Unenforceability & Template Letters III

REFERENCE SECTION 78 of THE CREDIT CONSUMER ACT 1974
I write further to your letter whereby you note dissatisfaction to the documents you received in relation to a request made under Section 77/78 of the consumer credit act 1974.

Firstly, credit cards are regulated under section 78. Section 78(1) of the act states that the creditor shall give the debtor a copy of the executed agreement and a statement of account which is practicable to refer. Regarding a statement of account which is practicable to refer, the letters which we send in response to a section 78 (1) request included this information. To cover the issue of executed agreement.

HOW THE ACT DEFINES EXECUTED AGREEMENT
"Executed agreement" is defined in section 189 of the act as "a document, signed by or on behalf of the parties, embodying the terms of a regulated agreement”.

WHAT DO THE RULES SAY ABOUT PROVINDING A COPY?
The consumer credit (cancellation notices and copies of documents) Regulations 1983 ("the Regulations") made under the Act deal with how we are to provide a "copy" of an agreement. These Regulations provide that any copy of the agreement supplied to a debtor should be a 'true' copy. Regulation 3(2) provides that a copy may omit certain information, which allows you to be provided with a true copy, not a complete copy.

WHAT HAPPENS IF THE ORIGINAL AGREEMENT HAS BEEN VARIED SINCE IT WAS ORIGINALLY SIGNED?
The regulations also set out what should happen where the agreement has been varied since it was signed. Regulation 7 provides creditors with a choice of including in the copy of the executed agreement either a copy of the latest notice of variation relating to each discrete term which has been varied, or an easily legible statement of the terms varied. 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.

CONCLUSIONS IN RELATION TO THE DOCUMENT WE HAVE TO PROVIDE
A "copy" of an agreement will satisfy the requirements even if the signature box and/ or the signatures are not included as clarified by regulation 3(2) of the consumer credit (cancellation notices and copies of documents) regulation 1983.
The definition of "executed agreement" refers to a document embodying the terms of the regulated agreement. When this is read with regulation 7 - for agreements that have been varied - a copy of the original agreement would not embody its terms. A copy of the agreements varied would embody its terms. A copy of the agreement as varied would embody its terms.
The issue of what is an executed agreement has been interpreted in the High Court. It was held that an executed agreement begins the credit agreement which is sent to the cardholder when they receive their credit card; therefore, establishing what is the original executed agreement. When the agreement has been varied, Regulation 7 mentioned above applies.
To summarise, if the agreement has not been varied, we must send the original executed agreement; this would be the credit agreement currently regulated. If the credit agreement has been varied, we must send the current credit agreement as this will contain the terms of the regulated agreement. We have sent you this and the original executed agreement for reference.
To address any issue about our lack of compliance with section 60 of the consumer credit act 1974. Section 60 relates to the form and content agreements. All Barclaycard credit agreements are in compliance to this. You may state that the application form which we provided you, for reference when you made your request under section 78 does not adhere to section 60. this is not a complete copy of the application form, but rather an excerpt to show you signed a contract with us. When you completed your application form, the document would have been presented to you in full, in legible form, and would have adhered to the requirements under section 60 of the Consumer Credit Act 1974.
With reference to the Civil Procedure Rules (the CPR). We have provided you with sufficient information to allow you to understand our position. The CPR does not confer an automatic entitlement to documents before proceedings start. CPR 31.16 provides that a party may apply to the court for pre action disclosure in certain limited circumstances, which do not apply here. The application must be supported by evidence – and the usual order is for the applicant to pay the costs of the application, including the respondent’s costs, together with the respondent’s costs of complying with any order that is made as a result (CPR 48.1 (2)).
While there is no formal obligation on our part to provide documentation in answer to Validation of Debt correspondence, we have undertaken steps to provide you with the contractual terms under which your financial obligations arise and a statement of account.
I am fully satisfied that the sum outstanding by you remains legally due and payable. You should continue to repay the outstanding balance owed n your account in accordance with the terms of your credit agreement. If you do not, we may register a default against you with credit reference agencies, although we will formally notify you before doing so.
I hope this letter has helped with your concerns about the documents you have been supplies with under section 78 of the Consumer Credit At 1974. As our response fulfils the obligation under section 78 of the Consumer Credit Act 1974, You should carry on paying your debt you have accrued on your account. We do not class the account as in dispute, you have been supplied with the relevant documentation under section 78 of the Consumer Credit Act 1974, and we will carry on with the collection services. If you send us further correspondence questioning compliance with these areas of the law, we are not obliged to respond beyond the statutory response we have already given you. We would require you to provide comprehensive legal and documentary evidence to support your claim to ascertain whether response is necessary.

Yours sincerely

REFERENCE: SECTION 78 of THE CREDIT CONSUMER ACT 1974

I write further to your recent letter alleging that we failed to comply with our obligations in relation to your requests for documents pursuant to section 78 of the Consumer Credit Act.

Please note that we have already set out, in detail, why wae are are (yes they put i twice lol) satisfied that the documents already provided to you have discharged out obligations under the act. we are under no legal obligation to provide any further documentation to you in the regard.

Yours sincerely

never-in-doubt wrote: »

That is not a CCA! Anyone can send a tear off slip and say - that is for this account!

= Unenforceable. :T

I wanna see your signature on the same page as the prescribed terms - they have not supplied this therefore this account is unenforceable. (Virgin one)....

Send this back to them: CCA Query

However remove this from the first paragraph.... do not send a copy of what they sent you, no need. "a copy of which is attached"