Barclaycard

[pt2537]

you could always try something like this

 

Dear Sirs,

 

Thank you for your letter dated **********, the contents of which are noted

 

I must draw your attention to the fact that this account is in dispute.

 

I also note your comments that your client has not been able to contact me and this statement is somewhat confusing. I wrote to ********** on the 10th May 2007 making a statutory request for a true executed copy of the agreement for the account numbered ********. The statutory time frame for this request is twelve working days as set out in the Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983. ******** failed to comply with this request in the required time frame, in fact they did not reply until the 29th June 2007. The document, which was supplied, was NOT a true copy of the original executed agreement and this is very clear. The document supplied had my address printed on the top of the document. The problem this causes is that the account was not opened at this address and therefore it is impossible that the document complied with my original request. I wrote to ********* on the ********* 2007 setting out the grounds, which I rejected what had been supplied, and requesting again that they supply the documentation that I requested. I enclose a copy of this letter for your records

 

For the avoidance of any doubt I have included section 78(1) of the Consumer Credit Act 1974, which states…

 

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.

(2) …….

(3)….….

(4) ………

(4A)……

(5) ………

(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.

(7) This section does not apply to a non-commercial agreement, and subsections [(4) to (5)] do not apply to a small agreement.

 

 

Clearly the agreement which was supplied in no way complies with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in s78(6) Consumer Credit Act 1974 and the debt is unenforcaable at this time. In addition, I draw your attention to section 127 (3) Consumer Credit Act 1974 which states

 

127(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).

 

To clarify s61(1) states

 

(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

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced. I will re-iterate that this is clearly not a true copy of the executed agreement between ********* and myself.

 

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as ********* become compliant with my request. As ****** are still not in compliance with my request I insist that the following takes place with immediate effect

• All charges levied since ******** 2007 be removed from the account and further charges cease until such time as litttlewoods comply fully with my original request or such time as a court makes an enforcement order
  
• All entries which refer to missed payments be removed from my credit file
  
• All collection activities by your company and Littlewoods cease with immediate effect until ******** comply with my request from ********* 2007 or such time as a court makes an enforcement order

In addition, I draw your attention to the Office of Fair Trading’s guidance on debt collection

 

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

Clearly your pursuance of this debt falls into this category; in addition I must draw your attention to the fact that this debt is under investigation by Mr Garreth Cameron of Hampshire County Council Trading Standards as I have made a complaint as a direct result of Littlewoods failure to comply with the CCA 74 .

 

What I Require.

 

I require that you send me a true copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

You refer to me as an evasive debtor, a remark I find very offensive given the circumstances.

 

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist.

 

No other correspondence will be accepted

 

I trust this out lines the situation

 

Regards

 

 

 

[pt2537]

obviously you would need to amend it to suit

[shane5408]

Hi DM,

 

sorry really busy at he mow, lets's not forget they still haven't complied with the form & content requirements as laid down by the Act & Regulations no matter how many sets of t&c's they send. With regard to their belief they've now complied fully they are sorely mistaken! I'll post up some suggestions later on this evening when i get a spare moment

 

kind regards,

shane

[Duffers Mum]

All - Thanks for your replies, you lot really are the best!

 

Shane I will wait for your suggestions before compiling my letter to them, I will of course be asking them why they had the audacity to pass my account to Mercers without even checking the proper documentation had been sent and I expect a full grovelling apology for this and a promise that Mercers will be disinstructed immediately and that Barclaycard and them alone should deal with my account.

 

They of course will state that the application form and 6 sets of T&C's comply with the CCA request. I disagree. I am awaiting a reply to another letter I sent to them last week, the problem I have is that there are about 3/4 different people/depts dealing with this account. I think I'll address future correspondence to her with the fancy title (but no idea what she's on about)!! and state that she and she alone corresponds with me. Her letter finishes with the line that she trusts that the matter has been resolved to my satisfaction...ummmmm it most certainly has not. I guess it is really difficult for me to prove that its not a document which complies, but I think I just have to call their bluff on this one because they are obviously banking on me not actually knowing whether it does or not.

 

I have the financial ombudsman's details, what is the best way to proceed, should I write them in the first instance?

 

B/C have had since July to comply with my request, they've passed it to the muppets, sent me god knows how many sets of T&C's and an application form, I've written I don't know how many letters to them and still they continued to threaten and add charges (admittedly now refunded but distressing for all these months nonethesame) its about time things were taken to the next level.

 

I'll await Shane's suggestions later before putting a letter together.

 

Once again, I don't know what I'd have done without the CAG and the great people here.

[The GodMother]

Hi all,

 

Well l think that if they say an application form and 6 sets of T&Cs comply with a CCA request then maybe they should attend spec savers for an eye exam and go back to school for reading lessons as summint that says application form does not mean it is a Consumer Credit Agreement.

 

 

Maybe, just me being sarky, you should offer them reading lessons DM as l am sure they cant read.

 

Chrissi

[Duffers Mum]

I just want to clarify something, which has probably been mentioned loads of times on this site but I can't find it! My application form (which Barclaycard says doubles as an agreement) has been sent to me by Barclaycard along with T&C's (x 6!) when people mention that the everything needs to be on one document, does that mean that when I applied for this card the T&C's should have been printed on the back of the application form when I signed it? If that is the case would I be right in thinking they would normally only be on one page? My reason for asking is that all the T&C's B/C have sent me have been photocopied and are on 2 pages back to back, which by my reckoning means they would have been on more than one page. Also I can't remember whether I applied for this card on line, would that make a difference? Sorry to be asking so many questions but I really need to get everything straight in my head, its all still such a muddle!

[reduk054]

re the FOS, talk to them over the phone, before you write to them, their reps are really helpful and knowledgeable! So go this route first, will find the land line number to help you!

Post in a sec!

Red

[reduk054]

020 7964 0500 land line for FOS

[Duffers Mum]

Red - thanks for that I'll give them a ring later and see what they have to say

[reduk054]

NP DM, I hope that the FOS will be able to help with a few of the questions which you have that are left unanswered. Write a little list of questions to assist you when on the phone, as you may find that you are chatting for a while! The FOS do ask great questions, and reply to the ones which you may have. Failing that, they will write down your concerns and take them on board.

Let us know how you get on!

Red

[reduk054]

Hey DM, any news? Did you contact the FOS?

Red

[Duffers Mum]

No I haven't got round to it yet, however I have at last received a response from TS who state that are in communcation with Barclaycard but that B/C still insist they have complied with everything. I also received a letter today from the Assistant to the Director (another posh title) in connection with my complaint, which states

 

"as far as we are concerend we have met our obligation blah blah blah...At the time you applied for your credit card the executed agreement was incorporated into the application, you signed a credit agreement in the prescribed form which embodied the full T&C's of your credit agreement in accordance with the terms blah blah blah.

 

Teh prescribed financial information together with the full T&C's of your agreement were set out on the reverse or otherwise incorporated into the application form and were specifically referred to in the credit agreement section which contains your signature blah blah blah.

 

the Bank consider the outstanding debt on your above account for which you have the benefit of credit by contractual consent, to be enforceable"

 

The letter is headed Final Response.

 

So are they right?

 

I am going to copy everything and send it to TS and see what they come back with.

 

I would be interested in what others have to say about this?

 

PS: Nothing in their letter apologising for sending everything to Mercers and them sending a Default Notice when B/C were actually in default because they admit they sent the wrong paperwork out! I have also advised TS of this!

[Duffers Mum]

Would be grateful if someone could let me know what they think as I need to get this stuff off to TS today if possible. Thank you lovely people

[pt2537]

Hi DM

 

personally , i feel you need to get this off to Trading Standards

 

it is not unusual for the creditors to come up with this sort of claim in the hope that you will believe what they say without first checking their info

 

im sorry im a little pressed for time this morning so i havent had time to reread the whole thread,have your posted the agreement they sent you on here?

 

 

IMHO its best to send copies of all the info you have to TS,and let them look over it

[Duffers Mum]

PT thanks for your input, i've copied everything to send to them, i've also blanked out stuff on a copy of the application form now so will try and get DH to put that on here later for the good people of CAG to have a look at and hopefully advise me. I have a feeling B/C might be right for once, however doesn't change the fact they passed to Mercers, issued Default Notice etc all whilst they had sent me the wrong documentation and for that alone they need pulling up!

[Duffers Mum]

I've got everything ready now and will send to TS in Northampton tomorrow, they are particularly interested in the letter I received from B/C admitting they cocked up TS stated in their email to me "With regard to the provision of a copy agreement made in response to a request under section 78 of the Consumer Credit Act 1974 Barclaycard claim that the copy agreements sent out by them comply with Section 78 by virtue of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 which permitts certain information to be ommitted from copies of agreements when provided in copy form. This issue is still currently under discussion with Barclaycard. "

 

What is my position whilst TS are investigating, is it still classed as being in dispute? Also should I write to B/C complaining (again) that they have admitted they cocked up but where is my full apology for instructing Mercers when they shouldn't have and issuing a default notice when they should have and also stating the account is still in dispute whilst TS investigate. B/C are obviously aware of TS involvement as per comments above. Any advice gratefully received

[shane5408]

Hi DM,

 

Apologies for my tardy response. I concur with Paul, you need to pass this on to TS now and have them look into it. (fingers crossed you have a proactive TS like my one is:D )

 

I standby my earlier comments that BC have failed to comply with the statutory Form & Content Requirements in the alleged agreement they have provided. IMO it is not acceptable for them to put the financial terms (including the prescribed terms) as set out in Agreement REgs of the Consumer Credit (Agreements) Regulations in a completely separate document titled T&C's. The Act & Regulations are clear on these matters and state:

 

The ACT:-

S.180

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements

 

 

and

 

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

The Regs state:-

 

3(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instru­ment or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

 

 

Form and content of regulated consumer credit agreements

 

2.-(1) Subject to paragraph (2) below, documents embodying regulated

consumer credit agreements (other than modifying agreements) shall contain

the information set out in Column 2 of Schedule 1to these Regulations in so far

as it relates to the type of agreement referred to in Column 1.

 

(4) Subject to paragraph (5) below, the information about financial and

related particulars set out in paragraphs 3 to 19 of Schedule I to these

Regulations, and also the statements of the protection and remedies available

to debtors under the Act specified in Forms 5 to 10of Part I of Schedule 2, shall

be shown together as a whole in documents embodying regulated consumer

credit agreements and not interspersed with other information apart from

subtotals of total amounts and cross-references to terms of the agreement:

 

Creditors far to often happily mention they can omit the debtors signature and details under the requirements of a 'true copy' which is true, however what they conveniently overlook is what they must provide within the agreement as to form and content, not on a completely separate document titled t&c's.

 

It would also be useful if we could see the agreement and t&c's they sent, particularly the separate doc you mention that supposedly contains your cancellation rights under s64 of the ACt. I can only assume that they are trying to cover all their bases, they have a legal requirement to provide you, within 7 days of the agreement concluding with exact details of how you can cancel the agreement. They are also required to send these details to you as part of your CCA Request and you are entitled to receive the agreement and any other document referred to in it. Furthermore if they never sent them to you at all then the agreement could be unenforcable by virtue of s127(4)(b).

 

kind regards,

shane

 

 

____________________________________________

All advice is offered freely & without prejudice

 

If my post has been useful to you please click the scales

[Duffers Mum]

Hi Shane and thanks for your comments (don't you ever sleep! )I must admit I am very confused by everything, have a blank copy of my application form and just waiting for DH to scan that and the most recent T&C's (which look identical to the first set they sent only a cancellation box has mysteriously appeared on it now) which is undated so difficult to prove when it was actually produced.

 

Am sending the documents which TS have asked for today recorded delivery so they should get those hopefully on Monday. Do I need to write to B/C in the meantime telling them account is still in dispute and charges and interest should not be added and also that Mercers should be told to back off? Thanks

[pt2537]

Hi DM,

 

the law is nearly always a difficult subject to get on with, trust me im a law student;)

 

i think Shane has covered everything perfectly

 

regards

paul

[Duffers Mum]

I'm sure Shane has covered everything, I just wish I understood it! Should I be writing to B/C and/or Mercers in the meantime whilst TS are investigating?

[shane5408]

I'm sure Shane has covered everything, I just wish I understood it! Should I be writing to B/C and/or Mercers in the meantime whilst TS are investigating?

 

 

Hiya,

 

I don't think you need to write to Mercers/BC for now, the account is firmly in dispute and besides they are receiving the monthly payments from you at your own agreed rate. If Mercers send anymore threatening letters then post up details, also I'm sure you're keeping records of all correspondance from them anyway.

 

kind regards,

shane

[Duffers Mum]

Hi Shane - Excellent that will save me popping off to see my friend in the post office won't it!

 

Sainsbury's keeping to their word about giving me 3 weeks grace whilst they investigate, I'll probably report them to TS once they start hassling me again.

 

Thanks for all your help/advice

[shane5408]

Hi Shane - Excellent that will save me popping off to see my friend in the post office won't it!

 

Sainsbury's keeping to their word about giving me 3 weeks grace whilst they investigate, I'll probably report them to TS once they start hassling me again.

 

Thanks for all your help/advice

 

lol, you bought that banjo yet:D

[Duffers Mum]

Sadly can't afford to buy the Banjo at the moment but I could probably borrow one off someone in the village. I should add of course that our immediate neighbours are fine and don't have extra digits (you never know who reads this site!)

[Duffers Mum]

I have now received confirmation from TS that they have received all my paperwork, and hopefully they will take a look and let me know what they think shortly.

 

Must admit all has gone very quiet from both B/C and Mercers since TS became involved (long may it last I say!), what would be the likely outcome if TS say B/C have not complied. Are they likely to continue chasing me?