Barclays Masterloan - Enforceable Recon CCA?

[Peterbard]

Hi

There are two kinds of unenforceability first the 127(3) route.

 

This is about prescribed terms basically if they are not there then the Agreement cannot be enforced, this means the Judge is not able to issue an enforcement order, he has no say in the matter. This section was repealed in 2007  but the repeal was not retrospective

so the section is still applicable to agreements executed before that date.

 

The prescribed terms on a fixed term loan are, the total credit and the repayment intervals and amounts. these terms must, a) be there and b) be accurate.

 

The interest on a fixed sum loan is not a prescribed term ,unless the interest is variable unlike a credit card where it is.

 

The other breaches in Schedule 1 (terms and conditions) can be actionable, but not being prescribed terms fall under section 127(1) here the court are  free to issue sanction in accordance with the amount of damage caused by the omission or error, In my experience a waste of time unless it is the APR and it is miles out. I checked ypur APR and it is correct

 

IMO The agreement is enforceable under this criteria

 

When considering the signing an agreement, by this time the distance Marketing were in force, this permitted agreements to be executed remotely.

 

 

[Peterbard]

Hi

There are two kinds of unenforceability first the 127(3) route.

 

This is about prescribed terms basically if they are not there then the Agreement cannot be enforced, this means the Judge is not able to issue an enforcement order, he has no say in the matter. This section was repealed in 2007  but the repeal was not retrospective

so the section is still applicable to agreements executed before that date.

 

The prescribed terms on a fixed term loan are, the total credit and the repayment intervals and amounts. these terms must, a) be there and b) be accurate.

 

The interest on a fixed sum loan is not a prescribed term ,unless the interest is variable unlike a credit card where it is.

 

The other breaches in Schedule 1 (terms and conditions) can be actionable, but not being prescribed terms fall under section 127(1) here the court are  free to issue sanction in accordance with the amount of damage caused by the omission or error, In my experience a waste of time unless it is the APR and it is miles out. I checked ypur APR and it is correct

 

IMO The agreement is enforceable under this criteria

 

When considering the signing an agreement, by this time the distance Marketing were in force, this permitted agreements to be executed remotely.

 

43 minutes ago, HSBCandMe said:

Just one question:  can Barclays reconstitute a pre-2007 CCA?? 

Yes, they can. The date 2007 refers to unenforceability via section 127. A reconstruction is about  creating a compliant copy(section 77).

However, many do not have the information to reconstruct from so long ago. It could have been an offer of some kind one off deal for instance , their generic information may not cover it, and they run the risk of you producing an orriginal in court, which would put them in all kinds of trouble if they had just made the copy up.

44 minutes ago, HSBCandMe said:

. Re consrtJust one question:  can Barclays reconstitute a pre-2007 CCA?? 

Yes, they can. The date 2007 refers to unenforceability via section 127. A reconstruction is about  creating a compliant copy(section 77).

However, many do not have the information to reconstruct from so long ago. It could have been an offer of some kind one off deal for instance , their generic information may not cover it, and they run the risk of you producing an orriginal in court, which would put them in all kinds of trouble if they had just made the copy up.

[Peterbard]

I meant enforceable under section 127(3),   This is dependant on the content of the signed agreement. There are cases where a court has not enforced because no original agreement was produced, but I think most will agree that this is seldom the case these days. One of the requirements of 123(3) is that the agreement was signed by the debtor. So the logical thing would be to say ,they needed to produce the original to prove this.  Unfortunately, in Carey the judge pointed out that the section only said that an agreement WAS signed, which leaves it open to the civil burden of proof, Balance of probabilities, as long as the creditor can provide other proof that an Account did exist, statements etc and cash was forwarded, it goes a long way to fulfilling that test.

 

Andy gave an excellent appraisal regarding what is required in order for the court to accept this as a true copy. If the say it is not acceptable the creditor is unable o enforce under the copy regs and section 77.

[Peterbard]

45 minutes ago, Andyorch said:

I thought we had concluded this in posts# 4 & 5 ?

 

Unenforceable if it does not contain the correct address at the time  of inception. ? 

Yes as per your earlier post. A true copy must contain all the details which were on the original executed agreement(you signed) however they do not have to poses the original agreement, they can populate a template from other sources to produce a compliant copy.

[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.

[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

[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%.

 

 

[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.

[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

[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 .

[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—

(

 

 

 

[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..

[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

[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

 

 

[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.

[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.

[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 .

[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

[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,

[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.

[Peterbard]

Yes we could do with looking at how much you have paid and when. It would be very handy you could find how much you paid before and after termination. From the balance they have given it looks like about 40 contractual payments, but of course, that is their figures.

 

Which brings me onto something I should have gone over with you as it is central to why they cannot provide a figure for the refinance.

 

you had paid

 

APR contains any costs of the loan within its calculation, ie. any costs for completion mandatory PPI etc., This is  the way it gives a true reflection of how much the loan really costs, so there is no way they can say the APR is a correct figure to use in a reconstruction.

 

They should have known the interest rate(figure without costs), this would have been on the original paperwork.

.

There is no way they can know what costs were applied. They would have to know also the exact amount. you paid.

 

In light of this, you need a description of how they calculated the amount outstanding from the first loan. (Also they mentioned a calculation so something for your CPR perhaps,)

 

This info should be included in the CCA you received(but seldom is) hence my reference to the CCA. It is something you should address with them.

 

Working with my beloved credit Union for a couple of weeks, so won't be on here so much, but anything I can do, please ask, I will get around to answering within a day or so.