Goldfish No CCA produced now debt assigned Can they do that?

[wealthy]

Hi Guys

 

In August last year I requested CCA from Goldfish which to date they have never sent one. I sent them the letter of placing the account in dispute because they didn't send a CCA within the prescribed time. I received lots of threatening letters but no CCA.

Last week I received a letter from Goldfish saying that they do not have to provide me with an agreement because I no longer have an account with them????? The following day I receive another letter from Goldfish saying that the debt has been assigned to 1st Credit????

Am totally confused here.

Can they still assign a debt if the account is in dispute?

Why do they not have to send me a CCA?

1st Credit want full payment can they do this?

 

Someone please help I don't know what to do now?

 

Thanks

Wealthy (in spirit only)

[PGH7447]

Send 1 Credit this letter

 

CCOUNT IN DISPUTE

Dear Sir or Madam,

Account number: XXXX XXXX XXXX XXXX

I must admit that I am rather bemused as to why this account has been passed to yourselves, as it is in dispute with the **original creditor/DCA** and has been since DATE 2007.

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

My last letter from **original creditor/DCA** was DATE and intimated that my complaint would be resolved on **DATE**, this obviously hasn’t happened.

As **original creditor/DCA** are now in default of my Consumer Credit Act request, OFT Collection Guidelines, *Subject Access request and have also breached *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 the **original creditor/DCA** for resolution of these defaults and breaches, as **New DCA** cannot lawfully pursue any enforcement activities.

If **New 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.

After taking advice, I am of the opinion that any continued pursuit is in violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines

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

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

Yours faithfully

***************

 

Amend to suit and send recorded

 

Hope this helps

[rory32]

Can they still assign a debt if the account is in dispute?

 

Well they can but they're not supposed to. I would make a formal complaint in writing to Goldfish regarding this.

Why do they not have to send me a CCA?

It would appear that they are deliberately misinterpreting the Act. You don't need to provide a copy of the agreement if no sum is owing and as they have sold the debt they will probably state that you don't owe them anything so they don't have to supply a copy of the agreement. However, as previously stated this would be a misinterpretation of the Act and they do still need to supply a copy of the agreement.

1st Credit want full payment can they do this?

I assume 1st Credit have now been in touch with you. If that is the case send them the following letter and pay them nothing until a conforming copy of the agreement is supplied.

ACCOUNT IN DISPUTE

Dear Sir or Madam,

Account number: XXXX XXXX XXXX XXXX

 

I must admit that I am rather bemused as to why this account has been passed to yourselves, as it is in dispute with the **original creditor/DCA** and has been since DATE 2007.

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

 

My last letter from **original creditor/DCA** was DATE and intimated that my complaint would be

resolved on **DATE**, this obviously hasn’t happened.

As **original creditor/DCA** are now in default of my Consumer Credit Act request, OFT Collection Guidelines, *Subject Access request and have also breached *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 the **original creditor/DCA** for resolution of these defaults and breaches, as **New DCA** cannot lawfully pursue any enforcement activities.

 

If **New 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.

 

After taking advice, I am of the opinion that any continued pursuit is in violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines

 

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

 

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

 

Yours faithfully

[nicklea]

Just a small point about the letter

 

Send 1 Credit this letter

 

CCOUNT IN DISPUTE

Dear Sir or Madam,

Account number: XXXX XXXX XXXX XXXX

I must admit that I am rather bemused as to why this account has been passed to yourselves, as it is in dispute with the **original creditor/DCA** and has been since DATE 2007.

 

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

None of these have been breached by assigning the debt.

 

This is a letter that is appropriate if they are just using a new DCA to try and collect the debt

 

My last letter from **original creditor/DCA** was DATE and intimated that my complaint would be resolved on **DATE**, this obviously hasn’t happened.

As **original creditor/DCA** are now in default of my Consumer Credit Act request, OFT Collection Guidelines, *Subject Access request and have also breached *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 the **original creditor/DCA** for resolution of these defaults and breaches, as **New DCA** cannot lawfully pursue any enforcement activities.

 

Instead perhaps say something like:-

Now I would point out that either **original creditor/DCA** or **New DCA** must remedy these defaults before **New DCA** can lawfully pursue any enforcement activities.

If **New 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.

After taking advice, I am of the opinion that any continued pursuit is in violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines

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

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

Yours faithfully

***************

 

Amend to suit and send recorded

 

Hope this helps

[PGH7447]

Its always worked for me

[rory32]

None of these have been breached by assigning the debt.

 

Well currently they can't enforce the account. Passing it to a DCA is attempting to enforce the account therefore a breach of the Consumer Credit Act. They are also passing the OP's personal data to a third party - there is no agreement to do this unless of course it is part of the credit agreement which they can not produce. Written consent is required to pass your personal data to a third party under the Data Protection Act. I would also bet that no Fair Processing Notice has been issued either.

[nicklea]

Hi rory,

 

Just a few points in reply to your post.

 

I didn't say that First Credit couldn't enforce the agreement.

 

I agree with you that passing it to a DCA can be construed as attempting to enforce it. But, in this case they haven't done that, they have assigned the debt to another company. How is selling the debt to another company (subject to any equities) an attempt to enforce it? I totally agree with you (and said this in my post) that until the s78 request is complied with then First Credit can't enforce the debt. But selling the debt to them in itself isn't an attempt to enforce it. If anything, I'd suggest it's an acknowledgement that it probably is unenforceable and they're trying to offload it to someone else as quick as possible.

 

If they do not supply the agreement pursuant to a s78 request then they cannot enforce it on the debtor, ie compel him to pay. This has no bearing on whether or not they can process data. There is nothing in the CCA or DPA that a failure to respond to a s77/78 CCA request has any effect on the Data Controller's right to process the data. It simply means that the debtor cannot be compelled to pay the debt.

 

Likewise, failure to comply with a s77/s78 request has no effect on their ability to sell the debt and pass the personal data to a third party.

 

Now, maybe if the OP sends them an sar or, perhaps of more relevance, a s10 DPA notice to cease processing for the specified reason that there is no agreement in place for them to process the information and they then fail to provide a copy of the agreement they will be in breach of the DPA.

 

I totally agree with you that it is unlikely that any Fair Processing Notice has been sent by First Credit.

 

Just my take on things. It may seem that I'm nit picking about tiny differences in definitions, but I've found in the past that nit picking can be the difference between success and failure in court.

[rory32]

This has no bearing on whether or not they can process data.

My point was that they will now have authorised a third party (the DCA) to process the OP's data, for this they need the permission of the OP (this has to do with The Data Protection Act not the Consumer Credit Act). Normally permission would be a term of the credit agreement but if the credit agreement can not be produced then consent can not be shown.

Just my take on things. It may seem that I'm nit picking about tiny differences in definitions, but I've found in the past that nit picking can be the difference between success and failure in court.

We are a very long way away froim court proceedings.

 

We will just have to agree to disagree on this matter.

[shieldblaster]

My point was that they will now have authorised a third party (the DCA) to process the OP's data, for this they need the permission of the OP (this has to do with The Data Protection Act not the Consumer Credit Act). Normally permission would be a term of the credit agreement but if the credit agreement can not be produced then consent can not be shown. We are a very long way away froim court proceedings.

 

We will just have to agree to disagree on this matter.

 

I have to agree with Rory, Principle 2 of the Data Protection Act 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 read 'specified' as those contained in the agreement, and as one doesn't exist how do they have permission to obtain that data or process it lawfully?

[nicklea]

I have to agree with Rory, Principle 2 of the Data Protection Act states:

 

I read 'specified' as those contained in the agreement, and as one doesn't exist how do they have permission to obtain that data or process it lawfully?

 

 

Hi shieldblaster,

 

How do you know that an agreement doesn't exist?

 

As I mentioned above, just because they haven't replied to a s77/s78 request it does not mean that an agreement doesn't exist. If you were to send them a s10 DPA notice on the grounds that you didn't believe they had an agreement and they didn't reply then - then they would be in breach of the DPA

[shieldblaster]

Hi Nicklea

 

I can see your point, maybe it is a dangerous assumption that just because they haven't compled with a s77/78 request doesn't mean that an agreement doesn't exist. However I would deem it strange practice by the creditor not to produce a valid CA if they have one, and certainly to produce one in court if it were to go that far..and I think the Judge would not be best pleased either.

 

But I agree that on failure of a s 77/78 request the next step should be a s10 under the Data Protection Act with a request for strict proof that they have your permission to share your data should winkle the CA out of them, that way you can be assured that the processing of any data is unlawful if they still fail to come up with any proof.

 

Does seem a strange way for them to act if they DO have a vlaid CA though

[wealthy]

Hi Guys

 

Thanks for replying.

 

I am a bit confused now....should I be sending a s10 Data Protection Act first before the letter of dispute and if so how do I word the letter?

 

As to Fair Processing Notice all I have received from 1st Credit is a letter saying that they have taken over and that payment should go through them as if I pay Goldfish it will take longer for the payment to reach the account. They did have a paragraph at the bottom that if I needed to know what data they held of me then I need to send them £5.

 

Thanks for your help

[nicklea]

Hi Nicklea

 

I can see your point, maybe it is a dangerous assumption that just because they haven't compled with a s77/78 request doesn't mean that an agreement doesn't exist.

 

This actually happened with me with an old Morgan Stanley credit card

 

However I would deem it strange practice by the creditor not to produce a valid CA if they have one,

 

The reason for this is cost. It's a lot cheaper to send out a erconstructed copy than it is to trawl through all their archives and find the actual agreement and then photocopy it

 

and certainly to produce one in court if it were to go that far..and I think the Judge would not be best pleased either.

 

It's only in court that they do need to supply an actual COPY of the agreement under the CCA. If you want them to actually supply the original document then you need to actually give the other side notice of this before the start of the hearing, otherwise it is deemed to be authentic.

 

32.19 (1) A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves notice that he wishes the document to be proved at trial.

(2) A notice to prove a document must be served –

(a) by the latest date for serving witness statements; or

(b) within 7 days of disclosure of the document, whichever is later.

 

 

 

But I agree that on failure of a s 77/78 request the next step should be a s10 under the Data Protection Act with a request for strict proof that they have your permission to share your data should winkle the CA out of them, that way you can be assured that the processing of any data is unlawful if they still fail to come up with any proof.

 

Does seem a strange way for them to act if they DO have a vlaid CA though

..

[nicklea]

Hi Guys

 

Thanks for replying.

 

I am a bit confused now....should I be sending a s10 Data Protection Act first before the letter of dispute and if so how do I word the letter?

 

Wealthy, by all means, send the letter of dispute although (this is purely my personal opinion) I don't think that it will have much effect in this case.

 

A notice under s10 DPA would read something like this:-

 

The Data Controller

First Credit

Notice Pursuant to Section 10, Data Protection Act 1998

Account No: xxxxxxxx

Dear Sir,

Take Notice that I require you to cease entirely from processing, or else that you do not begin to process, any personal data of which I am the subject within 7 days of the receipt by you of this notice.

This includes particularly, but not limited to, any processing involving the communication or passing of personal data of which I am the subject to any third party insofar as the said data relates wholly or in part to any alleged agreement between us that it is alleged has been assigned to you.

This Notice is given on the ground that there is no signed agreement in existence that entitles you to process my personal data.

Further, 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 distress to me in addition to that which may already have been caused and that as the processing of the said data in the way referred to in this notice would violate the first, fourth and sixth principles of the Data Protection Act 1998 to do so would be unwarranted.

If you fail to respond to this notice within the prescribed timescale I will make an application to the court under Section 10(4) Data Protection Act that you be ordered to comply with this notice.

This letter has been sent by Recorded Delivery.

Yours faithfully,

 

 

As to Fair Processing Notice all I have received from 1st Credit is a letter saying that they have taken over and that payment should go through them as if I pay Goldfish it will take longer for the payment to reach the account. They did have a paragraph at the bottom that if I needed to know what data they held of me then I need to send them £5.

 

Thanks for your help

 

Again, just my personal take on it, if you are sending them a s10 notice (which is free and they need to respond to in 21 days), then you probably don't need to send them an sar (which costs money and they have 40 days to respond to) .

 

It's probably worth sending an sar to Goldfish though (they cost a maximum of £10) for two reasons:-

 

1) If there are any charges then you can claim them back and the interest that you were charged on them

2) Check to see if First Credit have added any suspicious handling charges onto the total which they weren't entitled to do.

 

Hope this helps

[majorclanger100]

Wealthy - just a tip about 1st Credit - they don't actually seem to have any human beings (if debt collectors can be referred to as human beings ) that read letters in their office.

 

Don't expect them to respond to your letter with anything other than standard letters which completely ignore the content of everything you write to them.

 

1st Credit will continue to try to enforce, so an eventual complaint to the FOS, OFT, etc seems likely.

 

Good luck!

 

MC

[wealthy]

Hi Guys

 

I sent the letter of dispute to 1st Credit.

 

This is what I have received in response from them:

 

LEGAL PROCEEDINGS

I regret the above sum remains outstanding. We now intend to take legal proceedings against you. If successful it may result in;

- Substantial Legal costs and interest being charged thereafter.

- Entr of your name in the County Court Judgment Register, making it very difficult to obtain Credit in the future.

Subsequent failure to make payment could result in enforcement action:

- An application to your employer for an attachment of earnings.

- Seizure of your assets by a County Court Bailiff.

- A charging order against your property, (if owned by you).

If you are not resident in England or Wales legal/enforcement action will be in strict accordance with the laws relating to the Country of your residence.

 

PLEASE TAKE THIS FINAL OPPORTUNITY TO MAKE CONTACT.

 

They have just ignored my letter!!!!!!!!!!!

 

Please would someone help me as to what I should do here, am totally shocked at their response.

 

Thanks.

[creditcardmug]

Don't worry about this letter, if they think they can bring an action with no agreement let them bring it on.

Just file all their correspondence for future ammunition

[rory32]

Ask in writing for a copy of their complaints procedure. Report the matter to Trading Standards and make a complaint to the OFT about their fitness to hold a credit license.

[wealthy]

Hi

Asked for complaints procedure

Sent Letters to OFT and Trading

Received this from 1st Credit but no complaints procedure

Re Your Agreement with Goldfish

Relating to account number: xxxxxx

Balance Outstanding: xxxxxxxxxx

We regret the above sum remains outstanding. We are now considering taking legal action against you. If this action is successful it may result in;

- Substantial Legal costs and interest being charged thereafter

- Entry of your name in the County Court Judgment Register, thereby making it very difficult for you to obtain credit in the future.

We have recently obtained information from Land Registry to suggest that you may own/jointly own the freehold/leasehold interest in the above property. Should you not respond to this letter we will pass the account to our solicitors to advise as to whether we should seek a County Court Judgment against you and seek to enforce this by way of a Final Charging Order registered against your property or seek an order that you be declared bankrupt.

Should we succeed in obtaining a Final Charging Order we could apply to the court for an Order for Sale, of your property.

We strongly recommend that you seek legal advice should you require further information regarding the implications of a Final Charging Order.

PLEASE TAKE THIS FINAL OPPORTUNITY TO MAKE CONTACT.

Yours faithfully

Can anyone please advise of the next step.

I’m beginning to totally detest this Co, they are not taking any notice of what I’m saying and are big bullies.

Thanks

[2Grumpy]

There's a lot of ifs and mays in this

they can't get a CCJ if they don't have the original credit agreement or if you don't defend it

If they did get a CCJ, they couldn't get a charging order if you kept up payments

 

This will just be their next letter because their previous one didn't work.

 

If they don't provide their complaints procedure then the next step is the Financial Ombudsman.

 

Grumpy

[wealthy]

What they are saying in their letters can it not be classed as blackmail because that is how it is coming across to me. They are being very intimidating.

 

If it goes to court and they some how now produce the CCA do I no longer then have a chance to negotiate a low payment plan as they seem to not want payment but force me to sell my home to get it all in a lump sum!

[Rhia]

Complain to FOS AND to the OFT as threatening sale of your home is indeed blackmail and against OFT's debt collection guidelines. They are taking action against DCAs who use such tactics and the OFT is the body which rules if they are fit to hold a consumer credit licence.

[creditcardmug]

Hi

What you need to do here is always think of the end game, i.e. if it should end up in court, to that end you should be trying to find out how strong (or weak) their case is against you, whilst at all times making it look to the court as if you have done everything possible to come to a solution with them.

For example, making pro-rata/token payments throughout.

Your property is not on the line here, the worst case is that you lose and the court makes an order that you pay what you can afford

 

How old is this "agreement", most of the older ones are unenforcible anyway?

 

And yes complain to everyone possible.

[creditcardmug]

One more thing don't pay the DCA anything until you receive a letter of assignment from original creditor

[wealthy]

I remember having the card about 5 years ago, can't be totally sure.

 

I asked for the agreement back in August 2007 and to date have received nothing but threatening letters and phone calls from Goldfish and now 1st credit.

 

I get sent a default notice from Goldfish with without prejudice on it ..... this makes no sense to me as I understand it without prejudice means it can't be produced in court, so where is the logic in that.

 

I must admit they are driving me round the bend!!!!!!!