Egg No Agreement Default Removal

[wednesday1867]

The story goes back nearly a year with my CCA request on my Egg Loan.

Egg replied with 2 documents, neither look like agreement and neaither are signed by myself.

Anyway, Egg put the account on hold, have not had any requests for payment, howver they did transfer/sell the debt to Hillesden Securities, who i also CCA'd, then it ended with Direct Legal Collections. DLC sent me monthly updates on the status of the search for my agreement.

March of this year i received a letlet from DLC, which read:

1. Egg Banking PLC has been unable to provide a copy of the documentation you have requested under the Consumer Credit Act 1974.

2. The above account has now been returned to Egg Banking Plc and any further correspondance will need to be forwarded directly to our client.

So it seems Egg do not have my agreement and the loan is now truly unenforcable.

Egg have however issued a default notice on me from when i entered a DMP (2006), now i have confirmation or virtual confirmation there is no agreement, i would like the default and all history of this account removed from my Credit File.

I imagine, this should be straight forward, or is a long battle likely? I must admit Egg have been the best, with putting the account on hold, none of the Banks have done this then they have defaulted on CCA requests.

Is it a case of just penning a letter informing them, as they don't have any agreement, due to Data Parotection Act, they dont have my permission to discuss my data with anyone and the default notice they applied, should be removed as there is no agreement?


Thanks

[wednesday1867]

This is the first draft of a letter i have come up with, anyone pass any advice on it and any other arguments that back me up?

I sent Egg, a legal request under Section 77-79 of the Consumer Credit Act 1974 (CCA) nearly 12 months ago now, it was dated XX June 2007. I did receive a document from Egg dated 23rd August 2007, as this was unsigned and in line with Section 61 form the CCA 1974:

61.—(1) A regulated agreement is not properly executed unless
(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner.

From this time on, you then passed my account to Hillesden Securities and finally to Direct Legal & Collections, even though Section 85 of the CCA 1974 states:

85 (1) Whenever, in connection with a credit-token agreement, a credit-token (other
than the first) is given by the creditor to the debtor, the creditor shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it.
(2) If the creditor fails to comply with this section—
(a) he is not entitled, while the default continues, to enforce the agreement;
and
(b) if the default continues for one month he commits an offence.

I believe Egg passing my account between the various Debt Collection Agencies, was a ploy to enforce my alleged agreement. Also obviously nearly one year on from my original request, Egg have now committed the offence mentioned in Section 85 2 (b).

Direct Legal & Collections informed me in XX 2008, that Egg, have been unable to satisfy my request and supply me with the required document under Section 77 CCA 1974, which can only show that there is and never has been an signed agreement, leaving this alleged debt totally unenforceable even in a court of law as per Section 127 3 of the CCA 1974:

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

As I firmly believe no legal agreement has ever been entered into, Egg illegally placed a default notice on my credit file and are still discussing my data with the three main credit reference agencies, namely, Call Credit, Equifax and Experian.

This is a request to cease processing my data with all third parties in line with Section 10 of the Data Protection Act:

10 Right to prevent processing likely to cause damage or distress
(1) Subject to subsection (2), an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the ground that, for specified reasons—
(a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and
(b) that damage or distress is or would be unwarranted.

I request you also remove the default notice you placed on my account and all negative markers you have registered in relation to this alleged account. I will expect written confirmation of your compliance of my request within 21 days of this letter. If you fail to respond to my request, I will be forced to report Egg to the Information Commissioner, Office of Fair Trading and Trading Standards.

If you fail to do this I will also be seeking the relevant compensation for discussing my data without my consent.

Please be advised if you try to pursue this alleged debt, I will continue to use the lack of any signed agreement regulated by the Consumer Credit 1974 as my full defence.

I look forward to receiving written confirmation that my requests have been completed and all record of this alleged account has been removed from my Credit File.




Yours Sincerely

All guidance gratefully received

[wednesday1867]

Posted today, lets see what they come back with

[steven4064]

Keep us posted wednesday - what you sent looks Ok. THe main thing is to rattle the cage

[wednesday1867]

Will do, hopefully they will just agree and wipe it off, but lets see eh?

[wednesday1867]

Nothing heard as yet, i'm just wondering with Egg's time running out next week.

What are the costs involved in taking them to court to get them to remove the default? I can only see prices for money claims?

Does anyone know where i can find this info, or how much is it to start the claim?

Thanks

[steven4064]

On what basis are you ging to ask a court to make them remove the default?

Cost would be £150 (non-money claim) Court fees

[wednesday1867]

Originally Posted by steven4064

On what basis are you going to ask a court to make them remove the default?

I'll ask hows it possible to default on an agreement, that doesn't exist.

I take it court isn't the way to go to get it removed?

[steven4064]

Without a credit agreement, the default registered with a CRA is unlawful under s85(1)(a) (and s78(6)(a) - which says exactly the same thing).

Without a crdit agreement, there cannot be a default, therefore the marker on the credit file is incorrect.

You can request a court to order its removal under s14 of the Data Protection Act 1998 and you could request compensation under s13

13 Compensation for failure to comply with certain requirements

(1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.


(2) An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if—
(a) the individual also suffers damage by reason of the contravention, or
(b) the contravention relates to the processing of personal data for the special purposes.


(3) In proceedings brought against a person by virtue of this section it is a defence to prove that he had taken such care as in all the circumstances was reasonably required to comply with the requirement concerned.



14 Rectification, blocking, erasure and destruction


(1) If a court is satisfied on the application of a data subject that personal data of which the applicant is the subject are inaccurate, the court may order the data controller to rectify, block, erase or destroy those data and any other personal data in respect of which he is the data controller and which contain an expression of opinion which appears to the court to be based on the inaccurate data.

You might be interested in this case RICHARD DURKIN v. DGS RETAIL LIMITED+HFC BANK PLC, 26 March 2008, Sheriff J K Tierney (It is a Scottish sheriff's court case so it doesn't set a precedent but it could be referenced 'for guidance')


You could write to Egg again, this time heading the letter, "Letter Before Action" and give them 14 days to comply before you take them to court. You could give them the link above 'for their information'


The damage you have suffered is that your credit rating has been adversely affected and you have therefore not been able to avail yourself of credit at advantageous rates of interest. You estimate that this has cost you £xxx since the deafult was registered.

[wednesday1867]

Thanks for that, i'll use that information with HSBC too, exactly same situation with them.

I'll have a look over that link tomorrow.

[wednesday1867]

Steven, is there another organisation i could go to rather than court to get the default removed?

Also how do you work out compensation? I don't know if i could claim it, doesn't seem right, maybe if this was the only default on my file, but due to the circumstances at the time, i received one or two from other lenders, so i think i'd feel a bit cheeky to do it......:o

Obviously i could tell Egg im going for compensation, but i'd be more than happy to get this ruled unenforcable and the default removed.

Not sure which way to go with this, Egg have had 14 of the 21 days i gave them to get back to me and im yet to receive anything from Egg to date.

[steven4064]

The FOS is the alternative but they seem very reluctant to interfere withdefaults - I don't know of anyone that has been successful that way. Even through the courts it is usually easier if you are also reclaiming unlawful charges as that gives you an extra lever.

On compensation - what you sy is 'compensation at the court's discretion'

The letter in post #2 counts as a preliminary request. You could send them a carefully crafted LBA, threatening to claim compensation under s13 and an injunction under s14 and see what happens. Wait until the2q days is up though, if that's what yougave them

[wednesday1867]

Thanks, i will give the LBA some thought next weekend.

Never know, i may get a reply