Unenforceability & Template Letters II

never-in-doubt

DeBilde wrote: »

Argos have not replied but have sent me a letter threatening to put a default on my file and send it onto their DCA if I don't pay the arrears. Is their anyhting I should send them?

Cheers

Have you got defaults from anyone else? You knew that a default would be forthcoming, I told you that in my first ever reply to you - why the concern about this?

But its up to you what you do. If you have other defaults from the other accounts then a default by argos matters little really. :rolleyes:

DeBilde

Thanks NID, yes I knew about the Defaults and I am happy with this. It is the fact it is being passed to the DCA, do I send them anything?

Cheers

roadster

Hi

Firstly thanks NID for all you fantastic information, i have sent off several cca's to check if they are correct or not. I will keep you posted on how i get on.

Secondly I have a motor loan taken out through a local garage and financed by Barclaycard Motor Loans, can i caa this agreement and if it is found to be unenforceable what happens do they repo the car ? or do they just default and put the account into dispute ?

BANNEDfromTV

never-in-doubt wrote: »

So it contains the prescribed terms then,

To be honest I don't know what I'm looking for.
From what I've given is it enforceable or am I missing something?
Is there something else I need to identify or have they fulfilled their obligation?

Would a copy of the terms they sent help?

Thanks

Go_on_martin_lewis

Go_on_martin_lewis wrote: »

Hey, can any advise me on what i should look for in these documents they've sent me back in reply to my CCA request??

heres the link.
the first page is the document they enclosed with the letter. and the following pages is the barclaycard conditions they sent seperately. (i assume that the one they sent enclosed is the original one. and the seperate one is the newer version)

the website isn't allowing me to post links, but if you go to keepandshare.com and paste /doc/view.php?id=1628554&da=y after the .com


THANKS!

Hey NiD and anyone else who is familiar with barclays procedure.
Just to re-cap my situation
1) i sent the CCA request for both visa and master.
2) the reply with the above documents.
3) NiD says to send the CCA query letter, so i did that for both accounts.
4) they have replied with this letter (ive highlighted the parts which worry me):

****************************************************************

BARCLAYCARD SERVICES
ACCOUNT NUMBER: XXXX XXXX XXXX XXXX

Reference: Section 78 of The Credit Consumer Act 1974

I write further to the letter whereby you note dissatisfaction to the documents you reicieved 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 the account which is practicable to refer. Regarding a statement of account which is practicable to refer, the ltters which we send in response to a Section 78 (1) requests includes this information. To cover the issue of the executed agreement.

How does the Act define an "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 providing 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 suplied 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 trems. 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 requirments 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) regulations 1983.

The definition of "executed agreements" 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 recieve their credit card; therefore, establishing what is the original executed agreement. When the agreement has been varied, Regulation 7 mentioned above applies.

To summarise, id the agreement has not been varied, we must sent the orginal 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 contaion 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 the Section 60 of the consumer credit act 1974. Section 60 relates to the form and contents 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 unders 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. legible form, and would have adhered to the requirments 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 alow 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 if 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 Correspondense, 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 on 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 suplied with under section 78 of the consumer credit act 1974. As our response fulfils the obligation under section 78 of the consumer credit act 1974, you should carry on paying the debt you have accured 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 collection services. 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 wheater response is necessary."

********************************************************

Pressers

Thanks so much for this NID. You are truly remarkable! How do you know so much?

burton_trade_kitchens

Hi Go On Martin Lewis
I am at the same stage as you with the process and have been hit with the same letters from the same credit card provider.
By the sounds of it I started the same process about a month or so before you judging by the responses you have had.
My advise is chill out as they are slowly stopping to contact me now and things are slowing down on their side.
I think NID's advise is excellent and we need all not worry..
It's them that have to proove otherwise..
Good luck and keep us informed of progress.

never-in-doubt

DeBilde wrote: »

Thanks NID, yes I knew about the Defaults and I am happy with this. It is the fact it is being passed to the DCA, do I send them anything?

Cheers

Hiya

No - no need to send anything off, you could though if you wanted, send a copy of the CCA Request you sent to the OC with the following letter - to prove you're being serious and know the law: 11. Account sold whilst in Default of CCA Request

never-in-doubt

roadster wrote: »

Secondly I have a motor loan taken out through a local garage and financed by Barclaycard Motor Loans, can i caa this agreement and if it is found to be unenforceable what happens do they repo the car ? or do they just default and put the account into dispute ?

You can CCA a HP agreement, yes. I am unsure exactly what would happen to the car.... I assume if you've not paid a third or whatever the limit is, they can take it back cos you've broken the agreement. If it was me, i'd just pay it - wouldn't risk losing my car!

never-in-doubt

BANNEDfromTV wrote: »

To be honest I don't know what I'm looking for.
From what I've given is it enforceable or am I missing something?
Is there something else I need to identify or have they fulfilled their obligation?

Would a copy of the terms they sent help?

Thanks

Hiya

From what you've said it sound enforceable - remember some are! Unfortunately it may be best to continue paying this one. :mad: