RBS CCA not furnished - dispute as to opening date of card and need for submission of CCA

[letsBhonest]

Dear All,


Thanks once again for all your wisdom and support.

I would like to check in with you about a situation that has arisen with regard to RBS and my request for a CCA for my credit card account as it is an account that inexplicably changed numbers and card provider over the years.

As a little bit of background informantion I was a full time student until the middle of 1985 and was only employed for the first time in July 1985. I asked RBS for a CCA for this card - definitely applied for after that date and was fobbed off with a letter stating that as the agreeement was from 1984 they are not required to furnish me with the document.

They contend that for accounts opened prior to 19 May 1985 they do not have to furnish me with an agreement. I wrote back pointing out that I had done 2 degrees and was a full time student living on a grant until July 1985 at which time I was employed and applied for my first credit card with another bank a few months after that once in stable employment. Their card was a later agreeemnt.
I had a reply to my letter - which was sent as a reply to my "complaint “ in which they now state that it falls outside of the time limits set by the Financial Conduct Authority for them to review complaints. This was not a complaint but a valid request for a CCA.

Should I send them an SAR? Will the OCD require them to send me one by law?

I am attaching a diary with all the info I have.

[Type of account - RBS credit card
Date commenced Commenced around 1985/6
Approx balance around £8749
Date last paid last full payment in February 2022
on self managed payment plan
Status - in arrears - payment plan up to date

[Roger]

Always worth searching AAD especially about 1984 CCA
Read this post by MisterK
https://all-about-debt.co.uk/forum/d...84#post1507084

That post is talking about a Barclaycard and the key date of 19 May 1985!
But you refer to ".. an account that inexplicably changed numbers and card provider over the years .." which may well have been a UPGRADE that would have superceded the old agreement.

I think the opinion and recommendations by MisterK earlier are pertinent to your Case!
Read what Never-In-Doubt wrote in my Diary!|
https://all-about-debt.co.uk/forum/d...90#post1308890

".. s.78 was brought into force on 19.5.1985. Schedule 3 states that "s.78 applies to an agreement made before 19.5.1985 where the agreement would have been regulated agreement if made on that day". Under regulation 9 of the copy documents regulations, it specifies that in the case of an agreement made before 19.5.1985 it is sufficient to supply a copy of the current terms which thus acts as a true copy. Obviously only for s.78, not for court (CPR applies). .."

Here there is a distinction between s.78 purposes only! NOT for Court!

I hope this helps you with explainations.

[The Tech Clerk]

RBS use to issue 2 x credit cards = 1 x master card and 1 x visa card to the one holder, in early 80s in years later they changed to one card (guess what records lost??) I challenged them to prove existance of such card? they had no record????????????? I gave them the card numbers still not traced>

[letsBhonest]

Hello Roger, yest, I did find similar advice but the key to this is that the agreement could not predate 19 May 1985 or they would be giving extensive credit to an unemployed student on a grant. Not responsible practice and in my case not true. I believe it is just RBS deflecting my enquiry in a misleading way. the only card I possessed at that time was a cheque guarantee card. From memory I was with Williams and Glyn who were taken over by RBS in 1984/5

[The Tech Clerk]

williams & Glyn was my old bank

[Roger]

Hello Roger, yest, I did find similar advice but the key to this is that the agreement could not predate 19 May 1985 or they would be giving extensive credit to an unemployed student on a grant. Not responsible practice and in my case not true. I believe it is just RBS deflecting my enquiry in a misleading way. the only card I possessed at that time was a cheque guarantee card. From memory I was with Williams and Glyn who were taken over by RBS in 1984/5

Looks like Crass manual records doesn't it.
Normally a SAR is something you would hold back on.
BUT there is little point in sending a S.78 with their existing response (which should be on their data records!) so a DSAR here places them in Law on the spot doesn't it!
To supply ALL DATA they hold TO DATE.
Now that would give you a time and Date stamp TO DATE wouldn't it of their Past records.
Could be very useful at some later date! Also you know that as Never-In-Doubt pointed out ".. not for court (CPR applies).."

And you do need to be able to flesh out your Diary records (for your own purposes).
A SAR recorded and sent is probably a good idea , everything in writing. Don't get sucked in to legal ping pong! See what they hold!

[letsBhonest]

Agreed! Please enlighten me as to CPR applies?

[Roger]

Agreed! Please enlighten me as to CPR applies?

The s.78 is for CONSUMER information purposes.
Never-In-Doubt
Civil Procedure Rules
Civil - Civil Procedure Rules (justice.gov.uk)

I had a HSBC CC with issues and lost before coming to AAD. But as Never-In-Doubt in doubt pointed out ".. We were here 18 months ago & could have helped you..."

So you are in the right place

SAR The Tech Clerk here https://all-about-debt.co.uk/forum/d...95#post1545295
Subject Access (SAR) - Typical Request - NOTE:- adjust deleting £10.00 etc (free now) they have 30 days to respond to you with all paperwork letters etc they hold on you, get free proof posting from royal mail and keep copies in date order in a file for easy reference and update diary of events etc....

[MisterK]

I agree that a DSAR request is a good thing to do here. You will most likely find that what you get back will contain very little reference to the account in those earlier years. If it does refer back to an earlier decade then it would be interesting to see exactly what it says. The account probably has changed numbers over the last 35 years or so and all traces of any such changes have most likely vanished. If you have managed to preserve any statements etc and can get hold of any previous account number then be sure to keep that information to yourself as it could be very useful if you were ever unlucky enough to receive a claim.

If challenged to show that the account you currently have was the exact same as the one that RBS say you opened before 1985 then RBS would probably find it extremely difficult to prove this and the DSAR will likely confirm.

In any case it's probable that there was at least one upgrade of some kind during that period which resulted in new terms and conditions. It's also quite likely that you were never asked to sign any document to agree to new t&c and if so that the document was probably insufficient and now non existent.

You don't really want to spend much time into escalating this into any serious argument or discussion as they are not going to want to put any time into clarifying the matter even if they were able to. It's also not in your interests for them to try and do that in any case. Unless you signed a new agreement with them for this account in recent years then they are not likely to succeed with a claim and even then the agreement is likely to be faulty unless it was fairly recent. And yet again, it could be recent AND defective in some way or other.

So if it were me I'd write and ask for the DSAR for your own peace of mind, and also check your own paperwork and memory in case you can add anything to it. Then just lie low and remember that it's always much better to be in a defensive position than it is to mount an attack, especially with something like this. The reply you had to the s.78 request is likely to be the best they can ever do and if it were me I'd just file it away. Only if you receive a claim or serious threat of a claim should you then be concerned. Remember also that there are likely to be very many easier targets.

[letsBhonest]

Sounds like an SAR is the best way forward as it will show them that there is no foundation for the claim. I will do that next and see what it yields.

[Pat]

Could you have had a student bank account? Back in the day I had a student account with Barclays that came with a cheque guarantee card/barclaycard and I was on a student grant.

I know my older sibling had a similar account with HSBC and they went to uni in 1980.

[MisterK]

You are still paying I think which means that RBS will be quite happy with the status quo and so there is currently no problem for them at all. There is no way you can get anything like a declaration of unenforceability (or anything similar) as that was tried and ruled out in in a test case about 10 years or so ago and they will have no incentive at all in co-operating with you on that. If you had received a letter in response to your s.78 request stating that they couldn't take you to court because the agreement was missing or defective then all well and good, you would look after that letter and have nothing at all to worry about. If you chose to do so then you could stop paying safe in the knowledge that they couldn't succeed with a claim as they had already admitted they would fail. You could still be harrassed however as there is nothing to stop them pestering you if they chose to do so. In practice it is likely that the debt would be sold on.

But as they have sent you the pre-1985 response then even if the account was post 1985 the best thing to do at this stage might well be to see what you can find out with the DSAR but not communicate any further without first getting some further advice and comment here. If you choose to stop paying then your account would automatically be defaulted after a while and then show as such on your CRA files whatever the result of any correspondence, good or bad. You would obviously have to weigh up the consequences of having an impaired CRA rating for six years in any decision to stop paying.

It's nearly always good advice to avoid communicating as you could harm your ability to properly defend any future demand for payment by doing so. But requesting a CCA or DSAR using the carefully worded template letters available on the forum is safe to do.

If you come back to the forum on this when you eventually get the SAR and can see what they have in their records then you could probably get some further comment on your likelihood of ever receiving a claim - but really with an account this old you aren't very likely to have too much to worry about.

[letsBhonest]

Many thanks for your opinions. I will follow through as suggested and report back. So I send the SAR by registered letter and request the documents in their paper format? I see that excessive requests may be refused so I thought I would request the agreements and correspondence on file and the full history of the account? It seems to have had 3 different levels in its lifetime as it was processed through upgrades.

[MisterK]

Use the AAD template letter, try not to change anything as it has been carefully constructed. It should ask for everything they have on you so there is no need to make special requests. I don't see that you'll get anything extra by doing so and once again, you might be saying something you shouldn't and your letter will be on file. There is no need to use registered post or anything like that for the DSAR. With the s.78 request there is a time limit for a reply so proof of sending is more relevant there. You will probably get an acknowledgement after a few days advising you that it might take a few weeks. Expect to have to wait a month. Yes, ask for a paper copy unless you particularly want a disc. A moderator will advise how to get the template letter if you don't already subscribe. If you haven't already done so, it might be an idea to send the response to your s.78 request to the site administrator Never-in-Doubt for a more qualified view, although I think I have a reasonable grasp of what you've had and where you're coming from.

[Still Waving]

You don't need to send a DSAR by registered post, but I would consider at least getting a proof of postage from the post office, so that you have a record of sending.