Wescot Credit Services - Advice please ...

[slm1234uk]

Hi

 

Can anyone please give me some advice on how to deal with this company as I'm feeling harrassed!

 

I had a Lloyds bank account about 9 years ago with an overdraft of approx £2k which was referred to a debt collection agency and I had an agreement to pay them £10 a month. Then I moved house 2 years ago without informing them I had moved! Then I received a letter from Wescot, which the debt had obviously passed to them somehow. I completed the earnings form etc and have been paying them £10 a month ever since.

 

I am finding Wescot rather odd and aggressive, for example, I recently sent them a letter requesting that my payment date be changed to the 1st of every month to coincide with my pay day and to avoid receiving default notices now and again, and asked them to confirm this in writing. I did not receive a response but have been receiving endless phone messages from Wescot and calls and also received another earnings statement form request in the post. The latest call was today, but I didn't confirm who I was and asked them what they wanted and why they kept phoning, the lady hung up on me!!!

 

I have been reading these forums with interest and would like some advice on what I am able to do. What is a SAR etc?

 

Thanks in advance.

 

PS Happy New Year!

[Hippy-chick]

Hi slm1234uk and welcome to CAG.

 

The first thing I would do is to send them a letter insisting that all communications are in writing only - something like this:

 

Your Street

Town

City

Postcode

 

 

DATE HERE

Company Name

Road

Town

City / County

Postcode

 

Re: Harassment by telephone

 

 

ACCOUNT NUMBER: XXXXXXX

 

Dear Sirs

 

I am writing in relation to the quantity and frequency of telephone calls that I have received from your company, which I deem to be personally harassing.

 

I have verbally requested that these stop, but I am still receiving calls. (Delete if necessary)

 

I now require all further correspondence from your company to be made in writing only.

 

I am of the view that your continued harassment of me by telephone puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

 

If you continue to harass me by telephone, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

 

Be advised that any further telephone calls from your company will be recorded. (**Even if you don‘t yet have recording equipment!!**)

 

 

Yours faithfully,

 

 

 

[NAME HERE - PRINT, DON'T SIGN]

 

 

 

 

In addition, you can ask them if they have the necessary paperwork in place in order to legitimately collect the debt (CCA request). And/or, if you think that part of this debt may be made up of added charges, you can ask for a copy of all the records they hold with regard to this account (SAR Request). The former costs £, the latter £10. If you require help with these, just shout and we'll help you - there are form letters that you can copy and use.

 

 

And Happy New Year to you too.

 

 

[slm1234uk]

Many thanks for giving me the information.

 

I will certainly send off these letters. I am certain that most of the debt relates to bank charges as Lloyds kept adding at least £100 per month on my account and despite my requests and meeting with a personal banker, refused to freeze the account. Although I am aware it is too late to claim the charges back, I do feel the whole thing very unfair, it isn't like I've deliberately run up debt without intention of paying it!

 

Owing to the fact that Wescot have completely ignored my request for a change of payment date I am tempted to ignore their request for another statement of earnings, although I am a little worried as to what action they could take next, any advice?

 

They have offered a settlement in the past of a £300 reduction, but it is still too high. Does anyone have any experience with final settlements with Wescot? Do you think it would be worth offering 50% of the outstanding balance? I just want to get them off my back, it's ruined my NYE receiving that call from that horrid lady!

[slm1234uk]

I have also read somewhere that bank overdrafts are not subject to having to provide a copy of a CCA in order to be able to enforce the recovery of the debt, does anyone know if this is correct?

 

Thank you!

[pt2537]

I have also read somewhere that bank overdrafts are not subject to having to provide a copy of a CCA in order to be able to enforce the recovery of the debt, does anyone know if this is correct?

 

Thank you!

 

Hi there

 

Yes im afraid that is true, overdrafts are subject to an exemption

[clutchingatstraws]

I recomend you establish how much of the debt remaining is made up of unlawful charges, ask for a full statement of the account or SAR them. Deduct all charges and interest on charges and offer to settle with the balance, by installments at a rate you can afford. These people always pretend to have more rights than they actually do. Welcome to CAG your new year has just got better.

[slm1234uk]

Does anybody know how much a DCA is allowed to demand off you once you have completed a income and expenditure form? Ie, after all expenses and you have £50 left over are they able to demand this from you or only a percentage?

[ThisVeryMoment]

As much as they like. You have defaulted and owe the full sum.

 

out of interest, why did you not pay anything for two years and why didn't you give your creditor your new address?

[NailPost]

You offer what you can reasonably afford and back up this offer with your i+e details. A debt collector cannot demand you pay what is left over each month. If they are unhappy with your offer then they can decided to take court action against you.

 

The same process would be repeated with you providing the judge details of your income/expenses and the debt collector providing the required documentation to proove the debt is theirs to collect and the sum being claimed is correct.

 

Its this last step that debt collectors just cannot get their head around, especially if they are challenged, because more often than not the documents are not available.

 

In that case the debt collector huffs and puffs and tries to bully people to pay up. That's why it is always a good idea to demand proof.

 

No domunets = no debt.

[Goldlady]

My OH had a current account with LTSB, which went seriously into the red due entirely to charges. As we no longer use the account and have worked out that they owe us more than we owe them we simply reply to all their nasty letters with our own asking them for our £1000 back.

[car2403]

I have also read somewhere that bank overdrafts are not subject to having to provide a copy of a CCA in order to be able to enforce the recovery of the debt, does anyone know if this is correct?

 

Thank you!

 

You can read more on this from rory, here;

 

http://www.consumeractiongroup.co.uk/forum/general-debt/31515-ccas-overdrafts.html?highlight=overdrafts#post1269181 (post #4 onwards)

 

If they can't prove they complied with the OFT Determination, they can't claim exemption under s.74 CCA 1974 - if they can't do that and don't have a correctly executed credit agreement, the debt is unenforceable just like any other credit agreement would be.

 

Of course, they can produce evidence of how they complied by getting expert witness evidence from their own staff to say what the Banks process for agreeing an overdraft is and swearing that this happened in your case.

 

Your best option of challenging overdrafts like this is by using the penalty charges/unlawful Default and Termination arguments, rather than actually challenging the overdraft agreement compliance itself - I'm doing this with Barclays (as well as challenging a Loan agreement) if you want to take a look at my POC in the thread.

[clutchingatstraws]

It important to treat all creditors proportionately equal i.e

 

if you have 50 per month left over and two creditors, one at 2000 and one at 8000 you should offer £10 and £40 respectively.

 

Then again if they do not produce a CCA you are not obliged to pay.

[clutchingatstraws]

when compiling a financial statement it is important to treat creditors proportionately equal i.e.

 

£50 left over 2 creditors one at £2000 one at £8000 the offer should be £10 and £40 respectively

[slm1234uk]

Many thanks for all your advice, very helpful as I have been worrying about them starting to hassle me again even though I've been paying them without fail every month!

 

As the bank overdraft was so long ago I thought I was unable to claim back any charges as it was over the timescale, so didn't think using this would work to reduce the amount owed?

 

Also I don't have any of the bank statements relating to this account, can I request these from the DCA or the bank?

[clutchingatstraws]

Ask wescott for a full statement of the account from the day it was opened.

 

Give them 28 days to supply then stop paying, put the money to one side because if they supply the statement you can pay the arrears(subject to deduction of unlawful charges)

 

You are not claiming charges back so no time limit but if the balance is made up of unlawful charges you do not have to pay.

 

They rely on the fact that you are hassled by them in order that you pay, do not be hassled by these parasites. Post up all letters and get an opinion here where there is tremendous support and advice.

 

Cas

[car2403]

Have you checked your credit file to see if they (the Bank or the DCA) have Defaulted you? If they have and the account has charges applied, this will invalidate the Default and mean they've rescinded on your agreement with them, which means you don't have to pay and can sue them for £1,000 in damages

 

Failure of a Default Notice or a Termination Notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) 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)

 

and;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/115630-pricing-default.html

[slm1234uk]

Is there a suggested template letter to use when requesting a statement of account etc from a DCA? Should the statement they provide include all the bank charges that Lloyds TSB charged me or just charges added by the DCA? As far as I'm aware I'm not paying any fees on this amount now it's been sent to a DCA. Wescot is the second DCA dealing with it so what's the likelihood they will have all this info.

[slm1234uk]

I know the original overdraft default has been added to my credit file, as I ignored the banks letters they passed it to a DCA (silly I know, but I'm a lot wiser now!). I'm not sure if anything relating to this has been added since then. Wescot have sent me default notices in relation to late payments, which is why I wrote to them and asked them to move my payment date to avoid me receiving any further ones. They did not respond, even though I asked them to confirm it in writing, and I believe me sending them this request has triggered the recent bout of telephone calls I'm receiving from them.

 

There is so much information to try and understand what I'm entitled to do I'm dizzy by it all! Am I right in thinking the best thing to do would be to ask the DCA for a statement of account, which should include the bank charges that part of the debt is made up of, then deduct the charges and only offer to pay the remainder?

 

Thanks in advance!

[car2403]

In that case, you should read this;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/111211-defaults-background-removal-methods.html

 

As we know it's an overdraft, it's probably wise not to send a CCA request - although, having said that, (***thinking, as I'm typing here...***) it's up to them to prove that they complied with the s.74 OFT Determination, so a CCA request is still relevant IMHO. Send this to the DCA;

 

 

s.78(1) (s.77(1) for a fixed sum) Consumer Credit Act 1974 request

 

 

 

 

 

After recently obtaining a copy of my credit file from Experian I was concerned to note that a "Default" has been recorded against this account, in my name. Further to this I don’t have a recollection of ever receiving such a notice, and I therefore require you to substantiate this data at your earliest convenience by supplying the following documentation and information;

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 cheque for £1 in payment of the statutory fee

.

2.

You must supply me with a signed true and certified copy of the original default notice

3.

Any deed of assignment if the debt was sold on

You are reminded that you are obliged to supply these documents, whether you are the original creditor or not, under s.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.

 

I also refer to s.10 of the CCA, as I believe the Default showing may relate to an Overdraft on this Current Account;

 

10

Running-account credit and fixed-sum credit;

(1)

For the purposes of this Act—

(a)

running-account credit is a facility under a personal [consumer] credit agreement whereby the debtor is enabled to receive from time to time (whether in his own person, or by another person) from the creditor or a third party cash, goods and services (or any of them) to an amount or value such that, taking into account payments made by or to the credit of the debtor, the credit limit (if any) is not at any time exceeded; and

(b)

fixed-sum credit is any other facility under a personal [consumer] credit agreement whereby the debtor is enabled to receive credit (whether in one amount or by instalments).

(2)

In relation to running-account credit, “credit limit” means, as respects any period, the maximum debit balance which, under the credit agreement, is allowed to stand on the account during that period, disregarding any term of the agreement allowing that maximum to be exceeded merely temporarily.

(3)

For the purposes of section 8(2) [paragraph (a) of section 16B(1)], running-account credit shall be taken not to exceed the amount specified in that subsection [paragraph] (“the specified amount”) if—

(a)

the credit limit does not exceed the specified amount; or

(b)

whether or not there is a credit limit, and if there is, notwithstanding that it exceeds the specified amount,—

(i)

the debtor is not enabled to draw at any one time an amount which, so far as (having regard to section 9(4)) it represents credit, exceeds the specified amount, or

(ii)

the agreement provides that, if the debit balance rises above a given amount (not exceeding the specified amount), the rate of the total charge for credit increases or any other condition favouring the creditor or his associate comes into operation, or

(iii)

at the time the agreement is made it is probable, having regard to the terms of the agreement and any other relevant considerations, that the debit balance will not at any time rise above the specified amount.

I also refer to an extract from a Court case (Coutts v Sebastyen) and is part of the summing up by the Judge in relation to effect on overdrafts and the function of the CCA in such circumstances;

 

“The Defendant provided an overdraft on the account;

a.

The agreement was a regulated debtor-creditor agreement within the meaning of s.8 and s.13© of the Consumer Credit Act 1974, providing for 'running-account credit' within the meaning of s.10(1)(a) of the Act (in effect, a revolving credit within an agreed credit limit); and

b.

That, as such, it was subject to the requirements of Part V of the Act (including the requirements as to documentation set out in sections 57 to 63 of the Act) save and in so far as it was excluded or exempted from such requirements.

Section 65 in Part V of the Act provides that an "improperly executed" regulated agreement is unenforceable by the creditor without a court order. It is common ground that a regulated agreement is "improperly executed" for this purpose if the requirements of sections 57 to 63 have not been complied with.

Section 74 of the Act provides for the exclusion of certain agreements from Part V. It provides as follows (so far as material):

"74. – (1) This part …. does not apply to –

(b) a debtor-creditor agreement enabling the debtor to overdraw on a current account, …

(3) Subsection 1(b) … applies only where the OFT so determines, and such a determination –

(a) may be made subject to such conditions as the OFT thinks fit …

(3A) …. in relation to a debtor-creditor agreement under which the creditor is …. a bank …. the OFT shall make a determination that subsection 1(b) above applies unless it considers that it would be against the public interest to do so.

THE DETERMINATION:

The Determination (which is signed by the Director of Fair Trading) is made under section 74(3) of the Act. I set it out in full:

"1. Under the powers conferred upon me by s.74(3) and (3A) and s.133 of the Consumer Credit 1974, I, the Director General, being satisfied that it would not be against the public interest to do so, hereby revoke with effect from 1st February 1990 the Determination made by me in respect of Section 74(1)(b) and dated 3 November 1983 and now determine that with effect from 1st February 1990 Section 74(1)(b) shall apply to every debtor-creditor agreement enabling the debtor to overdraw on a current account, under which the creditor is a bank.

2. This Determination is made subject to the following conditions:-

(a) that the creditor shall have informed my Office in writing of his general intention to enter into agreements to which the Determination will apply;

(b) that where there is an agreement between a creditor and a debtor for the granting of credit in the form of an advance on a current account, the debtor shall be informed at the time or before the agreement is concluded:

- of the credit limit, if any,

- of the annual rate of interest and the charges applicable from the time the agreement is concluded and the conditions under which these may be amended,

- of the procedure for terminating the agreement;

and this information shall be confirmed in writing.

© that where a debtor overdraws his current account with the tacit agreement of the creditor and that account remains overdrawn for more than 3 months, the creditor must inform the debtor in writing not later than 7 days after the end of that 3 month period of the annual rate of interest and charges applicable.

3. In this Determination the terms 'creditor' and 'debtor' shall have the meanings assigned to them respectively by Section 189 of [the Act]. The term 'bank' includes the Bank of England and banks within the meaning of the Bankers' Books Evidence Act 1879 as amended."

So by virtue of the fact that overdrafts are indeed regulated, you would have needed to serve a default notice. Some agreements have a clause within s.98 which allow a termination without a default (if someone went bankrupt for example); with these you would have needed to serve notice and give 7 days prior to termination - this section does not apply in this case.

 

Please take note at this stage, that any action you may contemplate will be both vigorously defended and contested. In the meantime please be aware that I consider this matter to be “in dispute”. If you are unable to provide this data then I must insist that this Default entry is removed from my credit file as unsubstantiated and the outstanding amount is dismissed as being unenforceable.

 

Yours faithfully

 

Either way, you definately need to send the Bank a s.10/s.12 DPA notice linked to the Surleybonds letter. (see the link above under DPA challenges)

 

You also need to send a DPA SAR to the Bank; (amend this to suit)

 

Dear Sir/Madam,

 

 

 

Style Financial Services Ltd: ********

s.7 DATA PROTECTION ACT 1998 – DATA SUBJECT ACCESS REQUEST

 

 

I request that Style Financial Services Ltd provides me with all details held regarding my accounts, including, but not exclusively as I require access to all information relating to me as a Data Subject under the Data Protection Act;

 

§ Details of all default charges for unpaid items and fees charged for managing the above account, which I have paid in the last six years

§ Copies of all original Consumer Credit Act agreements for each account held in my name

§ Details of all assignments, whether equitable, absolute, legal or otherwise, of the account and documentary evidence of such assignment

§ Details of all manual intervention that has taken place on accounts held in my name, with documentary evidence of such.

§ Details of logic involved in any automated decisions you made about me, or my accounts with you.

 

Please note that this is not an exclusive list, as I require access to all information held by Style Financial Services Ltd regarding me, as a Data Subject under the Data Protection Act.

 

I understand that Style Financial Services Ltd is obliged to provide this information under the Data Protection Act 1998. I have enclosed a cheque for £10 to cover the statutory fee that can be charged for this service.

 

I look forward to hearing from you within 40 days from the date of this letter and before [insert date of 40th day after receipt, allowing for postage, here], in any event.

 

Yours faithfully

 

All this effectively puts the debt "in dispute" and they shouldn't continue to collect on it. If they do you can complain to them formally.

 

So, to confirm;

• Stop getting dizzy!
  
• Send the CCA request above to the DCA by recorded delivery and enclose a £1 Postal Order. (Don't send a cheque, or they will have a copy of your signature and **may** borrow it in a way we don't want to think about) DO NOT SIGN THE LETTER - print your name at the bottom of it instead.
  
• Send a Surleybonds s.10/s.12 Letter, amended to suit your case, to the DCA. DO NOT SIGN THE LETTER - print your name at the bottom of it instead.
  
• Send a DPA SAR to the Bank. £10 postal order, by recorded delivery - DO NOT SIGN THE LETTER - print your name at the bottom of it instead.

Check that each of these has been received over the next few days using the Royal Mail website;

 

www.royalmail.com

 

Don't worry if it doesn't confirm delivery, as you'll have proof of postage (in the form of a Royal Mail Recorded Delivery receipt that is date stamped by the Post Office accepting the letters) which is proof enough they received them. (If they don't receive them, the letters should be "returned to sender" anyway - if they aren't returned to you, they were definately received but just weren't signed for on arrival, which happens a lot despite you paying for "Recorded Delivery"!)

 

Once you've done all this, sit back and relax. They need to supply you with the documentation you've requested to back up their claim and prove they have a right to continue pursuing you. In the meantime you can either; continue to make payments you can afford, or stop paying anything until they have responded. There's no right or wrong answer - some say continuing to pay shows you acknowledge the debt and stopping payments is justified. Others say continue paying the debt, which you know is owed, and continue to pursue the "enforceability" of that debt with the DCA/original creditor. I don't have an opinion either way, but I stopped paying when I disputed my debts and it hasn't biten me yet - I'll leave you to struggle with your moral conscience and decide how you want to proceed on that one.

 

After all this, take a large cup of tea and have a read over here to see what is likely to come next; (all the while keeping this thread up to date with responses you've received, posting up letters you get with personal details removed and getting further advice)

 

http://www.consumeractiongroup.co.uk/forum/general-debt/108467-basic-introduction-consumer-credit.html

 

GOOD LUCK!

[slm1234uk]

I think I am ready to take some action now! It seems from all your responses I have several options, but having bit of trouble determining best coure of action. I apologise if I'm having trouble getting to grips with it and keep asking the same questions, but would prefer to understand exactly what I'm doing before I start sending letters off!

 

My options:-

1. Try to determine whether Wescot are legally able to chase the debt. (Bit more difficult with overdrafts), using template given above.

2. Ask Wescot for a statement of account, does this have to be under an SAR or can I ask them nicely in which case they will probably ignore me or be very unhelpful with the information they provide?

3. Write to Lloyds TSB, under an SAR, to obtain bank statements so I can add up all the charges then write to Wescot offering to pay the remainder.

4. I'm still a bit confused as to whether I owe the debt to Lloyds or Wescot, can I find out?

5. Bit more drastic action, sell up and emigrate to Timbuktoo and not tell them!

 

I am inclined to start off with option number 2 above. Any opinions gratefully received as I'm a newbie at this, or do you think I'm finally grasping it!!

[car2403]

I won't go in to how these DCA's work, but I doubt you'll get account statements from the DCA directly - if you ask for statements, they'll undoubtedly go to the Bank to get them. I believe they will charge you for them, so sending a £10 SAR is probably the best way to do it. When a DCA takes over the debt, they - usually - only get to know what the balance is. This is technically against the rules of assignment under the Law of Property Act. (again, I won't bore you here as it isn't necessary -yet!)

 

The first thing you need to do is establish what the debt is for, what it is made up of, whether they (the Bank) have a legal right to pursue you for it, what interest (if any) the DCA has in pursuing you under the contract and, finally, what type of assignment took place between the Bank and the DCA.

 

I didn't go in to all this as it's quite confusing when you don't know what is the best way to start, but if you follow my advice in post #19, above, you'll discover much more information than just account statements. I've answered your query here, hoping that I haven't confused you further, as you've asked the question. Don't worry too much about all this - just keep your thread up to date and someone will pop along to offer help/support.

 

You're absolutely right to want to check you're doing the right thing. Just remember that the burden of proof is always on the creditor - what your first step should always be is to ask what documentation they have. They can talk to you until the cows come home, but "no documentation = no debt" - this is why you advised to NOT talk to them by phone.

[slm1234uk]

So there isn't much point in submitting an SAR to both Wescot and the Bank (as both have been mentioned), to clarify, if submitted to Wescot they will have to provide the information even if they have to get it from the Bank? If this is correct I will use the template letter provided and send my £10 off and wait! Ooh nearly there now ...!

[Hippy-chick]

Absolutely, slm. One SAR should suffice.

[car2403]

The Bank is the data controller - if you SAR Wescot, you will only get info passed to them by the Bank in order to collect the outstanding debt. As you don't know what type of assignment has taken place, you will need to SAR the Bank rather than the DCA to get ALL the info;

 

Legal assignment - (all rights/obligations pass to DCA, rather than the Bank) you'll get everything from either of them, but more up to date info from the DCA. (Recent payments made to them, etc)

 

Equitable assignment - (DCA "collects" on behalf of the Bank) you'll only get everything from the Bank, as the DCA will have been told how much to collect and left to it. The DCA will probably only have a statement of payments made to them SINCE they took over collection on the account.

 

I would go in to more detail over assignment, but it's a legal minefield and I'm 99% sure it will confuse you more...

 

Sending a SAR to the Bank is the best bet, IMHO...

[slm1234uk]

So when I get all the info from the bank do I then approach Wescot offering to repay the debt minus all the illegal charges? Am I jumping the gun a bit now, should I just wait and see what the bank come back with first!