CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

[jax50]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

hi jax50

i will converse in the morning, my bed is calling out to me :tinysmile_grin_t:

good idea me too I thinks..

[jax50]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

Just been re-reading this...as you do !

Obviously the PT's can not be present at the time of application, as the Credit Limit has not been ascertained by the lender. So, you send in your application form (which may have had some T&Cs enclosed) and await approval and a return copy of the P&Ts signed by the lender, which has the relevant data, to sign and return one and keep one..?

However, lenders get round this expense by adding wording to the T&Cs such as 'your credit limit will be set by us from time to time', and provided the T&Cs have the applicable interest rates and repayment requirements printed on them, then they can satisfy all requirements ?

The issue then is, were there any T&Cs with the original application.. In the Stephensons case, Traynor Phoenix, Traynor picked up an application in store, filled it in and signed it and sent it off. No P&Ts were with it. Hence, the agreement was found unenforceable. I am presuming the application form did not make any mention of 'enclosed T&Cs', but even if it had, given the fact that the application was picked up in a supermarket, even if T&Cs had originally been with the application forms, there is no proof they were.?

A CCA request would no doubt yield a copy of the application form, and a copy of the T&Cs with the PT's in...the creditor 'assuming' this was all one document. However, what you recall at the time has already been said as being important, as in the Traynor case if you know for sure what you received and signed...it can put the OC on the spot.

[perplexed]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

Hello,

I've found this discussion fascinating and have learnt much more about the arguments around enforceability of credit card agreements. I applied for a Barclaycard in 2004. I defaulted on this in 2005 and they are still chasing me for what still significant amount outstanding. I recently sent them a SAR and received by return a document they refer to as the "Agreement". It is an application form I completed at the time and is headed "Be prepared for tomorrow. Apply today". The form only asks for my full first names, date of birth, nationality and annual income before tax. It also asked for my phone numbers. I signed this form but it was not countersigned by an "Authorised Barclaycard Signatory" although there is a box for that. What is more interesting in light of the relevant prescribed information is what is contained under the section headed, "Credit Agreement regulated by the Consumer Credit Act 1974".

This states:

This is a credit agreement between us, Barclays Bank plc, Barclaycard Centre, Northampton NN4 7SG, and you, the person who signed this agreement. By signing this agreement, you confirm that: 8 the details you have given us are correct, *you want us to give you a Barclaycard and PIN for which your are eligible, * we may issue you with either the Premiership Barclaycard or a Barclaycard for which you are eligible now. This will be either Initial, Classic or Platinum Barclaycard. We may in the future replace the Barclaycard we give you to begin with, with any card covered by this agreement, * if you are not eligible for a Barclaycard at this time, unless you write to the address below you agree that we may use the information we obtain about you in connection with this application to send you details of alternative products (including those of other companies) * you have read and agree to the Barclaycard Conditions and How we use your information, * you have read our statement on Responsible Lending, *you authorise us when considering your application (a) to telephone you to gain additional relevant information about you and/or contact you to offer any products and services linked to your account or application (b) to make credit reference, identity (including searching the Electoral Register), fraud and other enquiries, (c) to share information about how you manage your accounts with credit reference agencies. You agree that calls between us may be recorded and/or monitored. You must write to us at PO Box 5592, Northampton NN4 1ZY if you don't want us to tell you or allow other members of the Barclays Group to tell you about other products and services. (In order for us to ensure that we note this in all our records, it would help us if you give us your bank details and the numbers of any cards, insurance, unit trust and other accounts and policies). You can ask us for a copy of the information we keep about you. A fee will be charged for this service.

Finally, the signature boy states that "This is a Credit Agreement regulated by the Consumer Credit Act 1974. Sign only if you want to be legally bound by its terms." And the final box states, "Your Right To Cancel. Once you have signed this agreement, you will have for a short time a right to cancel it. Exact details of how and when you can do this will be sent to you by post by us."

Embarrassingly, I must admit that this is the first time I've really read these terms. What strikes me is that in no way by signing this form am I agreeing to a specific financial product - but rather I am agreeing that they can consider this application and provide me with whatever they see fit (or not as the case may be). This is definitely not what I would call an agreement agreeing to specific terms and conditions relevant to the Platinum Barclaycard I was issued with. This, by the way, is all I've been sent by way of an agreement!

As this was almost 9 years ago, it is difficult to remember how exactly I came across this application form. My name and (slightly incorrect) address are typed at the top of this form and there is a sentence which states, "Have we shown your details correctly? If not, please make corrections in the space above." From this I can only deduce that I was sent targeted mail from Barclays which probably said something like "your are pre-approved" or similar.

I've baulked at taking them on over the lack of an enforceable agreement before now but having read this thread, I'm going to write to them again and ask that they send me the actual agreement or back off (their agents Robinson Way are writing to me on a daily basis at the moment).

Nothing ventured nothing gained!!

[FlamingParrot]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

Hello,

I've found this discussion fascinating and have learnt much more about the arguments around enforceability of credit card agreements. I applied for a Barclaycard in 2004. I defaulted on this in 2005 and they are still chasing me for what still significant amount outstanding.

Have you been making payments? Otherwise this should be Statute Barred by now...:confused2:

I recently sent them a SAR and received by return a document they refer to as the "Agreement". It is an application form I completed at the time and is headed "Be prepared for tomorrow. Apply today". The form only asks for my full first names, date of birth, nationality and annual income before tax. It also asked for my phone numbers. I signed this form but it was not countersigned by an "Authorised Barclaycard Signatory" although there is a box for that. What is more interesting in light of the relevant prescribed information is what is contained under the section headed, "Credit Agreement regulated by the Consumer Credit Act 1974".

A SAR is a request for information under the Data Protection Act. Sometimes they will include a copy of the alleged agreement in response to a SAR, but if you wish to ascertain the enforceability of the account you'd need to send a CCA request under s.78 of the Consumer Credit Act.

Obviously this is only relevant if the account is not yet statute barred, otherwise why bother?

I've baulked at taking them on over the lack of an enforceable agreement before now but having read this thread, I'm going to write to them again and ask that they send me the actual agreement or back off (their agents Robinson Way are writing to me on a daily basis at the moment).

Nothing ventured nothing gained!!

In which case, you should send a proper s.78 CCA request. :thumb:

[FlamingParrot]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

See below for CCA request letter, which should be sent Recorded Delivery, with a £1 PO. They have 14 days to reply. Sign using a computer font rather than your real signature to be on the safe side. :thumb:

I'd send it to the DCA chasing you, it's up to them to get the documents back from the original lender. The letter below has a paragraph to cover the eventuality that the DCA may argue they are not the creditor, whether they are acting on behalf of their client or have actually bought the debt, they still have a duty to respond. :grin:

Dear Sirs

Account No: xyz

I hereby formally request a copy of my Consumer Credit Agreement, pursuant to s.77-79 of the Consumer Credit Act 1974 (CCA1974).

If it is your view that you are not the creditor, s.175 of the CCA1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties. Your attention is drawn to ss.5(2), 3(b), 6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

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'. 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

In line with the above, please find attached my £1 payment, which is the statutory fee - note that these funds are not to be used for any other purpose. I look forward to hearing from you within the statutory time limit (12 + 2 days).

Yours faithfully,

[perplexed]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

Thanks for your responses FlamingParrot

To answer a couple of your questions...

Firstly, I only stopped paying this last August - up until then I'd been making mainly token payments of £1 a month. Having read a number of posts on this and other similar forums, I suppose I was what has been termed "a cash cow". Although, they have to have been operating at a loss as far as I'm concerned as the postage costs for the number of letters I've had over the years must far exceed what I've paid! So, the account is not statute barred - unfortunately.

In response to my SAR last year, they did send a pile of papers - statements etc. and a copy of the application form - but no copy of the signed agreement. I wrote to them a total of 5 times following receipt of this info but they refused to answer any questions. Each time they returned my letters saying either they didn't recognise my address? I hadn't enclosed £10 to cover the cost of providing further documents (although I told them this had already been paid before they supplied the original docs). By this time, six months had gone by and the next letter I sent again asking the same questions was returned with a standard letter saying that as I'd already sent them a SAR within the last six months, they couldn't deal with my queries. I can't make my mind up whether they're downright incompetent or are being obstructive!

I finally did get them to remove an incorrect entry on my credit record which showed a duplicate default entry some three years after the first was published but have still not been able to get anywhere with my PPI claim, charged refund and copy agreement.

I will now do as you suggest and send them the letter above along with a £1 postal order. I will also ask them again for the unlawful charges to be refunded. I've found a separate address for PPI claims so will deal with that separately. I suppose it would be sensible to send Robinson Way a copy of this correspondence in the hope that they'll stop bombarding me with twice weekly letters.

Thanks again for your help.

[FlamingParrot]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

Thanks for your responses FlamingParrot

To answer a couple of your questions...

Firstly, I only stopped paying this last August - up until then I'd been making mainly token payments of £1 a month. Having read a number of posts on this and other similar forums, I suppose I was what has been termed "a cash cow". Although, they have to have been operating at a loss as far as I'm concerned as the postage costs for the number of letters I've had over the years must far exceed what I've paid! So, the account is not statute barred - unfortunately.

The idea of token payments is that they keep the debt alive indefinitely, and they can take court action at any time, that's why it's worth their while to accept them.

I will now do as you suggest and send them the letter above along with a £1 postal order. I will also ask them again for the unlawful charges to be refunded. I've found a separate address for PPI claims so will deal with that separately.

It's really only worth reclaiming if the amount reclaimed is likely to clear the balance, if not, it can be rather pointless reclaiming on a defaulted account because the money will just go towards the debt, unlike when you reclaim on a live or fully paid account, when the money goes to your pocket.

There's always the issue of whether reclaiming and having a refund paid into the account can reset the SBd clock :clock: there are some who say it doesn't because the payment is not made by you, etc. but the position is not 100% clear. :decision:

I suppose it would be sensible to send Robinson Way a copy of this correspondence in the hope that they'll stop bombarding me with twice weekly letters.

Thanks again for your help.

If Robbers Way are contacting you, you should send your CCA request to them, it would then be up to them to contact the bank to get the documents, this is different from a SAR which should always go to the original lender rather than the DCA. :thumb: