So Mercers issued the DN , not Barclaycard. Lets assume another DCA issues a Termination Notice or demand to repay in full. Without proof that Barclaycard gave instructions to do so can't they reasonably claim that the DCA's issued the notices without their knowledge? They could then issue a new DN and TN themselves. What is the legal position? Secondly, would a SAR to Barclaycard produce the Mercers DN or is it necessary to SAR each DCA individually. Could get expensive!

That amazes me. I would have thought that keeping a copy of a default notice would be important for them to prove that they lawfully terminated the account. Nothing in the SAR response refers to a DN or TN at all. Also as they keep data on me, don't they have a duty to keep records so that they can locate that data, which would include logging telephone conversations.

anyone?

anyone please?

I hope this thread is in the right place. I see from other threads that the response to a Subject Access Request is often poor. This is my experience. I would be grateful to know what to do next: Request no. 1 "Tesco Personal Finance plc PO Box 5747 Southend on Sea SS1 9AJ date: Dear Sirs Data Protection Act disclosure request Re: Account no. xxxxxxxxxxxxxxx Formal Request under the Data Protection Act 1984 and 1998, and including the Right of Subject Access. I understand that you currently hold details of my personal / financial information within your internal record systems with regards to Account Numbers inclusive but not limited to: xxxxxxxxxxxxxxx Please supply me with complete details of all data held by yourselves, in regards to myself within your organisation, including, but not limited to: 1. Full copies of all contracts that you believe exist or have existed between myself and your organisation, including true copies of any documents you hold in support of the same. 2. A complete list of all transactions or statements relating to ALL accounts held by me with your organisation. 3. Copies of all documents which include any of my personal information including copies of any contracts or invoices, emails or computer records containing my personal information, or any records which pertain to this information. 4. Full copies or transcripts of any computer logs or database records kept in relation to me or in relation to my personal / financial information. 5. Full copies of any and all correspondence in postal, email or any other format that you have entered into with any individual, organisation or third party which contains my personal / financial information, or which pertains to me. 6. Where any previous information or records held have been deleted or disposed of, the methods used to do so, including dates, certificates or references confirming details of destruction. Where you are unable to provide such certificates, please provide a declaration, signed by an authorised officer of your company, confirming the dates and methods of destruction of this data. 7. Full hard copy print outs of any of my personal / financial information held in a digital, magnetic or any other format which is held in any archives, backups or other storage devices / locations. 8. A copy of all telephone recordings are to be provided on a CD. 9. Full disclosure of all commissions or payments made or received by your organisation from / to any insurance provider. Such submissions from yourselves, that the relevant data is now only held on Microfiche in date order and can only be provided at extra cost is unacceptable as it implies that such data is nonetheless retrievable. I enclose the statutory maximum fee of £10.00 in the form of a Postal order made out to yourselves, to access ALL data held by your organisation about myself. You should be fully aware of your statutory obligations under the Data Protection Act and that any failure to comply with this request could result in an investigation by the Information Commissioners Office. You have 40 days in which to comply. If you are unable to deal with this request, you should immediately forward it to the person within your organisation responsible for Data Protection. I look forward to hearing from you in the first instance by acknowledgement of this letter, and a full response within the above designated time scale. Yours faithfully Tesco reply 1 They sent copies of: statements, the CCA/application form, T&C's, my letters old and recent. There were no copies of: default, arrears or termination notices, some of my recent letters and Tescos replies, any correspondence with CRA's, manual interventions, transcripts of our telephone conversations. So, I tried again My request no. 2 Dear Sirs Your ref: xxxxxxxx Section 7 – Data Protection Act 1998 Re: Account no. xxxxxxxxxxxxxxx A) I am in receipt of the documents that you have supplied in response to my Data Protection Act information request dated x xxx 2009. Accordingly, I have to tell you that you have not yet complied with your obligations under the Data Protection Act 1998. The disclosure of personal data is incomplete in that at least the following documents are missing: 1) Full copies of all written correspondence between us. 2) Notes, or documents relating to any notices of default, arrears or termination. 3) Notes, or documents relating to instances of manual intervention. If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response. 4) A CD or full transcripts of all telephone conversations that have been recorded between your organisation and myself. 5) Notes or documents and any correspondence between yourselves and credit reference agencies. This is not an exhaustive list, they are simply examples of some of the information I am missing and I refer you to my original request. I would remind you that your obligation under s.7 is to supply all data held by your company. Failure to respond to this second request in a fully comprehensive and satisfactory manner within the remaining time allowed, will result in the submission of a formal complaint to the Information Commissioners Office detailing your failure to comply with the Data Protection Act 1998. If you contend that you do not hold any further data, then I require written confirmation of this, together with full details of your methods of erasure, disposal or destruction, signed by an authorised officer of your company. You have a further 20 days to comply within the timescale allowed. If you are unable to fulfil this request, you should immediately forward it to the person within your organisation responsible for Data Protection. B) This is my formal complaint that your initial response failed to deal properly with my formal and detailed request, which has led to the necessity of sending this letter. You must be aware that under the provisions of the Act you are required to provide all data, however, whilst failing to do so, you replied: “If telephone transcripts are required, please can you provide the dates that you require these for”. Also “..if you require any further documents, please advise and we will provide accordingly”. I am puzzled as to why you made such statements in view of your legal obligation under the Act. I look forward to both your reply to my complaint, in addition to receiving a full response to my Data Protection Act request within the designated time scale. Yours faithfully Tesco's response with enclosures Tesco's manual notes 1 Tesco's manual notes 2 soooo... please let me have your suggestions of how to proceed. Thank you

I have a Default Notice dated on a Saturday. I see that the Interpretation Act says that weekends cannot be included as a working day. BRW has an example where posting on Friday 1st class means delivery on Tuesday, the second working day. What is the situation when it is posted on Saturday? Some Post Offices are open on that day and will accept normal post as well as recorded and special delivery items. Does that mean that the first working day after posting is Monday and delivery 1st class would be deemed to be Tuesday? Some clarification on this point would be great.

Don't want to give too much away in case the DCA is looking. It is an independent firm of solicitors who specialise in debt collecting.

Sorry, I misunderstood your post. So to clarify they must allow 14 days starting the day after delivery for the breach to be rectified. They cannot demand the full balance or issue a termination notice until the fifteenth day.

I read a post by banker_rhymes_with which differs from your explanation. He says they have to allow 14 clear days after the Date of Service. So for 1st class delivery the first day they can demand full payment is 27th June. For 2nd class delivery it is 1st July - 2 days later than the notice deadline. The question now is, who is right?

This would indicate that the default notice was sent by recorded or signed-for delivery. Therefore they would have a record of posting from which they can prove delivery.

After Egg sent the default notice which seems compliant for timescales and statutory wording, they sent a copy of the "unenforceable" agreement. I got no reply to my dispute letter. It is now five months since Egg terminated. This week they sent a notice that they have sold the account to Cabot Financial Group. Cabot wrote confirming they bought the account and that it is "vital that you contact us urgently to discuss your account" I would be grateful for advice on what to do now.

oops, sorry!

If the only breach is giving insufficient time to remedy, is that enough by itself to make the DN unlawful?

bump

I'm a bit confused about this point. I understand that in the absence of an enforceable agreement the creditor cannot pursue the debt via the courts, but they can continue to request that the debt is repaid. Saying the account is disputed is like saying the debt does not exist. But if the money was loaned to the debtor, albeit on the back of an invalid and unenforceable agreement, the debt still exists so how can it be disputed? Isn't it only the enforceability that is being disputed? Isn't that different to the account itself being disputed?

I have a Default Notice where the words that appear underlined and in bold type in your example are instead underlined and in italics like this: "IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH” "IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]." A second DN has the sentences in lower case like this: "If the action required by this notice is taken before the date shown no further enforcement action will be taken in respect of the breach." "If you do not take the acton required by this notice before the date shown then the further action set out below may be taken against you (or a surety)." Do they both depart sufficiently from the regulations to avoid being De minimis? i.e. do they definitely make the DN's invalid or are they likely to be subject to the individual interpretation of a judge in the county court?

Thank you 'pinky69'. Very helpful as always.

is there a template letter to send to the OC following unlawful recission where they terminated before the 14 days allowed for payment of the arrears?

Hi 'ActionBlusox' A very interesting report, thank you. The link for The McGuffick's Times Online report gives a 404 error message. This should be a working one: High Court decision on debt loophole dashes write-off hopes for thousands - Times Online

Thank you for that. the point I am still confused about is, if the failure of a DN to be accurate invalidates the notice, then on what basis are the arrears stated on that notice payable?

I read somewhere that if they unlawfully rescind the agreement neither the balance or arrears would be payable as the creditor needs a live agreement to legally claim them. Is there case law to clarify this point either way please?

After they terminate the account why can they still claim the arrears?

Doesn't the judge's view conflict with some of the OFT debt collection guidelines?

Was it SIMPLY about reporting to CRA's not being considered enforcement? Quote from the judgement: "79. In contrast, the bank invited the court (as set out in the list of issues) to conclude not only that reporting to the CRAs did not amount to enforcement, but that a number of other activities did not constitute enforcement: (i) reporting to CRAs without also telling them that the agreement is currently unenforceable; (ii) disseminating or threatening to disseminate the claimant's personal data in respect of the agreement to any third party; (iii) demanding payment from the claimant; (iv) issuing a default notice to the claimant; (v) threatening legal action and (vi) instructing a third party to demand payment or otherwise to seek to procure payment. 80. So far as activities (iii) to (vi) are concerned, it was accepted on behalf of the claimant that these did not amount to enforcement or actions to enforce the agreement. That concession seems to me to be correct: at most these activities are steps preparatory to subsequent enforcement. Furthermore, in a recent decision, Rankine v American Express Services Europe Ltd [2009] CCLR 3, HHJ Simon Brown QC (sitting as a Deputy High Court Judge) concluded that the bringing of proceedings is only a step taken with a view to enforcement and not actually enforcement. It seems to me that that conclusion must be correct. Were it otherwise, as Mr Handyside pointed out, one would be left with the conundrum that the creditor could not apply to the court for an enforcement order under section 127(1), because to do so would amount to enforcement, not permitted by section 65(1). 81. Once it is recognised that the bringing of proceedings is not enforcement, it necessarily follows that activities (iii) to (vi) do not constitute enforcement, since they are all steps taken prior to the commencement of proceedings and therefore by definition, at most, steps taken with a view to enforcement."

Does the transcript get published as a matter of course?