car2403 -v- GE Capial Bank (Default removal)

[car2403]

B&Q card that I fell behind with that has been sent to Lewis Debt Recovery for collection - default on my credit file

I'm sending a CCA request off today to see what I can get out of this, hopefully removal if all goes well.

[car2403]

Response from Lewis;

Dear car2403.
GE Capital Bank A/c Number XXX

Thank you for your recent letter. I have enclosed a copy of the Credit Agreement as requested. We have requested a statement of account from our client GE Capital Bank for whom we are working on behalf of. The amount owed has not been sold and is still owed to GE Capital Bank PLC.
The balance owed on this account when passed to ourselves was £X. The balance is now £Xdue to monthly payments of £X being allocated to the account from yourself.
Please do not hesitate to contact us should you require any further information.
Yours sincerely,

And here's the agreement they've included;



Point 9, where the signature has been blocked out reads;

This is a Credit Agreement regulated by the Consumer Credit Act 1974.
Sign it only if you want to be legally bound by it's terms.
Signature(s) of Customer(s);

Now, at first glance all seems to be covered - but, I can't see any date next to the signature and the "Signed for and on behalf of GE Capital Bank Limited" signature box also doesn't have a date. There is a date/time next to the "Application for an additional card" box, but this isn't signed and clearly relates to that box and not the entire agreement, IMHO.

Could this mean that the agreement wasn't properly executed?;

"When you enter into a consumer credit agreement regulated by the 1974 Act, the agreement must be in the proper prescribed form (as set out in the Consumer Credit (Agreement) Regulations 1983, SI 1983/1553). This requirement is designed to protect the debtor, as the prescribed form contains important information and details of debtor protections and remedies under the 1974 Act.

The agreement must also be properly signed by both parties. You are legally entitled to a copy of the agreement (ss.62-63 of the 1974 Act).

If your agreement is not in the proper prescribed form or was improperly executed (signed) it may only be enforced by order of the court (s.65(1), 1974 Act); it may be that the agreement is not enforceable at all (subject to the discretion of the court)."

They also haven't sent a copy of the Default Notice.

I think I'll wait for the statement of account to come through before writing to them to tell them my opinion on this?

[car2403]

In the OFT's document called "Cancellable agreements", (http://www.oft.gov.uk/shared_oft/bus...dit/oft018.pdf) under "Form and content of cancellable agreements"/"Signatures", it states;

Signatures
All agreements are to be signed by both customer and trader, or their representatives,
and the date of signature entered. The customer’s signature and its date must be inside a
box. This box can be of any size and appear anywhere in the agreement, but the wording
inside it must be easily legible and must follow that for the appropriate type of
agreement as set out in Appendix 2. The signature of the trader and its date must be
outside the customer’s signature box. Similarly the signature of any witness, and its date,
must also be outside the customer’s signature box.

[car2403]

Nothing further from the CCA, 12+ days in now - I've paid this month's payment, next one is due 25th September which is the 12 days + 30 day period so I'm still waiting to see what happens with this one...

[car2403]

I sent a s.10/s.12 Surleybonds letter to GE Money about this account on 28 September - just received their response;

GE Money
P0 Box 700
Leeds LS99 2BD

09 October 2007

Dear car2403

B&Q Account Number XXX

GE Money cannot accept that the agreement you signed does not confirm to sections 60 and 61 of the Consumer Credit Act 1974. All GE Money’s agreements are fully compliant with the required legislation and you therefore, have no grounds on which to refuse to make further payments to your account.

[Really, GE Money? So, the standard form of your contract agreements meant that your unprofessional and incompetant Agents (a 17-year old lad in B&Q!) aren't capable of making mistakes and not "dating" your agreements]

You have also referred to Section 10 of the Data Protection Act 1998 and have requested that we cease processing any data in relation to your account with immediate effect.

[At least they acknowledge my request]

GE Money will not be taking steps to cease processing for the following reasons.

[We'll see about that, then]

The right to request a data controller to cease processing data is subject to a number of conditions. Section 10 does not apply where the data subject has given consent to the processor. It is GE Money’s position that as you gave your consent when you entered into the credit agreement with us, section 10 (1) of the act does not apply.

[Completely ignoring the fact that the contract was terminated due to default and that I have no right to withdraw my consent at any time!]

Before you entered into your credit agreement with us, we told you how we intended to use your personal information and we have not made use of your data in a way of which you were unaware.

[Not in dispute - but, is the contract voidable by the Court as it isn't in the right form/content required by the Act thereby making my consent voidable as well]

Further section 10 does not apply where the processing is necessary for the performance of the contract to which you were a party. The agreement between you and GE Money remains in force and therefore, we are able to continue to process the data.

[But you've terminated the agreement, Mr GE Money? How can you now rely on it for continued performance?]

As you may be aware, the Information Commissioners Office is responsible for administering and enforcing the provisions of the Act. They state in its Guidance headed ‘Credit Explained’, (which is available on the Information Commissioners Office’s website at Information Commissioner's Office - Information Commissioners Office) that credit providers are permitted to collect and report information to the credit reference agencies on live accounts until the account is closed and this information can be kept by the credit reference agencies for a further six years. In the same guidance, the lCO also says that where a default has been registered on an account, this can show on your credit file for six years from the date of the default.

[That is advice that has no legal basis]

Finally section 10 will only apply where continued processing would cause substantial, unwarranted damage and distress. The view of the Information Commissioner is that this only applies where the processing has caused or is likely to cause someone to suffer loss harm, upset and anguish of a real nature, over and above annoyance level without justification.

[Hmmm... And, defamation of character and higher than usual interest rates on other loans isn't?]

For these reasons we do not consider that section 10 applies in your situation.

[Your reasons are unfounded and this is your opinion]

Yours Sincerely
Robert Calver
Credit Data Management
08701242452

[I'm sure Robert won't mind having his number publicised!]

This is the link to the Information Commissioners Office document they seem to be relying on;

http://www.ico.gov.uk/upload/documen...aflet_2005.pdf

Which states;

Your credit file may show the following:

A live account. This may show on your credit reference file until the account is settled or closed. It may then show on your file for 6 years.

A settled or closed account. This may show on your credit reference file for 6 years from the date it was closed.

A defaulted account. This may show on your credit reference file for 6 years from the date of the default. A default normally occurs when the terms of a credit agreement have not been met and the account is 3-6 months in arrears. When the debt is repaid, the entry on your credit reference file should be marked as settled or satisfied.

I think I'll need to consider my response to this one carefully.

[Goldlady]

Hi, I had exactly the same letter in response to one of our Asda cards. The first paragraph sweeps away the invalid CCA without much justification at all; the whole remainder of the letter is justifying their right to process your data - which on balance would appear to concern them far more IMO. I don't think I replied to mine - it is in the file

[car2403]

Just as I thought;

Originally Posted by peterbard

Hi
Yes a cancelable agreement should be signed and dated by both prties i it is to be properly executed if it is not it is enforceable only by order of the court section 65.

1983/1553
(3) The signature of the said document shall be made in the following
manner-

(a)

by the debtor or hirer, or by or on behalf of the debtor or hirer in the

case of a partnership or an unincorporated body of persons, in the

space in the document indicated for the purpose, and, subject to sub·

paragraph (e) below, the date of the signature shall be inserted in the

space in the document indicated for the purpose;
(b)

by the creditor or owner, or by a person on his behalf, outside any

signature box in which the debtor or hirer may sign and, subject to

sub-paragraph (e) below, the date of the signature shall be inserted
outside any such signature box;
(e)

in the case of a regulated agreement which is not a cancellable

agreement, the date on which the unexecuted agreement becomes an

executed agreement may be inserted in the document and in such a
case any other date specified in paragraphs (a) and (b) above need not
be inserted; and
Ill/Ix

Bet regards
Peter

Originally Posted by shane5408

I think this would make the agreement improperly executed rendering enforcment only possible via court order. However, having read your thread and see the alleged agreement it would seem the creditor has covered their bases with regards to providing prescribed terms. For this type of agreement prescribed terms are Repayments, Rate of Interest & Credit limit. The Regs also say a statement to the effect stating how these terms are to be determined should they not be stated already will suffice. For eg it says on the agreement 'we will determine your credit limit and give you notice of it.''

So, there reply has totally ignored all my arguments - being a standard letter, I'm not surprised!

[car2403]

My response;

I refer to your letter dated 9 October 2007.

Firstly, I notice from this letter that you quote a different account number – 633179250681XXXX. Please note that my account number is as above – 633165622788XXXX. I will continue on the assumption that this is a typographical error, therefore.

In my letter, I stated my contention that the alleged agreement between myself and GE Money does not meet the form and content requirements of the Consumer Credit Act 1974, as amended. This is because the agreement is not dated and therefore has been improperly executed under the Consumer Credit (Agreements) Regulations 1983; (1983/1553)

“(3) The signature of the said document shall be made in the following manner;
(a) by the debtor or hirer, or by or on behalf of the debtor or hirer in the case of a partnership or an unincorporated body of persons, in the space in the document indicated for the purpose, and, subject to sub·paragraph (e) below, the date of the signature shall be inserted in the space in the document indicated for the purpose;
(b) by the creditor or owner, or by a person on his behalf, outside any signature box in which the debtor or hirer may sign and, subject to sub-paragraph (e) below, the date of the signature shall be inserted outside any such signature box;
(e) in the case of a regulated agreement which is not a cancellable agreement, the date on which the unexecuted agreement becomes an executed agreement may be inserted in the document and in such a case any other date specified in paragraphs (a) and (b) above need not be inserted;”

Your response baffles my understanding somewhat, as you have failed to reply with your justification against this argument – this leads me to believe that;

1) The letter you have sent me is a standard response to this type of request and has failed to take any of the queries raised with proper consideration. (This is backed up by the fact you appear to have included another customers account number, which implies this is indeed a “copy and paste” response)

2) You have failed to justify your continued pursuance, processing and disclosing of my personal information, which was specifically referred to in my letter.

3) You have failed to comply with my Statutory Notice under s.10 & s.12 of the Data Protection Act 1998.

I find this situation totally unacceptable – a sizeable company with the resources of GE Money should not be capable of treating its customer’s genuine disputes with the arrogance that you have replied to me with.

Therefore, take notice, that I require your full response to my previous letter within the timescales provided – this means you must either comply with my request or provide your legal basis (please note that a simple denial of my argument does not suffice) before 19 October 2007 to avoid the action I have outlined in that letter.

Yours faithfully,

car2403

[car2403]

I have had a standard "complaint" reply to this saying that they'll investigate and come back in 8 weeks.

I don't think so! LBA on the way this week!

[car2403]

How's this for POC?;

1. I, the Claimant in this case, am a litigant in person and I make this particulars of claim statement from my own knowledge and experience.

2. The Defendant alleges that the Claimant held a credit agreement with the Defendant since 2003, numbered 6331656********* – that agreement said to be a regulated debtor-creditor agreement under the Consumer Credit Act 1974.

3. The Claimant, having conducted an audit of his Credit Reference Files held with 3 Credit References Agencies, discovered that the Defendant had recorded a “Default” against the Claimant in relation to this agreement on 23 August 2006, with an original default balance of £675.00. The latest update to this entry is dated 10 June 2007, showing an outstanding balance of £305.00.

4. The Claimant claims against the Defendant, in relation to this agreement and Default, in the following terms;

CONSUMER CREDIT ACT 1974, AS AMENDED:

5. On 11 August 2007, a request was made by the Claimant under s.78 of the Consumer Credit Act 1974, (herein referred to as “CCA 1974”) to obtain copies of the originally executed credit agreements that the alleged debt refers to. In addition, statements of the account should have been provided, along with any other document referenced in the credit agreement and a request to substantiate the default information recorded. The request was sent via Royal Mail with recorded delivery, enclosing a statutory fee of £1.00. Royal Mail confirms receipt of this request on 15 August 2007, which gave the Claimant twelve working days from receipt of the request, to provide said documentation, as stipulated in Regulation 2 of The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983. The deadline to comply with the request was 31 August 2007.

6. In a reply dated 23 August 2007, the Defendant provided an alleged copy agreement.

7. The Defendant has failed to supply other information as required by s.78(1);

“78.—(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of 15 new pence, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—
(a) the state of the account, and
(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and
(c) the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.”

8. The Defendant is therefore in default of this request under s.78(6)(a) and has committed an offence under s.78(6)(b);

“(6) If the creditor under an agreement fails to comply with subsection (1)—
(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.”

9. The alleged copy agreement provided does not have a date on which it was signed by the borrower. It also has not been dated in the “Date of Agreement” box when signed by the Creditor, or their Agent.

10. The agreement is not in the proper prescribed form, as set out in s.60 & s.61 of the Consumer Credit Act 1974 and the Consumer Credit (Agreement) Regulations 1983 (SI 1983/1553) made under the Act.

11. The agreement must be properly signed, along with a date of signature, by both parties;

“1983/1553;
(3) The signature of the said document shall be made in the following manner-
(a) by the debtor or hirer, or by or on behalf of the debtor or hirer in the case of a partnership or an unincorporated body of persons, in the space in the document indicated for the purpose, and, subject to sub·paragraph (e) below, the date of the signature shall be inserted in the space in the document indicated for the purpose;
(b) by the creditor or owner, or by a person on his behalf, outside any signature box in which the debtor or hirer may sign and, subject to sub-paragraph (e) below, the date of the signature shall be inserted outside any such signature box;
(e) in the case of a regulated agreement which is not a cancellable agreement, the date on which the unexecuted agreement becomes an executed agreement may be inserted in the document and in such a case any other date specified in paragraphs (a) and (b) above need not be inserted;”

12. The Claimant also refers to the Office of Fair Tradings guidelines on “Cancellable agreements”, under which this agreement falls in that antecedent negotiations took place with the creditor prior to the agreement being sent for signing, that signing taking place away from the creditors’ premises making the agreement cancellable as per s.67 of the Consumer Credit Act 1974 and the regulations there under, which state;

“Signatures
…All agreements are to be signed by both customer and trader, or their representatives, and the date of signature entered. The customer’s signature and its date must be inside a box. This box can be of any size and appear anywhere in the agreement, but the wording inside it must be easily legible and must follow that for the appropriate type of agreement as set out in Appendix 2. The signature of the trader and its date must be outside the customer’s signature box. Similarly the signature of any witness, and its date, must also be outside the customer’s signature box…”

13. Accordingly, due to the Claimants pleadings at paragraphs 9-12 of this statement, the Claimant avers that the agreement itself has not been executed within the terms of the Act.

14. In the alternative, if this honourable Court decides (which is denied) that the copy agreement has been executed, the Claimant further wishes to plead as follows;

15. The agreement has been improperly executed in that it does not fully comply with s.60 and s.61 CCA 1974, or the regulations made under that Act.

16. The Defendant is, therefore, unable to enforce the agreement without a Court Order under s.65(1).

17. Any application for an Enforcement Order under s.65(1) of the Act, as a result of the improper execution under the Act, should be dismissed under s.127(1)(i), due to the prejudice caused to the Claimant, namely;
a) The Claimants pleadings regarding the defaulting and termination of the account, outlined in paragraph 18-21 of this statement, specifically;
i. That the account has been improperly and unlawfully defaulted and terminated; (s.88/s.98 of the Consumer Credit Act 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993)
ii. This improper default and termination has effected (and continues to effect) the Claimants reputation and credit rating held by credit reference agencies;
iii. The Defendants failure to reply to, or to unconditionally comply with, a Statutory Notice issued by the Defendant pursuant to s.10 and s.12 of the Data Protection Act 1998, requiring it to remove this information from its own records and to cease from continuing to process or share that information.
b) The Claimant disputes the balance of the account, as outlined in paragraph 18 of this statement;

18. The Defendant disputes the balance of the account, as during the period in which the account was operating the Defendant debited charges to the account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The Claimant understands that the Defendant will contend that the charges were debited in accordance with the terms of the contract between itself and the Claimant and accordingly puts the Defendant to strict proof of such terms existence. The Claimant contends:
a) No such contractual provision exists to allow the Defendant to levy such charges;
b) Where there is a contractual provision that permits the Defendant to levy such charges, this provision is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the Common Law of penalty because they are a disproportionately high sum in compensation compared to the cost of the purported breach; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are not intended to represent or are related to any alleged actual loss, but instead unduly enrich the Defendant, which exercises the contractual term in respect of such charges with a view to profit; and
c) Accordingly the Claimant puts the Defendant to strict proof that every charge made to the account was valid and lawful.
d) The Claimant avers that any Default or Termination Notice sent would have included these charges, invalidating that Notice due to this unlawful application.

19. The Defendant has failed to fully comply with the Claimant’s request for information to substantiate the process taken to Default the agreement, under the original s.78 CCA request.

20. Accordingly, the Claimant puts the Defendant to strict proof that the agreement has been defaulted and terminated in accordance with s.88/s.98 CCA 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993.

21. Where the Defendant is unable to supply original signed certified copies of alleged Default Notices or Termination Notices, the Claimant pleads that the agreement has been unlawfully defaulted and terminated, in that, either;
a) No Default Notice or Termination Notice has been issued, the Claimant being prepared to swear on oath that no such notice was sent or received at the time of default or termination; or
b) Where the Defendant can show evidence that Default or Termination Notices were issued, such Notices are not accurate and fail to comply with s.88/s.98 CCA 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993, in that the Default and Termination amounts are incorrect as per paragraph 13 of this statement.

22. The Claimant refers to specific paragraphs of the House of Lords case Wilson v First County Trust Ltd [2003] UKHL 40;

Para 49;
"The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan"

Para 121;
"But the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement under which FCT provided the loan to Mrs Wilson............... was unenforceable. The statutory bar on its enforcement extended to FCT's right to recover the total sum payable on redemption, which included the principal as well as interest."

Para 123;
"section 127(3) of the 1974 Act too, like sections 6 and 13(1) of the 1927 Act, was designed to protect unsophisticated borrowers. There is no doubt that they would be exposed to the risk of harassment by unscrupulous creditors if creditors could override the statute by appealing to the common law. I would prefer to say that it would be inconsistent with the statute to provide FCT with a common law remedy to redress the enrichment which Mrs Wilson has received at its expense"

Para 173;
"Parliament's intention in enacting section 127(3) of the 1974 Act was to make a loan, made under a regulated agreement, unenforceable in certain events. The courts cannot defeat that intention by allowing some alternative means of recovery."

23. The Claimant contends that the Wilson case ruling is intended to have the effect that creditors who do not have enforceable consumer credit agreements are not to be allowed to intimidate, harass and effectively blackmail debtors into paying monies that they do not have to pay by, for example, threatening to blacklist the credit records of debtors. The financial penalty for a lender not complying with the legislation is that they lose the right to any monies not already paid. The law lords considered the issue of unjust enrichment but decided that it was appropriate for the creditor to be financially penalised in this way.

EFFECT OF FAILURE TO DEFAULT AND TERMINATE AGREEMENT CORRECTLY;

24. Failure of a Default or Termination Notice to be accurate not only invalidates the Default or Termination Notice (Woodch