Taking 1st Credit to Court for distress!

[themajor]

I got fed up of 1st Credit hassling me for a LloydsTSB loan account that they're only DCA's for, so now they're getting both barrels! I'm suing them under DPA 1998, and Protection from harassment act 1997.

 

Any expert opinions would be appreciated on this before I send it. Below is what I'm sending them, one last letter pre court with the particulars of claim on it.

 

 

I refer to your letter dated 08/01/2009. Your response to my dispute is totally unacceptable in that all you doing is contacting your client Lloyds TSB to pass on my comments. Any reply to those comments will take at least one month. I am not going to restate facts made numerous times in my previous letters. As this dispute has been ongoing for nearly 5 months, your replies to my letters are always unprofessional and totally unacceptable, it appears court action is now inevitable. In accordance with the ‘overriding principles’ I submit herewith the draft particulars of claim:

 

 

Particulars Of Claim

1. The Claimant held an account with the Defendant 1st Credit Ltd's client Lloyds TSB for a personal loan.

2. On 29/08/2008, the Defendant wrote to the Claimant demanding payment of £9507.57 on behalf of their client.

3. On 02/09/2008 the Claimant wrote to the Defendant disputing any debt payable to them. The Claimant requested a copy of the Consumer Credit Agreement (CCA) that they refer to under s. 77 The Consumer Credit Act 1974. A Statement of Account was also requested under the same act. A postal order of £1 was enclosed in payment of the statutory fee.

4. On 04/09/2008 the Defendant acknowledged these requests.

5. On 20/09/2008 the Claimant wrote to the Defendant informing them that they had exceeded the prescribed time-scale under The Consumer Credit Act 1974 of 12+2 working days to supply the requested documents, and the account was therefore unenforceable at law. He also requested that they cease processing his data, refund the £1 and offer compensation under s. 13 The Data Protection Act 1998. As the Defendant was acting for Lloyds TSB (allegedly) the Claimant requested that the “Default Notice” on his credit files be removed as it was inaccurate and unsubstantiated.

6. On 23/09/2008 the Defendant wrote to the Claimant requesting he call them as a matter of urgency.

7. On or around 24/09/2008 the Claimant called the Defendant in response to their letter. The Defendant repeatedly demanded a payment and accused the Claimant of avoiding paying his debts. The Claimant re-informed the Defendant that the account was unenforceable for their default on his s. 77 request, and that it was against Home Office regulations for a debt collector to attempt to collect on an unenforceable/disputed account. The Defendant still demanded a payment.

8. On 11/10/2008 the Claimant wrote to the Defendant, re informing them of the s. 77 breach and re requested that they cease processing his data.

9. On 22/10/2008 the Defendant acknowledged this letter and stated that they shall respond in due course.

10. On 07/11/2008 the Defendant wrote to the Claimant acknowledging they could not enforce the debt until such time that they provide him with the agreement (CCA). It made no mention of the Statement of Account or the processing of his data. They stated that they did not know of any legislation requirement to remove the “Default Notice”.

11. On 11/11/2008 the Claimant wrote to the Defendant re requesting that they remove the “Default Notice” recorded with the credit reference agencies, as it was unsubstantiated and inaccurate.

12. The Defendant wrote to the Claimant acknowledging his last letter. Despite previously admitting the account was unenforceable under The Consumer Credit Act 1974, the Defendant now claimed that the account related to a bank account and was therefore not subject to the legislation contained within the act.

13. On 17/11/2008 the Claimant wrote to the Defendant stating that the Lloyds TSB account was for personal loan, was therefore subject to the Consumer Credit Act 1974, and therefore still unenforceable at law under s. 77 (4).

14. On 08/01/2008 the Defendant replied to this letter stating that the Claimant’s comments would be passed on to their client (Lloyds TSB) and the reply from them would take at least a month.

15. The Claimant claims that the Defendant is in breach of Home Office guidelines for debt collection in that;

a) s. 2.8 (k) states“not ceasing collection activity whilst investigating a reasonably queried or disputed debt.”

b) Despite the Claimant disputing the debt(the Defendant's right to collect) from the outset and it subsequently becoming unenforceable, the Defendant continued attempts at collection.

c) s. 2.2 (e) states “failing to provide debtors or creditors with information on status of debts, for example, not providing requested balance statements when reasonably requested”.

d) The Defendant did not comply with the Claimant's request for a Statement of Account on 02/09/2008.

16. The Claimant further claims that the Defendant is in breach of The Consumer Credit Act 1974 s. 77 (1) a,b and c for their failure to supply a Consumer Credit Agreement and Statement of Account on request.

17. The Claimant further claims that the Defendant is in breach of the Data Protection Act, 1998 (DPA 1998) in that;

a) The Defendant is a ‘data controller’, the Claimant a ‘data subject’ and the data ‘personal data’ as defined in s.1 of the Act

b) In the Claimant’s original Consumer Credit Agreement with Lloyds TSB, he did not give his permission to have his data shared or passed on to third parties such as the Defendant.

c)On 20/09/2008 the Claimant issued a Statutory Notice to the Defendant pursuant to s. 10 of The DPA 1998, requesting that the Defendant cease processing the Claimant’s data.

d) The Defendant has continued to process the Claimant’s personal data, such processing having continued up to at least 08/01/2009 being the last letter received from the Defendant.

e) The Claimant claims that such processing is unlawful in that it breaches Principles 1 and 5 of The DPA 1998.

f) Principle 1 states that ‘Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless …at least one of the conditions in Schedule 2 is met …’. The processing by the Defendant meets none of the conditions in Schedule 2, which the Defendant knew or should have known.

g) Principle 5 states that ‘Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.’ The Defendant had no reason to retain the Claimant’s personal data beyond the 20/09/2008 at the latest.

18. The Claimant further claims that the Defendant is in breach of The Protection from Harassment Act 1997 (PHA 1997)in that;

a. The PHA 1997 s.1 (1) states “A person must not pursue a course of conduct—(a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other.”

b. The Defendants continued illegal attempts to collect on a debt that was unenforceable under The CCA 1974, and are against Home Office regulations 2.8 k. amount to harassment and breaches s. 1 (1) a and b.

19. As a result of the unlawful actions,processing and the negligent misrepresentation, the Claimant has suffered damage, namely costs in corresponding with the Defendant regarding the debt and the entries on his credit reference file, distress and inconvenience.

20.The Claimant respectfully seeks;

a) Under s. 13 (1) of The DPA 1998, the Claimant claims compensation for damage caused as a result of the unlawful processing, quantified as;

1. Postage, stationary and printing costs £20.

2. Costs of membership of ‘Credit Expert’ @ £6.99 per month, 12 months £83.88 to ensure that 1st Credit Ltd are not further harming his credit rating.

b) Under s.13 (2 )of The DPA 1998, the Claimant claims compensation for distress caused by the unlawful processing, at the discretion of the Court. He asks that the court pay due consideration to the following;

1. As a Mortgage Broker the adverse/inaccurate information on the Claimant's credit files has prejudiced prospective employers from employing him. He has evidence of several financial based jobs applied for without success. He remains unemployed at present.

2. The distress caused upon the Claimant of not knowing who else his data is being recklessly shared with.

3. The extensive time taken by the Claimant in corresponding with the Defendant and bringing this case to court.

c) Under s. 3 (1 and 2) of The PHA 1997, the Claimant claims compensation at the courts discretion for the anxiety caused by the Defendant's unlawful attempts at debt collection.

 

 

This is your very last opportunity to settle amicably before court action.

 

 

You should note that, if the matter does proceed to court, I will be relying upon, inter alia, the case of Kpohraror v Woolwich Building Society [1996] C.L.C. 510 with regard to the level of damages to be awarded. Should you not be aware of the case, appropriate damages were set at £1000 plus the default amount, representing in my case a total sum of £9507.57 and therefore a total claim of £10507.57. I claim my lack of employment for nearly four months caused by yourselves, amounts to considerably more than this sum anyway, and would seek that the court consider this when making the compensation award for damages and distress.

 

 

Lord Justice Evans in Kpohraror v Woolwich Building Society [1996] C.L.C. 510 stated that a presumption of some damage arises in every case where injury to credit occurs, and therefore I will be arguing that it is unnecessary anyway to prove any particular loss or damage under this head of claim. I would point out that, in order to minimize any potential damage, I have refrained from applying for any form of credit since noticing the inaccurate data upon my file, as any subsequent refusal could only cause further damage. Although the “Default Notice” was place on my file by Lloyds TSB, you are acting on their behalf on the account, albeit illegally.

 

 

If you comply by 30/01/2009, I would however consider a reasonable total sum to be £5000 in respect of the monetary claims, subject to the previously mentioned undertaking regarding the entry on my credit file. I consider this reasonable on the basis that I do not wish to consume the courts time if an amicable settlement can be reached. Therefore I am lowering my claim only in order to reach a pre-court settlement. I do hold another account with you (a legitimate one but currently unenforceable) of amount £4618.60. I would be prepared to offset your £5000 settlement against this account. This would obviously enable you to achieve a 100% full and final settlement on that account whilst still benefiting from a £5000 pre court settlement as opposed to over £10000.

 

 

If you pass the account back to Lloyds TSB in an attempt to avoid being sued, then I shall still pursue legal action against you. My credit card agreement did not give permission for my information to be passed to third parties such as 1st Credit (illegally pursuing an unenforceable debt does not fill any of the DPA 1998 Schedule 2 criteria either) and you have harassed me for payment on an unenforceable account. Passing the account back to Lloyds TSB will not alter these facts and I shall still pursue legal action against you if an amicable settlement is not reached first.

 

In any event, given 1st Credit's appalling history in relation to responding to my correspondence quickly, in the absence of settlement as detailed above, proceedings will be issued on or after 30/01/2009 without further notice.

[Chris1933]

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