Barclaycard CCA

**Amethyst** · 6th September 2010, 21:10:PM

Re: Barclaycard CCA

Hiya, Have a search on telephone harrassment - theres a template letter that should stave them off a while. Add in that about the text message too.

okay so the account was with barclaycard and you had trouble paying so arranged a temp repayment plan on token payments while you got sorted, things didnt improve much and barclaycard set Mercers on to hassle you, they defaulted you (did you get a default notice?) but are still calling and threatening to default you again ?

Shame you stopped paying, the hassle would be less and less chance of ending up in court if youhad kept up the token payments at least but t'is done and not worth worrying about now - if they havent defaulted you actually yet might be a plan to start them up again (after rereviewing your ie sheet).

When mercers replied to the CCA request they didnt send any copy of the application form or executed agreement at all ? Just the current T&C's - or were they the original T&C's ?
When did you take the card out ?

Okay I'll grab the links for harrassment and rubbish attempt at cca compliance for you x

letters for cca in this thread ~~~ Consumer Credit Agreements - A Guide ~~~~ inc. Letters - Legal Beagles Consumer Forum

letter for harrassment (best to do seperately) basic letter Legal Beagles Consumer Forum but have a search theres other stronger ones about too.

**toomuchdebt** · 6th September 2010, 22:05:PM

Re: Barclaycard CCA

Thanks for the reply.

The card was taken out around about 1985 - 1987 time. Not exactly sure when but it would have been after the 19th May 1985 - I believe that that is a 'magic' date with CCAs - I'll hunt out where I got that date tomorrow.

The initial response to my CCA request was a letter advising of my credit limit, balance and next minimum payment. It also had stapled to the letter a "Barclaycard Conditions of Use". No indication of the date on all different conditions but there is evidence that the 'conditions' are old as the phone number code is 0604 rather than 01604.
On the reverse of these 'conditions' though is printed 1992 BARCLAYCARD T/C

Having requested my CCA again, I got another set of "Barclaycard Conditions" sent. These were the current ones as the letter reference at the bottom was 10/09. Also, the barclaycard logo is the current one.

I've received nothing with the address of where I was living when I took the card out or anything with my signature on it.

The reason that I stopped paying was that was the advice given on the MSE forum.

Again, thanks for your reply

Robert

**toomuchdebt** · 7th September 2010, 04:29:AM

Re: Barclaycard CCA

With regards to Barclaycard, just checked with Equifax and Experian for my credit reports and there is nothing registered against either of the above agencies.

Who do barclaycard use? They issued me with an intention to give a default notice in about March because I was only paying a total of about £25 a month whereas my minimum payments should have been about £120. However, I then came up with a payment plan of £30 a month which they were happy with.

Do Barclaycard use a different credit reference agency from other creditors?

Robert

**toomuchdebt** · 7th September 2010, 16:15:PM

Re: Barclaycard CCA

Originally posted by Amethyst View Post

...

Shame you stopped paying, the hassle would be less and less chance of ending up in court if youhad kept up the token payments at least but t'is done and not worth worrying about now - if they havent defaulted you actually yet might be a plan to start them up again (after rereviewing your ie sheet).

...

OK, you've got me worried now.

Here's the letter that I originally sent out

Barclaycard Customer Services
PO Box 9131
51 Saffron Road
LEICESTER
LE18 9DE Feb 2010

Dear Sirs,

Account No: removed

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

I require you to provide me with a true copy of the credit agreement relating to any account you deem to be mine, together with any other documentation the Act requires you to provide. I expect you to comply fully and properly with this request, within the statutory time limit (12 + 2 days). You are reminded that should you fail to comply with my request; the provisions of s.77 will apply.

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).

Attached is payment in the sum of £1.00, which is the statutory fee - note that these funds are not to be used for any other purpose.

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee and then remove the incorrect entry from your systems.

I do, expect the main actions to be dealt with, as matter of course, and look forward to hearing from you within the prescribed timescales quoted.

Yours faithfully

and this is their reply

I have the other three sheets of the terms and conditions but haven't uploaded them. I can do if it helps though.

**toomuchdebt** · 7th September 2010, 16:20:PM

Re: Barclaycard CCA

I then sent this

Barclaycard Customer Services
Barclaycard House
P O Box 5592
Northampton
NN4 1ZY March 2010

Dear Sirs,

Account No:
You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account

I note that you have replied to my CCA Request by sending a copy of Terms & Conditions and not a True Copy of the alleged Consumer Credit Agreement, in line with my formal request. As such, I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act. Just sending the Terms and Conditions is a breach of the CCA1974 and Regulations, apart from the information that the Regulations provide that you may exclude, the copy must be a 'true copy' of the agreement.

This breach of the agreement can be demonstrated by quoting Section 180: s.180(1) (b) authorises:
“the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.”
This refers to statutory instruments made under the heading Copies of Document Regulations and in this care in particular to SI 1983/1557. Before leaving section 180 there are two other sections that should be mentioned, which are;
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 more importantly
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.
You will see that this quite clearly states that whilst certain items may be left out of the copy document, the rest of the document must be in the correct form and contain all items as prescribed by the regulations. Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.
The regulations state:

(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;
(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancellable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);
It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations. The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso. Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions. It does, however, state that 'all terms and conditions should be within the agreement document and is explicit of the form in which it is presented'.
In either case, please confirm that you have, in your possession, a credit agreement that is in all ways fully compliant with the Consumer Credit Act 1974, as amended, and the subsequent regulations made there under. For the avoidance of doubt, if you are in possession of such a document, but are unable to supply me with a true copy of it, please outline your reasons why you are unable to supply it to me in your reply. Furthermore, I respectfully request that you provide me by return a copy of the credit agreement which bears my signature. I require this as I have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed.

I look forward to your response within the next 14 days.

Yours faithfully

and this is their reply

**toomuchdebt** · 7th September 2010, 16:29:PM

Re: Barclaycard CCA

I then sent this

Barclaycard Customer Services
Barclaycard House
P O Box 5592
Northampton
NN4 1ZY 4 June 2010

Dear Sirs,
Account No:
Account No:

I write with reference to previous correspondence, and in particular to the above numbered account which, for ease and clarity, I hereby deem unenforceable in line with s.127(3) CCA(1974).

In my original letter (Formal CCA Request), dated 26 February 2010, I requested a copy of the credit agreement to which I genuinely expected to receive an exact copy of that which you hold in your records i.e. an actual photocopy of the agreement which is allegedly signed by myself and your representative.

What I received were terms & conditions which really does not satisfy s.78 requirements. Moving to your most recent letter, dated 23 March 2010 - I note you make great reference to s.78 which we both know is irrelevant. I am requesting sight of the original document. If you wish to attempt to take this matter further, then you will have to provide me a copy of the original; most definitely no court action can be taken unless you do have an original in which case CPR31.16 would be utilised.

In your letter, you also quote:

Regulation 7 does not state that the copy of the agreement shall include a statement of the original terms as well as a statement of the varied terms. Regulation 7 allows us to provide you with a "true copy" which sets out the terms and conditions current at the time of provision of the copy.

Section 78 clearly states that you shall send a copy of the most recent terms and conditions along with the exact terms and conditions in place at the time of the alleged agreement. Section 78 also supercedes Regs (7) and should be adhered to in all cases first and foremost.

Whilst I appreciate that under the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 you are able to omit a signature and date box from the copy, however I would like to hold in my records an exact copy of the document that you hold. I would therefore like a photocopy of the actual agreement.

The only reason that I can presume avoidance of such a simple process is if you never actually had a copy of the original agreement in which case may I remind you that OFT Guidance clearly 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
In order to be able to adjudge my position effectively I would require a copy of the actual agreement that apparently exists and I therefore appeal to you to fulfil my request. I am willing to pay any reasonable charge that you feel is necessary, in order to provide a copy of the “actual” credit agreement. In considering my request, I ask that you take a common sense approach and do not hold to the line that you have provided all that is expected of you nor the recent test case in Manchester, namely, and to be known as: Carey v HSBC Bank Plc [2009] EWHC 3417 (QB) (23 December 2009).

I make my request in good faith and I feel it is a nonsense approach to hold to the idea that you won’t provide this document because you simply don’t have to. I feel that would take advantage of your position and such an approach from your business not be in the best interests of a healthy business/client relationship. In light of the above, I consider this account to be unenforceable until such time you properly comply with my original s.78 request and send a photocopy of the original purported document, if it exists. If it does not, then you must confirm this to me in line with your licensing guidance, as detailed above.

For clarification, the document you sent, purporting to be a credit agreement, does not contain all of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say, all of the required terms are not present in this document. Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (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).
This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

In addition should you continue to pursue me for this debt you will be in breach of OFT guidelines. These guidelines (issued July 2003 & updated December 2006) relate 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
As this account is clearly unenforceable, 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 copy of the original agreement I will not correspond with you again and any threats will be averred and unlawful and vexatious with a counter-claim forthcoming.

Yours faithfully

and haven't paid since. This was on the advice of a thread in MSE.

So, should I have stopped paying or not?

Also, I don't think that I've been defaulted. In between all of this, I did receive a letter off Mercers threatening a default but I then set up a payment plan (start of March).

I checked my Experian and Equifax reports last night and there are no entries AT ALL from Barclaycard. Seems strange to me but I've been told that old cards (mine's about 1986) are not recorded onto a credit reference agency - not sure how correct that is.

Thanks for taking the time to look at these very long posts. Hopefully someone can advise the best course of action for me.

Cheers

Robert

**middenmess** · 7th September 2010, 17:30:PM

Re: Barclaycard CCA

Hi Robert

I'm no expert but most of what you've posted up from Barclays would appear to drivel and gibberish designed to confuse.

I think they know that they are dodgy ground as I didn't notice anywhere [unless I missed it] any mention of DCA's or possible future legal action which would have been included in the letters I think if they retained the necessary and relevant documentation on your account.

If both cards were taken out in 1985 on one application form then it is unlikely to pass muster anyway.

Writing well composed letters addressing all of your concerns is generally a waste of time as they generally don't appear to read them in their entirety--if your first paragraph doesn't contain the words 'I'll pay you' your letter is marked 'reply with cut & paste crap gleaned from any assortment of irrelevant template response paragraphs'

If Mercers have already defaulted you then it's likely that it was an invalid default notice which if they terminate on the back of should be good news for you.
Can you remove personal details and post it up here?

What's the chance of getting a severely reduced settlement? I know that I should just sit this out but it would be good if I could get rid of it once and for all - even if it does cost something.

Barclaycard rarely have the brains to enter into sensible dialogue so I'd wait and see how everything else pans out before thinking on those lines again.

What the situation with late and over limit charges-have you incurred any?

How about PPI?

The phone calls are a PITA [don't ever talk on the phone to them] but just using an answering machine helps-just pick up if you recognise the caller or ignore if you do not.

There's a template letter in the LB library that you can send them that insists on dealing with you by written correspondence only.

**toomuchdebt** · 23rd September 2010, 04:48:AM

Re: Barclaycard CCA

Just an update...

I took a look at my credit file and couldn't find anything listed by Barclaycard against me. I did receive a letter threatening a default from Mercers - but was then never defaulted.

Anyhow, after I sent my "don't phone me and don't visit me" letter by registered post, the phone calls stopped. Strange thing is, the letter I sent is still on the Royal Mail system as "being processed" or something. Last night though, Mercers (rather than Barclaycard) rang me. They are apparently going to "take it to the next level". When I asked what that was (I know, I shouldn't be talking to them) the bloke said it was to send a doorstep collector around.

Now this door step collector doesn't bother me and, I'm actually off work for the next couple of weeks so I can tell him/her to bog-off personally. However, I would like to try to stop Barclaycard/Mercers from phoning me. Changing my phone number is not an option. I could block the calls but I don't seem to be able to do this to my mobile. I was therefore going to send another letter with the aim of reporting them to the OFT if the phone calls don't stop. The gist of the letter would be something like:

Don't phone me and don't visit me.
The number of phone calls have been logged and are excessive (over 10 a day) and also include silent calls.
Will also mention that both myself and my wife have been signed off work before with stress and these phone calls are making things worse (I can get a doctor's note to verify this).
That I believe that they've breached the data protection act before by sending me a text with personal information in it and that should they send a doorstep collector then any data protection breach by them will be reported.
That if they wish to take me to court then they must supply me in advance (on my request) the following documentation (there's a template on here about what I must ask for).

I think that that's about it. Will send it to Mercers and Barclaycard and then see what happens.

Most of the above is based on the following guidance on Debt Collection issued by the OFT http://www.oft.gov.uk/shared_oft/bus...dit/oft664.pdf

Anyone got any views or advice?

Cheers

Robert

EDIT

Also wondering whether to do a SAR request then I'd know exactly what they hold on me. Would they be obliged to give me a copy of the CCA if they had one if I did do a SAR request?

**middenmess** · 23rd September 2010, 09:40:AM

Re: Barclaycard CCA

As per my earlier post-writing to them with pertinent requests always assumes that someone with a full complement of brain cells will read it and act on it in the appropriate manner and as you must have realised by now,there ain't many of them employed at BC.

A SAR should produce all data that they hold on you especially if you specify exactly what you want but 'should','must' and 'have to' are not words usually recognised by BC.

Depending on what you ask for, the data might arrive in one package or in several over a period from their different areas of operation.Each one is usually accompanied by a note stating that 'this is all the data we hold on you'--and then a few days later another envelope arrives!

Sometimes it will include the CCA application form and/or agreement and might also include your T & C's. Sometimes these T & C's are at variance with what they send you under a CCA request so close inspection often produces small differences.

On one of their really bad days you might even receive copies of other people's information!

Barclaycard CCA

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