Egg No Agreement Default Removal

[wednesday1867]

The story goes back nearly a year with my CCA request on my Egg Loan.

Egg replied with 2 documents, neither look like agreement and neaither are signed by myself.

Anyway, Egg put the account on hold, have not had any requests for payment, howver they did transfer/sell the debt to Hillesden Securities, who i also CCA'd, then it ended with Direct Legal Collections. DLC sent me monthly updates on the status of the search for my agreement.

March of this year i received a letlet from DLC, which read:

1. Egg Banking PLC has been unable to provide a copy of the documentation you have requested under the Consumer Credit Act 1974.

2. The above account has now been returned to Egg Banking Plc and any further correspondance will need to be forwarded directly to our client.

So it seems Egg do not have my agreement and the loan is now truly unenforcable.

Egg have however issued a default notice on me from when i entered a DMP (2006), now i have confirmation or virtual confirmation there is no agreement, i would like the default and all history of this account removed from my Credit File.

I imagine, this should be straight forward, or is a long battle likely? I must admit Egg have been the best, with putting the account on hold, none of the Banks have done this then they have defaulted on CCA requests.

Is it a case of just penning a letter informing them, as they don't have any agreement, due to Data Parotection Act, they dont have my permission to discuss my data with anyone and the default notice they applied, should be removed as there is no agreement?

Thanks

[wednesday1867]

This is the first draft of a letter i have come up with, anyone pass any advice on it and any other arguments that back me up?

I sent Egg, a legal request under Section 77-79 of the Consumer Credit Act 1974 (CCA) nearly 12 months ago now, it was dated XX June 2007. I did receive a document from Egg dated 23rd August 2007, as this was unsigned and in line with Section 61 form the CCA 1974:

61.—(1) A regulated agreement is not properly executed unless

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner.

From this time on, you then passed my account to Hillesden Securities and finally to Direct Legal & Collections, even though Section 85 of the CCA 1974 states:

85 (1) Whenever, in connection with a credit-token agreement, a credit-token (other

than the first) is given by the creditor to the debtor, the creditor shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it.

(2) If the creditor fails to comply with this section—

(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.

I believe Egg passing my account between the various Debt Collection Agencies, was a ploy to enforce my alleged agreement. Also obviously nearly one year on from my original request, Egg have now committed the offence mentioned in Section 85 2 (b).

Direct Legal & Collections informed me in XX 2008, that Egg, have been unable to satisfy my request and supply me with the required document under Section 77 CCA 1974, which can only show that there is and never has been an signed agreement, leaving this alleged debt totally unenforceable even in a court of law as per Section 127 3 of the CCA 1974:

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

As I firmly believe no legal agreement has ever been entered into, Egg illegally placed a default notice on my credit file and are still discussing my data with the three main credit reference agencies, namely, Call Credit, Equifax and Experian.

This is a request to cease processing my data with all third parties in line with Section 10 of the Data Protection Act:

10 Right to prevent processing likely to cause damage or distress

(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.

I request you also remove the default notice you placed on my account and all negative markers you have registered in relation to this alleged account. I will expect written confirmation of your compliance of my request within 21 days of this letter. If you fail to respond to my request, I will be forced to report Egg to the Information Commissioner, Office of Fair Trading and Trading Standards.

If you fail to do this I will also be seeking the relevant compensation for discussing my data without my consent.

Please be advised if you try to pursue this alleged debt, I will continue to use the lack of any signed agreement regulated by the Consumer Credit 1974 as my full defence.

I look forward to receiving written confirmation that my requests have been completed and all record of this alleged account has been removed from my Credit File.

Yours Sincerely

All guidance gratefully received

[wednesday1867]

Posted today, lets see what they come back with

[steven4064]

Keep us posted wednesday - what you sent looks Ok. THe main thing is to rattle the cage

[wednesday1867]

Will do, hopefully they will just agree and wipe it off, but lets see eh?

[wednesday1867]

Nothing heard as yet, i'm just wondering with Egg's time running out next week.

What are the costs involved in taking them to court to get them to remove the default? I can only see prices for money claims?

Does anyone know where i can find this info, or how much is it to start the claim?

Thanks

[steven4064]

On what basis are you ging to ask a court to make them remove the default?

 

Cost would be £150 (non-money claim) Court fees

[wednesday1867]

On what basis are you going to ask a court to make them remove the default?

 

 

I'll ask hows it possible to default on an agreement, that doesn't exist.

 

I take it court isn't the way to go to get it removed?

[steven4064]

Without a credit agreement, the default registered with a CRA is unlawful under s85(1)(a) (and s78(6)(a) - which says exactly the same thing).

 

Without a crdit agreement, there cannot be a default, therefore the marker on the credit file is incorrect.

 

You can request a court to order its removal under s14 of the DPA 1998 and you could request compensation under s13

13 Compensation for failure to comply with certain requirements

 

(1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.

 

 

(2) An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if—

(a) the individual also suffers damage by reason of the contravention, or

(b) the contravention relates to the processing of personal data for the special purposes.

 

 

(3) In proceedings brought against a person by virtue of this section it is a defence to prove that he had taken such care as in all the circumstances was reasonably required to comply with the requirement concerned.

 

 

 

14 Rectification, blocking, erasure and destruction

 

(1) If a court is satisfied on the application of a data subject that personal data of which the applicant is the subject are inaccurate, the court may order the data controller to rectify, block, erase or destroy those data and any other personal data in respect of which he is the data controller and which contain an expression of opinion which appears to the court to be based on the inaccurate data.

 

 

You might be interested in this case RICHARD DURKIN v. DGS RETAIL LIMITED+HFC BANK PLC, 26 March 2008, Sheriff J K Tierney (It is a Scottish sheriff's court case so it doesn't set a precedent but it could be referenced 'for guidance')

 

 

You could write to Egg again, this time heading the letter, "Letter Before Action" and give them 14 days to comply before you take them to court. You could give them the link above 'for their information'

 

 

The damage you have suffered is that your credit rating has been adversely affected and you have therefore not been able to avail yourself of credit at advantageous rates of interest. You estimate that this has cost you £xxx since the deafult was registered.

[wednesday1867]

Thanks for that, i'll use that information with HSBC too, exactly same situation with them.

 

I'll have a look over that link tomorrow.

[wednesday1867]

Steven, is there another organisation i could go to rather than court to get the default removed?

 

Also how do you work out compensation? I don't know if i could claim it, doesn't seem right, maybe if this was the only default on my file, but due to the circumstances at the time, i received one or two from other lenders, so i think i'd feel a bit cheeky to do it......:o

 

Obviously i could tell Egg im going for compensation, but i'd be more than happy to get this ruled unenforcable and the default removed.

 

Not sure which way to go with this, Egg have had 14 of the 21 days i gave them to get back to me and im yet to receive anything from Egg to date.

[steven4064]

The FOS is the alternative but they seem very reluctant to interfere withdefaults - I don't know of anyone that has been successful that way. Even through the courts it is usually easier if you are also reclaiming unlawful charges as that gives you an extra lever.

 

On compensation - what you sy is 'compensation at the court's discretion'

 

The letter in post #2 counts as a preliminary request. You could send them a carefully crafted LBA, threatening to claim compensation under s13 and an injunction under s14 and see what happens. Wait until the2q days is up though, if that's what yougave them

[wednesday1867]

Thanks, i will give the LBA some thought next weekend.

 

Never know, i may get a reply

[wednesday1867]

Am i right in thinking the full cost of taking this through court:

 

To start the claim £150

 

Allocation Questionnaire £200?

 

Not sure the amount i have to pay for the Hearing Fee?

[wednesday1867]

Or when ive paid the £150, does this class as a claim for £150? So the amoutns would be:

 

Allocation Questionnaire Free

 

Hearing Fee £25

 

But then again, if i claim an amoutn for compensation, that could lower costs?

[steven4064]

You have to be careful - if you just put "compensation at the court's discretion" they may decide it's an unlimitd claim and charge you £1520 to file the claim. Under 'amount' you should put "I do not expect to receive more than £3000" (or £5000 or whatever). That amount then fixes all the fees.

[wednesday1867]

So either way its £150 to start the claim? Or if i'm asking for compensation upto £1,500, is it £75 to start it?

 

Then if im claiming upto £1,500 in compenstion, i then pay £35 allocation questionnaire fee and finally £100 Hearing fee?

 

Bit pricey lets hope they see my point of view

[steven4064]

If you limit the expected compensation to £1500 it will be £75 to start. Make it £1400 and the AQ fee will be £0.

[wednesday1867]

Well here we go, this s my lba what do we reckon, any good? Need a tweak?

 

***Letter Before Action***

Acc No: XXXXXXXX

Dear Egg,

I recently wrote to Egg (XX June 08) regarding the wrongful addition of a Default Notice to my Credit File in relation to the above numbered account.

In my previous letter, I pointed out Egg’s failure to comply with my legal request under Section 77 of the Consumer Credit Act 1974 (CCA) to supply me with a true copy of my executed agreement, this original request was dated XX June 2007. As no agreement is in place I feel Egg have been illegally discussing my personal data with third parties, contravening Section 14 of the Data Protection Act

Due to Egg’s failure to rectify my concerns laid out in my previous letter, Egg have left me no option to inform you of my intentions to settle this situation.

Unless within 14 days of this letter, I get notification Egg have removed the Default Notice and all negative markers relating to the above numbered account, I will be issuing County Court proceedings against Egg without further correspondence. I will be asking the Court to issue a Judgement to have the Default Notice removed, I will also be claiming compensation under Section 13 of the Data Protection Act.

 

I now hope Egg will take my complaint seriously and will settle my complaint without the need for Court action.

Yours Sincerely

[steven4064]

s14 is not the right section - that gives a court the authority to force incorrectdata to be corrected or deleted. I think you should say, in violation of the data protection principles laid out on Schedule 1 of the Data Protection Act 1998.

 

In the last but one paragraph you could add that you will be seeking an order from the court under s14 of the DPA for the removal of the incorrect data.

 

Hav a look at the Act itself Data Protection Act 1998 (c. 29)

[Mistermind]

With bank charge reclaims stymied by appeals for perhaps two years, attention in CAG is turning to DN removal or correction, particularly since BankFodder's high-profile rallying call.

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/

 

Persons who challenged DNs and won are in a very very small minority indeed. Not quite sure how small, but their stories would be of great interest not to mention inspiring, and of practical value as to what can and cannot be done.

 

Steven,

 

Is there appetite among Mods to open up a new forum

"Default Notice *** WON ***"

 

where two threads from Egg Forum would qualify?

 

Regards,

 

[steven4064]

I'll ask

[wednesday1867]

Thanks for the pointers Steven, i have now changed the letter and its in the post tomorrow

[wednesday1867]

Update.

 

Today i received Eggs response, obviously crossed in the post, well it is dated last week, it reads:

I have looked into your account and can see that the documents we have sent you are ther correct ones.

 

You applied for the loan via the telephone, an Email link was then sent to you. The application was then continued on the internet.

 

The default has been registered correctly.

 

If thats the case, i haven't paid them anything in probably very nearly if not over a year. Since the last letter from the DCA (March) saying they haven't been able to provide the document, i haven't heard anything from Egg or anyone associated with them, trying to collect payments against the loan. Surely if the paperwork they sent me, is legit, then surely they would be beating my door down asking for repayment?

 

Its kind of thrown me, am i in the right, or am i not?

 

Got to dash out for a few hours, but ill be back soon

[wednesday1867]

Any idea on their reply and why they aren't chasing me for money?