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  1. #1
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    Default lowell reconstituted CCA advise needed please.

    hi,

    Please, I would like to know exactly what i should have received as a reconstituted CCA request from lowell portfolio.


    The situation i have is:

    18/03/13, I sent a CCA request to lowell for a barclaycard account.

    14/05/13, I receive a reply to my request and states, after liaising with barclaycard in an effort to obtain this document we have been advised that this is no longer available due to the length of time since the account was opened. Also it states they are closing my account and not make any further contact with me concerning payment against this account unless the copy of the agreement is received at some point in the future from barclaycard.

    17/05/13, I receive a letter from lowell saying, We are in receipt of your recent request for a copy of your agreement.Your O/C has provided us with the attached reconstituted copy of the credit agreement you entered into with them, which they confirm you would have signed prior to the granting of credit to you. Under section 77/78 of the CCA 1974, we are not obliged to send you an exact copy of your signed agreement. We have now fully satisfied our obligations required following your request under the CCA1974 Blah Blah Blah,
    We would also confirm the following information as required by the above act.
    balance payable against your account £1484.19
    current state of your account: defaulted.

    What i have received with this letter as what they say is a recon copy of the agreement:
    1. An a4 with my name and an address (address is my fathers address, i have never lived there) a box with written inside YOUR RIGHT TO CANCEL, once signed .you'll have short time to cancel and so on etc.
    2. Barclaycard agreement A copy for your records sheet (in the top right corner a little cancellation form to fill out).
    3. a sheet about;Barclaycard conditions of Use, a copy for your records.
    4. Barclaycard terms n Conditions sheet.
    5. A supporting letter from barclaycard dated 18/04/13 (see attached scan)Click image for larger version. 

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    Please could you advise on this matter, is there a letter that i should reply, is there things missing that should be in this recon agreement, it just seem right to me but i havent got a clue thats why im asking for help.

    kind regards mark.
    Last edited by mab177; 27th May 2013 at 14:14:PM.

  2. #2
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    Default Re: lowell reconstituted CCA advise needed please.

    The file you have attached is just the letter, any chance of uploading the alleged agreement?

    Sounds rather strange they should have said they couldn't find anything, and, out of the blue, there comes a recon! :confused2:

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    Default Re: lowell reconstituted CCA advise needed please.

    Quote Originally Posted by FlamingParrot View Post
    The file you have attached is just the letter, any chance of uploading the alleged agreement?

    Sounds rather strange they should have said they couldn't find anything, and, out of the blue, there comes a recon! :confused2:
    [IMG]



    here are the only other docs i received[IMG][/IMG]

    [/IMG][IMG][/IMG][IMG][/IMG][IMG][/IMG][IMG][/IMG][IMG][/IMG]h

  4. #4
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    Default Re: lowell reconstituted CCA advise needed please.

    They state quite clearly those are the T&C's now. Are they not supposed to enclose the T&C's from the time of inception as well?

    I'll wait for a definite reply to that before sharing my other thoughts.

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    Default Re: lowell reconstituted CCA advise needed please.

    Quote Originally Posted by mab177 View Post
    18/03/13, I sent a CCA request to lowell for a barclaycard account.

    14/05/13, I receive a reply to my request and states, after liaising with barclaycard in an effort to obtain this document we have been advised that this is no longer available due to the length of time since the account was opened. Also it states they are closing my account and not make any further contact with me concerning payment against this account unless the copy of the agreement is received at some point in the future from barclaycard.

    Please could you advise on this matter, is there a letter that i should reply, is there things missing that should be in this recon agreement, it just seem right to me but i havent got a clue thats why im asking for help.

    kind regards mark.
    This is clearly NOT a reconstituted agreement by any stretch of the imagination, it's just a printout of T&Cs from September 2008 as clearly indicated on some of the pages. I don't know when you opened the account but, going by the above, I assume it was BEFORE that date, in which case those terms do not apply at all! :nono:

    Barcraps are notoriously bad at retrieving agreements and they're trying to fob you off with a printout of random terms even after they've previously admitted to not having the agreement. I know someone who received an almost identical response from Barcraps, just because they've typed your name and address next to a box saying "your right to cancel", doesn't make it YOUR agreement! I can put together a document like that in less than 5 minutes and post it to you. :typing:

    It's not right at all, on one of the pages you'll see BCD_6620000.qxd 3/9/08, that would be their internal reference for the file they've printed. The extension .qxd means it's a QuarkXpress file, the program they would have used to create the document, which is a generic set of terms. They have gone back to their document archives to retrieve a file which would have been used to print 1000s of identical terms, rather than their customer database to retrieve details of YOUR credit agreement, if you see what I mean. I used to work in the financial sector and was often involved in the production of documents such as those T&Cs, not only are they not from inception (unless you took the card after Sept 2008), they do not relate to any specific customer as such, they are just generic terms and not linked to you in any way. :nerd:

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    Default Re: lowell reconstituted CCA advise needed please.

    Hi, what did you decide to do about them sending you this - did you respond? i have received exactly the same reply to a CCA request and am unsure what to do next...


    Quote Originally Posted by FlamingParrot View Post
    This is clearly NOT a reconstituted agreement by any stretch of the imagination, it's just a printout of T&Cs from September 2008 as clearly indicated on some of the pages. I don't know when you opened the account but, going by the above, I assume it was BEFORE that date, in which case those terms do not apply at all! :nono:

    Barcraps are notoriously bad at retrieving agreements and they're trying to fob you off with a printout of random terms even after they've previously admitted to not having the agreement. I know someone who received an almost identical response from Barcraps, just because they've typed your name and address next to a box saying "your right to cancel", doesn't make it YOUR agreement! I can put together a document like that in less than 5 minutes and post it to you. :typing:

    It's not right at all, on one of the pages you'll see BCD_6620000.qxd 3/9/08, that would be their internal reference for the file they've printed. The extension .qxd means it's a QuarkXpress file, the program they would have used to create the document, which is a generic set of terms. They have gone back to their document archives to retrieve a file which would have been used to print 1000s of identical terms, rather than their customer database to retrieve details of YOUR credit agreement, if you see what I mean. :nerd: I used to work in the financial sector and was often involved in the production of documents such as those T&Cs, not only are they not from inception (unless you took the card after Sept 2008), they do not relate to any specific customer as such, they are just generic terms and not linked to you in any way. :nerd:

  7. #7
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    Default Re: lowell reconstituted CCA advise needed please.

    I am sure that FP will come to your aid with the accurate letter but basically I would write to them saying that they are in default of your CCA request

    Dear Sirs
    Ref: xxxxxxxx
    I refer to my letter dated XX/XX/XXXX in which I made a formal request under the Consumer Credit Act 1974 (CCA1974) s.77-s.79 for a true copy of the regulated agreement referred to in the above account number. You have been reminded several times now that non compliance will result in cessation of payment and you were also reminded that you are obliged to supply this under s.189 whether you are the original creditor or not. I also enclosed the statutory fee of £1.00.
    To date you have failed to comply with my statutory request and have defaulted in respect of this account. Additionally this alleged agreement is unenforceable until such time as you come out of default or until it is enforced by a court of law. It is a further offence to attempt to enforce this alleged agreement until such time as your default is revoked. Similarly, in line with recent OFT Guidance surrounding Unenforceability, I presume you're aware that the OFT has stipulated that Sections 77-79 of the Consumer Credit Act 1974 outline the information creditors must provide to debtors under fixed-term, running account & Hire Agreements? Well under these sections a debtor can pay £1 to get:

    • a copy of their agreement
    • copies of some of the other documents mentioned in their agreement
    • statements of account.

    If this information is not provided within 12 working days the debt becomes unenforceable. This means a creditor cannot:

    • make the debtor pay the debt before they're supposed to
    • get a court judgment against the debtor

    As this account is clearly unenforceable, not only am I ceasing all payments toward this account, but I expect you to write back and confirm that no further action will be taken and that the account is now closed and no further correspondence will take place; irrespective, unless you do supply a lawful agreement I will not correspond with you again and any threats will be averred and unlawful and vexatious with a counter-claim forthcoming. In the meantime, I require that you clarify your position on this point as failure to do so, even by omission or lack of a response, will be regarded as an attempt to deliberately misrepresent or conceal the legal position regarding this matter to which an appropriate complaint will be made to the OFT.
    Yours faithfully,

    Sign Digitally
    Just edit out the bits that aren't relevant such as the "you have been reminded several times"

    As I say FP may come back with a better one

  8. #8
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    Default Re: lowell reconstituted CCA advise needed please.

    Quote Originally Posted by jon1965 View Post
    I am sure that FP will come to your aid with the accurate letter but basically I would write to them saying that they are in default of your CCA request

    Just edit out the bits that aren't relevant such as the "you have been reminded several times"

    As I say FP may come back with a better one
    Thanks Jon :yo:, that's the general idea - looking back at the attachments, they are just generic Terms & Conditions, so the following could be applicable:

    Dear Sirs

    Account No: xyz

    On XX/XX/XXXX I wrote requesting that you supply me a true copy of the executed credit agreement for the above account. In response to this request, I was supplied a set of Terms & Conditions. As the Terms & Conditions did not comply with my CCA Request, this account is unenforceable and will remain so until you comply properly with my formal request.​

    ​I appreciate that as per Carey v HSBC, a reconstituted agreement can be provided, however, that doesn’t mean sending generic random terms. I am disputing the actual existence of an original agreement, which means the Carey case is irrelevant as without one the account would still be deemed unenforceable. Carey only went to prove that if you could not provide an original, for whatever reason, but had proof on your systems/records that certain conditions were in place at that time then a recon could be submitted only in-so-far as to satisfy your s.78 request. If you do not have an original then a recon cannot be produced; whereas sending Terms completely fails in its entirety.

    ​Similarly, the recent McGuffick and Carey cases confirmed that a lender should submit upon request a valid true copy of the original CCA and also went on to suggest that both the creditor and debtors name and address are clearly displayed - the Judge dealt with this point at paragraph 60 of his judgement when he said this:​
    "As a matter of common sense It is difficult to see how a copy of a document can omit the names of the parties. It might he thought that the address of the debtor, however, was immaterial, at least to the debtor, who can be assumed to know what it was at the time, if different from his present address. However, as noted above any application of the concept of materiality must not override the requirements of section 78 and the Copies Regulations properly understood. In my view it is clear that the name and address must be provided"

    ​In MBNA v McCullagh; the Judge ruled;​
    "The terms and conditions are plainly not a copy of those on the original agreement. There may only be one difference identified (it is difficult to tell from the illegible copy of the original) but that is enough. The obligation is to provide "a copy of the executed agreement". This plainly cannot be a copy of the original agreement. It is not open to the claimant to say that the difference is 'de minimis'. They have to provide a copy of the original (reconstituted or otherwise)"

    The OFT Guidance states that lenders would be acting unfairly, and potentially in breach of their consumer credit licenses, if they misled borrowers by:

    • hiding or disguising the fact that there was never a proper signed agreement in the first place
    • providing only a copy of the current terms and conditions, not the original ones

    Similarly, in line with recent OFT Guidance surrounding Unenforceability, I presume you're aware that the OFT has stipulated the following;​
    Sections 77-79 of the Consumer Credit Act 1974 outline the information creditors must provide to debtors under fixed-term, running account & Hire Agreements. Under these sections a debtor can pay £1 to get:

    • a copy of their agreement
    • copies of some of the other documents mentioned in their agreement
    • a statement of account

    If this information is not provided within 12 working days the debt becomes unenforceable. This means a creditor cannot:

    • make the debtor pay the debt before they're supposed to
    • get a court judgment against the debtor

    As this account is clearly unenforceable, I expect you to confirm that no further action will be taken.

    ​Yours faithfully,

  9. #9
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    Default Re: lowell reconstituted CCA advise needed please.

    Marley - can I suggest you start your own thread about this so the advice does not get mixed up please.

    Thanks. :beagle:

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    Default Re: lowell reconstituted CCA advise needed please.

    How did you get on with this?

    I have exactly the same cover letter word for word.

    I cannot see the CCA they sent to you but again it sounds very similar to the one i have received so the success of your case is going to help me decide which move i make next.

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