CCA Request - Link Financial ex Barclaycard

[Stuttgart]

Hi,

I made a CCA request to Link for an old Barclaycard account dating back over 30 years. The outstanding balance is around £12k

The response from Link includes a reconstituted agreement as attached. The address given in this reconstituted agreement is my current address, not the address at inception of the agreement.

I had also sent a SAR to Barclaycard and I can see their information only goes back twenty years so they have apparently no original records to produce.

My question is; in consideration of OFT CONC 13.1.4 (3) and Carey V HSBC, does this represent a true copy of the original agreement and would it be sufficient for Link to rely upon in any court action for recovery.
I assume the dreadful quality of the T&C's could be remedied by the creditor, although I would use the current example as a defence.

[Amethyst]

Regulation 9 is thus

Copies of old agreements and security instruments where the agreement or security instrument has been lost etc

9. Any copy of an executed agreement made before 19th May 1985 or of a security instrument relating to security provided before that date which is given to the debtor, hirer or surety under any provision of the Act on or after that date may comprise an easily legible statement of the current terms of the agreement or security as the case may be insofar as they are known to the creditor or owner where, due to an accident or some other cause beyond his control, the creditor or owner does not have in his possession the executed agreement or security instrument or any copy thereof.

It is correct that the 'current' terms contain your current address, although the terms they have included seem to be from 2014 - presumably that is when the account entered default ? Is the address correct for then?

Yes they could easily rectify the legibility. I would ask them to do so.

In the letter it is blank next to the statement amounts - have you redacted it or is that how the letter came?

Any disputes over the debt?

[Stuttgart]

Hi Amethyst,

Thanks for your reply.

The address is correct for the default date, 2014 and I redacted the statement amounts.

Link are being particularly unhelpful and have refused F&F offers to settle so I wanted to understand just how hard I can push the point.
I had hope that without my address details at inception the agreement would be UE.

From your comments, should I assume I have no legal defence based on the reconstituted CCA?

Thanks

[Amethyst]

CONC is FCA 13.1.4 is Guidance. ) as is the whole of CONC 13 actually. So the regulation overrides.

The copy agreement

CONC 13.1.4 G 01/07/2014 RP

1. (1) The copy of the executed agreement should be a 'true copy' of the original. However, as confirmed in the case of Carey v HSBC Bank plc [2009] EWHC 3417 (QB), in this context the term 'true copy' does not necessarily mean a carbon, photocopy, microfiche copy or other exact copy of the signed agreement. There is no obligation to provide a copy which includes a copy of the signature.
2. (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. (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. (4) The reconstituted agreement should contain a heading prescribed by the CCA and any relevant cancellation notice.
5. (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.
6. (6) If the agreement has been varied, the duty is to provide not only a copy of the agreement as originally executed but also either:
   
   1. (a) a copy of the latest variation given in accordance with section 82(1) of the CCA relating to each discrete term of the agreement which has been varied; or,
   2. (b) a clear statement of the terms of the agreement as varied.
7. (7) Further, section 180(1)(b) of the CCA and regulation 3(2) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 expressly allow certain matters to be omitted from the copy. There may be excluded from the copy of the executed agreement to be provided under these sections:
   
   1. (a) any information relating to the borrower, hirer or surety, or information included for the use of the lender or owner only, which is not required to be included by the CCA or by any regulations made under the CCA as to the form and content of the agreement;
   2. (b) any signature box, signature or date of signature;
   3. (c) in the case of pawn agreements, any description of the article taken in pawn.

The statement of account

CONC 13.1.5 G 01/04/2014 RP
If the firm possesses insufficient information to enable it to ascertain the amount and date of any sum which is to become payable, it is sufficient to indicate the basis on which they would fall to be ascertained.

[Amethyst]

Hi Amethyst,

Thanks for your reply.

The address is correct for the default date, 2014 and I redacted the statement amounts.

Link are being particularly unhelpful and have refused F&F offers to settle so I wanted to understand just how hard I can push the point.
I had hope that without my address details at inception the agreement would be UE.

From your comments, should I assume I have no legal defence based on the reconstituted CCA?

Thanks

If it is reproduced in a legible manner then likely not ( I'd ask them to do so)
What did Barclaycard provide under the SAR? All transaction lists back as far as they had them ?
Default notice?
Notice of Assignment etc ?

Any historic charges ( over £12 pre 2006 ? )
PPI ?
Card protection products etc ?

[Stuttgart]

The SAR resulted in reams of Barclaycard statements but little else.
I will check tonight but pretty certain there was no DN and no NoA
No separate listing of charges and PPI wasn't applied to this account.

Thanks for your help!

[Stuttgart]

Checked the SAR pack from Barclays and it’s simply copy statements.
There is no copy of a NoA or DN.
Interestingly, I do have a DN from Bcard and NoA from Link and Bcard, though I assume Link will have printed both as they arrived in the same envelope.