barclays were in breach of?

 

Yes its section 95 rebate o early termination, I ought dI .includeiitth  

3

Yes its section 95 I thought I had mentioned it.

 

On ‎03‎/‎04‎/‎2019 at 23:49, HSBCandMe said:

I can’t be alone in being confused by it all. I’m not familiar with this stuff. The confusion arises from being told they don’t need the original for enforceability and then they do. Then that interest and rebate made a difference, which it doesn’t. If I am alone in that confusion I can only apologise. : -( 

1

 

No, they don't need the original to enforceability.  The  original is a prescribed term, and for A while that was used to convince the court that the signed document was required, as no signature is required on a copy. However Cary put a stop to that requirement when he pointed out that the act said only was signed, so its balance of probability time.

 

A number of cases to prove this since, Frost vs .. comes to mind, its on here somewhere.

 

On ‎03‎/‎04‎/‎2019 at 16:56, HSBCandMe said:

they do not have to poses the original agreement, they can populate a template from other sources to produce a compliant copy.

 

All, I think, I have on this that is non-compliant is the address, which was not mine at that time.  The original CCA would have had that, hence its central importance?

 

Its none compliant because it is not a copy of the agreement you signed, in any case that agreement would have been unenforceable under 127(3). It is not about the form it is about content.

 

On ‎04‎/‎04‎/‎2019 at 00:04, dx100uk said:

the trick with any forum is to read other like topics [threads] using the custom google search here.

and not be told by those who think they have their interpretation correct upon the issue you have.

that way no-one can influence your thought process in your decision

 

you have to realise that though no t necessarily relating to this particular thread

...some members have issues with other members and will follow them around disrupting threads they post on at the sad expence of the original poster who only came here for help..not get involved in browny points scoring...

3

 

I have no issues about my knowledge of the CCA and assoc. Accept with you two maybe, I mastered the legislation ten years ago, I rarely commented on the subject recently, but if you go back you will see I have been advising since 2007.

 

Whatever I say about the legalities of consumer credit agreements you can take as read, maybe minor slips same as anyone else, but i have been working with it for a long time. IF there is anything you do not understand please ask.

 

On ‎03‎/‎04‎/‎2019 at 13:30, Andyorch said:

I always assumed that all credit agreements had cancellation rights /cooling off periods if not signed on the creditors premises....except for Mortgages etc.

 

Under todays legislation ......If you entered into the contract over the phone, online or on your doorstep, you have 14 calendar days to cancel the contract under the Consumer Contracts Regulations . 

 

also ...https://www.handbook.fca.org.uk/handbook/CONC/11/1.html

 

and... https://www.legislation.gov.uk/ukpga/1974/39/part/V/crossheading/cancellation-of-certain-agreements-within-coolingoff-period

4

 

Those regulations are not retrospective, TBH I have no idea why you quote them on a thread referring to a 2003 agreement.

 

Back then there had to be face to face negotiation(antecedent negotiations) before the agreement was executed, it is in the original version of the act you quoted, in this they are correct. There are no cancellation rights if the bargain was done by phone.

 

Incedently this was also the case with many credit cards until the new regs were introduced, lots of them on the old threads on here, and common knowledge I thought.

 

On ‎03‎/‎04‎/‎2019 at 15:12, HSBCandMe said:

I want to be clear about ref the recon:

 

The loan was £15K plus £4356 interest preloaded to it. Monthly repayments were £322.60. So that makes 10.9% APR doesn't it?   What do you mean when you say they calculated the APR to be compliant with the s.77 request?  Surely the recon reflects the 2003 original and they didn't;'t work it our after the event?

 

Or have I missed something?

 

Where I'm coming from is the unenforceability issue ref the interest being out contra 127(3).  but is it?

 

No you said it. All the terms on the copy figure to be correct as far as what is required and the maths add up, but when we look at a copy we cannot say if it corresponded with the orriginal or not, we have not seen the orriginal. 

9

 

Now if they are saying the copy is a duplicate as far as terms are concerned fine, but they are not, and from what they say about the original it cannot be. 

 

Section 9 says that costs of credit cannot be in the total credit, by there own words the original must be in breach of 127(3) total amount of credit prescribed term

 

frost

"you have to realise that though no t necessarily relating to this particular thread

...some members have issues with other members and will follow them around disrupting threads they post on at the sad expence of the original poster who only came here for help..not get involved in browny points scoring..."

 

DX, I am unsure if you are referring to me in this,  I have shown authority for everything I said, and my only purpose here is to attempt to clarify the law in this area for the OP.

As for following you around( if that is what you mean), nothing could be further from the truth, the problem is finding a thread you do not post on.

[HSBCandMe]

Well guys at least we agree it is a complex area. We don't need to be friends but we do all want to sock it to the banks that screw us over.

 

So, I do want to write the bank a goodbye letter. Having sat on it a few days, and taking into account the above posts (DX: stop paying hem; Andy don't give them too much info; and Peter's take on enforceability) which were all most helpful, I attach a draft.  If there is anything glaringly wrong please, please advise.

 

Then I will wait and post up Barclays' response (which will probably only come when they miss a payment, lol)

 

BTW, I have never been provided with annual statements or notices of sums in arrears, contrary to both s.77A and ss.86B–D. 

 

 

Draft - Barclays.pdf

 

S.9 (4) For the purposes of this Act, an item entering into the total charge for credit shall not be treated as credit even though time is allowed for its payment

 

?

Doc2.pdf

[Peterbard]

It means that anything which represents a cost of the loan and not the loan(principal) cannot be included within the figure for the total  Amount loaned/ credited. 

 

So the interest cannot be added to the loan figure, if it is, it would make the total credit incorrect and the agrement unenforceable.

 

This was the only form of unenforceability for a long time. until some thought there may be others. WilFirst trustson v .

[HSBCandMe]

So that makes all Masterloans of that period unenforceable?

[Peterbard]

On ‎04‎/‎04‎/‎2019 at 09:46, HSBCandMe said:

Well guys at least we agree it is a complex area. We don't need to be friends but we do all want to sock it to the banks that screw us over.

 

So, I do want to write the bank a goodbye letter. Having sat on it a few days, and taking into account the above posts (DX: stop paying hem; Andy don't give them too much info; and Peter's take on enforceability) which were all most helpful, I attach a draft.  If there is anything glaringly wrong please, please advise.

 

Then I will wait and post up Barclays' response (which will probably only come when they miss a payment, lol)

 

BTW, I have never been provided with annual statements or notices of sums in arrears, contrary to both s.77A and ss.86B–D. 

 

 

Draft - Barclays.pdf 264.77 kB · 1 download · 

Sorry no. At this level, it isn't that complicated, not to those who are used to reading the law. I can show you stuff which is complex if you like.

There are some who say I have a problem ego, not true there are many things I suck at.

 

You see some come on who after reading the legislation, case law. Reports. Judgements, enlightened opinion, think they have some knowledge which may help.

Whereas some are content just to read what others say and repeat it.

Now there are places that will tell you that the moon is made of green cheese if you see my point.

 

On ‎04‎/‎04‎/‎2019 at 13:16, HSBCandMe said:

So that makes all Masterloans of that period unenforceable?

If they all front load the loan into the credit, yes of course.

I personally saw over 150 welcome loans which were adjudged or given up when this error was pointed out, it is not an "idea", if unenforceability was just an idea, what are you doing wasting your time
 

?

 

On ‎03‎/‎04‎/‎2019 at 06:55, HSBCandMe said:

Also as a recon it’s unsigned 

 

True copies do not have to be signed,  1554/1983 Agreement Regulations

[HSBCandMe]

 

Well for no other reason that I didn't realise until I started posting here that the formula on my recon CCA made it unenforceable: i.e. that adding it to the loan sum and then dividing it by 60 payments was in breach of the CCA. 

 

£15,000 loan

+ £4356 interest

Total amount payable £19,356

Monthly payment £322.60

Number of repayments = 60

 

Because I am little leery of simply relying on the U/E due to the address being wrong, I think the commutation of interest route adds a string to the bow.

 

[Peterbard]

I think it is the main problem for them, as incidentally do they.

 

Interest cannot be added that way on a CCA fixed sum agreement. The method was prescribed in the 1980 TCC regulations and now exists somewhere within the FCA sourcebook. 

 

Interest should be added to the account month by month and calculated on the previous balance, this enables previous default charges and credits to bear interst or not as the case may be.

 

AS said the court has no p[tion with a prescribed term breach, they cannot enforce,

[HSBCandMe]

Awesome - that's just what I was looking for. You rock. Thanks m8.

 

I feel confident enough to take 'em on now.   

[Peterbard]

I1 last thing, and you may have done this already, you should also CCA the original contract, as itis arguable that there is money due under it. even though it has been reconfigured, see the last quote below

I am sure you have seen this, from the new sourcebook  section 13.

 

(2) The firm can reconstitute a copy. It can do this by re-populating a template of the relevant agreement form with the details of the specific agreement taken from its records. If the firm does provide a reconstituted copy, it should explain that that is what it has done, to avoid misleading the customer that this is a contemporaneous copy.
(3) The terms and conditions should be those applicable at the time the agreement was executed. The name and address at the time of execution must be included.
(4) The reconstituted agreement should contain a heading prescribed by the CCA and any relevant cancellation notice.
(5) If the reason why no copy is given in response to a request under these sections is that there never was an executed agreement, the firm should acknowledge this in its response.

 

and

 

(5) The duty under the relevant section does not apply if no sum is, or will or may become, payable by the borrower or hirer under the agreement. This is irrespective of whether the agreement may have been terminated.