Unenforceability & Template Letters II

Goodtimesahead

Sorry, he did get a reply from Barclaycard but no signed agreement, just saying how much he owed and a copy of some standard terms and conditions etc and saying that his Barclaycard agreement would be sent under seperate cover but this never arrived.

never-in-doubt

Goodtimesahead wrote: »

Hi Guys,

My friend has sent a CCA by next day special del to Barclaycard but not had any reply in 12+2 days nor the CCA reminder but has just received a letter from Mercers saying they are acting on behalf of Barclaycard saying the account is overdue and we have no alternative other than to pass your account to:-
A local debt collector who may call at your home to obtain full payment... etc

What letter should he send to Mercers and also to Barclaycard? Thanks

Hiya

You send a copy of this to Mercers plus a copy of your CCA request that was sent to Barclays - have Barclays signed for receipt of the CCA?

In any case you do not contact barclays again but in the same respect you do not pay anything toward the debt.

Dear Sirs,

Account No: XXXXXXXX

You have contacted me regarding the account with the above reference number, which you claim is owed. I would like to point out that I am in the process of dealing with this matter with the Original Creditor, Barclaycard.

In light of my not receiving any Agreement or Notice of Assignment paperwork I will only deal with the Original Creditor until such time you follow proper process and arrange for lawful Assignment documents to be sent to me.

Incidentally, I am disputing the validity of the debt with the Original Creditor and until such time as this matter is resolved, I must remind you that partaking in any collection activity is a serious breach of OFT guidelines and will not be tolerated. These guidelines state that it is unfair to send demands for payment to an individual when it is uncertain that they are the debtor in question. They also state that it is unfair to pursue third parties for payment when they are not liable. In not ceasing collection activity whilst investigating a reasonably queried or disputed debt you are using deceptive and unfair methods.

Similarly, disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment, amounts to physical and psychological harassment.

In light of the above, I formally request that no further contact be made concerning the above accounts unless you can provide evidence as to my liability for the debt in question. A copy of my most Consumer Credit Agreement request (s.87-88 CCA1974) to the original Creditor is attached for your perusal.

I await your written confirmation that this matter is now closed, within the next 14 days.

Yours faithfully




Sign digitally

never-in-doubt

Goodtimesahead wrote: »

Sorry, he did get a reply from Barclaycard but no signed agreement, just saying how much he owed and a copy of some standard terms and conditions etc and saying that his Barclaycard agreement would be sent under seperate cover but this never arrived.

Ok, well leave Barclays for the minute - give them another month then send this letter unless the CCA does happen to arrive in which case scan it and post it so we can take a look before sending any other letters:

Dear Sirs,

Account No: XXXXXXXX

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.

To clarify, just sending the Terms and Conditions is a breach of the Act 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 as follows;

Section 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 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

Sign digitally

never-in-doubt

captainhaggis wrote: »

OF COURSE I DO - what do you take me for?!

- check your PMs

:rotfl: :rotfl: :rotfl:

PM replied to matey

Goodtimesahead

never-in-doubt wrote: »

Ok, well leave Barclays for the minute - give them another month then send this letter unless the CCA does happen to arrive in which case scan it and post it so we can take a look before sending any other letters:

Yes he has already sent this letter back in late Oct and received nothing further from Barclaycard, nor the credit agreement they said in their original CCA reply letter that would be sent by seperate cover, all that he has received is this letter from Mercers within the past week, so does he send that letter to Mercers you suggest?

Thanks

never-in-doubt

Goodtimesahead wrote: »

Yes he has already sent this letter back in late Oct and received nothing further from Barclaycard, nor the credit agreement they said in their original CCA reply letter that would be sent by seperate cover, all that he has received is this letter from Mercers within the past week, so does he send that letter to Mercers you suggest?

Thanks

Ok so ignore Barclaycard and send the one to Mercers as quoted above.

Goodtimesahead

never-in-doubt wrote: »

Ok so ignore Barclaycard and send the one to Mercers as quoted above.

nid> :T

What's the score with some important court test cases on all this stuff, are they this week and is there a dedicated thread about this?

never-in-doubt

Goodtimesahead wrote: »

nid> :T

What's the score with some important court test cases on all this stuff, are they this week and is there a dedicated thread about this?

They were last week mate - myself and Fermi were posting links the other day on this thread - go back a couple of pages and you'll see it...... (#505 )

No decision will be made until jan 2010.... but MBNA pulled out with 2 of the cases at the eleventh hour

Have a mooch here: http://news.bbc.co.uk/1/hi/business/8393768.stm

noah271007

Interesting reading here. Here comes next month, hopefully with positive news. Lenders have got away with their tactics for far too long and they ought to be punished. If it was the other way round, it would be a very different story.

never-in-doubt

noah271007 wrote: »

Interesting reading here. Here comes next month, hopefully with positive news. Lenders have got away with their tactics for far too long and they ought to be punished. If it was the other way round, it would be a very different story.

Yes mate - agree. Similarly with the bank test cases, in a way the fact the banks won helped us cos now we know to fight under regs 5 & 8 as opposed to reg 6 (which lost).... for the law lords to mention these regs means that they thinks there is a fight to be had - so the banks are not really laughing that much, despite their original 'glee'....

Same will happen with the CC test cases mate - the judges will have to work on law and the law states that the agreement must be compliant - not hard really is it?