SLC Cannot Supply The Original Agreement

[noomill060]

Hi guys,

 

Just started new thead for my own CCA situation. Please forgive double posting. I'll remove this post if its not appropriate.

 

http://www.consumeractiongroup.co.uk/forum/barclaycard/93787-noomill-barclaycard.html

 

Way back last October just after I joined CAG and after reading the first few months of this thread, I sent a CCA request to the DCA that were handling my defaulted Barclaycard debt.

 

The 12 days were up in early November. I never heard anything from them again and was too busy dealing with my first claim and lacked the confidence follow up their criminal default.

 

On Saturday I finally got a response from Barclaycard's recovery department in Liverpool.

 

I opened the envelope and couldnt believe my eyes.

 

It was a just a copy of the "Priority Application Form" that came through my letter box back in 1999.

 

No prescribed terms

 

Not signed or dated or even stamped by the creditor

 

(I hadnt even filled my name in completely -I'd forgotten to put my surname in the "Surname " box!)

 

In short, it isnt a credit agreement. This is all I ever signed.

 

I had posted it off and much to my amazement within week, I had a Barclaycard with a credit limit of £1400.

 

Now, clearly it isnt enforcable and no doubt Barclaycard will have no choice but to write off my alleged (and not insignificant) debt. This much i know from reading this thread.

 

However, question -I will be wanting:

 

a) The removal of the default notice

 

b) The return of all monies which I have paid to them.

 

Would this be:

 

a) the total of all the monthly payments I made to them (plus interest compounded at their rate from the date of each payment?)

 

or (more likely)

 

b) The total of the monthly interest as stated on each statement (plus compounded interest calculated from the this interest was applied?)

 

or

 

c) Just the sum of the monthly interest on each statement added up?

[JonCris]

Thanks Peter...thats great!

 

However, the letter that I have been searching for is from DTI, Rt Hon Ian McCartney to Michael Foster MP dated December 06.

 

The letter is in response to a further letter from Michael Foster MP dated 24 November 06

 

Love AC

 

Here

dti

 

21 December 2006

 

Re consumer credit act 1974

 

Thank you for your letter of the 7th of December on behalf of your constituent Mr P**** B****** of******************* about a possible irregularity in the Consumer Credit act 1974.

 

The Consumer Credit (Prescribed Periods for Giving Information) Regulations apply to all the situations that ate listed in the Schedule to the Regulations and this include Sections 77 and 78 of the Act, which are about copies of the executed agreement and not pre contractual information

 

The Cancellation Notices and copies of Documents Regulations are made under Section 180 of the Act ) power to prescribe the form etc of documents) and Section 180 enables Regulations to be made to provide for including/excluding certain information from copies sent out under the Act. The Regulations apply to all copies sent our under the Act unless specifically excluded in the Regulations themselves.

 

Mr B***** describes a situation in which he was sent a copy of a company’s standard Terms and Conditions when requesting a copy of a signed agreement form. Just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement**

 

If Mr B****** feels that the rules are being flouted he should report the companies concerned to Trading standards and the Office of Fair Trading. It is also a breach of the Act and the Regulations to send the application form rather that a “true copy” of the Agreement.

On the point that Mr B****** makes about unscrupulous companies adjusting agreements, If there were a dispute about an agreement, the lender would need to prove to a court that there was an agreement and, it is highly likely that the lender would have to produce the original signed document to prove they had and agreement with the consumer to start with,

The lender should need to prove to a court that there was and agreement **and, it is highly likely that the lender would have to produce the original signed document to prove they had an agreement with the consumer to start with. If the lender can’t prove the existence of the agreement, winning any court case would prove difficult.

 

 

Approved By the Minister and signed in His presence

 

Pp Ian Mc Cartney

[noomill060]

I think Ive worked out thr answer to my own question.

 

a) I borrowed money off them and they were entitled to to have it returned

 

b) they can prove that I borowed it.

 

BUT

 

c)as no agreement exists where I agreed to to pay any interest on the money I borrowed, I am entitled to have any interest paid to them returned to me.

 

How does this sound?

[Peterbard]

HI

If you are claiming unenforceability under section127(3).

Then they will not be able to enforce any further payments from you in regard of your account.You are unlikely however to claim any of the money back you have already paid there have been one or twon on here that have tried to litigate for just that and been told that they paid the money voluntarrily and no refund was due.

You could however try to claim your interest as you say. If they have charged you any interest whilst they have been in default for not supplying a section 78 request for instance you would be able to claim that back also you should be able to have any reoport removed from any cra.

 

Regards

Peter

[JonCris]

I think Ive worked out thr answer to my own question.

 

a) I borrowed money off them and they were entitled to to have it returned

 

b) they can prove that I borowed it.

 

BUT

 

c)as no agreement exists where I agreed to to pay any interest on the money I borrowed, I am entitled to have any interest paid to them returned to me.

 

How does this sound?

Terrible if there is still an outstanding debt stop paying. Get moral when they do

[noomill060]

Thanks for that Peter. I realise that you have answered similar questions many, many times now.

 

 

I stopped paying in November, after the 12 days expired. Didnt hear anything more from Barclaycard until Saturday when my copy application form turned up from them.

 

The covering letter said "As requested, here is your copy application form"

 

Er, no it was the original agreement that was requested.

 

Oh dear.

[angry cat]

Here

dti

 

21 December 2006

 

Re consumer credit act 1974

 

Thank you for your letter of the 7th of December on behalf of your constituent Mr P**** B****** of******************* about a possible irregularity in the Consumer Credit act 1974.

 

The Consumer Credit (Prescribed Periods for Giving Information) Regulations apply to all the situations that ate listed in the Schedule to the Regulations and this include Sections 77 and 78 of the Act, which are about copies of the executed agreement and not pre contractual information

 

The Cancellation Notices and copies of Documents Regulations are made under Section 180 of the Act ) power to prescribe the form etc of documents) and Section 180 enables Regulations to be made to provide for including/excluding certain information from copies sent out under the Act. The Regulations apply to all copies sent our under the Act unless specifically excluded in the Regulations themselves.

 

Mr B***** describes a situation in which he was sent a copy of a company’s standard Terms and Conditions when requesting a copy of a signed agreement form. Just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement**

 

If Mr B****** feels that the rules are being flouted he should report the companies concerned to Trading standards and the Office of Fair Trading. It is also a breach of the Act and the Regulations to send the application form rather that a “true copy” of the Agreement.

On the point that Mr B****** makes about unscrupulous companies adjusting agreements, If there were a dispute about an agreement, the lender would need to prove to a court that there was an agreement and, it is highly likely that the lender would have to produce the original signed document to prove they had and agreement with the consumer to start with,

The lender should need to prove to a court that there was and agreement **and, it is highly likely that the lender would have to produce the original signed document to prove they had an agreement with the consumer to start with. If the lender can’t prove the existence of the agreement, winning any court case would prove difficult.

 

 

Approved By the Minister and signed in His presence

 

Pp Ian Mc Cartney

 

Thanks JonCris but No...this is the letter that I have been trying to find (courtesy of peterbard) and..I have found it amongst my mountainous heap of papers! Hopefully, the letter will assist other members.

 

 

 

 

Page 1:- and 2

 

page 3

 

 

Love AC

[rippedoffagain]

The provisions relating to section 127 will apply to all agreements from the moment the section is commenced.

 

Thats a worrisome sentence.

[noomill060]

We affirmed that this wasnt retrospective, but would apply only to agreements signed post 6 April.

 

I think.

[ian1969uk]

The explanatory notes of the CCA 2006 state the following:

 

11 The repeal by this Act of-

(a) the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

(b) subsections (3) to (5) of that section, and

© the words "or 127(3)" in subsection (3) of section 185 of that Act,

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

 

 

In other words, the repeal of Section 127 does not apply to agreements made before 6th April 2007. It would seem Ian McCartney is wrong.

[rippedoffagain]

Phew!

[noomill060]

Hows this for my next step?

 

 

 

my name and address

 

 

Adrian Ruffhead

Barclaycard Litigation & Disputes Team,

Level 29,

1 Churchill Place,

London,

E14 5HP.

31 May 2007

Re: a/c number xxxxxxxxxxxxxxxxxx

 

Dear Mr Ruffhead,

On 31 August 2006 Barclaycard issued a default against me, apparently under s.87 (1) of the Consumer Credit Act 1974.

I note that Barclaycard continued to debit interest to my account after the default.

On 19 October 2006 I sent a request under s.78 of the Consumer Credit Act 1974 for a true, executed copy of my Credit Agreement to your recovery agents “Debt Managers Ltd” to whom you had delegated recovery of my alleged debt.

This was sent by Recorded Delivery (Royal Mail id:xxxxxxxxx) together with a £1 postal order (id: xxxxxxxxx) in the prescribed manner as per CCA s.78 , and was delivered to and signed for by your agents “Debt Managers Ltd” on 23 October 2006.

You had 12 working days in which to comply, after which time the alleged agreement became unenforceable by law. A further calendar month later, Barclaycard was deemed to have committed an offence.

s.78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

 

 

s.78 (5) A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates.

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

On 5 April 2007 another offence was committed when I received a demand for payment (threatening legal action) from Barclaycard, via “Wescot Credit Services Ltd” and I again requested a true copy of my Credit Agreement is the same manner described earlier. Wescot acknowledged my s.78 CCA request.

I believe this attempt to enforce an apparent debt was a crude retaliatory action against me due to Barclaycard’s deadline to enter a defence in my Small Claim (07/01692) against Barclaycard under the Data Protection Act 1998 (now settled, thank you) and was intended in some way to intimidate me.

As you are now aware, it didn’t intimidate me in the slightest.

On 26 May 2007, I received a copy of my original application form. This is not a Credit Agreement as it contains none of the Prescribed Terms as specified in s.60

S.60 Form and content of agreements

(1) The Secretary of State shall make regulations as to the form and content of documents embodying regulated agreements, and the regulations shall contain such provisions as appear to him appropriate with a view to ensuring that the debtor or hirer is made aware of—

(a) the rights and duties conferred or imposed on him by the agreement,

(b) the amount and rate of the total charge for credit (in the case of a consumer credit agreement),

© the protection and remedies available to him under this Act, and

(d) any other matters which, in the opinion of the Secretary of State, it is desirable for him to know about in connection with the agreement.

(2) Regulations under subsection (1) may in particular—

(a) require specified information to be included in the prescribed manner in documents, and other specified material to be excluded;

(b) contain requirements to ensure that specified information is clearly brought to the attention of the debtor or hirer, and that one part of a document is not given insufficient or excessive prominence compared with another.

And not properly executed as specified in s.61

s.61 Signing of agreement

(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

(b) the document embodies all the terms of the agreement, other than implied terms, and

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible. CONTINUED

It is clear from your failure to supply me with such on demand, that no Credit Agreement exists, nor has ever existed, between myself and Barclaycard.

In the absence of any Credit Agreement, any alleged debt is unenforceable under s.127 (3) of the Consumer Credit Act 1974.

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with 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).

 

 

I require the following:

a) that within 7 days Barclays Bank PLC t/a Barclaycard ceases to process my data to third parties and that all Default Notices in my name be removed from all credit reference agencies.

( Please find enclosed s.10 Notice under the Data Protection Act 1998 to “cease and desist” processing information. I may seek redress for removal of information and damages under s.13 and s.14 of the Data Protection Act 1998.)

b) that within 7 days Barclays Bank PLC t/a Barclaycard provide me with a statement of account showing my balance as zero.

c) Consolidation and restitution of all monies and interest paid, and restitution of all unlawful penalty charges and all interest levied thereon.

Failure to do so will leave me no option but to inform Trading Standards, the Office of Fair Trading and the Information Commissioner’ Office.

 

 

As it is my intention to consider litigation in this matter, you may consider this as a letter before action and your attention is drawn to:

CPR 4.6 © enclose copies of documents asked for by the claimant, or explain why they are not enclosed;

I would therefore request in compliance with CPR 4.6© a copy of the document that you be relying on as proof that a properly executed agreement, complying in all respects with the form and content requirements of the CCA and signed by both parties in respect to the alleged debt.

In accordance the CPR, I expect your prompt response to this formal request without further delay.

I look forward to your reply.

 

Yours Sincerely,

 

Noomill060

[johnny131070]

Good morning everyone, just a quick question. I have recently applied for the CCA from Citifinancial for a loan agreement taken out in june 05. I have just found a photocopy of the original agreement. Does this mean that my chances of getting rid of these bloodsuckers has now diminished? It is clearly signed by myself and a representative from Citi. Theh have passed the debt on to Direct Legal & Collections so should i pursue them for the agreement. Any help would be greatly appreciated.

[Josie8]

doesn't matter what you have in your possession...................its whether they have it or not that matters - and in your case it would be very interesting if they produced a cut and paste version and you could prove different 'cos that would be a criminal offence - using a fraudulent instrument to obtain a pecuniary advantage...........

[WormHasTurned]

Johnny - ditto what Josie said.

[minky93]

I have the customer copy of my loan agreement which is unsigned.

 

If they can produce a signed copy will I still have a case.

 

How can I tell if they have cut & pasted my signature?

 

thanks

minky

[gill5blue]

ta everybody

seems the only way to be certan for the or1g1nal s to let 1t go to court

Cheers

(eyboard mess1ng about some letters w1ll not wor)

[Pliny the Penuriosus]

OH Yeah! ve ave al used that Xcuse be4

[thomass1949]

Hi Jonchris. I have just rec'd a voicemail from the manager I spoke to at Lloyds re the PPI and loan agreement. She acknowledges receipt of my CCA letter. I think it has been a bit of a surprise to her as my initial enquiry was regarding mis-selling of PPI's. Can you advise me whther to pursue the PPI's as a separate issue to the missing loan agreements or carry on with them together? I don't want to mess this up. She has admitted on the telephone that the copies are missing at the branch, the customer support at Peterlee also confirmed that they had not record of any copies. Can I therefore jump the 30days or as l think best as I do not have a written record of the above, go through the system.

[pford]

Hi Jonchris. I have just rec'd a voicemail from the manager I spoke to at Lloyds re the PPI and loan agreement. She acknowledges receipt of my CCA letter. I think it has been a bit of a surprise to her as my initial enquiry was regarding mis-selling of PPI's. Can you advise me whther to pursue the PPI's as a separate issue to the missing loan agreements or carry on with them together? I don't want to mess this up. She has admitted on the telephone that the copies are missing at the branch, the customer support at Peterlee also confirmed that they had not record of any copies. Can I therefore jump the 30days or as l think best as I do not have a written record of the above, go through the system.

 

 

record the voice mail now as proof if you can

[noomill060]

They have 12 days to comply with your s.78 CCA request.

 

If that is now up, stop paying them anything but just hold your fire until the 30 days is up.

[noomill060]

And of course keep hold of that recording, can you down load it onto your computer?

[pford]

In the dail Mirror today

 

ENRAGED!

 

Bully banks use automatic dialling to harass debtors

 

30/05/2007

 

 

BANKS are using bullying "torture" techniques to hound customers with cash problems.

They use automatic phone systems to ring up to 15 times a day demanding payment with calls that can be aggressive and threatening.

We've heard complaints from several distressed readers.

 

 

read it here

 

ENRAGED! - Mirror Money - Money News - News - Mirror.co.uk

[paulwlton]

I can't resist.

 

A certain bank will be hit hard by a devestating article in the near future.

 

Paul

[pford]

I can't resist.

 

A certain bank will be hit hard by a devestating article in the near future.

 

Paul

 

 

Let us all know when:)