Lowell and Barclaycard recontructed CCA - enforceable?

[Drunkenfrog]

Hi all,

 

I am looking for a bit of guidance. I have attached Photos of all letters.

 

I will start from the beginning.... once upon a time-

 

 

 

• On the 7th of April I received a letter from "Hamptons Legal" saying they are the pre-litigation department of "Lowell".
  
• They were asking for an immediate payment to "Red Debt Collection Services" please find a copy of the letter bellow -
  

As you can see I have 3 different company names on that

• I replied with a request of CCA to "Hamptons Legal" on the 15 of April please find copy of letter bellow-
  
• On the 23rd of April I got confirmation from Lowell of the request. And they informed me they were contacting my original lender.
  
• On the 24th of April i got 2 letters from Lowell;
  

1. Said was exactly the same as the one i received on the 23rd of April
   
2. Said they had been in touch with Barclaycard and they were trying to retrieve the document from their archives
   

• On the 6th of May i received another letter from "Lowell", saying exactly the same thing as number 2 letter i got on the 23rd of April. Copy of letter bellow
  

• On the 12th of May "Lowell" got in contact again with me with another letter this one saying they are still waiting on Barclaycard,
  
• though this letter was slightly different to the ones i received on the 23/04 & 06/05.
  
• As this one said under the We're Here to Help heading
  
• - they won’t write to me again until they have a copy of the agreement (helping my filling situation defiantly). copy of letter bellow
  

• Then on the 5th of June "Lowell" contacted me saying that Barclaycard couldn't get a copy of my credit agreement
  
• due to the length of time since the account was opened with me.
  
• So they were closing my account and not making any further contact unless a copy of the agreement
  
• is produced by Barclaycard. copy of letter bellow
  

I then didn't hear from Lowell till today 17th of July. This is what i received -

I won’t short hand any of the document as i don’t want to mislead anyone and get the wrong advice

so il take a couple of key quotes out of it and you can find a copy of it bellow.

 

"Your Original creditor has provided us with the attached reconstituted copy of your credit agreement"

"which they confirm you would have signed prior to the granting of credit to you"

"we are not obliged to send you an exact copy of your signed agreement"

 

"we are also enclosing copy of statement for your perusal and retention"

"the outstanding balance show on these statements does not match that of the outstanding balance. This is due to the fact that they are only up until 15th December 2011 and our account was opened on the 2nd of May 2012."

 

"As we have now fully satisfied out obligations required follow your request under section 77/78 of the consumer credit act 1974, we look forward to receiving your proposals for settlement of the account within the next fourteen days"

 

Ok so the document Barclaycard have sent me -

 

 

To start with the documents are dated the 12th of May 2014. So Lowell should of had them before sending me letters saying they where closing my account unless a copy of the agreement was found.

 

It is then a cover letter then a contract followed by copies of statements. Photos of the documents are attached.

 

The cover letter is attached -

 

The contract has the right to cancel paper with it bizarrely an other than that it is blank tho in small print at the top

it has my name and a old address. i have taken photos of it and attached them.

 

The statements are card statements from Dec 2010 to Dec 2011

 

---------------------------------

 

Sorry for the bombarding of information i just figured i would rather get it all down in one hit then keep uploading a document here or there.

 

So what do I do now? In my eyes what they have sent me is a complete load of rubbish?

 

But I am no expert at this so I am hoping you guys can help me out.

 

Thanks in advance for all your help!!

 

If i have made any silly mistakes please let me know

David

[Bandit127]

The last time I checked was a few years ago, but back then a reconstruction was sufficient to comply with a S77/78 request. However, it has to be a true copy of the original - they can't just make it up. And it still has to contain all the prescribed terms and be legible.

 

However, they cannot enforce a court judgement without a copy of the original signed agreement for debts started before April 2007. They can still demand the money, report on your credit file and (and back then) they could still take you to court.

 

I am not sure they can still take you to court. I see a lot of informed posters here and on MSE telling people they can't even take you to court these days. Perhaps the OFT guidance about not doing so has turned in to a FCA rule..?

[theoldrouge]

fca guidance-

Guidance

 

CONC 13.1.2

01/04/2014

FCA

 

(1) The FCA takes the view that sections 77, 78 and 79 of the CCA should be read in a way that allows the borrower or hirer to obtain the information needed in order to be properly informed without imposing unnecessary burden on firms.

(2) The statement referred to in the relevant section must be prepared according to the information to which it is 'practicable' for the firm to refer. In the FCA's view, this means practicable at the time of the request and includes information which can reasonably be obtained from third parties.

(3) Firms should take steps to ensure that information is preserved and kept available to be used to give information to a borrower or hirer.

 

 

The request and the duty to give

 

CONC 13.1.3

01/04/2014

FCA

 

(1) A request must be from or on behalf of the borrower under sections 77 and 78 or from or on behalf of a hirer under section 79. This would include a friend or relative, a solicitor, a claims management company or other third party. Under the Data Protection Act 1998 and the Data Protection Principles, the lender or owner is not allowed to reveal such information to a third party without the authority of the borrower or hirer. It should therefore satisfy itself that the person making the request has proper authority to obtain the information. If a copy of such authority is not enclosed with the request, the lender or owner is entitled to reply by asking to see the authority.

(2) Where there are two or more borrowers or hirers and the request comes from one only, it must be nevertheless complied with, and the response must be given to both (or all) borrowers or hirers.

(3) If the recipient considers that another person is the lender or owner, the recipient should either inform the applicant of who it considers is the correct recipient or pass the request on to that person.

(4) In accordance with the sections referred to in (1) the firm must 'give' a copy of the executed agreement and any other document referred to in it and the required statement. In the FCA's view, sending a copy of them by ordinary second class post will suffice. Guidance on what constitutes a copy is given below and found in the case of Carey v HSBC Bank plc [2009] EWHC 3417 (QB).

(5) The duty under the relevant section does not apply if no sum is, or will or may become, payable by the borrower or hirer under the agreement. This is irrespective of whether the agreement may have been terminated.

 

 

The copy agreement

 

CONC 13.1.4

01/07/2014

FCA

 

(1) The copy of the executed agreement should be a 'true copy' of the original. However, as confirmed in the case of Carey v HSBC Bank plc [2009] EWHC 3417 (QB), in this context the term 'true copy' does not necessarily mean a carbon, photocopy, microfiche copy or other exact copy of the signed agreement. There is no obligation to provide a copy which includes a copy of the signature.

(2) The firm can reconstitute a copy. It can do this by re-populating a template of the relevant agreement form with the details of the specific agreement taken from its records. If the firm does provide a reconstituted copy, it should explain that that is what it has done, to avoid misleading the customer that this is a contemporaneous copy.

(3) The terms and conditions should be those applicable at the time the agreement was executed. The name and address at the time of execution must be included.

(4) The reconstituted agreement should contain a heading prescribed by the CCA and any relevant cancellation notice.

(5) If the reason why no copy is given in response to a request under these sections is that there never was an executed agreement, the firm should acknowledge this in its response.

(6) If the agreement has been varied, the duty is to provide not only a copy of the agreement as originally executed but also eithera) a copy of the latest variation given in accordance with section 82(1) of the CCA relating to each discrete term of the agreement which has been varied; or,

(b) a clear statement of the terms of the agreement as varied.

 

(7) Further, section 180(1)(b) of the CCA and regulation 3(2) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 expressly allow certain matters to be omitted from the copy. There may be excluded from the copy of the executed agreement to be provided under these sectionsa) any information relating to the borrower, hirer or surety, or information included for the use of the lender or owner only, which is not required to be included by the CCA2 or by2 any regulations made under the CCA as to the form and content of the agreement;

(b) any signature box, signature or date of signature;

© in the case of pawn agreements, any description of the article taken in pawn.

 

 

 

The statement of account

 

CONC 13.1.5

01/04/2014

FCA

 

If the firm possesses insufficient information to enable it to ascertain the amount and date of any sum which is to become payable, it is sufficient to indicate the basis on which they would fall to be ascertained.

 

Failure to comply

 

CONC 13.1.6

01/04/2014

FCA

 

(1) Failure to comply with the provisions means that the agreement becomes unenforceable while the failure to comply persists, and the courts have no discretion to allow enforcement.

(2) In such cases, a firm should in no way, either by act or omission, mislead a customer as to the enforceability of the agreement.

(3) In particular, a firm should not in such cases either threaten court action or other enforcement of the debt or imply that the debt is enforceable when it is not.

(4) The firm should, in any communication or request for payment in such cases, make clear to the customer that although the debt remains outstanding it is unenforceable.

(5) In the judgment of McGuffick -v- The Royal Bank of Scotland plc [2009] EWHC 2386 (Comm) Flaux J held in a case under section 77 of the CCA that passing details of a debt to a credit reference agency and related activities do not constitute enforcement under the CCA. He also held that steps taken with a view to enforcement, including demanding payment from a claimant, issuing a default notice, threatening legal action and the actual bringing of proceedings, are not themselves 'enforcement' under the CCA. On the other hand he confirmed that the actions listed under sections 76(1) and 87(1) of the CCA did amount to enforcement notwithstanding that some of the actions 'less obviously' amounted to enforcement. These actions are demanding earlier payment, recovering possession of goods or land, treating any right conferred on the debtor by the agreement as terminated, restricted or deferred, enforcing any security and terminating the agreement.

(6) While Flaux J agreed with the decision of HHJ Simon Brown QC (sitting as a Deputy High Court Judge) in Tesco Personal Finance v Rankine [2009] C.C.L.R. 3 that commencing proceedings was not enforcement, but a step taken with a view to enforcement, both he and HHJ Simon Brown appear to have been drawing a distinction between commencing proceedings and entering judgment in those proceedings.

(7) This guidance deals only with the question of whether an agreement is unenforceable in relation to sections 77, 78 and 79 of the CCA. A lender's rights to enforce an agreement may be restricted for a variety of reasons, by the Act, by or under the CCA and by virtue of the general law.

(8) However, where a firm is aware that an agreement is unenforceable because of non-compliance with an information request under section 77, 78 or 79 of the CCA, a firm should make it clear when communicating to a customer about a debt that the debt is in fact unenforceable. Failure to do so, in that case, would in the FCA's view unfairly mislead the customer by omission. Any communication that implies expressly or otherwise that a debt is enforceable when it is known that it is not, would be misleading. One way to avoid this would be for the firm to explain to the customer the full meaning of 'unenforceable'.

[theoldrouge]

when did you open your account?

[Bandit127]

Thanks for digging that out and posting it up.

 

It is a shame that the term "should" from the OFT guidance didn't make it in to "will" in translation to the FCA rules (in this context).

 

 

fca guidance-

Guidance

<...snip...>

[dx100uk]

can you please repost your attachement after checking them please

pers details still showing.

 

it this debt on your credit file ?

 

dx

[Drunkenfrog]

Hi,

 

sorry about my timely reply, I am unsure when i took out the agreement i think it was about march 2007 time.

 

Yes it is on my credit file.

 

sorry again about the attachments i didnt see that bit at the top of the recon CCA.

 

thanks for you help

 

Dave

[dx100uk]

what is the default and the opening date on the credit file

 

 

that will tell you when you took it out

 

thata a recon agreement

that's all you'll ever get out of Barclaycard.

 

if the card is pre apr 2007

that wont wash in court.

 

those letters you have a std threat-o-gram

esp the court one

read it properly.

 

oh i'm scared of RED:lol:

[slick132]

Hi DF,

 

So are the saying firstly that there's no credit agreement and then written after saying here's a recon so pay up ?