I've decided to go ahead and issue a Small Claim in the Northern Irish Courts. Here is my draft particulars. I guess I don't need to be as specific with quoting legislation etc as would be expected in the County Court system. It will cost me £100 to issue the Small Claim and there are no other legal costs allowed for either side. So if Lowells want to defend this they will have to pay for a Northern Irish solicitor to do it and those costs will be unrecoverable even if I lose.
Just thought I would post it here in case anyone wants to read and offer suggestions or advice. I plan to submit tomorrow.
I make this application to the Court seeking an order under the Data Protection Act 1998, or any other such Order as the Court sees fit, to remove reference to a disputed debt including a “Default” marker which has been placed on my credit file with the credit reference agencies, Experian, Equifax and Call Credit. The alleged debt information and “Default” marker are under the control of the Defendant.
The Default was placed on 28/01/2010 in relation to a credit card account with Barclaycard dating from 2003 with an alleged sum of £xxxx owing.
My case is that I have no financial obligation to the Defendant or their principles, that the Defendant has no lawful right to place the Default, and that the Default is invalid in accordance with the Fourth Principle of Accuracy contained within Schedule 1 of the Data Protection Act 1998.
The Default indicates to prospective creditors that I am currently “in default” of my financial obligations, which is untrue. This has caused me to be refused financial products despite my credit record being otherwise “Excellent” with a score of 965 out of 1000 with Experian.
I suffered a number of personal issues in 2006, (i explain some to the Court here but delete from this post).
I was unable to make payments and fell into default on some of the accounts. I believe some of the accounts were actually taken out by my ex-partner but bearing my name. I discovered an internet forum in 2008 that offered a lot of information regarding financial legislation so I began to query the debts that were being demanded of me.
On 19/08/2008 I wrote to Barclaycard under s78(1) Consumer Credit Act 1974 requesting a copy of the executed agreement for the account in question. They sent me a photocopy of a generic T&C booklet. There was not even a place on this booklet which could carry the signatures of the parties and it was not in the prescribed form according to s61 of the 1974 Act and subsequent regulations. I wrote to Barclaycard on 24/09/2008 advising that this was not a true copy of the executed agreement and that I considered them to be in default of their statutory obligations, and that the agreement was unenforceable while they remained in default.
A series of letters was sent between myself and Barclaycard during 2008 and 2009 regarding the dispute over their s78 duties. These letters are marked EXHIBITx in the bundle. My goal was to decide whether or not Barclaycard held an agreement that was enforceable in law. I wished to perform an analysis of whether the agreement was in the prescribed form and content according to the 1974 Act and crucially whether it contained my signature, as under s123(3) of the 1974 Act a Court cannot enforce an agreement that was not in the prescribed form and signed by the debtor.
To this end I wrote to Barclaycard on 29/08/2009 enclosing £10.00 as the statutory fee under the Data Protection Act 1998 asking for full disclosure of all documentation held about me. See bullet points within letter marked EXHIBIT2a. I asked them specifically to state whether or not they were in possession of the original credit agreement bearing both parties signatures. Barclaycard replied, EXHIBIT 2b, enclosing a bundle of documents none of which was a copy of the signed agreement, and they also ignored my specific query regarding their possession of a signed credit agreement. This is an important point as I quote from OFT guidance document published in 2010, OFT1272 “Guidance on sections 77, 78 and 79 of the Consumer Credit Act 1974”:
5.5 The OFT considers that a creditor should not, either by act or omission, mislead a debtor as to the enforceability of an agreement. To do so is an unfair or improper business practice and is relevant to the creditor's or owner's fitness to hold a licence under the CCA. It may also be an unfair commercial practice under the Consumer Protection from Unfair Trading Regulations 2008.
At no time did Barclaycard, their agents, or subsequent purchasers of the alleged debt, ever provide any evidence of a properly executed credit agreement signed by me. Letter from the Defendant dated 27/01/2015 EXHIBIT4 indicates that they were unable to obtain proof of agreement from Barclaycard and as such are no longer pursuing the alleged debt.
This dispute relates to an alleged consumer credit agreement dating from 2003. The relevant Act is the 1974 Consumer Credit Act and s127(3) of that Act is in play. s127(3) was repealed by the Consumer Credit Act 2006 but not retrospectively for agreements entered into prior to 6th April 2007.
I believe the form, content and consequence of s127(3) to be well known so will summarize same by saying that it is a limitation on the enforcement powers of the Courts in relation to relevant credit agreements where the creditor cannot prove that the debtor signed the credit agreement in accordance with s61(1) of the Act.
In Wilson v Secretary of State for Trade and Industry  UKHL 40,  1 AC 816,  4 All ER 97 Lord Nicholls said:
"72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his rights under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security.
Much development in case-law in recent years can only be applicable to post April 2007 agreements where the Courts have full and unrestricted powers of enforcement. The logic and reasoning behind the decisions in some of the more significant cases e.g. McGuffick v RBS  EWHC 2386 (a lender retains rights to process defaults where an agreement is “temporarily” unenforceable) and Carey v HSBC  EWHC 3417 (a lender can satisfy his legal obligations under s77-79 of the Act by recreating or reconstructing a version of the credit agreement) is difficult to reconcile within a pre-2007 legal framework where s127(3) of the 1974 Act is in play. Within such a framework, which is the relevant framework for resolution of this dispute, the decision in Wilson reigns supreme and falling foul of s127(3) means that the creditor loses all rights under the agreement.
A creditors right to share information with credit reference agencies is contractual in nature, it is granted under the terms of the credit agreement and if the creditor “loses all his rights under the agreement” then this includes the right to share information about the alleged debt with the credit reference agencies. Of course this extends to any agents and to any purchaser of the alleged debt.
I contend that the Defendant in this matter purchased thin air from Barclaycard as no debt was ever proven to have existed against me. The purchase of thin air does not grant the Defendant the right to place markers on my credit reference file indicating that I am “in Default” of any financial obligations.
In summary, my argument is that at no point in the 6 years subsequent to my raising a dispute did Barclaycard or any of their agents produce any evidence of a properly executed credit agreement. In particular Barclaycard fall foul of s127(3) and they therefore have no rights under the alleged agreement which includes the right to process information with credit reference agencies. The Defendant did not therefore acquire these rights when they purchased the alleged debt.
My last payment was made on 29/12/2008 and I have not acknowledged any debt since that date. See copy statements marked EXHIBITXXX. Under the Statue of Limitations, Barclaycard had 6 years (until 29/12/2014) to initiate action to prove the existence of and recover the debt they claim is owed. This avenue is now closed. No debt was ever proven to have existed and the alleged credit agreement is now irredeemably unenforceable.
In Grace & Anor v Black Horse  EWCA Civ 1413, the Court of Appeal held that it is a breach of the fourth data protection principle of accuracy for lenders to report debtors as “defaulters” where the debt in question is irredeemably unenforceable. In such circumstances no legal obligation rests on the alleged debtor to make any payment, therefore it is not possible for alleged debtor to be in “default”.
If my previous arguments fail then I would make one final appeal to the Court based again on the fourth Data Protection Principle of Accuracy. I question the accuracy of the Default date of 28/01/10.
I stopped making payments on 29/12/2008 and Barclaycard issued me with a Default Notice via their agents Mercers on 02/04/2009 (see EXHIBIT 3x). The delay until 28/01/10 before recording the Default with the CRAs is unexplained and unacceptable. Some creditors, when they know that a debtor is facing multiple defaults, will delay in placing their Default in order to stretch out the pain for the debtor as a means of coercing payment. This is against Information Commissioners Office guidelines that a Default Notice should be placed within 6 months of the last payment unless there are special circumstances to consider, of which there are none in this case. Please see EXHIBITXX which is text taken from the 2014 ICO published guidelines.
It is not accurate to state that I defaulted on this account on 28/01/2010 when my last payment and acknowledgement of the debt was on 29/12/2008. According to the ICO guidelines the very latest date that the Default should have been placed was 29/06/2009.
ATTEMPTS TO RESOLVE
I have written to the Defendant and directly to the main Credit Reference Agency, Experian, and the general response has been that the Defendant contends that the Default has been placed correctly and will not remove same, even when confronted with the very clear direction from the Courts in Grace v Black Horse. See correspondence marked EXHIBITXXX.
My financial difficulties were caused by a tsunami of extreme personal circumstances occurring in a short space of time. That time has passed and my credit file is now clean apart from the disputed Default. The Default is not an accurate indicator of my current creditworthiness.
My partner and I noticed a possibly once-in-a-lifetime opportunity to purchase a property in our ideal location at an affordable price. I submitted an application to HSBC to open an Advance bank account which is a pre-requisite to their Buy-to-let mortgage products (which I need to rent out my current home) and to their best mortgage rates including a £1500 cashback on mortgage purchase. I was denied due to “adverse credit”. See documents marked EXHIBIT5.
At present I am in discussion with a local bank where the product fees are much higher than HSBCs (approx. £1300 over the two mortgage products I need) with higher rates and no cashback offer. It may well be the case that I am denied all “high-street” mortgage products and will be forced to take a “bad-credit” mortgage with rates of triple those in the high-street along with even larger product fees. The potential worst case scenario is being unable to secure a mortgage product at all and missing out on the home purchase opportunity which would be a detriment in the range of tens of thousands of pounds. I am willing to forgo any excess and seek compensation up to the amount of the limit of the Small Claims Court of £3000.