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johndeevoy

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  1. As I predicted Lowells offered to settle this prior to the hearing, removing the Default and paying my legal costs (Court fee only as I issued in the Small Claims Court). This was the best possible scenario for them, there was no upside at all for them to consider defending my claim, even if they won they would have incurred legal costs of way more than the settlement sum, and a significant downside of up to £3,000 if they lost. VICTORY! The dispute dates back to before 2009, the original amount claimed by the creditor was statue-barred but the fact that there was a "live" default on my credit file made that element actionable.
  2. I cant find any guidelines for this on the ICO site. The closest I can find is https://ico.org.uk/for-the-public/compensation/ and they seem to just refer to the CAB for advise on claiming via the Courts. Of course there is duality in my claim, I want the information corrected AND am seeking compensation for damaged caused. Any help in finding that ICO guidance much appreciated; I guess it would have been available on their old site before they switched from .gov.uk to .org.uk I've emailed the ICO asking for them to direct me to the guidance; the documents do not seem to be available on their new .org site. I wonder how long it will take for them to reply!?
  3. The Small Claims Court in N.Ireland are not able to deal with "libel" claims which, unfortunately, this could well fall into that bracket. If so, the matter would be escalated to the county court which carries a greater risk of costs. Noomill - your thread is quite old and one of the posters on there had put up a link to a pdf that is now broken. The pdf may have been some direction from the ICO in relation to the power of the SCC to hear DPA claims. Any chance you saved that pdf or can help me find it online? Just thinking out loud here but I recall seeing that a claim for compensation can be brought under s13 of the DPA. I don't have time to review the legislation directly right now but if this is correct and there is a statutory avenue for seeking compensation then I would argue that this is not a "libel" case and the statutory provisions for seeking compensation are the key to opening this to be heard in the SCC?
  4. I am not quite sure which section to post this in so admin can move it if it should belong somewhere else. I own a residential property with a small mortgage on it of around 18k. Myself and my partner wish to buy a new home for us to live in and let out the existing property. I have one default on my credit file which I am currently fighting to have removed (legal proceedings issued). After receiving a rejection from an online mortgage provider due to "adverse credit" I went to my local bank who I have banked with for over 20 years to explain the situation, I need two mortgage products, a buy-to-let for my existing property of around 25k to release 7k to go towards a deposit on the new home, a joint residential mortgage for my partner and I. The bank phoned me today and said that it was not possible for me to release equity from an existing property to be used as a deposit on a new home. I queried this saying that I never heard anything like this and asked if I could release equity for a deposit on another buy-to-let and they said YES. I really do not understand their stance and I would welcome advise from CAG members - is this standard practise or is someone at my bank clueless? I really do not see why they would allow equity release to go towards a BTL but not a new home. Also, because my mortgage on the existing home is so low at 18k, I NEED to take some equity out for a re-mortgage as most providers will not provide a mortgage for under 25k. I feel stuck at present - any advice most welcome.
  5. Cheers slick, it would be good to get some feedback/advise, however, I'm quite happy to go ahead and give the Small Claim Court a shot now that I have done the hard work in research, drafting particulars and scanning and printing a bundle of supporting paperwork. As far as I am concerned the worst that could happen is that the Small Claims Court will reject the claim or pass it up to the County Court where the risk of having to pay legal costs becomes a factor if I lose. In terms of strategy, I am happy to issue proceedings while risking only the £100 small claim fee, as I think Lowells would be absolutely mad to try and defend this. I fully expect them to offer to remove the default for me to withdraw the claim. I posted the content of the particulars here in case I had missed something that someone could add that may be beneficial to my case. I know a few guys have posted saying they don't think I have a case, I obviously disagree with them as set out in my arguments so I don't really want further debate as to the merits or otherwise of my case, only feedback on something I may have missed or got completely and factually wrong. Thanks!
  6. 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. OVERVIEW 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. HISTORY 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. ARGUMENT 1 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 [2003] UKHL 40, [2004] 1 AC 816, [2003] 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 [2009] EWHC 2386 (a lender retains rights to process defaults where an agreement is “temporarily” unenforceable) and Carey v HSBC [2009] 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. ARGUMENT 2 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 [2014] 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”. ARGUMENT 3 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. PERSONAL IMPACT 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.
  7. If this fell within the remit of the Small Claims Court then I would go ahead and issue proceedings. I do not want to risk the costs involved for a County Court action. I don't want to waste my time drawing up the legal application to the Small Claims Court if they are going to reject it as a libel case. Anyone have any thoughts on this?
  8. From my last correspondence with Lowells they said that Barclays had placed the original default. They just changed their name onto it at some time. This is why I didn't want these threads merged, some of the older posts I made had info that was wrong. It seems Barcays placed the default in Jan 2010, then Lowells put their name on it sometime thereafter.
  9. I would rather not have had these old threads merged as I created the new thread to ask a specific question - is a Court action to remove a default and claim damages a libel action? Seeing as we are here I have gone through the paperwork and I received a Default Notice under 87(i) CCA dated 2nd April 2009 asking for payment by 19th April 2009. I don't seem to have received any other Default Notices and then the default was registered with CRA in Jan 2010.
  10. Ok, i just realised that I complained to the ICO about a different matter some years ago and it took them 8 months to deal with it. I need this addressed ASAP so it seems legal proceedings are unavoidable. I guess that the agency will just remove the default rather than try to defend my claim. The question remains - is this a libel case? And if so, is there any way I can re-frame it to fall within the remit of the Small Claims Court?
  11. They waited for over a year after I stopped paying before placing a default. I am currently searching the ICO website for the guidance that says 6 months. If anyone has a link please share.
  12. Hi silverfox, I believe i tried the ICO route before on this and it went nowhere. It may well be worth tring it again as the company in question waited for nearly 2 years after non-payment to place the default. Do you have a link handy to the ICO guidance you refer to regarding the 6 months? Thanks.
  13. Hi silverfox, thanks but you didn't answer my question - is it a libel case? Can I issue proceedings in the Small Claims Court under a non-libel action? To your points, my case is that the default has not been lawfully placed. The account dates from pre 2007 and Wilson v First County applies (if they do not have a signed agreement they lose their rights including the right to place defaults). Also, Grace -v- Black Horse, the matter is now irredeemably unenforceable due to being statue-barred, I am under no legal obligation to make any payments but I am still being treated by prospective creditors as having "adverse credit". The default carries the name of the agent and they refuse to remove it so it is them I will be suing.
  14. A debt collection agency has placed a Default on my credit file but their principle never complied with a s78 request. The matter has also been in dispute for more than 6 years and the debt collection agency has confirmed in writing that they will no longer be pursuing the debt but that they will not remove the Default. The Default is due to drop off next year but my partner and I need a mortgage now; I have a clean file apart from this one Default and have been refused a high-street mortgage product due to "adverse credit". I feel I have no choice but to sue for removal of the Default. I wish to ask the Court to order the Default removed and to claim compensation for the damage caused in missing out on the best mortgage rates. Is this a libel action that I need to issue in the County Court? I would much rather issue Small Claims proceedings but I understand that the Small Claims Court does not deal with libel claims.
  15. Yes The case law I refer to in my original post would indicate that if the OC cannot satisfy s127 CCA CCA1974 then they have no rights under a pre2007 agreement. Just wondering if it is still held as good law?
  16. My credit file is nearly clear apart from a few that are due to drop off soon but there is one which is under the control of Lowells that I have no other option but to sue them to remove. A brief background is that the default was placed on my file in 2010 but relates to a pre 2007 agreement. The OC never complied with my s77/78 request and it is clear that they do not have a signed credit agreement. Lowells are saying that they have not been able to obtain this from the OC so they are closing their file and will not be attempting recovery but refuse to remove the default. The matter is now also statue-barred as the last acknowledgement I made of the debt was in 2008. My question is whether this case is still good law as I intend to make it the basis for my claim against Lowells: In Wilson v Secretary of State for Trade and Industry [2003] UKHL 40, [2004] 1 AC 816, [2003] 4 All ER 97, the House of Lords explained that the 1974 Act was, like the Moneylenders Act 1927 before it, designed to tackle a significant social problem. The activities of some moneylenders have given the money lending business a bad reputation. Something had to be done to protect the borrower, who frequently, indeed normally, would be in a weak bargaining position. Protection of borrowers is the social policy behind the legislation. Part of that policy is to be achieved by setting stringent rules, which have to be complied with by the ender if his money lending agreement is to be enforceable. The strictness of the discipline imposed on lenders is illustrated by the following passage in the speech of Lord Nicholls: "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. Obviously, this would include the rights to process data with CRAs and issue defaults etc. Lowells cannot have assumed these rights if the OC did not possess them. I am also aware of Grace -v- Blackhorse regarding "irredeemably unenforceable" agreements and I also plan to refer to this judgement in my case, as a statue-barred debt is clearly "irredeemably unenforceable" and therefore should not carry a default with the CRAs.
  17. Firstly, I did not say that termination of a contract affected any of the remedies available. Of course one can claim damages if one has suffered loss due to the other parties breach of a contract. I only suggested that termination of a contract ends the contract, and with it all rights and obligations, but not remedies. It is open to any party to a contract to terminate same at any time albeit that they run the risk of being sued for damages due to non-performance. But wherein lies the loss to a creditor if the right to process information with third parties is terminated? There is no loss. Also, by your very reasoning, if the creditor breaches the contact (lets say by failing to comply with statue which is an implied term of any contract governed by statue), then the debtor is also entitled to terminate the contract. Therefore, if a debtor is faced with an improperly executed agreement the debtor is fully entitled to write to the creditor advising that the creditors right to process information with third parties is withdrawn until such time as the agreement is enforced by the Courts.
  18. To asokn, gaston and gany: I opened the other thread not long after this one started as it was a seperate discussion. Why would I 'not like what I saw' here Ganymede? As if this was some kind of victory for you for me to leave the post? 'Absurd'. And what hole did I dig? None my friend as I am as much entitled to my opinion as anyone. I am entitled to hypothesis and dare I say it even question if High Court Judges have got everything correct.
  19. Not necessarily. On this very forum we have many examples of people who have suffered from credit or loan companies incorrectly placing defaults on their credit reports. I gave an extreme example to show how absurd the current law is. A crook with a scrap of paper without your signature on it can destroy your credit report. If your going to chime in with insults at least present an half-decent argument.
  20. What is the difference between 'closed' and 'terminated'? If someone terminates a contract that is it over and done with. Do credit agreements give the creditor a right to only terminate certain parts of the contract as it sees fit? A debt can arise if a debt has been acrued under a contract but once a contract is terminated you cannot claim to still have rights under the contract ad infinitum. Can you point to any case law to support what you say about the difference between 'closed' and 'terminated'? A good question. They are not able to enforce their rights under the contract as the contract no longer exists. If a creditor terminates a contract then it can only issue proceedings based on a debt acrued under the contract. As always the onus is on the claimant to prove their claim, including proving compliance with the CCA1974/2006.
  21. There is a world of difference between a common law contract and a contract regulated by the CCA. Do you contend in such a scenario that you should have the right to record a Default with CRAs?
  22. I asked him to provide statue or case-law to support his argument. I don't make blanket statements about what is and is not the law without any regard to the correct legal position, I simply give my own opinion and thoughts on these issues.
  23. Well, I think it is clear that you are affilitated in some way with the banks/loan companies. Anyone here that has been through the process of disputing a Default with the CRAs knows that this 'facility to rectify' is absolutely useless. Sure, they file a 'Notice of Correction' on the account but what weight does it carry? Absolutely none. So the insane crook simply replies 'I believe the money is owed' and your credit file continues in a destroyed state.
  24. Quite simply yes. How can one default on a 'debt' that is not owed because the contract was not drawn up in accordance with statue? Or a debt that you dispute but the creditor has no intention of taking to Court to prove their claim?
  25. I hear this bankster-driven propagenda all over the place. If someone owes you a debt you have 6 years to prove it, after that it becomes unenforceable in law. That essentially means it is extinguished. As I have already argued throughout this thread, the whole idea of an 'unenforceable right' is contradictory in terms, in logic, and therefore in law. Please provide statute or case-law to support your argument. If your argument is correct creditors can come out of the woodwork 20-30-50 years from now claiming you owe them money and registering defaults with CRAs, even though there is no possible way for them to prove legally or otherwise that a debt is owed. Creditors have 6 years to prove a disputed debt, after this time no debt can exist in the eyes of the law and therefore at all. But the banks have manipulated the legal system so that they can hurt you if they like, whether or not they can prove a debt is owed.
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