Unenforceability & Template Letters

Still_surviving

As a general point of interest, whats the reason that so many agreements cannot be produced on demand by financial institutions?

Is it that they were never executed properly, or they get lost in the filing?

never-in-doubt

Still_surviving wrote: »

As a general point of interest, whats the reason that so many agreements cannot be produced on demand by financial institutions?

Is it that they were never executed properly, or they get lost in the filing?

They were never issued at all - lol, but those that were happened to have flaws... for instance, you must have seen the MBNA/Barclaycard stands at airports? Or had a flyer through the door from Capital One saying 'just sign here and pick your card type' - these will most probably be unenforceable because the signature is not on the actual contract, being you signed a promotional flyer - you following me now ;)

Basically, the older the account the more chance of unenforceability and/or lost agreement.

ratcatcher1_2

Hi,
I am about to start the whole unenforceability process off against a couple of credit card companies.
I have been looking at your template letters (thanks very much for all of this) and had a question:
If I get back a CCA letter documenting all the Terms how do I know if any of them fail to meet/match the Prescribed Terms? Is there a way of checking for this?

Also, what do people think of using something like SignGuard for doing digital signatures on letters? I know it costs a couple of quid but it seems to allow you to provide a valid signature that the banks cannot copy. Has anyone used this?

Thanks again!

Jackswan_2

Barclaycard appear to be the one CCC who are really geared up for those of us involved in trying to prove the unenforceability. On the point of older the account, mine was in October 1998 and they are fighting back very hard. I have been through the process of first letter, then second letter. I have today received a two page repsonse to the second letter where I expressed dissatisfaction to the generic t's&c's they sent out, although I did notice it was 1999 six months after I took out the card.

Dear xxxxxx,
Reference section 78 of the CCA 1974
Firstly, credit cards are regulated under section 78. Section 78(1) states that the creditor shall give the debtor a copy of the executed agreement and a statement of account which is practicable to refer. This covers the issue of executed agreement.
How does the Act define an "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 the rules say about providing a copy.
The Consumer Credit (Cancellation Notices and Copies of Docments) Regulations 1983 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 realting to each discrete term which has been varies, 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 ansd 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 regulations 3(2) of the Consumer Credit (Cancellation Notoces and Copies of Documents) Regulations 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 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 as the credit agreement which is sent to the cardholder when they receive their credit card; therefore, establising 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 which is 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 CCA 1974. Section 60 relates to the form and content agreements. All Barclaycard credit agreements are in compliance with this. You may state that the application form which we provided you, for reference, when you made a request under section 78 does not adhere to section 60. This is not a complete copy of your 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 a legible form, and would have adhered to the requirements under section 60 of the CCA 1974.
I hiope this letter has helped with your concerns about the documents you have been supplied with under section 78 of the CCA 1974. As our response fulfills the obligation under 78 of the CCA 1974. We do not class the account as in dispute, you have been supplied with the relevant documentation under section 78 of the CCA 1974.
If you send us further correspondence questioning compliance with these areas of 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 etc.,
Barclaycard Customer Services.

My aplogies for the length of this e-mail, but, I thought it worthwhile letting others know how Barclaycard are dealing with claims. It has certainly made me sit up and think about moving forward. I am mature enough to realise that the
intention is to put claimants off, but, it does make one consider what to do next.

never-in-doubt

Jackswan wrote: »

My aplogies for the length of this e-mail, but, I thought it worthwhile letting others know how Barclaycard are dealing with claims. It has certainly made me sit up and think about moving forward. I am mature enough to realise that the intention is to put claimants off, but, it does make one consider what to do next.

LOL, mate what utter nonsense they sent you! Just remind them the agreement is unenforceable until such time they start cooperating and act lawfully. They are trying to frighten you with big words and quoting terms at you, want me to do a response for you? :beer:

Shafted_2

Got a copy of the original agreement from one of our creditors (credit card).

It seems to mention all of the 'prescribed terms', but the amount is only for 500 whereas they are chasing for nearly 5000.

The interest is also not shown as a fixed percentage.

Does this mean it's enforceable?

never-in-doubt

Jackswan wrote: »

Barclaycard appear to be the one CCC who are really geared up for those of us involved in trying to prove the unenforceability.

Mate try sending a reply like this - see how they cope with that lol.....

Dear Barclaycard,

Ref: XXXXXXXX

I write with reference to your letter dated XX September 2009, the content of which has been noted.

I never thought I’d have to explain to a bank the procedures that govern them; however due to your clear inability to interpret the law, in its entirety, I am left with no option but to resort to such methods.

You refer to section 7 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (CC-CNCD1983). Whilst your comments are mostly accurate in isolation, I would like to draw your attention to s.7 (ss.1):

s.7 (1) where an agreement has been varied in accordance with section 82(1) of the Act

The relevant section of the act being:

s.82(1) where, under a power contained in a regulated agreement, the creditor or owner varies the agreement

The implication of this section of the act being that modification of the agreement can only take place where the prior version of the agreement makes provision for such an amendment within its terms. Ultimately the authority to amend an agreement must refer back to such a provision within the executed agreement. In the absence of such a provision, or the inability to authenticate such a provision, subsequent, modified agreements are invalid.

Furthermore, s.7(1) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, goes on to say:

(1) Where an agreement has been varied in accordance with section 82(1) of the Act, every copy of the executed agreement given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include…

This paragraph clearly places a duty upon the creditor to provide a modified agreement (copy of) as an inclusion to a mandated provision of a copy of the executed agreement for each amendment in terms.

You also refer to a high court interpretation of an executed agreement, however the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 offer a more than adequate description of such an agreement and I sincerely doubt that any ruling would vary the provisions of these regulations.

It remains my belief that you have failed to comply with either the spirit or the intention of the relevant legislation. (I would particularly draw you attention to the alleged agreement sent to me in response to my original request, whereby you supplied documentation relating to a 200X Barclaycard account whereas the original agreement, if such ever existed, would have had terms dating back to XXXX).

In summary, I cannot accept your explanation relating to the documentation supplied in response to my s.78(1) CCA(1974) request. It remains my contention that Barclaycard are still in default against the unabridged requirements of the act.

The original properly executed credit card agreement is the document that you would need to produce in support of any county court action against me, and the same document that I would make a court application for you to produce if you failed to respond to such a request under a CPR(31.16) prior to my seeking litigation against yourselves.

It would therefore seem to me to be entirely in line with the overriding principles of the CPR for us to make every attempt to settle matters outside the court system. In furtherance of this objective therefore, I would suggest that this matter can be disposed of without further delay by you allowing me to inspect the original properly executed credit card agreement. Thus the matter can be resolved one way or the other.

Normal convention requires that any such document is inspected in situ- I am prepared to travel a reasonable distance to inspect this document; alternatively I am prepared to pay the reasonable costs of having this document couriered to the local branch of Barclays Bank for me to inspect it there.

I can think of no valid reason, if it is your sincere desire to have this matter dealt with without further delay, why you should not accede to this request. Since clearly if you satisfy me that you do have a properly executed and enforceable agreement then I can immediately enter into discussions with you with regard to discharging the alleged debt, which is surely what you are trying to achieve? If however it is the case that you do not possess a properly executed agreement then it would be the better for all concerned for you to admit to this fact now and then we may be able to negotiate a mutually acceptable outcome.

Therefore, until such time as Barclaycard comply with the true expectations of the relevant legislation I will continue to acknowledge no debt to Barclaycard in respect of the above account.

Should Barclaycard continue to enforce the alleged agreement, in violation of s.78(6) of the CCA(1974) then I may consider seeking redress under the Data Protection Act 1998. Additionally, I may consider it appropriate to serve an injunction upon Barclaycard to prevent any such data processing and rectify any prior processing whereby a violation of section 10 of the Data Protection Act 1998 is considered to have occurred. I may take further action, at my own discretion and on the advice of my legal advisor's, should this be appropriate.

I look forward to your reply, hopefully this time not a bog-standard blanket letter than can be found across a host of internet forums almost word-for-word. May I respectfully suggest you seek legal assistance prior to composing your response to me?

Yours sincerely,



Sign Digitally

El-Docula

You've done a lot of work on this thread - really good advice.
I am in a similar situtation to most people here.

I owe £10K to two credit cards with Virgin and Mint. I stupidly stupidly paid a company to look into the enforcabilty of the agreements and they wrote back saying "congratualtions these CCA's are totally unenforacable" but six months later I got a letter saying that I was to pay their solicitor to take it further. Obviously i have now come to my senses and realise this something I could do myself.

Can I clarify that my next step should be ....

1) ask this company to send me my CCA's from both Virign and Mint.

2) then use your template letters and write to both companies stating that the CCA's are unenforceable?

3) I have no defaults on either account - should I now stop paying at the same time i send the letters?

and finally

4) does an unenforaceable debt that I refuse to pay affect my credit rating?

many thanks for the information you have put into these threads!

never-in-doubt

Shafted wrote: »

Got a copy of the original agreement from one of our creditors (credit card).

It seems to mention all of the 'prescribed terms', but the amount is only for 500 whereas they are chasing for nearly 5000.

The interest is also not shown as a fixed percentage.

Does this mean it's enforceable?

The amount you quote will be for comparison purposes which mean the actual limit you have is irrelevant, so long as they gave the example that meets the prescribed terms.

Unfortunately seems like they may have it right mate :mad:

never-in-doubt

El-Docula wrote: »

You've done a lot of work on this thread - really good advice.
I am in a similar situtation to most people here.

I owe £10K to two credit cards with Virgin and Mint. I stupidly stupidly paid a company to look into the enforcabilty of the agreements and they wrote back saying "congratualtions these CCA's are totally unenforacable" but six months later I got a letter saying that I was to pay their solicitor to take it further. Obviously i have now come to my senses and realise this something I could do myself.

Can I clarify that my next step should be ....

1) ask this company to send me my CCA's from both Virign and Mint.

2) then use your template letters and write to both companies stating that the CCA's are unenforceable?

3) I have no defaults on either account - should I now stop paying at the same time i send the letters?

and finally

4) does an unenforaceable debt that I refuse to pay affect my credit rating?

many thanks for the information you have put into these threads!

Hiya

Ok, if you SAR the company that started the work (sending £10) they will send you copies of everything, but its unlikely they actually done much so i'd forget them from now and do it direct. So, start by sending the letter to each lender (the CCA request from page 1) with a £1 cheque and see what they come back with..

Regards to ceasing payment, do not do this yet - it will damage your credit file! Just cos these muppets told you it was unenforceable means nothing, its only unenforceable when you see the agreements yourself so you start again, from scratch. yourself and ignore this company.

Do not stop paying anything just yet! It will have an adverse effect on you for 6yrs!