Hi all,
I am currently undergoing a request for my ccas in relation to a number of accounts with barclaycard.
Having wrote requesting the documents enclosing the fee I received a photocopy of t&cs. I wrote to them again stating that my request for a properly executed cca remained outstanding, only to receive their standard three page letter about varied agreements, how the act defines executed agreements and how they have satisfied their obligation etc etc. I sent the following letter in reply:
Re: Your letter of 30th September.
Thank you for your letter of the above date, the contents of which have been noted.
I would like to raise a number of inconsistencies in the information provided.
In paragraph 4 you refer to section 7 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983. Whilst your comments are mostly accurate in isolation, I would draw your attention to paragraph 1 of section 7 which states:
(1) Where an agreement has been varied in accordance with section 82(1) of the Act
The relevant section of the act being:
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, Section 7 paragraph 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 either--
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.
In paragraph 7 of your letter you refer to a high court interpretation of an executed agreement. I However, I feel that the Consumer Credit (Agreements) Regulations 1983 offer a more than adequate description of such an agreement and doubt that any ruling would vary the provisions of these regulations.
In section 9 you refer to a copy of an application as evidence of signature. I am confused by this as you have not sent me a copy of any part of an application form. In fact you did not send me any document bearing my signature, in copy or otherwise.
With regard to the contents of the final paragraph of your letter, and giving due regard to the above, it remains my belief that you have failed to comply with either the spirit or the intention of the relevant legislation.
In summary, I cannot accept your explanation relating to the documentation supplied in response to my s78(1) CCA request. It remains my contention that Barclaycard are still in default against the unabridged requirements of the act.
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 Barclay card continue to enforce the alleged agreement in violation of s78(6) of the act 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 advisors, should this be appropriate.
I look forward to your reply.
I received a short letter in reply stating that they have already set out in detail why they are satisfied that the documents they have provided have discharged their obligastions under the act, and that they are under no legal obligation to provide any further documentation to me regarding this matter.
From what I have read on other posts what they say may be true but they have still not produced an agreement and most likely never will. I am now unsure on what my next move should be. I ahve not received anything from them since 14th October. I am thinking perhaps a letter stating that as they cannot produce my cca that I acknowledge no debt to them ? And maybe in the mean time send a sar request to be certain they dont have one ? Any help and advise would be most welcome
Thanking in advance
poorguy