Aktiv Kapital and DPA

[vjohn82]

I made a CCA reuquest and AK responded that they have the details I requested but Data Protection Laws prohibit them from issuing a copy to me before they have confirmed my identity and residence...

 

they want my address history since 2005 along with proof to confirm I was at ...those addresses. Upon receipt they will send out the info they have.

 

Has anyone else experienced this? I thought requesting a CCA because of information on my credit file was enough?

[cerberusalert]

There is no requirement in the Act for you to supply that information, 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**.(12+2 days after you sent the CCA request)

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.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 therefore request a copy of your official complaints procedure which you are obliged to supply.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

 

Yours faithfully,

[vjohn82]

I have sent something very similar... modifying your letter slightly to my own circumstances.

 

Will update you in due course!

[nosnibor]

Hi vjohn

 

is this any help

 

Dear Sirs,

 

RE Account NO XXXXXXXX

 

Thank you for your letter dated xx/xx/2007 the contents of which are noted

 

In your letter you make reference to requiring my signed authorisation before you comply. I draw your attention to the fact that the Consumer Credit Act 1974 does not require that i supply you a copy of my signature before you comply with my S78 request.

 

If it is for Data Protection purposes then i can happily supply you with documentation to substansiate my identity to you.

 

However please note that to date you have happily sent statements and correspondace containing extensive sensitive private information to my address. I have to ask if you are concerned that you are corresponding with the correct person why has it taken so long to raise this?

 

As you are aware, disclosing data without adequate checks of identity is contrary to the 7th principal of data protection, listed in schedule 1 of the Data protection Act 1998:

 

7. Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.

 

My request for a true copy of my credit agreement under section 78 was made on xx/xx/2007 and the 12 working days for your compliance expire on xx/xx/2007. I note that there is no provision that removes the requirements of the act to provide this information on time, even if you are unsure of my identity.

 

i look forward to recieveing the documentation requested

 

Regards

[vjohn82]

Nosnibor....

 

Cheers for that... I will use those lines if my current letter fails...

 

I am sending this one:

 

Dear Sir/Madam

 

 

Thank you for your letter of 9 March 2009, the contents of which have been noted. As I understand from the letter 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.

 

Regarding your request for me to verify my identity, please note there is no requirement in the Consumer Credit Act 1974 for me to supply or furnish your company with this information. That I am querying information that appears on my credit files is sufficient enough evidence to prove the legitimacy of my request. No doubt this is because I have followed extensive identity checks in my applications to credit reference agencies and am following statutory guidelines in requesting information that relates to entries on those credit files.

To clarify, on 26 February 2009 I made a formal request for a true signed agreement for the alleged account under the Consumer Credit Act 1974 s77/8. Your response is not compliance with this Act. Please note that for the continuation of my original request this account has entered into default from 11 March 2009 which is 12 days from the date I sent the original request (27 February 2009).

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 the original creditor 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 as proof of ownership of said account.

 

Please note the following:

 

I have made you aware that the Consumer Credit Act allows 12 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 now expired.

 

Section 77(6), of the Consumer Credit Act 1974 states:

“If the creditor fails to comply with Subsection (1)(a) He is not entitled , while the default continues, to enforce the agreement. Therefore this account has become unenforceable at law.”

 

Under the terms of statute law 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 and would require this in writing before I am forced to write a complaint to the credit reference agencies who you have reported information to, the Office of Fair Trading and the Information Commissioner.

 

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.

 

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

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

3) You may not pass the account to a third party.

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

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

6) You must remove information logged with any agency which you claim you assert the rights to.

 

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 therefore request a copy of your official complaints procedure which you are obliged to supply.

[cerberusalert]

Yes that's fine, fire that at them.

[yourturntopay]

They did this with me - i ignored their request and sent a similar letter that you have sent - they then ignored that!!

 

After i complained to FOS the "agreement" turned up - but it is completely unenforceable - doesn't meet any of the presrcibed terms in anyway.

 

They have left me alone since then.

[vjohn82]

Ok...

 

AK replied and found a "credit agreement"

 

Any help with this one appreciated but it looks like it is missing prescribed terms.

 

 

Any help appreciated!

[cerberusalert]

It's an application form which doesn't contain the prescribed terms such as credit limit, repayment terms or %APR within the four corners of the signature page, so is unenforceable. Send them this;

 

Dear Sirs,

 

Account no

 

 

Re: my request under the Consumer Credit Act 1974

 

This account is in Dispute .

 

On xx/xx/2009 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

 

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I refer to page 5 of the guidance which states;

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment.

 

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for your client to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

I respectfully request a response to this letter in 14 days

 

 

I trust this out lines the situation

[vjohn82]

Nice... amending and then printing!

 

Thanks

[vjohn82]

Hang on lol... I already drafted a reply...

 

Let me know what you think...

 

 

Dear Sir/Madam,

 

I write in response to your letter dated 26 March 2009, the contents of which have been noted.

 

I will be keeping this particular letter as you have mistakenly claimed that you are not bound by the law with regard to timescales set out by the Consumer Credit Act 1974 (a. 2006) even though s.189 of the act states you are indeed legally bound. I believe this is a misappropriation of your position which is against OFT debt collection guidelines and will be part of my complaint to them which will be sent unless I receive an appropriate response.

 

I have looked over the information provided and put forward that under the terms of s.77/78 of the Consumer Credit Act 1974 you have not met your obligations. The document provided, for the purposes of legal collection, is an application form for credit and not an executed credit agreement. In order to collect this debt you need to be in possession of an executed credit agreement. An executed credit agreement must meet s.61 of the Consumer Credit Act 1974 which sets out the prescribed terms, which are the minimum provisions to be contained within a single document; the document you have provided does not meet this stipulation.

 

The prescribed terms for enforceability under s.127 (3) are given in Schedule 6 of the Consumer Credit (Agreements) Regulations 1983:

 

- A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—

(a) number of repayments;

(b) amount of repayments;

© frequency and timing of repayments;

(d) dates of repayments;

(e) the manner in which any of the above may be determined;

or in any other way, and any power of the creditor to vary what is payable.

 

- A term stating the rate of any interest on the credit to be provided under the agreement

 

- A term stating the amount of the credit

 

 

The above terms are inflexible and are backed up by case law;

 

i. McGinn v Grangewood Securities Ltd

Court of Appeal 23 April 2002 3 All ER 145; 105 Solicitors' Journal 588

 

ii. Wilson and others v Secretary of State for Trade and Industry (at Court of Appeal, known as Wilson v First County Trust) House of Lords 10 July 2003

 

iii. London North Securities -v- Meadows (Supreme Court of Judicature Court of Appeal) 14 June 2005Dimond -v- Lovell ([2002] 1 AC 384 )

 

iv. Wilson and another v Hurstanger Ltd (In The Supreme Court Of Judicature Court Of Appeal (Civil Division) 4 April 2007)

 

I would welcome the opportunity to present this defence to the courts should you take the action you have mentioned in your letters thus far.

 

The statements provided do not include how the initial balance has been calculated. I contend that the balance has been falsely calculated in order for your company to reap maximum financial benefit from an account that was never properly executed. Unless I receive an appropriate response I will be forced to make a complaint to the FSA under s.2 of The Fraud Act 2006 for attempting to obtain money by false representation unless you have other documentation to support your claims to this alleged debt.

 

Put simply, I want this debt to be purged from my credit file as it is vexatious and unsubstantiated. You have not provided adequate proof of ownership, enforceability or properly calculated balance. Under section 10. 3 (a) of the Data Protection Act I can make a complaint regarding personal information that you hold about me.

 

Under part 2 section 10. 3 (a) of the Data Protection Act 1998 ch. 29 it states:

“The data controller must within twenty-one days of receiving a notice under subsection (1) (“the data subject notice”) give the individual who gave it a written notice —

(a) stating that he has complied or intends to comply with the data subject notice, or

(b) stating his reasons for regarding the data subject notice as to any extent unjustified and the extent (if any) to which he has complied or intends to comply with it.”

This means that within 21 days you must give me your reasoning for continuing to process data which is contrary to the Act. The data you have recorded is incorrect and damaging to my credit profile which may prohibit my ability to obtain further credit services.

I trust you have the information at hand to respond to this letter. Please note failure to respond within 21 days will trigger an official complaint to the Information Commissioner with a claim for damages for the distress and inconvenience of bringing this matter to your attention. Should further action be required the Data Protection Act section 10.4 allows for a court to enforce your company to comply with this notice and should this action be deemed necessary I shall seek recompense as per section 13 (1) in which:

“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.”

I trust I have set out my position clearly and that if I do not have an appropriate reply within 21 days I will be forced to make complaints to the relevant authorities as outlined above.