SLC Cannot Supply The Original Agreement

[noomill060]

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

 

I think.

[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

[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?

[noomill060]

Oooooooooooooooh thats not fair!

 

Do tell us a bit more...

[noomill060]

Tell us, dammit or we'll come round and kick your bins over!!!!

 

[noomill060]

Do you think it could be worth getting an ASBO over?

[noomill060]

Going back to that Mirror article, its suprising they didnt mention Halifax settling a claim for damages last week, brought under the Harrassment Act.

[noomill060]

Harrasment letter and a complaint to Trading Standards at the very least.

[noomill060]

Harrasment letter is in the CAG template library. Suggest you ring or email Consumer Direct for info on how to complain to Trading Standards.

[noomill060]

Just waiting for Barclaycard's response to my above letter.

[noomill060]

If they havent provided a copy of the CA, stop paying and challenge them to prove they have a legal right to persue the debt.

 

 

You could point out to them that offences under the Consumer Credit Act and the Harrassment Act, both carry a substantial fine and a term of imprisonment on conviction...

 

You should see a solicitor if you dont know what to do, but if they havent produced a copy of your CA, the debt **could** be as good as dead.

 

Dont get drawn into a phone converstion with them, put it all in writing.

[noomill060]

This is serious. Please just go see a solicitor.

 

HSBC are waiting for you to start the Court action you promised.

[noomill060]

If you dont, they will assume you are another easy target.

[noomill060]

No wonder they didnt take you seriously!

 

Phone Consumer Direct (Trading Standards) on Monday, anyway. (Fat lot of good it wll do, but at least your case will be logged.)

 

Then find a solicitor who knows about consumer issues. The CAB will be able to help.

[noomill060]

Im just feeling my way through this myself. Woulnd want to anyone to follow my example and lose out.

 

But hey, I have nothing whatsoever to lose and everything to gain!

 

[noomill060]

This is what I wrote at the end of my CCA request sent to Wescot. i got an acknowlegement from them in April, then at the end of May a copy of the app form turned up direct from Barclaycard.

[noomill060]

rhsymonds- yes of course.

 

Let me know what happens!

[noomill060]

I would provide my details as well, but I havent got to the reporting to the OFT stage yet.

 

I havent been hassled by Barclaycrud since they got my s.78 request (last October), but I've sent them a s.10 notice to try and get the default off my credit record.

 

Can I still claim my charges back using the CAG template letter despite there being no contract to be in breach of?

[noomill060]

Thanks Pete.

 

Should I use the CAG template? Or write one myself, removing reference to unlawful penalty charges for breach of contract?

[noomill060]

Unfair Trading Regulations 2007

 

This looks promising, Peter.

 

http://www.oft.gov.uk/shared_oft/reports/consumer_protection/oft931con.pdf

[noomill060]

Check out page 49 with regards to unenforceable debt collection.

 

A new offence.

[noomill060]

Had a suprise yesterday.

 

Wescot have sent me a scary final demand letter!

 

This spurred me into phoning Trading Standards to confirm that the application form I recieved in response to my CCA letter.

 

The guy I spoke to asked me what was on the letter with regards to the precribed terms.

 

My signature- yes, in a box with "this a credit agreement" in it.

 

Their signature- no

 

APR- no

 

terms and conditions- no

 

Rights and obligations -no

 

Cooling off period -no

 

Anything else vaguely mentioned in the Act- no

 

Just my name and address, date of birth, financial details, bank ac number, "would I like PPI?", "would I like to transfer a balance?"

 

 

Reckons its just an application form, but I've sent it off to him to check out.

[noomill060]

The Latin is part of ncf's sig. I opine that this is not part of any advice directed at yourself.

 

Veni vedi velcro

 

(I came, I saw, I stuck around)

[noomill060]

Ok- this has probaby been done to death on other threads but just for confirmation:

 

After months of waiting and two final demands, a S. 78 request produces the original signed application form (which as peterbard has established) is really an unexecuted agreement. No prescribed terms.

 

Months after that, a photocopy of the relevant T&Cs, containing the prescribed terms ,turn up, unsigned by anyone.

 

Signed document doesnt contain prescribed terms and headed "application form" with sig box with

 

"This is a Credit Agreement, sign only if you agree with its terms"

 

Enforceable?

 

This has been done to death I know. Did we ever reach a satisfactory assesment?