two incorrect defaults an no agreement

[dpick]

Hi all have just started process to get removal of two defaults placed by Littlewoods for the same account. Littlewoods finance ltd/LEGAL DIRECT RECS these are both part of Littlewoods finance Ltd.

 

I have sent preliminary e-mails to Information Commissioners Office and Experian with regard to the following.

 

Started getting the normal phone calls from in house collections dept NDR for Littlewoods account balance £1171 even though we were in a DMP and they were getting small payment every 4 weeks. This had been my wifes account that I had had to get power of attorney after accident. I got so peed off with the attitude and the phone calls, they had had income and expenditure etc from DMP but were still demanding vast amounts of money all the time. At this time I had a look at old statements and found that my wife had charges interest and PPI (We would not qualify due to wife not working and I have pre existing medical condition.) so calculated PPI, charges and interest applied to those and came up with £760. I thought this will reduce balance and make it easy to manage.

 

Wrote the normal letter for refund and got a very rude bog off letter back, so sent CCA and S.A.R - (Subject Access Request). after much to and fro-wing got Littlewoods normal we are usable to find your agreement and will not pursue etc.

 

The was 10 August 2007 when I later checked my wifes Experian file I found two defaults for this account both placed after the we will not pursue letter. The first from Legal Direct recs part of Littlewoods finance Ltd and the second by Littlewoods finance Ltd. Both of these defaults were entered on the 8 October 2007.

 

 

Now my view on this is I have them on three counts

 

1, They have entered the default twice for the same account

2, no agreement means CCA 1974 section 127(3) irredeemably unenforceable I believe that in these circumstances Information Commissioners Office say remove default

3, When I got the we will not pursue letter I stopped my claim for charges, PPI and interest applied to those so default amount is incorrect by £760 on a balance of £1171

 

Will post again when I get any replies

 

dpick:)

[tiglet]

Hi there

 

To answer your queries:

 

1. No, they should not have given you two defaults for the same account. Did you ever receive a default notice from them?

 

2. Debt = unenforceable, not debt = does not exist. In an idael world, yes, they should not default you but you will find it a battle with both the CRA's and Littlewoods to get the default removed. Not saying don't try, but be prepared for a fight.

 

3. This bit confuses me a little. To my understanding, if you say they have no enforecable agreement and you do not accept the debt without one, then it doesn't matter what balance it shows - you do not accept that debt. To then ask for the balance to be reduced shows that you do accept the debt - from what I have read around the forums, it really has to be either one or the other.

[dpick]

 

 

3. This bit confuses me a little. To my understanding, if you say they have no enforecable agreement and you do not accept the debt without one, then it doesn't matter what balance it shows - you do not accept that debt. To then ask for the balance to be reduced shows that you do accept the debt - from what I have read around the forums, it really has to be either one or the other.

 

Hi thanks for reply could I just check the above with you my reading of CCA 127(3) through Wilson and others is that though the agreement is unenforceable by the creditor it is still enforceable by the debtor, I used this argument with JD Williams and they would not fight in court folded after AQ entered in court.

[tiglet]

You obviously know more about it than I do then

[dpick]

Well I have lodged complaints with ICO and Experian this is the initial reply from Experian seems a bog standard reply

 

BY E-MAIL AND POST

 

12 February 2008

 

 

 

Dear Mrs dpick

 

Thank you for your letter e-mail received 31 January 2008, which has been brought to my attention in the Directors' Office.

 

I note that you wish us to remove certain accounts from your credit report on the basis that the companies concerned have not provided you with evidence to confirm that they hold a copy of signed credit agreement detailing your consent for this information to be shared with a credit reference agency.

 

I will query this accounts on your behalf with the companies concerned as per your rights under Section 159 of the Consumer CRedit Act 1974. In the meantime, I am adding the following statement to your credit report:

 

While I investigate your comments, I am adding the following statement to the entries you have queried.

 

"THE ACCURACY OF THIS DATA HAS BEEN DISPUTED BY THE INDIVIDUAL CONCERNED AND WE HAVE NOW CONTACTED THE SUBSCRIBER. CARE SHOULD THEREFORE BE TAKEN WHEN USING THIS ITEM OF DATA TO ASSESS THE CREDITWORTHINESS OF THE INDIVIDUAL CONCERNED."

 

I am telling all the companies that have searched your credit report in the last six months of the change to your information.

 

Although companies are not obliged to supply us with an actual copy of the agreement you signed, a voice recording or copies of computer records, they will investigate our comments and notify us whether the data provided was consented to.

 

Please note, that if a company cannot provide you with any actual evidence of your initial consent, this does not necessarily mean that they have to remove the data from your credit report.

 

For example, if a company can demonstrate that an account was being paid on time for a number of months/years prior to falling into arrears, this is often seen as evidence that the individual concerned must have consented to the terms and conditions of the contract.

 

Furthermore, a company will only open an account if the applicant agrees to their terms and conditions so, unless the account was opened fraudulently, the account holder must have agreed to the standard terms and conditions for that type of account.

 

Therefore, as long as the company terms and conditions specify that they reserve the right to pass account information to a credit reference agency, a period of meeting contractual obligations, or simply opening the account, will often be deemed as evidence of consent to those terms and conditions.

 

I am unable to arbitrate in a dispute between you and a company regarding whether they have complied with a specific piece of legislation. I would recommend that you either approach the company directly or lodge a formal complaint with a recognised regulatory body should you wish to take this matter further.

 

I reiterate that by querying the disputed accounts we are fulfilling our legal obligations and complying with your rights under Section 159 of the Consumer Credit Act 1974.

 

We do not amend or delete information on a credit report when it is alleged that a company has not complied with a request for information to which the individual believes they are entitled.

 

We cannot act unilaterally to remove data from your report. Once in receipt of a reply from the companies concerned I will notify you of the outcome and of any changes made to the information that we hold about you.

 

If you have any further queries, please feel free to contact me directly either by e-mail at [email protected], by telephone on 0115 8286485 or by writing to me at the following address:

 

Directors' Office, Experian Ltd, PO Box 8000, Nottingham, NG80 7WF

 

Yours sincerely

 

 

 

Mr L J Hancock

 

Consumer Compliance Executive

 

Directors' Office

 

 

Now why did they not state anywhere in the reply that I am quoting section 87

 

87.—(1) Service of a notice on the debtor or hirer in accordance with section 88 (a "

default notice ") is necessary before the creditor or owner can become entitled, by

reason of any breach by the debtor or hirer of a regulated agreement,—

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as

terminated, restricted or deferred, or

(e) to enforce any security.

 

What regulated agreement nothing was ever signed at all with Littlewoods and they have placed two defaults on the same account.

 

I bet I get the same well Littlewoods say data correct and we cannot alter data.

 

dpick

[dpick]

Now heard back from FOS with a reference number 7649307 am I right in thinking this will cost Littlewoods £450 for FOS to investigate

 

dpick:)

[europa16]

I am having the same difficulty with getting a default removed that Littlewoods shamelessly added to my account despite no agreement. Funnily enough, I'm in conversation with Mr hankcock also, and I've just fired another email off to him because it's been at least 2 months since they said they were verifying the data with Littlewoods, and it's still showing on my credit report.

I think a complaint to the Information Commissioners Office may also be in order, and maybe with a few of us complaining they might do something about it. Or is that wishful thinking?

[dpick]

Agree with you have already sent complaint to FOS and Information Commissioners Office.

 

No response at all from Information Commissioners Office yet, have received copy of FOS complaint form and been advised that FOS have written to Littlewoods for Littlewoods to try to resolve my complaint. Littlewoods have 8 weeks to resolve with me before FOS will investigate.

 

dpick

[dpick]

Now received initial responce from Littlewoods, template letter.

 

 

 

dpick

[Soo43]

could you let me see the letter you sent to IC to complain please - i have to do this and have no idea how to go about it

 

thanks

[dpick]

could you let me see the letter you sent to Information Commissioner to complain please - i have to do this and have no idea how to go about it

 

thanks

 

Hi I used the ICO pdf form and e-mailed this and copies of supporting letters to them.

 

main part of form I filled in as below.

 

@@

My husband started to process a reclaim of charges applied unfairly to my account. At first Littlewoods just sent a blank agreement with my name and our present address hand written on it (account taken out at previous address) . My husband advised Littlewoods that this did not comply with s78 of the CCA 1974. Littlewoods then admitted that they could not find any credit agreement for the account and would not be pursuing the debt. (Copy of this letter attached). This letter was sent 10th August 2007. Then on 28th October 2007 and again in January 2008 Littlewoods entered defaults on my Credit reference file with Experian Both these defaults have the default date as 8/10/2007

 

1, they had already said they would not pursue this debt I take this to be pursuing the debt

2, As Littlewoods cannot produce a signed copy of a credit agreement then they do not have permission to process this data or an agreement to default.

3, Due to Littlewoods saying they would not pursue I stopped my claim for refund of PPI, charges and interest applied to account therefore the default amount is also incorrect.

 

all the best dpick

[joski34]

Hi dpick, how did this story progress? Did the FOS and ICO find in your favour? Im still fighting JDW who are just dragging their feet.

 

thanks, Joanne

[dpick]

The FOS advised Littlewoods that the defaults were incorrect and should be removed. Littlewoods wrote to say they would not remove them but when I checked the CRA files no record of Littlewoods at all have kept watch since still no record of them.

 

dpick

[joski34]

Right I will try the FOS..did you write the same to them as you wrote to the ICO? The letter you posted in post 11? Is there anything I should add? Ive been checking my credit files and the cheeky things have been searching my files as an "unrecorded enquiry" but I dont know why.