Fed Up Of Brum v Equidebt

[kfdh1962]

a few years ago CO-op visa sold my account to equidebt, even though i was up to date with my agreed arrangement. I have ontinued since then to pay £50 a month to equidebt, however in septemebr i stopped paying and sent the a CCA request.

they failed to supply a true copy of the fuly executed agreement in the 12 + 2 days, and this default has lasted more than one calender month.

 

they have finally supplied a document ( my cca request was 07/09/07) on the 6th decemeber. This document is lcelalry an application form as does not contain many of the prescribed terms that are required..

 

i will scan what they have sent for others to look at.. but it is pretty similar to the one i had from cap one which was not enforecable...

[kfdh1962]

Here is the letter i intend to send to them,

Dear Sir/Madam

I do not acknowledge any debt to your company

I refer you to my letter dated 07/09/07 which was delivered via recorded delivery to your offices on 10/09/07

In my letter I made a formal request for a copy of the signed, executed credit agreement for the above numbered account under section 77(1) and section 78(1) of the Consumer Credit Act. In addition a statement of my account should have been sent along with any other document mentioned in the credit agreement.

 

The Consumer Credit Act allows 12 working days for this request to be carried out before your company enter into a default situation. If the request is not satisfied after a further 30 calendar days, Your company commit an offence. These time limits expired on 25/09/07 and 27/10/07 respectively.

 

As you are no doubt aware subsection (6) states:

 

If the creditor under an agreement fails to comply with subsection (1)—

 

(a) He is not entitled, while the default continues, to enforce the agreement; and

(b) If the default continues for one month he commits an offence.

 

Therefore as at 27/10/07 this account became unenforceable at law.

Furthermore, the document you have supplied with your letter dated 06/12/07 does not correspond in form and content to the requirements of the Consumer Credit Act 1974.

Any earlier actions relating to sharing of data with credit reference agencies or defaults should be immediately removed. Confirmation and acknowledgement of this letter should be received within the next 14 days

 

 

Yours Faithfully

any comments or advice?

[hellhasnofury]

I have Equidebt on hold at present, due to no credit agreement from mnba,

 

Get your letter sent and watch them squirm. Serves them right, they buy these alleged debts for a pittance, and them play hardball with the poor ignorant victum.

 

Glad they bought a lemon, may teach them a lesson, but it won't.

 

Good luck and keep us posted to your progress

[kfdh1962]

Hi hellhasnofury,

i'll be posting the letter off today, will keep you posted

[Zimmie]

Hi kfdh, I CCA'd Equidebt back in May, a month later they sent me a few dodgy looking statements and nothing else. So I left it a while and about August I sent a very similar letter to yours above. I got a reply that they were looking into it, then they sent a copy application form along with a very snotty letter which referred to the 'I do not acknowledge any debt' bit of my letter, saying the statements were all the proof they needed, and that if I still did not acknowledge the debt I should go to the Police and report fraud/identity theft. I haven't replied as yet, and for now they have gone quiet.

From other threads I've seen on EQ this seems standard when they can't provide a valid CCA.

[kfdh1962]

Hi Zimmie,

what an unbelievable response eh.... then again the more threads you read with these guys the less things surprise you... seems they will try anything...

 

posted my letter... waiting fior the response with baited breath...

[kevster1009]

CCA'd Equidebt end of Oct....no response...now over full time limit, shall I write to em and tell em so or do nothing until they chase. the A/c is an MBNA one which also was defaulted on my file in Sept.

[kfdh1962]

well not heard anything from equidebt....

 

unfortunately they were paid £50 from myl loyds account this week, there was a standing order still live on it that i had suspended for ages ... and it became live again because i had forgotten to cancel it....

lloyds cant reverse it as it went out of the account a few days ago... only found out because i was looking at the account to check the state of charges and resulting o/d on that account:mad:

[hellhasnofury]

well not heard anything from equidebt....

 

unfortunately they were paid £50 from myl loyds account this week, there was a standing order still live on it that i had suspended for ages ... and it became live again because i had forgotten to cancel it....

lloyds cant reverse it as it went out of the account a few days ago... only found out because i was looking at the account to check the state of charges and resulting o/d on that account:mad:

 

Hello kfdh,

 

Mmmm that will confuse them rather, you are not paying and now you are paying:-o

 

I am sure that you have now cancelled the SO.. Just stick to your guns and look at this as a minor oversight on your part. This may start them off again with your account, so just be ready for them. No credit agreement:razz:

 

keep us posted:D

[kfdh1962]

Hi hellhasnofury,

that was exactly my first thought, that this will kick them off again. As you say i will stick to my guns, as previously stated no CCA , so unenforceable debt!

 

all standing orders an that old lloyds account now cancelled so it wont happen again...

[kfdh1962]

heard nothing form these guys since december 2007,... they never complied with my CCA request sent in 2007, amn its been all quiet since...until yesterday!

i had a letter from a company called Credit Ancillary Services, advising me that they have taken over this account and would i please send them approx 3k...

equidebt were based in Wellesbourne Warwickshire, and funnily enough so are these guys... not an identical post code but wellesbourne is PRETTY small.. methinks it could be the same guys...

well if my memory serves me correctly the account is unenforceable as the CCA request was never complied with, and that would apply to anyone else the acount was sold to (assuming it is actually a different company), or do i have to do the whole CCA request over again?

Edited January 23, 2009 by kfdh1962

[PGH7447]

No you dont, send them the I'm amazed this debt is now in your hands letter.

 

or save a stamp and ignore it until the next threat-o-gram arrives:D

[kfdh1962]

due to the fact that Equidebt failed to comply with a cca request and the acoount is therefor in dispute?.. sorry if thats a dumb question

[bazaar]

Yep they are in default and have been since that time, so send the letter off to them soon, recorded del of course

[jon888999]

heard nothing form these guys since december 2007,... they never complied with my CCA request sent in 2007, amn its been all quiet since...until yesterday!

i had a letter from a company called Credit Ancillary Services, advising me that they have taken over this account and would i please send them approx 3k...

equidebt were based in Wellesbourne Warwickshire, and funnily enough so are these guys... not an identical post code but wellesbourne is PRETTY small.. methinks it could be the same guys...

well if my memory serves me correctly the account is unenforceable as the CCA request was never complied with, and that would apply to anyone else the acount was sold to (assuming it is actually a different company), or do i have to do the whole CCA request over again?

Hi, I got the same letter on Tuesday! Mines been in dispute for a few months all Equidebt sent was an old application form with absolutely no precribed terms! So Have sent Credit Ancillary the confused and bemused letter>

take Care

Jon

[kfdh1962]

Thanks PGH & Bazaar,

so a letter along these lines would be correct? of course adding the "i do not acknowledge any debt"

 

ACCOUNT IN DISPUTE

 

Your Reference:

Client reference:

 

 

Dear Sir or Madam,

 

I must admit that I am rather bemused as to why this account has been passed to you, as it is in dispute with ***DCA*** and has been since ***Date***

Not only is this a breach of OFT collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998

 

 

As ***DCA*** is now in default of my Consumer Credit Act request, Office of Fair Trading Collection Guidelines and s10 Data Protection Act request, I consider this account to be in SERIOUS DISPUTE.

 

As you are aware while my Consumer Credit Act request remains in default, enforcement action is NOT permitted; under s127 this constitutes a complete defence at law. Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Now I would respectfully suggest that this account is returned to ***DCA*** for resolution of these defaults and breaches, as ***DCA*** cannot lawfully pursue any enforcement activities.

 

If ***DCA***chooses to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service and possible court action.

 

I hope that this will not be necessary and an acceptable solution can be accomplished.

 

I would appreciate your due diligence in this matter.

 

Yours faithfully

[bazaar]

Looks ok

[kfdh1962]

sent recorded delivery today... lets wait and see what gems they comeback with:rolleyes:

[kfdh1962]

well, all seems to have gone quiet again.

Edited March 4, 2009 by kfdh1962
quiet not quite!!! doh!

[jon888999]

Hi, I got the same letter on Tuesday! Mines been in dispute for a few months all Equidebt sent was an old application form with absolutely no precribed terms! So Have sent Credit Ancillary the confused and bemused letter>

take Care

Jon

Hi, I got a letter from Equidebt apologising and saying it was a system error. My accounts remain in dispute, waiting for co op to provide a legible copy of my loan agreement and a agreement with prescribed terms on for a credit card. Been waiting since october.

[hellhasnofury]

Hello Guys,

 

My advise to you now would be to hit this bunch extremely hard, send them a Copy of surelybonds get the default removed letter

 

your address

Equidebt Limited

Equity House

Wellsbourne

Warwickshire

CV35 9SA

Date

Dear Mr Etheridge,

Your reference xxxxxxxxxxxx

Re: Formal notice to desist from processing or disclosing personal subject data

 

As you are aware, I have recently conducted an audit of my personal credit reports supplied by Experian, Equifax and CallCredit.

It is noted that there exists, within my xxxxxxxx file, an entry referenced as “Equidebt Ltd (I) / XXXXXXXXXXXX, indicating an alleged agreement which is in dispute and as of this date is formally denied. Failure to supply me with a true copy of the executed agreement makes this unenforceable. In addition, since you are unable to supply this then consent to process my data is not proven and is formally revoked.

 

I am contesting that Credit Agencies continued processing of my data is an unwarranted act and I enclose a Statutory Notice to that effect, which is deemed served as of the date noted on the Royal Mail's Recorded Delivery service audit.

My written permission allowing any Credit Reference Agency to continue processing, or disclosing, my personal subject data was revoked upon the failure to fully execute the agreement as specified by the Consumer Credit Act 1974 and hence the contract is void and I hereby reiterate that revocation. I also do not recall receiving any such Notice of Default being served on me, as required by the conditions of the Consumer Credit Act 1974.

 

Unless Equidebt can provide a true copy of the said Notice, then I consider that any default entry on my credit files to be wholly unwarranted. However, if you can supply the copy, then I also contest the Credit Agencies’ continued processing on the following grounds.

 

As you are aware, I am afforded principled rights under the Data Protection Act (Data Protection Act), Schedule 1, Part 1 ("The Principles") in relation to the manner in which my data is collated, stored and processed. Of particular note, are Principles 3, 4 and 5:

3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.

4. Personal data shall be accurate and, where necessary, kept up to date.

5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.”

In my case, the Credit Reference Agencies are still processing data despite lack of consent nor a true agreement as prescribed by the consumer Credit Act 1974, whether or not this is a simple renewal process of the default flag, daily or by other timing factor. As that contract has never been in situ, then my written permission has never been given. This is confirmed in Principle 2 of the Data Protection Act, which states:

"2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes."

I emphasise the term "specified and lawful purposes" as in ‘those specified within the contract’, and no more. I also emphasise the term "shall not be further processed".

 

I have taken the matter up with the Credit Reference Agencies, and they had claimed that they had a (quote) “legal right” to maintain this type of adverse entry for up to six years. When I challenged them to quote me the exact Statute that includes this so-called “legal right”, they remained remarkably quiet. Only after my continued insistence of disclosure did they eventually concede that, whilst they have no statutory right, it is (quote) “standard industry practice” but they added that they are “allowed to by Law”. After further challenges, they finally admitted that unless this was a County Court issue, their term actually referred to contractual Law, but continued to emphasise that it was “standard industry practice to record default entries for six years.”

 

May I respectfully presume that you likewise recognise that “standard industry practice” does not correlate with “legal right”? Further investigation has also led me to conclude that the only six-year data ‘retention rule’, to which they may adhere to, is in relation to information in the public domain, e.g. Bankruptcy Orders/Discharges, IVAs, CCJs, etc. These are kept in the public domain for six years. But, these are sealed orders issued by a judge through the Courts who oversee the ultimate jurisdiction in all matters relating to Law. It is not up Lenders, Debt Collection Agencies or Credit Reference Agencies, to decide legal issues.

 

In addition, the agencies may also hold information that is deemed ‘in the public interest’ for the avoidance of credit fraud or deliberate repayment avoidance; I refer, of course, to CIFAS and GAIN entries on a credit file. My alleged agreement was not subject to any such marker, nor is my alleged civil contract with MNBA, a public matter.

After scrutiny of all the relevant legislation, including the Consumer Credit Act (As Amended), the various Financial Services Acts and the Data Protection Act, etc., it is clear that there is absolutely no legislation that allows a lender, supplier or Debt Collection Agency to collate, process or distribute any other information unless there is express written permission from the data subject. In fact, Section 10 of the Data Protection Act awards the real authority, regarding privacy of data, to the data subject, not the Data Controller.

 

The Act is also very clear as to the rights of the data subject in respect of withdrawing permission to continue data processing and disclosure:

10. - (1) Subject to subsection (2), an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the ground that, for specified reasons-(a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and(b) that damage or distress is or would be unwarranted.

 

However, there are some exclusion provisions for Data Controllers, and Section 10 does continue with various exceptions to subsection (1) above, and these are quoted, in full, below:

10. - (2) Subsection (1) does not apply-(a)in a case where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met ,or (b) in such other cases as may be prescribed by the Secretary of State by order.

 

To paragraph (b), I can only presume that your company Equidebt, nor the Credit Reference Agencies have not applied to HM Secretary of State for an order allowing you an exclusion, which leaves the Credit Reference Agencies with the only remaining possibility of requesting an exemption under paragraph (a). So, we must turn to the exemptions permitted in paragraph (a) to find where the Credit Reference Agencies’ Data Controller may invoke his perceived exemption to the DPA, namely, those listed in paragraphs 1 to 4 of Schedule 2. I have reproduced these exemption paragraphs, in full, below:

 

“1. The data subject has given his consent to the processing.

2. The processing is necessary- (a) for the performance of a contract to which the data subject is a party, or(b) for the taking of steps at the request of the data subject with a view to entering into a contract.

3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

4. The processing is necessary in order to protect the vital interests of the data subject.”

 

It is my contention that you and the Credit Reference Agencies’ supposed right of obtaining an exemption is not contained within any of these paragraphs. I have followed each in turn with my notation to give a clearer explanation, should there be any lack of clarity.

 

1. The data subject has given his consent to the processing.

That consent was never proven I reiterate the revocation herein, and by the attached Statutory Notice.

 

2. The processing is necessary-(a) for the performance of a contract to which the data subject is a party, or(b) for the taking of steps at the request of the data subject with a view to entering into a contract,

For (a), there is no contract being performed, and for (b), neither you nor the Credit Reference Agencies are not entering into any form of contract with myself, and most certainly, not at my request.

 

3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

According to the Information Commissioners Office (I.C.O.), exemption 3 includes all other statutory obligations for which the interests of national security and welfare override personal privacy. These obligations allow for the provision of data to Official agencies and organisations, e.g. disclosure to crime prevention agencies (Police, Intelligence Services, etc), official Government agencies (DVLA, DSS, Passport Agency, etc.) and health authorities, etc., and for any other purpose not agreed within a civil contract.

 

We all know that the three major credit reference agencies are not Government bodies, nor official agencies, but for-profit companies, even though they like to think they are official. None of these three agencies are listed in the appropriate DPA Schedule that names the specific organisations that are permitted any such exemption rights.

 

4. The processing is necessary in order to protect the vital interests of the data subject.”

With reference to the I.C.O. again, this is interpreted as anything that affects the data subject as a matter of life and death. This clause is included in the DPA to permit data, like medical records or contact details, being disclosed in emergency situations. I do not believe that my former account details could be described as anything like a matter of life or death.

 

So, it is clear to see that there is neither statutory provision permitting you nor the Credit Reference Agencies’ Data Controller to assume continued processing rights of my data at his discretion, nor any exemption. I can then only assume that you or the Credit Reference Agencies are relying on the Common Law, and contractual law, as determined by the contract that both parties allegedly originally agreed. Since the agreement has not been produced then that contract is void whether or not a Default Notice was served. Also, I cannot recall any clear statement that gave my express permission for you nor the Credit Reference Agencies to continue disclosing my subject data to third parties when the contract is void. You are no doubt aware that any non-agreed disclosure of personal data to third parties, without express written permission, is a criminal offence under Section 35, of the DPA. However, if I am mistaken, and the true executed agreement exists then you must provide me with a true copy of those signed terms indicating where I have agreed to them.

 

This should be sent to me as one of your enclosures, if you wish to contest the enclosed Statutory Notice. You should be aware that you have, by statute, twenty-one days in which to either comply with my Notice, or give written notice stating your reasons and why you consider the Notice unjustified.

 

In summary, in relation to this unenforceable agreement and void contract, I am formally instructing you, as an authorised officer of the Company, from this day onwards, to:

 

1) cease to continue storing, processing or communicating my data;

 

2) remove all such data from automated process systems, as per the provisions of Part II, Section 12 (1) of the Data Protection Act, namely:

(1) An individual is entitled at any time, by notice in writing to any data controller, to require the data controller to ensure that no decision taken by or on behalf of the data controller which significantly affects that individual is based solely on the processing by automatic means of personal data in respect of which that individual is the data subject for the purpose of evaluating matters relating to him such as, for example, his performance at work, his creditworthiness, his reliability or his conduct.

Of particular note is the Acts own term “his creditworthiness”;

 

3) Cease to disclose any data to any third party including, but not restricted to, Equifax plc, Experian Ltd and Callcredit plc, and any other credit reference agency; and furthermore

 

4) Instruct Equifax plc, Experian Ltd and Callcredit plc and any other credit reference agency, to remove all data pertaining to your records on me, to the extent that no data entry in relation to Credit Reference Agencies will exist on my credit files.

 

Any failure on your part to adhere to these statutory timescales will automatically be interpreted as your non-compliance with the legal procedure. In that case, you will be expected to unconditionally comply with my Statutory Notice or I shall have no alternative but to refer the matter to the Court to seek an Order to that effect. Should it be necessary to refer the matter to the Court, then I shall also apply for Court fees and legal costs against the you. I shall also reserve the right to seek redress for damages as per the remit of the Data Protection Act.

 

I trust that I have made my position clear, and that your Company and the Credit Reference Agencies will now make a serious effort to understand its legal obligations and effect the changes requested. Should you be in any doubt as to the your obligations as a Data Controller, then I would advise that you consult your corporate counsel. In any event, I shall expect a written confirmation from you acknowledging the contents of this letter within 5 working days.

Yours faithfully,

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

and the statutory section 10 notice

Statutory Notice pursuant to Sections 10 and 12

 

of The Data Protection Act 1998.Data Subject Notice

 

 

 

To:

The Data Controller:- Equidebt Limited

Address:- Equidebt Limited,Equity House, Wellsbourne, Warwickshire

CV35 9SA

Data Subject:- XXXXXXXXXXXX

Address: XXXXXXXXXXXXXXXXX

I declare that at no time in my alleged unexecuted agreement ref number xxxxxxxxxxxx with MBNA or Equidebt Ltd, did I agree or consent in my contract with you to the disclosure by you of certain data to third parties, at no time did I consent and neither was it within the contemplation of the parties to the contract that I did consent to the processing by you of that data in any manner which would be unfair or inaccurate or which in any way would breach The Data Protection Act 1998.

 

Therefore, take notice that I require that you cease from processing within twenty one days of the receipt by you of this Notice, or else that you do not begin to process any personal data of which I am the subject insofar as that processing involves the communication or passing of personal data of which I am the subject to any third party and insofar as the said data relates wholly or in part to the implementation by you of alleged defaults or contractual breaches or breaches contrary to The Common Law.

 

This Notice is given on the grounds that the processing or continued processing by you of the said data will be likely to affect my credit rating and my reputation and cause substantial damage and/or substantial distress to me and my family members in addition to that which has been caused to date. And that as the processing of the said data in the way referred to in this Notice would violate both the Principles and Data Subject’s rights of The Data Protection Act 1998, to do so would be both unwarranted and unlawful.

 

Signed

Dated this xxxx February, in the year two thousand and Nine.

 

Worked for me:D

[kfdh1962]

received a letter from equidebt at the weekend apologising for passing this on to CAS saying it was a mistake and they had no passed this on to the original creditor..

 

sio i guess they will now supply the same application form they tried to pass of as a fully executed agreement back in 2007:rolleyes:,the mind boggles

[kfdh1962]

well... nothing since my last post from either equidebt or CAS in writing...

 

however today CAS called me on my mobile....

 

CAS "hello is this MR wotshisname?"

me "who is calling?"

CAS "CAS, i need to ask you some security questions, can you confirm your identity, can you confirm your date of birth?"

ME "you called me , you know who i am, i do not wish to answer your questions"

CAS"so you wont answer"

ME "i dont know who you are"

CAS "i have told you, CAS"

ME " how do i know that?

CAS "cause i have said"

ME "what is it you do?"

CAS "cant say until your answer security questions"

ME " you can tell me what your company does, dont have to go into specfics"

CAS "we are debt collectors.so have you received our letters"

ME "im not sure"

CAS "well you have received our letters, you have written to us"

ME "well if thats the case, you will know i do not acknowledge any debt to you, and my position remains unchanged until you provide me with a true copy of a fully executed agreement... assuming of course we are who we say we are... but you cant say;)"

CAS " well if you wont answer my questions i cannot discuss this, we wil write to you"

ME "please do, and for your records note i only wish to communicate in writing... goodbye"

 

well, equidebt failed to produce a true copy of a fully executed agreement,CAS have failed to do so, CAS passed it back to equidebt who wrote and said it was a mistake that it had been passed to CAS and they had passed it back to the OC... whoever it is wont get anything from me until they produce the correct documentation:p

Edited April 29, 2009 by kfdh1962
bad typing.. sausage fingers!

[kfdh1962]

received a ltter from CAs today stating they are dissappointed that i have not responded to their letter:confused:

i have proof of delivery of a ltter sent to CAS in january... furthermore CAS clealrly passed this ltter back to equidebt as i have altter from equidebt acknolwedging receipt of my letter, stating that the account had been taking back from CAS and no further actvitiy willtake place until my request () had been dealt with ny the oc.

so CAS are now acting without the authority of their client as well as breaching oft guidelines by pursuing a disputed debt...

 

as for my request... well i didnt make one, i simply enclosed copies of all previous correspondence when equidebt and the o/c failed to rerspond to a cca request in the prescribed time, and when they finally did long after the statutory time, supplied a copy of an application form..

 

i guess ill soon have another copy of that application form..

 

in the meantime letter to go off to cas with copy of all previous correspondence and copy of equidebt letter stating it has been recalled from CAS.. and report to oft me thinks as well:D

[bazaar]

Why waste your time with the copies of letters?

Better to write a letter stating that you are dissapointed that they appear to be a little lacking in the brain area, keep the letter to the same format as theirs, ( Just to pee em off more).

Tell them they have no juristiction on this so called debt and as such, any further requirement by you to respond to their drivell will be met with an invoice for your wasted time. 30 quid should cover it.

If they wish to enter into this agreement, then please send another letter to confirm acceptance.

Dont copy them loads of letters, think of the rain forests.