car2403 -v- RBS PLC (Default removal)

[car2403]

Style Financial Services (HMV) Store card that I fell behind with that has been sent to Wescot Credit Services Ltd 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.

[Stornoway]

Interested to see how you get on - the lost my CCA but are still refusing to remove default.

[car2403]

Nothing 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]

Not a lot happening on this one;

• No reply to CCA - in default from 28/09/07
  
• s.10/s.12 DPA notice sent with Surleybonds letter 24/09/07 - in default from 16/10/07
  
• I've even written to CallCredit/Equifax about unlawful processing, no response

Oh well, LBA on the way this week!

[car2403]

Just going through my files on this one again, while I was working out dates and stuff for my POC and I've come across a letter that I got from Wescot dated 14 September with an "agreement" - I'm not sure how I've missed this off the thread, but the wording of my s.10/s.12 Notice covers this new info, anyway.

 

Agreement provided;

 

 

Issues I can see with this straight away are;

• It's an application form, not an agreement. (I know that an application form can become an executed agreement, but it needs to have the prescribed form and content required of a normal agreement and contain the prescribed terms)
  
• The only prescribed terms I can see on this is the credit limit (Sch 6, Para 3 of Consumer Credit (Agreements) Regulations 1983)
  
• No rights and duties conferred on me (s.60(1)(a) CCA 1974)
  
• No protection and remedies available under the Act (s.60(1)©)
  
• No rate of interest (Sch 6, Para 4 of the Regulations)
  
• No detail about repayments (Sch 6, Para 5 of the Regulations)

I think this is enough to go on - and they are now bound by this under my CCA s.78 request as this is now irrefutable evidence given they've sent this to me. (This is all they've sent - no statement of account and no details of any Default/Termination Notices)

 

Definately looks unenforceable at all, never mind with a Court Order, to me! Improper execution under s.61(1)(a) with an application for an Enforcement Order under s.65(1) being precluded under s.127(3) due to missing prescribed terms. Virtually open and shut case, I'd think?

 

I'll be working on POC for issuing next week now...

[shane5408]

Hi Chris,

 

You've covered most of the points I think, also keep in mind s59(1) as long as you didn't sign on company premises.

 

Any t&c's sent? If not they haven't complied with a s78 request fully and remain in default

 

Also, the application form clearly contravenes the regs as they state not only prescribed terms but all info in schedule 1 should be shown together as a whole in the agreement, nowhere does it state they can be shown on separate doc titled t&c's.

 

regards,

shane

[pt2537]

Hi Chris

 

Well, cant really add anything here as you and Shane have covered all bases

 

so good luck, if you need any legal texts or cases let me know

 

Regards

paul

[car2403]

Hi Chris,

 

You've covered most of the points I think, also keep in mind s59(1) as long as you didn't sign on company premises.

 

Hadn't considered this, thanks Shane.

 

Any t&c's sent? If not they haven't complied with a s78 request fully and remain in default

 

No - this is the only thing I've received. The DCA (Lewis) has promised account statements as well, but these haven't turned up.

 

Also, the application form clearly contravenes the regs as they state not only prescribed terms but all info in schedule 1 should be shown together as a whole in the agreement, nowhere does it state they can be shown on separate doc titled t&c's.

 

It does say "Please read carefully the section headed Youor lnformationin the accompanying Terms & Conditions", but they haven't sent them neither so presumably can't now rely on them now.

 

regards,

shane

 

Hi Chris

 

Well, cant really add anything here as you and Shane have covered all bases

 

so good luck, if you need any legal texts or cases let me know

 

Regards

paul

 

Cheers Paul, you're a handy resource to have around...

[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 500163********* – 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 29 December 2005, with an original default balance of £387.00. The latest update to this entry is dated 8 July 2007, showing an outstanding balance of £412.00.

 

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 14 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 30 August 2007.

 

6. In a reply dated 14 September 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

© 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 agreement is an application form for credit and as such is void by virtue of s.59 Consumer Credit Act 1974;

 

“59.—(1) An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.”

 

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 – in that;

10.1. The agreement does not contain the prescribed terms contained within s.60 of the Act;

10.1.1. The rights and duties conferred or imposed on the Claimant by the agreement; (s.60(1)(a) Consumer Credit Act 1974)

10.1.2. The protection and remedies available to the Claimant under the Act; (s.60(1)© Consumer Credit Act 1974)

10.1.3. Rate of interest applicable; (Sch 6, Para 4 of Consumer Credit (Agreements) Regulations 1983)

10.1.4. Method, mode or periods of repayment; (Sch 6, Para 5 of Consumer Credit (Agreements) Regulations 1983)

 

11. 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.

 

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

 

13. The Court is excluded from making such an Enforcement Order under s.127(3);

 

“(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).”

 

14. The Court is excluded from making such an Enforcement Order under s.127(4)(b), 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;

 

“(4) The court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if—

(b) section 64(1) was not complied with”

 

15. 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 16-21 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 16 of this statement;

 

16. 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.

 

17. 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.

 

18. 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.

 

19. 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.

 

20. 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."

 

21. 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;

 

22. Failure of a Default or Termination Notice to be accurate not only invalidates the Default or Termination Notice (Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Claimant a claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

DATA PROTECTION ACT 1998:

 

23. The Claimant contests that the Defendants continued processing of his data is an unwarranted act and that the Defendant has failed to comply with a Statutory Notice pursuant to s.10 and s.12 of the Data Protection Act 1998. (Herein referred to as Data Protection Act 1998)

 

24. The Claimants written permission allowing the Defendant to continue processing, or disclosing, personal subject data, does not exist. The Claimant also disputes the Defendants “Defaulting” of the accounts, which is visible on his Credit Reference files, for the reasons outlined above. The Claimant, therefore, considers any Default appearing on any Credit Reference Files in relation to this alleged agreement to be wholly unwarranted and unlawful.

 

25. The Claimant is afforded principled rights under the Data Protection Act 1998, Schedule 1, Part 1 ("The Principles") in relation to the manner in which data is collated, stored and processed. Of particular note, are Principles 3, 4 and 5:

“3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.

4. Personal data shall be accurate and, where necessary, kept up to date.

5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.”

 

26. In this case, the Defendant is processing data without consent. Consent in this case meaning the lawful right to process data, with permission, with the Credit Reference Agencies – that information being “publicly available”.

 

27. The claimant asserts therefore that any Default/Termination Notice amounts to a material breach of the fourth Principle of The Data Protection Act 1998.

 

28. The Claimant, therefore, commences proceedings against the Defendant under the Data Protection Act 1998 for the removal of any Default/Termination Notice, or any information relating to the agreement that will, or may, cause prejudice to the Claimant.

 

29. This is confirmed in Principle 2 of the Data Protection Act, which states:

 

"2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes."

 

30. The Claimant wishes to emphasise the term "specified and lawful purposes" as in ‘those specified within the contract’, and no more, and also emphasises the term "shall not be further processed".

 

31. After seeing other cases being handled, the Claimant is aware that Financial Institutions are claiming that they have a “legal right” to maintain this type of adverse entry for up to six years. When challenged, they are unable to quote the exact Statute that includes this so-called “legal right” - they in fact remain remarkably quiet when questioned about this. Only after insistence of disclosure do they eventually concede that, whilst they have no statutory right, it is “standard industry practice” but they added that they are “allowed to by Law”. After further challenges, they finally admit that unless this was a County Court issue, their term actually referred to contractual Law, but continued to emphasise that it was “standard industry practice to record default entries for six years.” In this case, no such contractual provision exists, so reliance on any contract should fail under the DPA 1998.

 

32. After scrutiny of all the relevant legislation, including the Consumer Credit Act (as amended), the various Financial Services Acts and the Data Protection Act, etc., it is clear that there is absolutely no legislation that allows a lender or supplier (e.g. the Defendant) to collate, process or distribute any other information unless there is express written permission from the data subject.

 

33. In fact, Section 10 of the Data Protection Act awards the real authority, regarding privacy of data, to the data subject, not the Data Controller. The Act is also very clear as to the rights of the data subject in respect of withdrawing permission to continue data processing and disclosure:

 

“10. - (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.”

 

34. However, there is some exclusion provisions for Data Controllers, and Section 10 does continue with various exceptions to subsection (1) above, and these are quoted, in full, below:

 

“10. - (2) Subsection (1) does not apply-

(a)in a case where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met, or;

(b)in such other cases as may be prescribed by the Secretary of State by order.”

 

To paragraph (b), I can only presume that the Defendant has not applied to HM Secretary of State for an order allowing you an exclusion, which leaves the Defendant with the only remaining possibility of requesting an exemption under paragraph (a).

 

So, we must turn to the exemptions permitted in paragraph (a) to find where the Defendants Data Controller may invoke his perceived exemption to the Data Protection Act, namely, those listed in paragraphs 1 to 4 of Schedule 2. These exemptions are, in full, below:

 

“1. The data subject has given his consent to the processing.

2. The processing is necessary-

(a) for the performance of a contract to which the data subject is a party, or

(b) for the taking of steps at the request of the data subject with a view to entering into a contract.

3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

4. The processing is necessary in order to protect the vital interests of the data subject.”

It is the Claimants contention that the Defendants supposed right of obtaining an exemption is not contained within any of these paragraphs – taking each in turn with notation to give a clearer explanation;

 

1. The data subject has given his consent to the processing.

 

That consent, as no legal agreement exists, therefore, also does not exist.

 

2. The processing is necessary-

(a) for the performance of a contract to which the data subject is a party, or

(b) for the taking of steps at the request of the data subject with a view to entering into a contract.

 

For both (a) and (b), there is no contract in existence.

 

3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

 

According to the Information Commissioners Office (Information Commissioners Office), exemption 3 includes all other statutory obligations for which the interests of national security and welfare override personal privacy. These obligations allow for the provision of data to Official agencies and organisations, e.g. disclosure to crime prevention agencies (Police, Intelligence Services, etc), official Government agencies (DVLA, DSS, Passport Agency, etc.) and health authorities, etc., and for any other purpose not agreed within a civil contract.

 

The three major credit reference agencies are not Government bodies, nor official agencies, but are “for-profit” companies. None of these three agencies are listed in the appropriate Data Protection Act Schedule that names the specific organisations that are permitted any such exemption rights.

 

4. The processing is necessary in order to protect the vital interests of the data subject.”

 

With reference to the Information Commissioners Office again, this is interpreted as “anything that affects the data subject as a matter of life and death”. This clause is included in the Data Protection Act to permit data, like medical records or contact details, being disclosed in emergency situations. The Claimant does not believe that this case could be described as anything like a matter of life or death.

 

So, it is clear to see that there is neither statutory provision permitting the Defendant to assume continued processing rights of the Claimants data at his discretion, nor any exemption. The Claimant can then only assume that the Defendants is relying on the Common Law – as already discussed, above, no such contract is in existence.

 

35. The Claimant argues, therefore, that due to the non-agreed disclosure of personal data to third parties by the Defendant, without express written permission from the Claimant, that the Defendant has committed a criminal offence under s.35 DPA 1998.

 

36. The recording of “Default” information by the Defendant, without consent, against a credit file without having an agreement regulated under the CCA 1974, or a legal contract, or any processing by the Defendant of that data, in any manner, which would be unfair or inaccurate or which in any way, would breach The Data Protection Act 1998.

 

37. The Claimant requires that the Defendant cease from processing such data, or else that the Defendant does not begin to process any personal data of which the Claimant is subject insofar as that processing involves the communication or passing of personal data of which the Claimant is the subject to any third party and insofar as the said data relates wholly or in part to the implementation by the Defendant of alleged defaults or contractual breaches, or breaches contrary to The Common Law.

 

38. The Claimant argues that the processing or continued processing by the Defendant of the said data will affect the Claimants credit rating and reputation and cause substantial damage and/or substantial distress to the Claimant and other family members in addition to that which has been caused to date. And that as the processing of the said data in the way referred to in this Claim would violate both the Principles and Data Subject’s rights of The Data Protection Act 1998, to do so would be both unwarranted and unlawful.

 

39. Additionally, the claimant requests an order from the Court under s.14(1) (for the erasure of the incorrect information, held by the Defendant) and s.14(3) (for the blocking or erasure of the data passed to Credit Reference Agencies, by the Defendant) of the Data Protection Act 1998, for the removal of any Default or Termination Notices and any other information relating to this agreement, that may cause prejudice or further damage to the Claimant;

“14. - (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.

14. – (3) Where the court—

(a) makes an order under subsection (1), or

(b) is satisfied on the application of a data subject that personal data of which he was the data subject and which have been rectified, blocked, erased or destroyed were inaccurate,

it may, where it considers it reasonably practicable, order the data controller to notify third parties to whom the data have been disclosed of the rectification, blocking, erasure or destruction.”

 

40. The Claimant further claims the Court fee of £65.

 

41. The Claimant therefore claims against the Defendant in the terms outlined in these particulars of claim and seeks;

41.1. Substantial damages from the Defendant to the value of £1,000 for the legal reasons outlined in Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 and Kpohraror v Woolwich Building Society [1996] 4 All ER 119;

41.2. An order from the Court under s.14(1) of the Data Protection Act 1998 for the removal of the Default Notice and any other prejudicial information from all credit reference agencies;

41.3. Costs, at the discretion of the Court

 

Statement of truth;

I, the Claimant, believe all facts stated to be true.

 

Signed,

[shane5408]

Hi Chris,

 

It looks good, RBS will be a bit gobsmacked when they see that I think:D Will put some time aside later on this evening to examine it more closely. Two things spring to mind though, first you might want to ammend the reference to the Woodchester case to include citation details so the judge can look it up should he/she not be familiar with it, i would suggest

Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339

 

In point 39 you ask for an order from the court under 14(1) of the Data Protection Act to force removal of defaults and also with 3rd party cra's as well, I think for the latter you should also mention 14(3) as it covers this.

 

kind regards,

shane

[car2403]

Citation updated and s.14(3) DPA added as suggested shane5408 - thanks!

 

It looks good, RBS will be a bit gobsmacked when they see that I think:D

 

Ooo! I'm intrigued now...

 

[car2403]

I've just received this from Style;

 

Re: HMV Store Card

Account Number: XXXXXX

 

I write with reference to your recent communication to us, which has been passed to me in my capacity as Senior Concerns Officer of the Collections department.

 

Please find the following enclosed:

 

• CCA Letter

• Deed of Assignment

• A copy of your original application

• A statement of account

 

I thank you for your patience in this matter.

 

Yours sincerely

 

With these attachments;

 

"CCA Letter";

 

Dear car2403

Re Account: XXXX

 

Thank you for your letter dated concerning information held with the Credit Reference Agencies for your credit card account. Please except my apologies for the length of time it has taken to respond.

 

Your request for documents contains some misconceptions about your entitlement to information in a specified form and our obligations to supply that information. So that there are no misunderstanding here we will set the record straight on the format of the information we are obliged to provide you.

 

Your written request for information made under s78(1) of the Consumer Credit Act must be accompanied by payment of a fee of £1. We are obliged to provide you with a ‘true’ copy of the credit agreement and a statement of financial information relating to the account, namely, the state of the account, amount currently due, with amounts and due dates of future payments that still require to be made. In terms of CCA copy document regulations, the ‘true’ copy requirement can be satisfied by providing a copy agreement at the date the card agreement was made and providing that plus a copy of the current terms of the card agreement. We are not insisting on payment of the £1 and enclose the s78(1) information.

 

Notification of ‘default information’ on your card account to Credit Reference Agencies was carried out in accordance with long established procedures. Details of these procedures are contained in the credit agreement and have been notified to the Information Commissioner’s Office. We are satisfied that the default on your account was properly notified to the Credit Reference Agencies. If you disagree you have the right to apply to the court to have

 

inaccurate personal data rectified, blocked, erased, or destroyed. Further information is available from the Information Commissioner’s website: Information Commissioner's Office - ICO.

 

There is no legal requirement for us to provide you with a ‘signed true and certified copy of the original default notice’. 1 can however advise you, the default notice our systems produced and sent 16th November 2005 was also, followed by a termination letter on 30th November 2005, which advised you of your account position at that time and the our intention to register the default information if the default was not remedied.

 

With regard to your request for a ‘statement of account’, I have enclosed the most recent available statement for the above account. Should you require duplicate statements of your account prior to this date, please contact me accordingly and I will advise you of the cost for these.

Our records show that there is still a balance outstanding on the above account. As you are aware, your account is currently being managed by Triton Credit Service Ltd. Therefore, you should contact them directly to obtained details of your required repayments to settle your account. They can be contacted on 0207 680 9301 or 0800 16 36 72.

 

I trust the above clarifies matters for you. Should you have any further queries, please contact me on 08702 408143.

 

Yours sincerely,

 

We confirm that the balance outstanding on the above account was assigned to Triton Credit Services Ltd on 29th December 2005.

 

In accordance with the aforementioned assignment Triton Credit Services Ltd now holds all legal rights, authorities and obligations to the same.

 

You should now address all further communications to Triton Credit Limited, who are the legal owners of the debt, at the address below:

 

Triton Credit Services Ltd

P0 Box 5827

Basildon

SS14 1XS

 

Telephone: 020 768 09301 or 0800 163672

 

Yours sincerely

Collections Manager

 

There is also another copy of the "agreement"/application form, posted above, and a statement issued on 28 October 2007.

 

I can't remember receiving this notice of assignment - and, if they have assigned correctly, how can they still be producing statements for my account?

[car2403]

I've just received this from Style;

 

Any advice on how this effects my Claim?

 

I'm assuming, as Style recorded the Default and passed an unenforceable debt over via this "assignment", that I should continue pursuing them and write to the assignee to outline my dispute to them? After all, it's Style that Defaulted me and they continue to process my data without consent?

[ncf355]

Seems like the right approach to me Car

 

Love the bit in their letter -

 

"Your request for documents contains some misconceptions about your entitlement to information in a specified form and our obligations to supply that information. So that there are no misunderstanding here we will set the record straight on the format of the information we are obliged to provide you."

 

Now, given the amount of time you, I, and many others have invested in viewing the CCA and assorted SI's, I wonder who is most likely to have made the wrong interpretation (friendly version) or to be trying it on (more likely version)

 

Hmm, thats a tough call, that

 

[ncf355]

And

 

"In terms of CCA copy document regulations, the ‘true’ copy requirement can be satisfied by providing a copy agreement at the date the card agreement was made and providing that plus a copy of the current terms of the card agreement."

 

You need to put that in the supermarket deli counter and stick a label on it marked "baloney"

 

[car2403]

Is there a mod/site helper that can confirm I issue AGAINST Style and NOT the new assignee? I don't want to waste £65 having to issue again if I get this wrong!

 

POC sitting waiting to go...

[shane5408]

Car,

 

My understanding is that if it is a Full absolute Legal assignment as opposed to an equitable assignment then all legal rights, responsiblilites, duties etc transfer to tje asignee, as such you need to issue to the new legal owner, that being Triton was it?

 

Also, If the notice of assignment includes an amount demanded that is incorrect it renders the notice legally invalid (e.g. unlawful charges or DCA admin/collection charges).

Even if the amount doesn't include charges but is misstated it is still invalid.

If the date is incorrect it is legally invalid (i.e. does not tie in with the deed of assignment - the execution of assignment should be the same as the date shown on the notice).

The case that supports this is W.F.Harrison & Co Ltd v Burke [1956] 1 WLR 419

[car2403]

I'm confused more than ever on this one now shane, so bear with me.

 

I believe the debt is still with RBS/Style - they are producing statements of account, although this latest letter is the first I've seen in a long time. I don't recall receiving notification of the assignment to Triton - I've never heard of them. The debt was being collected to Wescot Credit Services Ltd for collection, but I haven't heard from them since I sent the CCA request in. The deed of assignment they've sent me (it's just a typed letter?) isn't signed and this is the first I've heard of the assignment.

 

Does any of this make a difference?

 

I suppose, what I'm asking is, do I need to start again from scratch with Triton? And - what is the effect of the Default registered by Style, removal of which is the whole point of all this?

[car2403]

Bump...

[car2403]

Ok - no help = self help, so here's what I'm doing now.

 

This is off to Triton; (who?!)

 

 

Re: Style Financial Services Ltd Debt:

 

Style Account Number *******

 

 

Notice of Account Dispute and query over

Legal Assignment of account

 

 

Enclosure: Statutory Notice pursuant to s.10/s.12 Data Protection 1998

 

 

 

 

I do not acknowledge ANY debt to your company.

I have recently disputed this account with Style Financial Services, who have now advised that this account was passed to you by a Deed of Legal Assignment dated 29 December 2005. I have enclosed copies of correspondence between myself and Style Financial Services, which I would now like to redirect to you for consideration.

I dispute this account completely due to the issues contained within the correspondence attached. Please note that I have also issued a letter before action to Style Financial Services and I now issue the same notice to you, as the Legal owner of the account.

I require you to supply the following documentation before I will correspond further on this matter;

1. You must supply me with a true copy of the alleged agreement you refer to. This is my right under your obligation to supply a copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit) - your obligation also extends to providing a statement of account. I enclose a £1 cheque in payment of the statutory fee

2. A signed true copy of the deed of assignment of the above referenced agreement that you allege exists should this debt be sold or assigned to your company.

3. You are notified that you are obliged to supply these documents, whether you are the original creditor or not under S189 of the CCA 1974.

Non-compliance with my request is a criminal offence under the above Act and will result in a report being submitted to the relevant statutory authorities.

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.

You should also note that I contend that any legal assignment to your company is not complete and whole, due to s.136 of the Law of Property Act 1925;

“136. Legal assignments of things in action.-

(1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice-

(a) the legal right to such debt or thing in action;

(b) all legal and other remedies for the same; and

© the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice-

(a) that the assignment is disputed by the assignor or any person claiming under him; or

(b) of any other opposing or conflicting claims to such debt or thing in action;

he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the Trustee Act, 1925.

(2) This section does not affect the provisions of the Policies of Assurance Act, 1867.

I also, therefore, refer to s.186 CCA 1974 – which means that you are also required to comply with my s.78 request, above;

“186 Agreement with more than one creditor or owner;

Where an actual or prospective regulated agreement has two or more creditors or owners, anything required by or under this Act to be done to, or in relation to, or by, the creditor or owner shall be effective if done to, or in relation to, or by, any one of them.”

Will you please also confirm to which Company you are representing. Triton Credit Services Ltd or ‘Triton Credit Services’ as this is not clear.

I also enclose a Statutory Notice issued to you under s.10/s.12 of the Data Protection Act 1998.

Yours faithfully,

 

Along with a s.10/s.12 Data Protection Act notice for them.

 

This is going back to Style;

 

I refer to my letter to you dated 9 November and attached enclosures.

Please find attached a copy of a letter that I have issued to Triton Credit Services Ltd.

I also still consider Style Financial Services Ltd to be liable for this action, as outlined in my previous letters to you, due to your continued unlawful processing of my data as a Data Controller under the Data Protection Act 1998 – I, therefore, still consider that my pre-action letter to you dated 1 November 2007 still stands.

I would also like you to note my request dated 11 August 2007, in which I specifically requested;

“3. Any deed of assignment if the debt was sold on”

I also refer to s.136 of the Law of Property Act 1925, which states;

“136. Legal assignments of things in action.-

(1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice-

(a) the legal right to such debt or thing in action;

(b) all legal and other remedies for the same; and

© the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice-

(a) that the assignment is disputed by the assignor or any person claiming under him; or

(b) of any other opposing or conflicting claims to such debt or thing in action;

he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the Trustee Act, 1925.

(2) This section does not affect the provisions of the Policies of Assurance Act, 1867.

You have failed to supply an original, signed deed of assignment – I therefore contend that such assignment has no legal effect. You would have also had to notify me of such assignment at the time assignment took place – I received no such notification.

I look forward to receiving your reply to this letter within 7 days.

 

Yours faithfully,

 

I think there's something fishy going on here... never mind though, I'm happy to issue against both of these companies and let the Court sort it out. I'm sure it will all come out in the wash!

[shane5408]

Hi Chris,

 

have to admit I'm not 100% sure on this one, will have to do some research with regard to assignments and whether 'burdens of debt' are fully transferred to assignee or not.

 

However, with regard to the default as that has been recorded against you by Style it is either them or the CRA who you need to tackle to get it removed.

 

Send the recent correspondance you have drawn up for Triton, I am very interested in what their response will be.

 

kind regards,

shane

[car2403]

Me too, as I've never heard of them - I'm assuming that they've never heard of me neither, as they've never written to me.

 

It will strengthen my "prejudice" argument if Style are trying to squirm out of responsibility. I thought it would be Style I should issue the N1 to, as they Defaulted the account incorrectly and are still processing balances, etc - be interesting to see where this goes, even if it will delay the outcome for a few weeks.

[car2403]

I've been looking through other threads regarding other companies and CAG-ers that have been through something similar;

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/112901-have-you-sent-cca.html

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/112975-equitable-assignment-how-affect.html

 

http://www.consumeractiongroup.co.uk/forum/general-debt/41678-triton-credit-services-help.html

 

They all recommend sending a CCA request to the new company - I've already asked for a copy of "any deed of assignment if the debt was sold on" in my original CCA request to Style. That wasn't provided in the original reply, but they did send a response to the agreement request. (No statements of account)

 

So, based on this new info, I've amended my correspondance to Triton - update above, at this link;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/110150-car2403-rbs-plc-default.html#post1239863

 

I may ask Moonhawk to pop in to have a look to make sure I haven't missed anything, as he looks to have gone through something similar in the first link above.

[Josie8]

subscribing

[MoonHawk]

Hi,

 

I need to check triton out before I can advise. I'll take a look tomorrow as Companies House is offline on Sundays.

 

Just to help a little in terms of understanding legalities, the debt/account can be assigned in a couple of ways, which have different effects. As you will understand, they will be very vague in admitting what the type of assignment it is, as it will corner them in terms of what they can do and what is expected of them.

 

First type of assignment is "Absolute". This means that the account is sold in it's entirety to a third party. The third party (in your case Triton) would then become the new creditor and also hold all duties as well as liabilities. So the CCA will go to them and any action for penalty charges etc will be brought against them. They can also, as the creditor, take you to court for non-payment. From the cases I have seen on this and other consumer sites, I have found this to be a very rare type of assignment.

 

The more common type of assignment is that the "debt" is sold and not the account. (The wording in your assignment letter suggests this). This means that the assignee holds the rights to collect upon the debt, but the original creditor holds the duties and liabilities. This means that you send the CCA to the OC and sue the OC for penalty charges etc. It also means that the assignee becomes an "equitable owner" (legal for joint owner) and they can not sue for non-payment by themselves. They might try, but if you know this you can counter it in your defense. The OC must be included in any legal action.

 

With either type of assignment, the assignee can not act if a request is made under section 77/78 of the CCA, until it has been complied with. They will argue otherwise, but either they are responsible for duties as the "creditor" (in an absolute assignment) or they hold the title of "agent" under the CCA. No-one else apart from the creditor or their agent can collect on a debt under the CCA. AK have stopped all correspondence and are sulking when I mentioned this in response to them saying they are not the creditor or an agent.

 

I will take a look into Triton and see what else I can advise. The assignment letter says "Ltd". Sometimes these companies are dormant, which means they should not be trading but do. I'll check tomorrow and get back to you. I hope the above helps.

 

Best Wishes

MoonHawk