Egg No Agreement Default Removal

[steven4064]

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

[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

[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.

[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

[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.

[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.

[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)

[steven4064]

I'll ask

[steven4064]

I understand the debt is unenforceable by law for as long as the requisite documents are not produced. The court will not rule out a future attempt as enforcement if or when Egg managed to find a misplaced document, if they ever had it. Steven could clarify if there is a legal outside time limit, beyond which Egg will not be allowed to belatedly produce said document.

I don't think there is any limit on when they might produce it. However, if it takes them longer than 6 years they won't be able to enforce it because of s5 of the Limitations Act 1980. And the 6 years starts one month after you last paid them anything.

[steven4064]

THis is a bit of a muddle wednesday. Firstly, I think the s77 in the first line of paragraph 3 should be s78 - if it is a fixed loan it is s77, credit card is s78.

 

More importantly, they don't have to send a signed agreement to comply with s78 (or 77) - the 1983 regulations specifically say they can send a doncument with all personal details (including signature) removed. Paragraph 4 is correct (except for the s77 - should be s78?) but the logic, ending with paragraph 7 is not correct.

 

s78(1) (77(1) for fixed loan) says they must supply certain information in response to a request under that section by you. If they don't comply, then s78(6) (s77(4) for fixed loan) comes into play and they must not enforce the loan. In your case, however, it looks like they have complied with your CCA request.

 

However, that is only part of the story. As it is not signed (and probably there are other things wrong with it), it is not properly executed as defined in s61.

 

That means that it can only be enforced by a court - that's what s65 says.

 

Section 127 limits the court's authority to enforce agreements under s65 to documents 'signed by the debtor and containing with in itself the prescribed terms'. In your case, the document is not signed by you. Therefore, it is not properly executed and it cannot be enforced under s65 because it does not fall within the limits set out in s127.

 

Does that make things clearer?

[steven4064]

They will not willingly remove the default - you will have to force them. AFAIK court is the only way to do that, normally linked to something else (eg unlawful charges) but I think it can be done otherwise.

 

The argument is as above:

 

As it is not signed it is not properly executed as defined in s61 of the CCA 1974.

 

Section 65 says, because it is not properly executed, it can only be enforced by a court.

 

However, section 127 limits the court's authority to enforce agreements under s65 to documents 'signed by the debtor and containing with in itself the prescribed terms'. In your case, the document is not signed by you. Therefore, it is not properly executed and it cannot be enforced under s65 because it does not fall within the limits set out in s127.

 

But, you say it's an online application. If it was entered into after April 2004 then it doesn't have to be signed to be properly executed. If they have sent you a copy with a box ticked that says you agree to the terms, then that counts as properly executed and the above argument does not apply.

[steven4064]

Just checking.

 

Although it was done over the phone, it looks like it is effectively a 'paper' agreement and so they should be able to provide a proper copy.

 

Have you posted what they sent or could you if you haven't?

[steven4064]

The loan agreement in posts #29 and #30 looks properly executed to me as it is after April 2004 and conforms to the Consumer Credit (Electronic Communications) Regulations 2004.

[steven4064]

I don't know why they sent that e-mail or why there are no nlione docs. However, they claimed (post #23 ish) that the agreement was started on the phone and continued on the internet. The agreement in posts #29 an d#30 certainly supports that. If that is what was sent in response to a s77 request than I would say that they have provided an enforceable agreement and are within their rights to collect and issue a default.