LINK financial sent me a reconstituted CCA from Barclaycard

[Marty2.8]

Hi,
Brief outline, 6 debts 5 credit cards 1 overdraft all in default, all will be 6 years old next year in fact two have dropped off my file.
Sent out CCA to the 5 DCA about the credit cards, only one has come back, LINK with a "reconstituted" agreement for a card taken out in 1999.
They say its now enforceable, how do I know that is true?
Thanks

Matt

[echat11]

Hi MARTY2.8

There is other information they need to provide, go through CONC 13.1.4 to the very bottom of the page.

https://www.handbook.fca.org.uk/hand...ate=2016-03-21

Then you can send them a follow up letter detailing what they are also required to provide.

[Marty2.8]

Hi, I have read those guidelines, and I am not sure if they all are covered on what they have sent me, would you give me an opinion, if I uploaded it, minus any personal detail?

[echat11]

Hi, I have read those guidelines, and I am not sure if they all are covered on what they have sent me, would you give me an opinion, if I uploaded it, minus any personal detail?

Celestine EXC Can you take a look and advise, many thanks.

[Marty2.8]

Hi here it is many thanks Echatt11 and Celestine

[Celestine]

Hi Marty

Firstly, they have stated in writing that they have supplied you with a reconstituted agreement for a 1999 opened credit card: This alone is unacceptable because accounts opened before April 2007 must me a true copy of the original executed agreement (if one existed) because of Carey v HSBC

https://legalbeagles.info/carey-v-hs...december-2009/

The reconstituted part of the agreement they have sent is also barely legible.

pt2537 would be best to offer his opinion on enforceability of this account and what to do if they try to get legal with you on this.

[Marty2.8]

Thank you so much for looking, do you think pt2537 will also have time to look?

[Celestine]

I hope so.
This account is at pre-action stage so you need to write back to Link Financial disputing that this is true compliance with S.78CCA.
The fact that Barclaycard have written confirming it is a reconstituted agreement for a 1999 account suggests they think this is acceptable; when it is not. Carey v HSBC went to the High Court and is binding on all credit agreements.

[Marty2.8]

Hi Celestine, I will write that letter quoting that, there is somewhere on here that had a sample letter I think, or would you just make a basic one saying just what you have said?

[Celestine]

Why don't you draft something and pop it on here for us to take a look at and maybe tweak?

I linked you to the article on Carey earlier in the thread, so familiarise yourself with that as well as having a read up on s.78 reconstituted agreements.

[Marty2.8]

Okay here goes:

Dear Sirs
Account no:
Thank you for your letter dated:
The documents you sent me do not fulfil my original s78 CCA request. As this account is dated 1999 I require you to provide an original signed Consumer Credit Agreement NOT a reconstituted version.
This must be the original signed document purporting to have been signed by myself. Please note until a legally enforceable, original signed copy can be produced and sent to me then this account will remain in an unenforceable state.
To comply with my request, all pre 2007 accounts must supply the original signed Agreement as per Carey VS HSBC.
Yours etc

[echat11]

MARTY2.8, this is just an example.

On XXXXXXXXX I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/78. This was signed for as delivered on XXXXXXXXX. Enclosed with that request was a postal order in the sum of £1.00 which represents the statutory fee.

You have failed to comply with my request, and as such the account entered default on XXXXXXXXX.

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

Furthermore, you are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be complied with before you/your client enters into a default situation. This limit has expired.

As you are no doubt aware section 78(6) states:

If the creditor fails to comply with Subsection (1)

(a) He is not entitled, while the default continues, to enforce the agreement.

Therefore this account has become currently unenforceable at law.

As you have failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, failed to send a full statement of the account and Failed to provide any of the documentation requested. You will also be aware of the CPUTR 2008 and the FCA's guidelines on debt collection which state under the title Deceptive and/or unfair methods - Examples of unfair practices are as follows - 2.8

(i) - 'Failing to investigate and/or provide details as appropriate, when a debt is queried or disputed, possibly resulting in debtors being wrongly pursued'

(k) - 'Not ceasing collection activity whilst investigating a reasonable queried or disputed debt'

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 21 days from receiving this letter to contact me with your intentions to resolve this matter which is now a Formal Complaint.

I look forward to hearing from you. This should be in writing; I have no wish to correspond by telephone.

Yours Sincerely

[Marty2.8]

MARTY2.8, this is just an example.

On XXXXXXXXX I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/78. This was signed for as delivered on XXXXXXXXX. Enclosed with that request was a postal order in the sum of £1.00 which represents the statutory fee.

You have failed to comply with my request, and as such the account entered default on XXXXXXXXX.

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

Furthermore, you are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be complied with before you/your client enters into a default situation. This limit has expired.

As you are no doubt aware section 78(6) states:

If the creditor fails to comply with Subsection (1)

(a) He is not entitled, while the default continues, to enforce the agreement.

Therefore this account has become currently unenforceable at law.

As you have failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, failed to send a full statement of the account and Failed to provide any of the documentation requested. You will also be aware of the CPUTR 2008 and the FCA's guidelines on debt collection which state under the title Deceptive and/or unfair methods - Examples of unfair practices are as follows - 2.8

(i) - 'Failing to investigate and/or provide details as appropriate, when a debt is queried or disputed, possibly resulting in debtors being wrongly pursued'

(k) - 'Not ceasing collection activity whilst investigating a reasonable queried or disputed debt'

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 21 days from receiving this letter to contact me with your intentions to resolve this matter which is now a Formal Complaint.

I look forward to hearing from you. This should be in writing; I have no wish to correspond by telephone.

Yours Sincerely

Hi thats great thank you. the section where it says the account entered default, is that the original default date? (almost 6 years ago) or a different date. Apologies for my ingnorance!

[echat11]

Hi thats great thank you. the section where it says the account entered default, is that the original default date? (almost 6 years ago) or a different date. Apologies for my ingnorance!

'account entered default,', that's the date when they Defaulted on the CCA request you made.

But don't send anything off until Celestine goes through your letter.

[Celestine]

Default of s.78 CCA, not the original account default.

The letter above is great for non compliance with CCA, but it does not mention Carey v HSBC; which is essential.

Have a read here also: https://legalbeagles.info/forums/for...-s127-cca-1974

Regarding the terms they have sent you, they are also not very ;legible? From what you can make out however, do these terms match what you think you took out in 1999? Tough question I know, but as pt2537 will hopefully confirm, the facts you can recall about the opening of this account will help us work out what to say in the response.