Inchcape/Bank of Scotland Default

[Mr Miffed]

Hello I've been reading a lot of very useful information on this forum, but this is my first post so forgive me if this is in the wrong place.

 

Inchcape/BoS have registered a default against me for a car finance agreement. I must admit that I did miss some payments, due to health problems at the time and not the ability to pay. The agreement is now back on track, uptodate and payments are made when they should be.

 

My question is can an agreement that continues to run, be in default? I thought that the Agreement was terminated if in default.

 

I really need to get rid of this so any help would be appreciated.

 

MM

[Jesteruk]

You should contact the company that placed the defualt on your file and ask them if the default is still valid now that your up to date. If they say no its not valid then ask them to remove it, asking experian is not worth it as you probably know from reading the other posts.

 

Get onto BOS and ask them to remove it

[Mr Miffed]

Hello, I already sent them this letter;

 

Dear Sir or Madam

 

Agreement Number: XXXXX

 

After recently obtaining a copy of my credit file from Experian I was concerned to note that your company has placed a "Default" against my name. Whilst I am aware that some payments were late, this issue was discussed with you on the telephone several times and as explained was as a result of a change in bank accounts, which then reverted to the original account. Following this the direct debits that you tried to collect were returned as my bank advised that the reference was incorrect. The direct debits were cancelled and reinstated to try and resolve this, but unfortunately the direct debit reference continued not to be recognised by the bank. As a result manual payments were made over the telephone on several occasions whilst the problem was trying to be resolved.

 

You will note that payments are now made by standing order rather than direct debit as a result of this situation and the account is up to date. I am therefore concerned that this default has been issued against me as it was never a question of not being able to make the payments.

 

I would therefore respectfully request that the default be removed from my credit file, as the Agreement is still in place and is being paid by standing order. I would of course be prepared to meet your reasonable costs in doing so.

 

I also have no recollection of ever receiving confirmation that this default was indeed to be registered against me and if you are not prepared to remove it then I therefore require you to substantiate this data at your earliest convenience.

 

 

1. You must supply me with a true copy of the agreement you refer to. This is my right under your obligation to supply a copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit). Your obligation also extends to providing a statement of account. I enclose a £1 postal order in payment of the statutory fee, PO Serial Number XXXX

 

2. You must supply me with a signed true and certified copy of the original default notice

 

3. Any deed of assignment if the debt was sold on

I would request that this data is provided to myself within the next 28 days, if you are unable to provide this data then I must insist that it is removed from my files as unsubstantiated.

 

I hope that the latter is unnecessary and that we can come to agreement on how to resolve this matter and restore our positive relationship.

 

Yours faithfully

 

 

 

I then got a standard reply from Bank of Scotland, even though Inchcape are the ones that have registered the default saying;

 

"I confirm that the information registered with the CRA we use is correct. We are obliged to ensure that your credit file is an accurate reflection of the payment history and therefore we are unable to make any amendment. A statement of account has been sent under separate cover to verify where payments were not received in accordance with the terms and conditions of your agreement"

 

These have not yet been received! Where do I go from here - any ideas would be appreciated.

 

MM

[Mr Miffed]

Just had another argument with BoS on the phone. They kept banging on that the financial ombudsman requires them to keep data on your credit file for 6 years - is this right?? I kept explaining that the agreement is up to date so how can it be in default.

 

Thinking of voluntary termination of this agreement as I am more than half way through and I dont want to do business with them any more!

[Studley96]

...... was as a result of a change in bank accounts, which then reverted to the original account. Following this the direct debits that you tried to collect were returned as my bank advised that the reference was incorrect. The direct debits were cancelled and reinstated to try and resolve this, but unfortunately the direct debit reference continued not to be recognised by the bank. As a result manual payments were made over the telephone on several occasions whilst the problem was trying to be resolved. MM

 

So let me get this right, you had a perfectly good and functioning direct debit (DD No1) in place with a number of "actions" to be performed, decided to change the account from which the direct debit was drawn on (DD No2) and the direct debit functioned correctly, then returned the direct debit to the original account (DD No3) and it consistently failed?

 

If this is the case then I expect they supplied the reference data from the original direct debit (DD No1) when drawing funds following reinstatement of the direct debit to the original account (DD No3), this would therefore be refused as the series of direct debit "actions" to which it refered had been cancelled.

 

Basically it sounds as if you acted in good faith, and either the lender or the bank on which the DD was drawn made a mess of it, the problem is proving it.

 

If you can get the bank to confirm in writing that the reference data the lender supplied was incorrect and caused the direct debit to fail, along with a copy of all three direct debit mandates to demonstrate the information given to by yourself to the lender to be correct then you have a case and could theoretically take court action under several acts of parliament.

 

Hope this helps

[Mr Miffed]

Yes thats correct - the same dd reference when reinstated to the original account was not recognised by the bank - tried to resolve it several times but with no success. In the end I canceled it and now pay by standing order. I may get the bank to confirm.

 

I am however still intrigued how an account which they (Inchcape/BoS) have confirmed is up to date and is continuing to function can be in default i.e terminated by them???

 

Im thinking of serving a S10 notice on them to stop them processing my data to see if that would get the default removed - would this be a bad idea?

[Studley96]

Oh and to answer the original question, a default on your account is simply a "didn't pay this month" notice, it doesn't matter if you bring the account up to date the following month, you still didn't pay that particular month. It will also apply if you pay a double instalment one month, and then don't pay the following month.

 

The financial ombudsman limits the time they can keep this information on your file to 6 years, otherwise they would probably love to keep it forever, but I am unaware of a stipulation requiring them to keep it for the full 6 years, thi however shouldnt be a problem if you can prove it was due to their error.

 

If you can prove it is their error then you have recourse through:

 

The Defamation Act

The Data Protection Act

The Consumer Credit Act

 

and probably a number of others

[Mr Miffed]

Thanks for the reply Studley96.

 

It makes me angry and seems farcical. If they default you and you bring it back in line but it still stays as a default for 6 years - whats the point in sorting it in the first place as it still has an adverse effect on your life as though you didnt pay it!

 

If I serve them with a S10 Notice to cease processing my Data would the default still show on my credit report?

[Studley96]

If you serve a S10 notice the bank may respond that you have given your consent for them to hold, process, and share your information as per the contract you signed when you took out the loan, this is a standard clause in probably all credit agreements.

 

That doesnt mean you cant try it if you want to, but in this case I personnally wouldnt, I'd go down the above route, and claim for damages.

[Mr Miffed]

Hmm - but they terminated the contract at the time of issuing the default. Therefore my agreement to their processing of my data also ceased (even tho I still have the vehicle, they confirmed that everything is in order and up to date and they continue to receive payments on time!) = confused

 

I need to hit the sack now but will pick up this again tomorrow - thanks again for the replies.

[Studley96]

Hmm - but they terminated the contract at the time of issuing the default.

 

Ok thats slightly different, I take it you received a default notice, and eventually they informed you that the contract was terminated and demanded repayment in full within a ridiculously short time frame or they would begin collection?

 

Ok that means they probably re-financed the loan, maybe with what is called a "managed loan"

 

Well the terms of the original loan with regard to the sharing of data regarding that original loan are likely to be in effect indefinately, but if that loan agreement is otherwise no longer in effect, and is "satisfied" then I would send them a letter refering specifically to that particular contract (not the one currently in effect) notifying them that I withdraw my consent whether implied, explicit, or under contract for them to hold, process, and share my information with regard to that agreement, and should they not agree to the variance of the contract terms in this way they can "cancel" the contract effectively negating the terms anyway.

 

I'd also point out that as they reserve the right to vary contract terms by notice in writing, failure to allow you to do the same would render the contract unfair, and therefore unenforceable under law, resulting again in them not having consent to share your information in relation to this account.

 

Send it by Recorded delivery and state that non response within a specific reasonable time period will be deemed acceptance of this change in the terms of the agreement

 

Then hit them with the S10 notice, they no longer have consent to hold, process, or share your data in relation to this account

 

The first part would need to be done very precisely, S10 is not available "in a case where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met", and paragraph 1 of schedule 2 says "The data subject has given his consent to the processing"

 

might work, might not, but if you can prove it was their f**k up then its time to go after the compensation, which would include the additional interest you have had to pay under the managed loan and anything else you can think of and quantify.

 

As an example of the compensation that you can easily go for, one credit company took me to court, the defence and counterclaim I made contained an itemised claim for £27,842.50, against an original loan of £2,500, and an outstanding balance of £1,200.

 

They settled out of court

 

Hope this helps

[Mr Miffed]

There is no new agreement. The original has just continued even though they have it as defaulted!!

[Mr Miffed]

Anyone help me with where to go with this? I have an Agreement that is marked as defaulted and they terminated the Agreement! - but it continues to be functioning as I have the goods and they continue to take my monthly payments?.