BC unable to supply a credit agreement to CCA request

Bootinbull

Hi

Hoping someone may have some advice on the following matter?

Background

Debt incurred to Egg Card originally who were taken over sometime back by Barclay Card

Debt registered as Default on: 22/11/2006
Current Outstanding amount: £8,167.18
Monthly payment by CCCS payment plan: £60.74

I sent a CCA request to Barclay Card on the 18th Aug '12 and they replied, be it late on the letter dated 11th Sept (see letter below)

In the letter it states that they do not have a current original agreement of the debt!... and is therefore unenforceable, it does however go on to say they will still pursue the debt etc

But as debt has been in default since 22/11/2006, what if anything can they do about this??
Please see the contents of the letter they sent back which mentions various cases, but is all this just hot air?

At present the debt along with 7 other debts is been handled by the CCCS agency
Who have set up payment plans with all of my creditors, all been paid since 2006 a calculated amount.
(NOTE amount currently paid per month to Egg/Barclay Card is £60.74 and the amount now owed is £8,167.18

Please can you advise what I should do next on this matter, and are they at all correct in what they say etc

Thanks as any help much appreciated!

---

The letter in question follows....

BARCLAYCARD SERVICES
ACCOUNT NUMBER: **** **** **** ****

Barclaycard House
PO Box 5592
Northampton NN4 1ZY
Tel: 0844 811 9111
11 September 2012

Reference: Section 78 of the Consumer Credit Act 1974
I refer to your request for information dated 16/08/12.
I would like to acknowledge your request for details of absolute
assisgnment and I am able to confirm that this has sent to the
relevant department who will contact you directly regarding this.
The information we must provide to you under the terms of Section
78 of the Consumer Credit Act 1974 (the "Act") is prescribed by
the Act and by the Consumer Credit (Cancellation Notices and
Copies of Documents) Regulations 1983. Section 78 of the Act
provides that, where a creditor receives a Section 78 request, the
creditor shall give the debtor a copy of the executed agreement
(and any document referred to in it) and a statement of the
account.
I enclose a reconstituted copy of your credit agreement. A
statement of your account is below:
The current credit limit on your account is £0.00
The current balance on your account today is £8,167.18
Due to the current status of your account, the full
outstanding balance is now due.
I acknowledge that there has been a delay in responding to your
request for information under Section 78. We are currently unable
to provide a copy of the terms of your credit agreement as varied
in accordance with section 82(1) of the Act. We accept that we
are therefore prevented from enforcing our agreement with you while this state of affairs continues. I note that Section
78(6) (b) was repealed on 31 May 2008, meaning that it is no longer
an offence for a creditor to fail to comply with s78(1) for more
than one month.

With immediate effect, we have suspended your Barclaycard account.
We have taken this action because in our view there is a
significantly increased risk that you will cease to make payments
to your Barclaycard account. This is a temporary measure which
will be kept under review. We have not closed your account.

Notwithstanding that we cannot currently enforce the agreement,
our rights continue to exist under the agreement. You should
therefore continue to pay the debt that has accrued on your
account. We can and will continue to take any action short of
enforcement, which includes reporting to credit reference agencies
without also telling them that the agreement is currently
unenforceable, demanding payment from you, issuing a default
notice to you and instructing a third party to demand payment or
otherwise seek to procure payment. We refer you to the case of
Philip McGuffick v The Royal Bank of Scotland (2009) EWHC 2386 in
which it was held that none of these steps constituted
"enforcement" for this purpose.

Please note that the decision in Carey v HSBC (2009) EWHC 3417QB
makes it clear that an unfair relationship cannot be said to have
arisen between us as a result of the fact that we have not
currently complied with section 78 of the Act. To the extent that
you seek to allege that an unfair relationship has arisen, such
allegations will be opposed.

This completes our obligations under Section 78 of the Act.

In relation to your comments regarding Section 189 of the Act; I
would like to confirm that the original creditor for your account
as defined in section 189 of the Consumer Credit Act 1974 was Egg.

With regards to your reference to sections 5(2), 6 and 7 of the
Consumer Protection from Unfair Trading Regulations 2008, we do
not accept that there is any basis to assert that we have not
fully complied with our obligations.

Yours....

fermi

Bootinbull wrote: »

In the letter it states that they do not have a current original agreement of the debt!... and is therefore unenforceable, it does however go on to say they will still pursue the debt etc

But as debt has been in default since 22/11/2006, what if anything can they do about this??
Please see the contents of the letter they sent back which mentions various cases, but is all this just hot air?

They can pursue the debt short of court action, record defaults etc, yes. That is correct.

The debt still exists. It just cannot be enforced through the courts for now.

What you do is your call?

CCCS are not likely to exclude the debt from your DMP.

While unenforceable now, if they do manage to dig up a copy of the agreement and/or varied terms, then it could in theory become enforceable again.

Bootinbull

Hi .....Thanks for the quick reply!

Ok so no court action is possible, except if they can dig up a copy of the agreement!... understood
But re them record a default? ....the debt has been in default since 22/11/2006 anyway, and it is soon to become " statue barred " I am thinking? (6 year default) ....so what would this mean to any possible actions on their behalf?

System

I thought that the courts had ruled that a reconstituted agreement was sufficient and the original was not required? Conseque4ntly the debt is still enforceable.

ILW

Bootinbull wrote: »

Hi .....Thanks for the quick reply!

Ok so no court action is possible, except if they can dig up a copy of the agreement!... understood
But re them record a default? ....the debt has been in default since 22/11/2006 anyway, and it is soon to become " statue barred " I am thinking? (6 year default) ....so what would this mean to any possible actions on their behalf?

No stature barred if CCCS have been making payments.

Bravehearted_2

As above, it isn't statute barred - you've been making payments.

fermi

!!!!!! wrote: »

I thought that the courts had ruled that a reconstituted agreement was sufficient and the original was not required? Conseque4ntly the debt is still enforceable.

A reconstituted agreement may well be enough to satisfy s77/78 requirements.

But here they are saying that:

"We are currently unable to provide a copy of the terms of your credit agreement as varied in accordance with section 82(1) of the Act."

To satisfy a s77/78 request, not only do they have to provide a copy of the current agreement (reconstituted or not), they also have to supply the original (reconstituted or not) and any variations in between.

While they seem here to have been able to reconstitute part of it, they obviously cannot provide all that is required to fully comply with the s77/78 request.

Hence, at this point, it is unenforceable.

fermi

Bootinbull wrote: »

Hi .....Thanks for the quick reply!

Ok so no court action is possible, except if they can dig up a copy of the agreement!... understood
But re them record a default? ....the debt has been in default since 22/11/2006 anyway, and it is soon to become " statue barred " I am thinking? (6 year default) ....so what would this mean to any possible actions on their behalf?

As said, it's not going to become statute barred if you have been making payments or acknowledged the debt between then and now.

Do you actually mean that the debt will drop off your credit files?

Assuming defaulted in Nov 2006, then yes, the account and default would be removed from your credit files in Nov 2012.

The only way it could go back on would be if they got a CCJ, which at the moment they seemingly admit they cannot do.

Bootinbull

!!!!!! wrote: »

I thought that the courts had ruled that a reconstituted agreement was sufficient and the original was not required? Conseque4ntly the debt is still enforceable.

So are you saying that it is now not necessary for banks to prove or show an original contact to a CCA request? Is this a law change?
And that if the the banks cannot produce an original contract, then this is now acceptable by the courts for any similar disputes?
As for my case it has not been taken to any court yet, so there is no such ruling in place I guess!

So

Bootinbull

fermi wrote: »

A reconstituted agreement may well be enough to satisfy s77/78 requirements.

But here they are saying that:

"We are currently unable to provide a copy of the terms of your credit agreement as varied in accordance with section 82(1) of the Act."

To satisfy a s77/78 request, not only do they have to provide a copy of the current agreement (reconstituted or not), they also have to supply the original (reconstituted or not) and any variations in between.

While they seem here to have been able to reconstitute part of it, they obviously cannot provide all that is required to fully comply with the s77/78 request.

Hence, at this point, it is unenforceable.

Hi,

yes .....Thanks I thought that was the case that it is not enforceable!

If this is the case any suggested best actions, as it is already nearly 6 years in a defaulted state, so not much to lose

Bootinbull

fermi wrote: »

As said, it's not going to become statute barred if you have been making payments or acknowledged the debt between then and now.

Do you actually mean that the debt will drop off your credit files?

Assuming defaulted in Nov 2006, then yes, the account and default would be removed from your credit files in Nov 2012.

The only way it could go back on would be if they got a CCJ, which at the moment they seemingly admit they cannot do.

OK yes I understand, that it will not become "statute barred" because of the CCCS payments, but it will be removed from my credit files in Nov 2012, if no CCJ can be in forced
Which appears very unlikely by their own admission