alanfromderby HFC - CCA(1974) Disclosure Offence Committed

[alanfromderby]

Opening salvo in post tomorrow to Horwich Farrelly, and Data Protection Act request will be close behind it to HFC. This will be another challenge to the statute of limitations argument as the loan was defaulted in 1999. However, I cannot believe that a court would accept an arugment that a loan can be enforced by one party, whilst the other party cannot challenge its validity.

This is the letter to HF:



Horwich Farrelly
24 Mount Street
Manchester
M2 3TA

2nd May 2006


Dear Sirs,

Reference: Robinson Way (Ex HFC Bank)
Your refs: xxxxxxxxx and xxxxxxxxx

Please be aware that I no longer acknowledge these debts to your company, and therefore require you to supply the following documentation before I will correspond further.

Firstly, you must supply me with true copies of the agreements you refer to in these matters. This is my right under the legislation contained within section 77 (1) and section 78 (1) of the Consumer Credit Act 1974 - your obligation also extends to providing statements of account. I enclose a £2 postal order in payment of the statutory fee for each account.

I also require that you supply signed true copies of the deeds of assignment of the above referenced agreements.

You are reminded that you are obliged to supply these documents, whether you are the original creditor or not, under section 189 of the CCA 1974.

As you are aware, a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA and therefore is a complete defence to any court claim that is issued.

Take note at this stage, that any legal action you may contemplate will be both vigorously defended and contested. I am now initiating investigations with HFC Bank into the validity of the original amount that was claimed to be owed, and will be in contact with you again in due course. In the meantime please be aware that I consider this matter to be “in dispute”.


Yours faithfully

[alanfromderby]

It would seem that Horwich Farrelly have totally ignored my letter, and have used the £2 postal order to credit each account with £1!!

We shall see - the clock is ticking.

[alanfromderby]

I take it all back - received the following from Horwich Farrelly this morning:

With reference to your letter which was received by this office today, please acknowledge the following:-

1. This office has requested copies of the original agreement from HFC Bank PLC, upon receipt these agreements will be forwarded to your address.
2. Please note that the above two accounts are on hold whilst we await the above request.
3. Finally please acknowledge that because we are relying upon a third party to provide us with this information, this office is unable to give a time estimate for the completion of your request.


This is excellent news. Effectively, if HFC manage to supply the CCA information to Horwich Farrelly - they can hardly claim not to be able to comply with my Data Protection Act request.

Of course, if they cannot supply a copy the original agreement to Horwich Farrelly, it is game over anyway.

That puts me in a win, win, situation then.

[alanfromderby]

Quick update.

This is developing nicely, I have today had a letter effectively saying that the £10 sent to HFC for the Data Protection Request, has been credited between the two accounts. Very interesting that this is exactly what happened with the payment for the Consumer Credit Act Request.

Horwich Farrelly, the debt collection agency involved, have now missed the 12 working day deadline. This means they are currently in default. They have until June 3rd to provide a copy of the two credit agreements, otherwise they will have committed an offence.

The clock is ticking.

[alanfromderby]

So, a month has now passed by, and Horwich Farrelly have failed to provide the information requested under the Consumer Credit Act. It is also worth noting that I have sent a Data Protection Act request to HFC and they now have just 9 days left to comply.

This relates to two loans, the outstanding balances being £7709.48, and £2686.33. Of course these figures include a large amount of unlawful charges - but without any information forthcoming, I am unable to assess the true level.

However, Horwich Farrelly have now committed an offence under the CCA, and until they supply the information I have requested the debts are unenforceable.

Should HF decide to try enforcement action for these two debts, they will find themselves being reported to Trading Standards, and having to explain themselves in court.

Of course, should HFC decide to seek to enforce the debt, they would have to provide the Data Protection Act information, and face action against them over the unlawful charges - and whilst we are in a litigious frame of mind, how about an action for mis-selling Payment Protection Insurance which proved to be useless.

So, 9 days and counting.

[chrismc]

So Alan as you say you are in a win win situation, BTW PPP is a complete waste of money, it is very very rare you can ever claim on it due to the tons of small print included oin most of those plans, and it makes these companies even more money than the original loans and credit agreements in most cases. Not only that, but credit brokers used to get a big kickback in commisions if they coersced the customer in to taking out PPP agreements/plans.

Chris

[alanfromderby]

No response from HFC to my Data Protection Act request with just two days to go - they now have to get the information to me by Monday.

With no information forthcoming from HFC, and Horwich Farrelly having already committed an offence under the Consumer Credit Act, I am counting the hours before I have them cornered, and they are unable to enforce these two debts.

Both these loans had a large number of charges added, along with loads of interest - and were supposed to be backed up by payment protection insurance, which turned out to be faulty. If they are unable, or unwilling, to provide me with the data I need in order to uncover the extent of any unlawful content, then they only have themselves to blame.

As from Monday, if they wish to pursue these loans, then they will have to provide the original paperwork, comply with my Data Protection Act request, and explain before a District Judge why they could not meet the statutory deadlines.

37 hours to go!!

[alanfromderby]

No information from HFC this morning. That means they have not complied with my DSAR, also Horwich Ferrelly have committed an offence under the CCA 1974 by failing to provide the documents requested within one month.

So, another one ticked off.

[caro]

Sorry for being thick Alan, just trying to get my head round this. I need words of one syllable. Does this mean you don't have to pay your loans off as they have failed to comply with your requests.

If this is the case, can they get it overturned for some spurious reason (thinking of Abbey losing Whizzkid and NeilP's court claims, and then trying to enter a defence after getting judgments overturned). Are they likely to try to take you to court for non-payment, and then you tell them why? Or is this really completely ticked off.

[alanfromderby]

Originally Posted by caro

Sorry for being thick Alan, just trying to get my head round this. I need words of one syllable. Does this mean you don't have to pay your loans off as they have failed to comply with your requests.

If this is the case, can they get it overturned for some spurious reason (thinking of Abbey losing Whizzkid and NeilP's court claims, and then trying to enter a defence after getting judgments overturned). Are they likely to try to take you to court for non-payment, and then you tell them why? Or is this really completely ticked off.

Background:

These loans were subjected to numerous charges, and additional penalty interest, which I would like to challenge. Also I would like to challenge the mis-selling of payment protection insurance which, when I tried to make a claim due to redundancy, suddenly became invalid.

HFC eventually sold the debt to a Debt Collection Agency.

In order for me to challenge the debt I sent a statutory request for documents as per the Consumer Credit Act to the DCA. They said they would have to get the information for HFC.

After 12 working days the DCA became "in default", and cannot seek to enforce the debt whilst that status remains. Therefore, I am under no legal obligation to pay them.

After one month, the DCA had committed an offence.

At the same time I had sent a Data Subject Access Request to HFC - which they have now defaulted on.

What can happen now:

If the Debt Collection Agency now want to enforce the debts they must firstly obtain the documents from HFC and send them to me.

I will then tell them that they have committed an offence under the Consumer Credit Act and that if they persist with trying to collect this debt I will raise this with Trading Standards, and the FSA.

I will also inform then that I believe the original debt contained unlawful charges, and I wish to seek redress over the faulty payment insurance.

Should they still decide it is worth pursuing the matter through the court, they will first have to explain to a Judge why they failed to provide the documents within the CCA time limit - and seek permission to proceed with the action, they will also face a counter claim for HFC to comply with the Data Protection Act, compensation for mis-sold payment insurance, and an estimated refund of charges and penalty interest.

That will turn out to be a VERY expensive legal action - especially since it will involve both the Debt Collection Agency and HFC, it will also put them into the very difficult position of having to explain their actions - and ultimately (if they want to stand a chance of winning) provide evidence of how their charges are calculated!

I think that I can safely say that these debts are as close to being unenforceable as is physically possible.

Of course....if they do come back to me with all the relevant evidence, and show me exactly how thay have calculated it, and deduct all the amounts that were unlawful and the money that should have been paid through the insurance, then I will happily agree to pay them what I owe them. Of course it will be at a monthly amount that I can afford.

It ain't going to happen!!

[mahala]

Well, apart from the insurance, my situation with GE Capital and Aktiv Kapital is exactly the same - GE Capital have failed to comply with the Data Protection Act request, and come Monday, AK will have committed an offence, as a month will have gone by with no response whatsoever to my CCA request.

I've been watching your progress carefully Alan, and you've been a great help! I'm glad things have gone well for you.

AK also out a default on my credit file - if the debt becomes unenforcable, as it seems it will, how do you think I'll stand re: getting the default notice taken off?




(Gosh isn't it exciting - getting back control of your financial situation?)

[alanfromderby]

It would be worth having a good read through the "Data Protection Act/Default" forum which is in the "Legalities" section. You should be able to take action under the Data Protection Act if they refuse to remove it.