If CCA Is Uneforcable, Can you get Defaults Removed or not

[BelstarBomb]

Thanks hon, have PM'd Finlander asking him how he got/is getting on. Thanks for putting me onto that link hence the reference to the ICO

 

Hope you're back to normal today?

 

Take care,

 

BB

[BelstarBomb]

Hi,

 

 

Tweaked it slightly but this is what went out.

 

I suddenly realised that without my signed authority on any application form or agreement, they do not have any legal right to update any information about me at all - don't they??

 

 

Anyway, let's see what comes back

 

best wishes,

 

BB

 

I am disappointed that you have responded to me by sending a Default Notice.

I have subsequently contacted the FOS and they will be complaining to you on my behalf. A copy of all communications received by you and sent by me including this letter is being supplied in support of my complaint.

May I remind you that your default was sent to me after JLFS had already defaulted under CCA 1974 Section 78(6) as per my letter to you dated 12th August 2008.

In addition, as you have failed to supply a certified copy of a properly executed CCA agreement, at present, there is no proof that you have any written authority to supply any information whatsoever to the Credit Reference Agencies regarding this account. Therefore, as per my letter dated 12th August 2008, I require JLFS to cease updating information regarding the above account to any Credit Reference Agency.

I will also be contacting the Credit Reference Agencies to advise them that this account is in dispute and to advise them that any adverse information that is shown on my record will result in me making a formal complaint to the Information Commissioners Office. I sure you are aware that any complaint that is upheld can be subject to a fine to of the value of the default plus £1000

In the meantime, please take this as formal notification that I dispute your Default Notice and that any further action, charges etc must be frozen until this has been fully investigated by the FOS

[babybear39]

If they have no signature and it's not an on-line application, they have no right to process your data.

 

Send an S.10 notice:

 

STATUTORY NOTICE UNDER S10 DATA PROTECTION ACT 1998

 

At NO time have I given my written permission for you or your company to process my data

 

Therefore Take Notice that I require that you cease from processing within 7 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 charges which have been applied to my account in respect of defaults or contractual breaches and where the said charges which have been levied at a rate which is in excess of the administrative costs incurred by you as a consequence of the said defaults 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 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.

 

 

Failure to remove ALL my data from your databases will result in a formal complaint to the Information Commissioners’ Office.

[BelstarBomb]

Hi,

 

I have just received a statement from JLFS still chasing for payment. This well after they have defaulted. Does this classify as harrassment?

 

BB

[babybear39]

Report them to yours and thier Trading Standards and the OFT ASAP for chasing payment on a disputed debt:

 

Trading Standards Central - Trading Standards and Consumer Protection information for the UK

 

The Office of Fair Trading: making markets work well for consumers

 

Request JLFS' complaints procedure and make a formal complaint against them. Also send them this:

 

Account In Dispute

 

Ref:

 

Dear Sir/Madam

 

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

You have failed to comply with my request, and as such the account entered default on **DATE**.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore

 

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

 

This limit has expired.

 

As you are no doubt aware section 77(6) states:

 

If the creditor 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 this account has become unenforceable at law.

 

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

 

 

Amend to suit, do not sign, print your name, send recorded and keep copies with your postal reciept.

[granthar]

I was under the impression that an account in dispute cannot be defaulted, although many banks/DCAs do this out of spite if they have an unenforcable agreement

 

Go back to my post #61 as it directs you to a thread which is dealing with exactly this subject...

 

You have to challenge the bank/DCA and the CRA to prove the info. they are processing is correct...

 

--------------

 

I thought it was in the banking code that they can't default an account that is in dispute? Though I can't see it in the latest release.

[babybear39]

--------------

 

I thought it was in the banking code that they can't default an account that is in dispute? Though I can't see it in the latest release.

 

They don't even adhere to thier own code of practice, OFT guidlines, UCPD and CPUTR 2008, so I hardly think a little thing like the banking code is going to bother them, do you

[granthar]

No they don't, however if it is in your terms and conditions that they do abide by the banking code then surely they are in breach of contract if they don't. Its not something that they can opt in and out of as it suits them.

[BelstarBomb]

Thanks BB,

 

Should I use the same tack with RBS? (I PM'd the link to your earlier today)

 

Cheers my dear,

 

BB

[BelstarBomb]

Hi Guys,

 

Halifax finally came back with something today. When I finished laughing what they had sent me was a new agreement as if I were taking the card out today with no signatures on at all. In short they have nothing, not even an application form! :grin:

 

In the meantime, I checked my home insurance policy and realised that I had legal cover which has now been approved and solicitors letters to all of the card companies are winging their way in the post........................

 

BB

[angry cat]

They don't even adhere to thier own code of practice, OFT guidlines, UCPD and CPUTR 2008, so I hardly think a little thing like the banking code is going to bother them, do you

 

Take a look at Regulation 4 of the new CPUTR's!

 

AC

[babybear39]

Take a look at Regulation 4 of the new CPUTR's!

 

AC

 

A little thing like that isn't going to bother them.

[BelstarBomb]

Hi All,

 

Two credit card companies who have have no CCA or application form (in other words nothing with my signature on at all) have said ok, we cannot take you to court and enforce the agreement but we will still process your info internally and externally with the CRA's and DCA's.

 

I am 99% sure that without my written authority or permission that they are breaking the law in doing this and I intend to take them to court to get them to stop and remove what is already there and I am sure the Data Protection Act and numerous privacy laws will cover this but which ones exactly?

 

Can anyone give me specific laws that they are breaking and my best course of action in bringing this to court.

 

Many thanks,

 

BB

[BelstarBomb]

oops, wrong section!

[BelstarBomb]

Hi All,

 

Two credit card companies who have have no CCA or application form (in other words nothing with my signature on at all) have said ok, we cannot take you to court and enforce the agreement but we will still process your info internally and externally with the CRA's and DCA's.

 

I am 99% sure that without my written authority or permission that they are breaking the law in doing this and I intend to take them to court to get them to stop and remove what is already there and I am sure the Data Protection Act and numerous privacy laws will cover this but which ones exactly?

 

Can anyone give me specific laws that they are breaking and my best course of action in bringing this to court.

 

Many thanks,

 

BB

[reallymadwoman]

The relevant law is the Data Protection Act 1998, link here Data Protection Act 1998 (c. 29)

 

However, you should be absolutely sure that you know exactly what you are doing before thinking about taking this to court as it will not be easy. Basically they don't need your written permission to process your data as they will say

 

'The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.'

 

This is because, although the debts cannot be enforced in court, they still exist.

[BelstarBomb]

Thanks RMW,

 

This is what amuses me dependent on how you look at it.

 

There is no proof anywhere that I gave them permission to take my information, process it and give it to CRA's as they have confirmed they have no application form or anything that resembles a CCA.

 

If they had an application form, I could understand this possible argument but with absolutely nothing, I don't think so.

 

I will have a good read and may well put it in their face anyway.

 

I'll let you know how I get on,

 

BB

[BelstarBomb]

Hi RMW,

 

just managed to scan through the act and the first thing that jumps out to me is this.

 

The clause that you refer to 6 (1) is part of Schedule 2. Part II 10 (1) is what I intend to use as Part II 10 (2) (a) states that 'subsection (1) dos not apply in a case where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met.

 

Schedule 2

 

1. The data subject has given his consent to the processing - I haven't and the bank cannot supply an application form or properly executed CCA to prove otherwise

 

2. The processing is necessary for ---

 

(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

 

There is no contract as there is no application form or properly executed CCA and I obviously have no intention of entering into a contract with them

 

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 - the only legal obligation that I can think of is the CCA 1974 and as they have no application form or properly executed CCA again, I can't see how they could use this clause

 

4. The processing is necessary in order to protect the vital interests of the data subject - most definietly not!

 

What are your thoughts? Do you agree?

 

Cheers,

 

BB

[reallymadwoman]

I agree entirely, however having tried this with a couple of lenders, I was just pointing out what their response was likely to be. Other members have also had the same response.

 

The argument seems to be that because at some point they gave you some money - it can't be a loan if they haven't got an agreement - they have a legitimate interest in processing your data whether you gave permission or not. Of course the only way to resolve this argument is to take it to court, but none of mine have gone that far yet.

[BelstarBomb]

Hi RMW,

 

Yours have not gone that far as yet....

 

What is the situation at the moment?

 

BB

[reallymadwoman]

Most of them have simply given up and I haven't really tried to hard to get the defaults removed as they will all be dropping off within a year and I don't want any more credit anyway.

[citizenB]

THis might help, it was posted by Sparkie on his thread..

 

http://www.consumeractiongroup.co.uk/forum/royal-bank-scotland/56333-big-claim-aginst-rbos-44.html#post1765393

 

 

Accuracy of a lender’s default records

39 Records

Any default record should be accurate. We normally expect a lender to keep records that are necessary to show an agreement exists and to support filing a default. We would also expect a lender to be able to produce evidence to justify a default record they had placed on a credit reference file. Not having any supporting records may indicate a breach of the data protection principle requiring personal data to be adequate, relevant and not excessive for the purpose for which it is processed. A record that a notice of an intention to file a default was sent, if not a copy of the notice itself, will help lenders to comply with this requirement

If we conclude that there is a genuine, reasonable and unresolved dispute between the borrower and lender, then we are likely to find that personal data have been processed unfairly if a default has been filed. Defaults filed in these circumstances may also be inadequate for the purpose of credit referencing in that they do not provide meaningful information about the creditworthiness of the customer.