HELP Taking Capquest to court this month

[themajor]

Hi can someone advise me please? After a four month battle with Capquest who've finally admitted they've got no CCA and have subsequently marked my credit file as satisfield (not settled), they still refuse to remove the default notice. I've served an N1 on them for breach of DPA1998 "Information shall be accurate and correct" to obtain a court order for them to remove it.

 

Sneaky lot in their defence provided as evidence terms and conditions but on inspection they were written 2008 when my account dates back to 2006. They requested further information for their defense and I accused them of providing falsified evidence and said that I'll raise that matter in court (falsifiying evidence is a criminal offence).

 

They're still defending their case though and in their defense they say that I am put to strict proof that I did not default on the account. Surely it's down to them to prove that I have defaulted on the account as they've got a default registered against me?? They are also blaming Skycard who they bought the account from who initiallly registered the default. As far as I'm concerened my Experian entry has Capquests name above the default so they can change it.

 

Any advice to get one over on these idiots gratefully received thanks!!!

[twofoot]

Not too well up on this but I'd bet money you will win if they cannot show a CCA in court. If there is no legit agreement how can they say you defaulted on it. Kick their ass and teach them a lesson.

[cerberusalert]

The onus of proof falls onto them. For them to be able to process your data they have to show that you gave permission & to do that they have to provide an enforcable CCA to the court. No CCA = no agreement = no permission!

[42man]

You might also be interested in this thread too themajor, and please keep us posted - http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/173208-successful-court-action-default.html

[themajor]

Thanks 42man I'll keep you posted. Should I have tried for damages under S(13) DPA or is that complicating things and being greedy you think?

[themajor]

I got confirmation today that the allocation/directions hearing is on 11th feb. I thought it was pretty obvious it's a small claims track case though.

[hillards]

They cannot enforce the alleged debt as they cannot provide a CCA to back up their claim that a debt even exists, let alone they've any claim on it.

Therefore they have failed to satisy the CCA request and in turn proven that they have no right to be processing your data.

That leads on to registering a default against you when they were NOT acting legally within the DPA in the first place, which has been proven.

When a DCA fails to produce a CCA I usually advise people to send a follow-up letter, pointing out that the DCA has no right to be handing my data etc. - as written up by IdaInFife - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/172071-letter-co-solicitors.html#post1856406

It just makes it clear that they MUST remove any default and stop processing your data.

It is not for you to prove that you defaulted or not, but for them to show that they were acting within the law in processing your data, as that's the action being taken here. If it's showing Capquest as registering the information on your credit report then they cannot blame anyone else.

Don't forget to claim damages and compensation for your time in reasearching and preparing the case, sending letters, travel costs and attending the court. File a claim a couple of days before the hearing but leave it at the discretion of the court to make such an award, rather than set out an amount.

[themajor]

Thanks for the advice. I thought they had to prove that they acted legally in 1. proceesing my data and 2. recording accurate data. and I wrote many good letters to them (quoting CCA 1974, Data Protection Act etc ) but they just send back generic junk mail.

 

I was suprised though when the court claim defense came back, that their defense is that they put me to strict proof that I haven't defaulted. Surely their solicitor knows that they have to prove that I did default and that they then acted in accordance with the Data Protection Act in recording a default?

 

I'm not challenging them on processing my data as I thought it might complicate things. I'm only challenging them on the accuracy of the data under DPA 1998 Schedule 1, Part 1, (4) and seeking a court order to rectify it under S(14). Challenging the whole right to process my data thing seems a bit pointless unless your going for damages.

 

Out of interest is it too late to change my particulars of claim and add damages under S(13) DPA1998? If not how do you do it? Another N1? Exuse my ignorance.

[hillards]

I would have thought that them not having the basic right under the DPA to process the data was enough to get the default removed?

As they were not empowered to process the data, they could not have legally registered a default in the first place. That seemed the simpler way of getting the issue rectified.

I'm not sure how to add a claim for damages, I know some people have done it when the odd case reaches that stage. A quick search of my notes and bookmarks hasn't found anywhere I can point you, sorry.

[themajor]

No worries thanks for looking. When I take Equidebt to court I'll do it your way and challenge their right to process my data under Schedule 1 and 2 DPA and claim discretionary damages under s(13) right from the start.

[MrMT]

Sorry to butt in but may I ask what is the importance of "marked my credit file as satisfield (not settled),"? I ask because I signed with experian for a free trial and have "Satisfied" applied by my bank. Is it not a good term, what does it imply as I've never borrowed from them, it's just a simple account. The only problem was failed DD's (not my fault) and couple of banks charges applied - the account is in credit. Thank you for reading this.

[themajor]

Dont get satisfied mixed up with satisfactory. When you settle an account in full your experian account gets marked as settled under account balance. If you agree a lower settlement figure, ie like when you negotiate with a debt collection agency they mark it as satisfied. Other creditors can then tell that you didn't pay it of in full.

 

Under the status of account though you might have satisfactory or default marker (like me lol). Satisfactory is good there's no higher status.

[MrMT]

Ah, well spotted! Satisfactory it is indeed. Sorrt to intrude, I'll crawl back into the shadows now. Good luck OP.

[42man]

Any more news on this themajor ?