First plus loan for everest windows and a charging order - can i now Cca?

[exasperated]

Hello,

Does anyone have the knowledge to inform whether a CCA that has incorrect info on it is unenforceable i.e. the amount of credit stipulated on the agreement states £10,200 and not the actual amount borrowed which was just over 4K

Thanks

[pedross]

Hi Exasp

 

Sorry about the dalay in getting back to you. Check out the details below to see if they are factually correct in your opinion.

 

If so the next step is to write to First Plus and say something along the following lines:

 

Dear Sirs

 

Re Agreements No. ..........640 and .....120

 

I would bring your attention to the above agreements which relate to finance for the purchase of New Windows. These agreements were signed at a time when I was experiencing personal and financial problems and I was in a vulnerable position.

 

You have recently supplied me with copies of agreements bearing the above numbers which do appear to contain my signature. However, the figures do not accurately relate to goods purchased or the circumstances and the dates on the invoices do not support the facts at the time.

 

Although I have payment arrangements in place for the agreements I agreed to them under duress. I also realise that you have taken legal action on one of the agreements, but again I was unsure of the situation and not confident enough at the time to challenge your actions.

 

Now I am feeling better I have started to look into the matter and have taken advice. This has helped me to understand the documents that you have presented to me and to realise that I have been negligent in not dealing with this matter before.

 

I therefore request that you investigate my concerns, review the agreement details, check the agreements against goods actually supplied and also investigate why the dates on the agreements do not relate to the actual dates they were potentially signed. Furthermore, I would be obliged if you could confirm why you believe that I am legally liable for the two agreements.

 

In view of the serious nature of my concerns I request that you reply within 14 days.

 

Yours Faithfully

 

E

Edited October 4, 2009 by pedross

[diddydicky]

Hello,

Does anyone have the knowledge to inform whether a CCA that has incorrect info on it is unenforceable i.e. the amount of credit stipulated on the agreement states £10,200 and not the actual amount borrowed which was just over 4K

Thanks

 

the amount of credit would be the total of the amount borrowed plus all the charges and interest

[exasperated]

PD,

Thanks again for your time,I'll send it and let you know what they say

DD,

On the agreement it states loan amount as 10,200 when the loan is in fact 4k. This is confirmed by the fact the other agreement states loan amount 6040 and that is what the loan was.

It is therefore incorrect on the first agreement

Exasp

[diddydicky]

so it would seem

 

although if you borrowed 4000 for whatever goods then there is no way that the TOTAL amount of credit can be the same since the total amount of credit on most agreements would be the original cost of goods plus charges and interest (front loaded loan) therefore it would seem a mystery as to why the total amount for credit would contain no interest or charges

[exasperated]

Hi PD and DD,

As you will note from the above postings they are termed:

AGREEMENT ENDING 120...

Description of goods services: doors windows: £7,130

 

Total cost of goods services £7,130

Customer deposit £1,090

Amount of credit for goods services £6,040

Optional payment protection premium £0

Amount of advance (C+D) £6,040

Arrangement fee £45

Total loan amount (E+F) £6,085

Monthly interest rate 1.635%

Apr 21.8%

First payment including arrangement fee £160.20

Subsequent payments of £115.20

(variable by notice if the interest rate varies)

Estimated number of monthly payments 120

 

You will note that the total cost of goods and service tallies with the amount on the invoices we received from Everest and that the repayments have been consisitently around £120.43 which is what they have quoted above, whereas...

 

Agreement ending 640

 

Total cost of goods services windows and doors £10,200

 

 

Total cost of goods services £10,200

Customer deposit 2,040

Amount of credit for goods services (A-B) £8,160

Optional payment protection premium

Amount of advance (C+D) £8,160

Arrangement fee £45

Total Loan amount £8,205

Monthly interest rate 1.635%

Apr 21.8%

First Payment (inc arrangement fee) £200.64

Subsequent payments of £155.64

Estimated number of repayments 120

 

On the SAR it states original loan amount of £4,359.00 £45 arrangement fee and throughout the the entitrety of the loan the repayments have been around £83 meaning that that above cannot be correct.

Also I have just found the original invoice from Everest which tallies with the repayments and what the above SAR request stipulates..

 

 

 

I have therefore sent the letter scripted by PD and hope you will agree that something is amiss that makes the agreement unenforceable

Regards

Exasp

Edited October 5, 2009 by exasperated
left details in

[pedross]

PD,

Thanks again for your time,I'll send it and let you know what they say

DD,

On the agreement it states loan amount as 10,200 when the loan is in fact 4k. This is confirmed by the fact the other agreement states loan amount 6040 and that is what the loan was.

It is therefore incorrect on the first agreement

Exasp

 

I know Exasp

 

This agreement is wrong. This is why I suggested that you sent for the orders from Everest so that we could work out what had happened, which of course we now have.

 

However, the next step is to resolve the problem in the best way that we can for you. There is obviously a problem with the agreement and the actual loan amount but if we storm in with that we will not have any leaverage with the other one, which does appear to be right. FP appear to have made an almighty error on the one and on top of that someone has added dates to the agreements which are incorrect.

 

Therefore, I suggested you send the letter above to let them know that you are aware there is an error and that it is serious. When they reply it will lead us to our next move but I do not want to post my thoughts on what may happen in case we have 'guests'. Having said that I do think that we may be looking to write off at least one of the agreements.

 

The new information you have posted is a little late but better than never and appears to back up my thoughts that you changed the value of the order. I need to study the details to form the full picture which I will do. My first thoughts are:

 

Do you or did you personally own property 2 because it states on the document below that you did. In which case you owned 2 properties at the time.

 

Did it contain your signature

 

Are those your initials against the prices

 

It says on the top right 2 of 2 so where is 1 of 2

 

That will do for starters but I think I can see what has happened now. It was a hard slog but I am fairly sure that I am right.

 

Time will tell.

 

Pedross

[exasperated]

PD,

In answer to your questions...

• The property 1 was joint owned and the second property I purchased after the split.
  
• The above everest invoice did contain my signature
  
• No those are not my initials against the prices I presume they were the lady rep
  
• Yes it does state 2 of 2 but I do not have 1 of 2
  

As the agreements do not state the total amount including credit but the loan amount and interest does this make them unenforceable

Exasp

[pedross]

PD,

As the agreements do not state the total amount including credit but the loan amount and interest does this make them unenforceable

Exasp

 

I would not worry about that at this stage, we have got bigger fish to fry.

 

Pedross

[exasperated]

PD,

Two page reply to your scripted letter from FP

 

 

[pedross]

Standard reply don't worry

 

It has now made the situation clearer still. I will let you know more and do the next letter as soon as possible - snowed under at minute

 

P

[exasperated]

Hi,

I have quite a few debts the majority of which are now in dispute due to unenforceable CCA's. I have learned on this site that the creditor cannot process your data if the account is in dispute but can you get defaults removed?

If so anyone got a template letter

Thanks

Exasp

[silverfox1961]

Hi,

 

This is a letter I sent but of course the DCA refused

 

STATUTORY NOTICE UNDER S10 DATA PROTECTION ACT 1998

 

I refer to your recent admission that you cannot supply me with a copy of a Credit Agreement signed by me

 

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 fourth, first and sixth principles of The Data Protection Act 1998 to do so would be unwarranted.

 

 

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

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

 

 

I would also add that if they feel that they have your permission to use your data then supply the signature that gave them that permission (if they haven't supplied your agreement/application)

[exasperated]

Hi Silverfox,

I take it that means they are not legally obliged to stop processing your data and therefore legally you cannot force them to remove defaults?

Thanks for the reply

Exasp

[silverfox1961]

The Information Commissioner has said that so long as there is a link between you and the debt (I.E statements) then the debt exists and the creditor can mark your file as such.

 

This link is discussing this at the moment:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/222663-cras-ocs-credit-ref.html#post2464607

 

The only way so far of removing adverse data is to take them to court

[exasperated]

Silverfox,

Had a read through the thread and your right massive load of work and you have to be prepared to go to court. The reason I was asking was it is my intention to write to all creditors with an unenforceable CCA for a F&F figure but before doing so get them to remove adverse data to soften them up.

Any suggestions

Exasp

[silverfox1961]

That may work. It has been done but I can't point you to specific threads.

 

With F&F settlements, always start low (I.E 10%) then work up but have a maximum figure that you will not go beyond.

 

Get in writing from them that they will remove ALL adverse data (most will just put settled next to the debt) This will be hard work.

 

AND

 

They are accepting the payment in Full and Final settlement and that they will not chase you for the balance nor sell it on. You would be surprised how many peeps thought they had a F&F only for the balance to appear some time down the line

[exasperated]

Hi Silverfox,

As I understand it they cannot process data whilst an account is in dispute, using this I have edited a letter I found on the forum but unfortuantely it is long winded as it quotes variuos legals.

If you can be bothered to read such a long letter I would appreciate your comments. Howeever please do not feel obliged to.

Exasp

 

Re: Formal notice to desist from processing or disclosing personal subject data

I have recently conducted an audit of my personal credit reports supplied by Experian, Equifax and Call Credit.

It is noted that there exists, within all three files, an entry by your company.

I am contesting that continued processing of my data is an unwarranted act and I enclose a Statutory Notice to that effect, which is deemed served as of the date noted on the Royal Mail's Recorded Delivery service audit.

My written permission allowing to continue processing, or disclosing, my personal subject data was revoked when this account went into dispute and I hereby reiterate that revocation. I consider that any default entry on my credit files to be wholly unwarranted.

I also contest continued processing on the following grounds:

As you are aware, I am afforded principled rights under the Data Protection Act (Data Protection Act), Schedule 1, Part 1 ("The Principles") in relation to the manner in which my data is collated, stored and processed. Of particular note, are Principles 3, 4 and 5:

“3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.

4. Personal data shall be accurate and, where necessary, kept up to date.

5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.”

In my case, you are still processing data after the account became in dispute, whether or not this is a simple renewal process of the default flag, daily or by other timing factor. As that contract is in dispute, then my written permission has also ceased from the date of cancellation.

This is confirmed in Principle 2 of the Data Protection Act, which states:

"2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes."

I emphasise the term "specified and lawful purposes" as in ‘those specified within the contract’, and no more. I also emphasise the term "shall not be further processed".

I will be taking the matter up with the Credit Reference Agencies, and if they had claim that they had a

“legal right” to maintain this type of adverse entry for up to six years I will then challenge them to quote me the exact Statute that includes this so-called “legal right”,. I will continue an insistence of disclosure which they will have to concede that they have no statutory right. This is because unless this was a County Court issue, their term actually referred to contractual Law.May I respectfully presume that you likewise recognise that “standard industry practice” does not correlate with “legal right”?

Further investigation has also led me to conclude that the only six-year data ‘retention rule’, to which they may adhere to, is in relation to information in the public domain, e.g. Bankruptcy Orders/Discharges, IVAs, CCJs, etc. These are kept in the public domain for six years. But, these are sealed orders issued by a judge through the Courts who oversee the ultimate jurisdiction in all matters relating to Law, be it the criminal code or the Common Law. It is not up to Credit Reference Agencies, or lenders, to decide legal issues.

cont...

In addition, the agencies may also hold information that is deemed ‘in the public interest’ for the avoidance of credit fraud or deliberate repayment avoidance; I refer, of course, to CIFAS and GAIN entries on a credit file. My account is not subject to any such marker, nor is my former civil contract a public matter.

After scrutiny of all the relevant legislation, including the Consumer Credit Act (As Amended), the various Financial Services Acts and the Data Protection Act, etc., it is clear that there is absolutely no legislation that allows a lender or supplier to collate, process or distribute any other information unless there is express written permission from the data subject.

In fact, Section 10 of the Data Protection Act awards the real authority, regarding privacy of data, to the data subject, not the Data Controller. The Act is also very clear as to the rights of the data subject in respect of withdrawing permission to continue data processing and disclosure:

10. - (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.

However, there are some exclusion provisions for Data Controllers, and Section 10 does continue with various exceptions to subsection (1) above, and these are quoted, in full, below:

10. - (2) Subsection (1) does not apply-

(a)in a case where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met,

or

(b)in such other cases as may be prescribed by the Secretary of State by order.

To paragraph (b), I can only presume that you have not applied to HM Secretary of State for an order allowing you an exclusion, which leaves you with the only remaining possibility of requesting an exemption under paragraph (a).

So, we must turn to the exemptions permitted in paragraph (a) to find where your Data Controller may invoke his perceived exemption to the Data Protection Act, namely, those listed in paragraphs 1 to 4 of Schedule 2. I have reproduced these exemption paragraphs, in full, below:

“1. The data subject has given his consent to the processing.

2. The processing is necessary-

(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.

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.

4. The processing is necessary in order to protect the vital interests of the data subject.”

It is my contention that your supposed right of obtaining an exemption is not contained within any of these paragraphs. I have followed each in turn with my notation to give a clearer explanation, should there be any lack of clarity.

1. The data subject has given his consent to the processing.

That consent was terminated when the account became in dispute and, as stated earlier, I reiterate the revocation herein, and by the attached Statutory Notice.

cont....

2. The processing is necessary-

(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.

For (a), the contract is in dispute, and for (b), you and I are not entering into any form of contract, and certainly not at my request.

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.

According to the Information Commissioners Office (I.C.O.), exemption 3 includes all other statutory obligations for which the interests of national security and welfare override personal privacy.

These obligations allow for the provision of data to Official agencies and organisations, e.g. disclosure to crime prevention agencies (Police, Intelligence Services, etc), official Government agencies (DVLA, DSS, Passport Agency, etc.) and health authorities, etc., and for any other purpose not agreed within a civil contract.

We all know that the three major credit reference agencies are not Government bodies, nor official agencies, but for-profit companies, even though they like to think they are official. None of these three agencies are listed in the appropriate Data Protection Act Schedule that names the specific organisations that are permitted any such exemption rights.

4. The processing is necessary in order to protect the vital interests of the data subject.”

With reference to the I.C.O. again, this is interpreted as anything that affects the data subject as a matter of life and death. This clause is included in the Data Protection Act to permit data, like medical records or contact details, being disclosed in emergency situations. I do not believe that my former account details could be described as anything like a matter of life or death. So, it is clear to see that there is neither statutory provision permitting your Data Controller to assume continued processing rights of my data at his discretion, nor any exemption. I can then only assume that you are relying on the Common Law, and contractual law, as determined by the contract that both parties originally agreed. However, the contract that I originally signed with you is now in dispute, so my permission to process data is now withdrawn. I think it is fair to assume that you agree that the account is in dispute, whether or not a Default Notice was served. The contract neither included any other permission, nor did it imply that your perceived 'rights' to process my data would be ‘in perpetuity’. There was also no clause contained within the contract that stated that you had any arbitrary right to continuing processing data for up to six years after the account became in dispute. Also, I cannot recall any clear statement that gave my express permission for you to continue disclosing my subject data to third parties. You are no doubt aware that any non-agreed disclosure of personal data to third parties, without express written permission, is a criminal offence under Section 35, of the Data Protection Act. However, if I am mistaken, and the contract did, indeed, specify unlimited time extensions, then you must provide me with a copy of those signed terms indicating where I have agreed to them. This should be sent to me as one of your enclosures, if you wish to contest the enclosed Statutory Notice. You should be aware that you have, by statute, twenty-one days in which to either comply with my Notice, or give written notice stating your reasons and why you consider the Notice unjustified.

In summary, in relation to this former loan contract, I am formally instructing you, as an authorised officer of the Bank, from this day onwards, to:

1) cease to continue storing, processing or communicating my data;

2) remove all such data from automated process systems, as per the provisions of Part II, Section 12 (1) of the Data Protection act, namely:

 

 

Cont....

(1) An individual is entitled at any time, by notice in writing to any data controller, to require the data controller to ensure that no decision taken by or on behalf of the data controller which significantly affects that individual is based solely on the processing by automatic means of personal data in respect of which that individual is the data subject for the purpose of evaluating matters relating to him such as, for example, his performance at work, his creditworthiness, his reliability or his conduct.

Of particular note is the Acts own term “his creditworthiness”;

3) cease to disclose any data to any third party including, but not restricted to, Equifax plc, Experian Ltd and Callcredit plc; and

4) instruct Equifax plc, Experian Ltd and Call credit plc to remove all data pertaining to your records on me, to the extent that no data entry in relation to you will exist on my credit files.

Any failure on your part to adhere to these statutory timescales will automatically be interpreted as your non-compliance with the legal procedure. In that case, you will be expected to unconditionally comply with my Statutory Notice or I shall have no alternative but to refer the matter to the Court to seek an Order to that effect. Should it be necessary to refer the matter to the Court, then I shall also apply for Court fees and legal costs against the Bank. I shall also reserve the right to seek redress for damages as per the remit of the Data Protection Act.

I trust that I have made my position clear, and that you will now make a serious effort to understand its legal obligations and effect the changes requested. Should you be in any doubt as to the Banks obligations as a Data Controller, then I would advise that you consult your corporate counsel.

In any event, I shall expect a written confirmation from you acknowledging the contents of this letter within 5 working days, as per the requirements of section 15.3 of the Banking Code.

 

Yours faithfully

[silverfox1961]

You are right, they shouldn't be processing any data while the a/c is in dispute but the Information Commissioner is so impotent that they would rather pass the buck to the courts instead of getting their own act together.

 

That letter is good but actually getting them to comply is another thing. Don't forget thet the Credit Reference Agencies are classed as JOINT credit controllers with the original creditors so any legal action taken could include the CRA if they won't comply either.

[exasperated]

Hi Silverfox,

I will send it anyway and let you know what they say, afterall they do have to send a reply and at least we will know what changes/additions we have to make to get em worried

Exasp

[pedross]

Right here I am

 

This is so complicated but getting clearer. As we now know the agreement we have issues with is the one ending in 640. We have been working on the basis that the agreement you posted up earlier for £10k + is the problem. But it is not a valid agreement and is not the basis of the debt that First Plus are claiming.

 

So you need to write to them, thank them for the letter of 8 October 2009 state that you are not questioning how the loan was sold but the exisitence of an actual agreement. Ask them for a copy of the agreement ....640

 

Yours Faithfully etc.

 

 

If there is no agreement that will solve the one problem if there is the saga continues. But so far you have 3 agreements and there should be 4 so we need to establish the facts before deciding what to do next.

 

Pedross

[exasperated]

PD,

Time is not on our side for the reasons I stated to you in my PM so I am even more nervous than usual. In answer to my previous question in an earlier post 'are these agreements enforceable'? you stated we have bigger fish to fry but I wouldn't mind knowing if they are or are not.

Here is the letter I am sending them tomorrow, although I may call her and ask for a direct email address to hurry things along, what do you think?

 

Thank you for your letter dated 8th October 2009 and the kind words contained within regards my illness

I have been advised to inform you that it is not how the loan was sold that our enquiry related too at this preliminary stage. Therefore enclosed please find the agreement that was forwarded to me in response to my CCA request. You will note that the agreement bears no relevance to the actual goods in monetary terms, nor relate to the time that the goods were sold and is therefore not a valid agreement.

We seek clarification on this matter first

[pedross]

Thats ok

 

The aim is to find out if they have another agreement signed in december, if not theres your answer with regards to this one.

 

With regards to the agreement ending 120 I got the impression that you made 5 years payments but according to the charging order you paid very little.

 

There might be an issue with the agreements but there was no point looking at that until we knew which 2 agreements out of a possible 4 we were talking about and which one related to which property. Nearly there.

Edited October 13, 2009 by pedross

[exasperated]

Hi,

Have another thread with this subject but the person helping is snowed under with other matters.

Could anyone have a look at the DN below and see if they can pick faults. I have to reiterate that they already have secured a CO even though the loan was unsecured.

Thanks

Exasp

 

[42man]

It could be up to a judge...BUT I'd say NO.... -

 

quote the following from Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

 

Quote:

 

SCHEDULE 2

FORM OF DEFAULT NOTICE BEFORE A CREDITOR OR OWNER CAN BECOME ENTITLED, BY REASON OF ANY BREACH BY THE

DEBTOR OR HIRER OF A REGULATED AGREEEMENT, TO TERMINATE THE AGREEMENT, DEMAND EARLIER PAYMENT OF ANY

SUM, RECOVER POSSESSION OF ANY GOODS OR LAND, TREAT ANY RIGHT CONFERRED ON THE DEBTOR OR HIRER BY THE

AGREEMENT AS TERMINATED, RESTRICTED OR DEFERRED OR ENFORCE ANY SECURITY

Regulation 2(2)

Details of agreement

 

1

A description of the agreement sufficient to identify it.

 

 

Parties to agreement

2

(1) The name and a postal address of the creditor or owner.

(2) The name and postal address of the debtor or hirer.

 

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than

fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and

the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.