Knocked back by a DCA on a Sec 10 notice?

[andymanx]

Quelle surprise!!

 

None of the documentation requested under CPR 31.14 has been supplied.

Thanks for the letter. My faithful sidekick sent it for me a few days ago to Low-ell's and Crap-pot.

Edited May 2, 2009 by andymanx

[clemma]

Ooops - I forgot to mention that both letters were signed for on the 28th April :D

[spartathisis]

Dont know if this might help, but I received a reply yesterday saying they where taking my details off their accounts system and closing the account and I will here nothing more on the matter!

 

April 16th 2009

Robinson, Way Co Ltd

London Scottish House

Quays Reach, Carolina Way

Salford, M50 2ZY

Account In Dispute

 

Dear Ms

 

 

Ref:

 

I refer to your letter dated 3rd April 2009, received 10th April 2009.

 

I am sorry to hear that you regard your legal requirements as “repetitive correspondence”. I am sure the Information Commissioner, the Financial Services Authority, the Office of Fair Trading, Trading Standards, the Banking Ombudsman and indeed Parliament will appreciate your opinion on the legal duties of the organisation you represent. I would refer you to *1, where do I reply to?

 

I have a number of issues that require resolving before I can make an assessment of your claim to the alleged debt.

 

 

• You state the debt has been assigned to you, was this equitable or legal/absolute?
  
• Please provide proof of delivery of the Notice of Assignment as required by (s196 (4) Law of Property 1925). You have only provided a copy on new headed paper signed by yourself.
  
• You are legally obliged to pass on my request under the DPA 1998 to the Original Creditor, have you done so?
  
• Where in English Law does it state that a debtor has to “forward written documentation” to disprove a debt. Please supply a Deed of Assignment showing account details, my name and the amount transferred. The onus is on a creditor to prove a debt, not the other way around “innocent until proven guilty”!
  
• Please provide a legal reference to your claims, “In addition we are also entitled to process your data”, and ”We therefore have a legal requirement to accurately reflect the account status with the Credit Reference Agencies”.
  
• I require proof that Robinson, Way & Co Ltd had the legal right to assignment from HFC Bank PLC. This will be found in the terms and conditions that formed part of the required prescribed terms and conditions of the executed Consumer Credit Card Agreement I am alleged to have signed with HFC Bank PLC.
  
• What was the alleged amount outstanding on the date of purchase and what is now outstanding?
  
• Your statements confirm you are not able to enforce the alleged debt in a court of law, correct?
  

 

From the wording of your letter, do I understand correctly that you are not intending to investigate my complaint? If not please provide a suitable reply that I can pass on to the OFT.

 

Should you not respond within 14 days I will accept this as your agreement to remove all data held by yourselves and those held by any credit referencing agencies. Furthermore you should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute. Stop sending demands for payment.

 

 

 

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 e.g. Trading Standards, ICO, OFT, FSA, Banking Ombudsman and my M.P.

 

I refer you to the following:

 

 

• I currently earn approx. , owe to 6 creditors, live with a registered disabled relative who I help to care for, have no assets or any likelihood of gaining any and I will never be able to get credit again so I have nothing to lose in vigorously defending any claim by any of my creditors. If I could raise the money I would declare myself bankrupt and have an end to the matter once and for all.
  

 

I would appreciate your due diligence in this matter and I look forward to hearing from you in writing.

 

Yours faithfully

 

*1

Credit Services Association Guidelines

Consumer transactions

3 Each member shall:

c. In correspondence, use notepaper showing the full business address to which the consumer can reply.

[babybear39]

Excellent letter

[tosh1]

subbing

[spartathisis]

Thanks Babybear, it worked so im happy

[andymanx]

...

Edited May 31, 2009 by andymanx

[andymanx]

I sent Toulose Le Debt's excellent letter to Crap-pot.

Date: 27 April 2009

Ref:

By: Recorded Delivery

 

Ms Samantha Swallows

Lowell Financial Ltd

Enterprise House

1 Apex View

Leeds

LS11 9BH

 

Dear Sir/Madam

ACCOUNT STILL IN DISPUTE.

 

Thank you for your letter dated 17 April 2009 in which you respond to my request under CPR 31.14, a copy of this request is attached for your convenience.

 

Unfortunately your response falls some way short of fulfilling this request made under Civil Procedure Rules, again for your convenience I shall explain your shortcomings in order that you may speedily rectify the situation.

 

In my CPR request I made it abundantly clear that I required from you the following information in order that I might make informed judgment as to whether it would be in my interests to seek enforcement of my Section 10 Data Protection Act notice through the Courts:

 

a) A true copy of any contract entered into between myself: REMOVED and Lowell Financial Ltd, such document to bear the signatures of both parties.

 

or.

 

b) Only if the document referred to as 'the contract' in (a) above cannot be produced then either of the following two documents:

 

(i) A sworn statement that such document does not exist.

 

or:

 

(ii) A true copy of any document of novation between the three parties namely myself: REMOVED, and Capital One, and Lowell Financial Ltd, such document to be bearing the signature of all parties to the original contract and the novation thereof.

 

or.

 

c) A true and signed copy of any contract agreement entered into at any time between myself: REMOVED, Capital One such agreement to be bearing the name of your company: Lowell Financial Ltd explicitly named as a third party to whom any rights under this contract may be assigned without the consent of both originating signatories to the contract.

 

and.

 

d) A true copy of the deed or document of assignment of the account in question. Such document to have been executed in accordance with Section 136 Law of Property Act 1925.

 

e) Proof that this assignment was lawfully perfected by virtue of a notice of assignment served in accordance with Section 196 of the Law of Property Act 1925.

 

f) A copy of any contract of sale between Capital One and Lowell Financial Ltd. I permit this document to be reducted in order to remove any commercially sensitive information but am explicit that any terms of the contract purporting to pass rights to the original contract whether explicit or implied be left in their entirety.

 

g) Proof of purchase of this account from Capital One such proof to be dated.

 

h) In the event that any documentation mentioned in sections a) to g) of this request cannot be supplied; Written explanation as to why such documentation cannot be produced.

 

I note that you have failed to supply all of the documentation requested and instead have simply issued me a template letter re-iterating that you feel you have 'the right' to process my data, a copy of an unenforceable Credit Agreement, with a copy of Terms and Conditions, which are not related to the Credit Agreement, a copy of your Notice of Assignment and copies of account statements.

 

This is of course unacceptable to me, as I specifically requested the above documentation in order that I may make an educated decision myself as to whether you have 'the right' to process my data, for you to simply state this without supplying any proof of your claim whatsoever displays a gross failure to comprehend the gravity and implications of my lawful CPR 31.14 request.

 

I now have little option but to seek this documentation from Capital One as your failure in this matter simply underlines to me exactly how tenuous your claims are and it appears to me that you do not hold sufficient claim to this account to defend a Court claim in your own right so my next logical step is to ascertain whether Capital One should be named as co-defendant in any enforcement action.

My request was made in order that I might judge the likelihood of success of any enforcement action I might instigate amongst yourselves and I have to be honest with you and state that your failure to provide one single piece of the documentation requested leads me to suspect that you either do not hold this documentation or that such documentation does not exist. I am however a reasonable person and still think this matter can be resolved without my taking you to Court so I am prepared to grant you a 14 day extension to the original period of notice given you to fulfil the CPR 31.14 request in order that you might re-assess your response to meet the requirements of my lawful request.

This does of course mean that I shall be expecting to receive from yourselves a copy of all the documentation itemised in the original CPR 31.14 request, please do not waste your time and mine by writing and telling me you 'have the right' without supplying the necessary proof as requested.

 

This is my final warning to yourselves in this matter and failure to comply with the CPR 31.14 request at this stage could have some very serious consequences for yourselves including but not restricted to the following:

 

I may seek enforcement of my Section 10 Data Protection Act 1998 notice through the Court without further notice.

 

Your breach of pre-action protocols might result in any or all of the documentation requested under CPR 31.14 being held inadmissible in Court in the event of litigation.

 

Your breach of pre-action protocols might result in a costs order being made against yourselves regardless of the outcome of any litigation.

 

I trust this underlines how potentially serious a matter your breach of CPR is and that you will make some effort to comply in the time you have left.

 

 

Here is Low-ells reply, which is near enough identical to their previous letter.

 

 

 

 

 

 

Here are my proposed two letters to them. Your comments please. As they clearly cant read, I have put the red writing in a BIG size 30 red bold font.

 

 

Date: 3 June 2009

Ref:

By: Recorded Delivery

 

Ms Samantha Swallows

Lowell Financial Ltd

Enterprise House

1 Apex View

Leeds

LS11 9BH

 

Dear Madam

 

THIS IS A DISPUTED ACCOUNT.

 

YOU HAVE NOT PROVIDED A VALID COPY OF THE ORIGINAL CREDIT AGREEMENT.

 

YOU HAVE NO RIGHT ENFORCING THIS ALLEDGED DEBT.

 

YOU HAVE NO RIGHT PROCESSING MY DATA.

 

 

With regard to your letter dated 21 May 2009, I note that you have failed to supply all of the documentation requested in my letters to you dated 4 and 24 April 2009 and instead have simply issued me with yet another template letter re-iterating that you feel you have 'the right' to process my data.

 

This is in addition to your letter dated 17 April 2009, where you issued me with a copy of an UNENFORCEABLE Credit Agreement, with a copy of Terms and Conditions, which were NOT related to the Credit Agreement, a copy of your Notice of Assignment and copies of account statements.

This is of course totally unacceptable to me, as I specifically requested the documentation listed in my letters dated 4 and 24 April 2009, in order that I may make an educated decision myself as to whether you have 'the right' to process my data and for you to simply state that you have the right without supplying any proof of your claim whatsoever displays a gross failure to comprehend the gravity and implications of my lawful CPR 31.14 request.

 

As a “supposed” Credit Professional belonging to a company who are members of the Credit Services Association, I would have thought that you would be au fait with current legislation.

 

I suggest you contact a solicitor for Legal advice (I would not recommend your in house team of Hampton Legal), as your conduct so far has been far from professional.

 

On this occasion I will put your responses down to mere stupidity rather than a deliberate attempt to deceive which as you know would be a clear breach of the Consumer Protection from Unfair Trading Regulations 2008, The Consumer Credit Act Code as well as The Office of Fair Trading Guidelines on the collection of debt.

 

I have also reported this situation and your lack of knowledge of the Consumer Credit Act to The Office of Fair Trading and The Financial Ombudsman Service, as you are not fit to hold a Consumer Credit Licence and you have so far dealt with my complaint and requests in a totally unlawful and unprofessional way.

 

You cannot pretend that you are not aware of the Legislation as it has been pointed out to you numerous times by members of the Consumer Action Group.

 

Infact I don’t even know why you are bothering to continue to pursue this alleged debt, as you have issued me with a copy of an UNENFORCEABLE Credit Agreement, with a copy of Terms and Conditions, which are NOT related to the Credit Agreement. So why waste my time and yours by pretending otherwise?

With regard to your harassing letters dated, 20 April, 30 April and 26 May in which you have threatened enforcement action and have threatened to send a Doorstep Agent to my home as I haven’t paid the disputed debt, I refer you to my enclosed letter, dated 3 June 2009.

 

THIS IS A DISPUTED ACCOUNT.

 

YOU HAVE NOT PROVIDED A VALID COPY OF THE ORIGINAL CREDIT AGREEMENT.

 

YOU HAVE NO RIGHT ENFORCING THIS ALLEDGED DEBT.

 

YOU HAVE NO RIGHT PROCESSING MY DATA.

 

Yours Faithfully

 

cc: Financial Ombudsman Service

The Office of Fair Trading

 

AND...

 

 

Date: 3 June 2009

Ref:

By: Recorded Delivery

 

Ms Samantha Swallows

Lowell Financial Ltd

Enterprise House

1 Apex View

Leeds

LS11 9BH

 

Dear Madam

 

DOORSTEP VISIT.

 

With regard to your letter dated 30 April 2009, in which you have threatened enforcement action and have threatened to send a Doorstep Agent to send a Doorstep Agent to my home as I haven’t paid the disputed debt, I would advise you that I WILL ONLY COMMUNICATE WITH YOU IN WRITING.

 

Should it be your intention to arrange a “Doorstep Visit”, I would advise you that under The Office of Fair Trading rules, you can only visit me at my home if you make an appointment and I HAVE NO WISH TO MAKE AN APPOINTMENT WITH YOU.

 

There is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.). Therefore take note that I revoke license under Common Law for you, or your representatives to visit me at my property and if you do so, then you will be liable to damages for a tort of trespass and action will be taken, including but not limited to, police attendance.

Yours Faithfully

 

cc: Financial Ombudsman Service

The Office of Fair Trading

Edited May 31, 2009 by andymanx

[nicklea]

Please don't take this the wrong way, but might I suggest that while all of this is fine for venting your anger, personally, I don't beleive it will have any effect.

 

They are basically calling your bluff. Essentially, they are saying go ahead and take us to court then, otherwise we're carrying on as we are.

 

Might I remind you of what I said in post #54:-

 

They CAN continue to process your data until you go to court and succesfully get them to stop.

 

Unless you follow up the sanction that you mentioned in the s10 dpa notice that you sent them then they will continue to process your data.

 

The only way to get them to do something is for you to take them to court. However, I would suggest that you think long and hard about doing that - there have defintely been successes (you just need to look in the successess threads) but I would suggest that it is a more difficult task.

 

I recall that 42man gave a link to a thread where a poster had successfully taken a creditor to court about a s10 DPA notice but I can't remember what it was.

[spartathisis]

I would like to meet who the lowell letter was addressed to;)

 

I would send it and see what happens. I think sometimes we miss the fact that the vast majority of the people working for DCA`s are ordinary people with a rudimentary knowledge of the law. If they dont know something they ask someone else in the dept who may a little more, but that knowledge may well be flawed (as is some given out here on CAG sometimes). I would be tempted to bypass the £12k pa Ms Swallows (or not) and send to a much senior figure in the organisation who may well know the consequences of their actions.

[LampLighter]

For what it's worth, my advice would be to carefully remove the obvious emotional content from the letter (I recognise a nice sound piece of venting when I see one) and replace it with really dry calm factual content. This way you can appear reasonable while also slipping in the insults you feel they deserve.

 

For example, instead of "As a “supposed” Credit Professional belonging to a company who are members of the Credit Services Association, I would have thought that you would be au fait with current legislation. I suggest you contact a solicitor for Legal advice (I would not recommend your in house team of Hampton Legal), as your conduct so far has been far from professional."

 

Why not use the tried and trusted

"If you do not understand this letter I suggest you seek legal advice."

 

This not only implies the stupidity you go on to refer to in the next para but also is extremely helpful and reasonable. You see, the more polite you are, the less able they are to say no. Well, that's the general principle ...

 

 

Again, instead of

"On this occasion I will put your responses down to mere stupidity rather than a deliberate attempt to deceive which as you know would be a clear breach of the Consumer Protection from Unfair Trading Regulations 2008, The Consumer Credit Act Code as well as The Office of Fair Trading Guidelines on the collection of debt."

 

why not try "To further improve the quality of the service which you are striving to provide to your customers I recommend you check carefully that you are never in breach of CPUTR208, CCAC, & OFT Guidelines"

I hope this helps. There is little place for anger and frustration with these people in the letters, it's better to give it to the pigeons in your garden or a nearby park. I always find a good walk in the park to mutter about those who constantly beleaguer me with timewasting tomfoolery is a real release (although some of the locals probably think I'm a nutter talking to the trees).

 

Kind regards,

LampLighter

 

 

 

 

Edited June 1, 2009 by LampLighter
Grammar, spelling, syntax; you know, it makes sense.

[citizenB]

 

 

The only way to get them to do something is for you to take them to court. However, I would suggest that you think long and hard about doing that - there have defintely been successes (you just need to look in the successess threads) but I would suggest that it is a more difficult task.

 

I recall that 42man gave a link to a thread where a poster had successfully taken a creditor to court about a s10 DPA notice but I can't remember what it was.

 

 

Would this be the link you are thinking of nicklea

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/165349-smt37-morgan-stanley-goldfish.html

 

HTH

[submissiveguy]

You all are awesome, I have been reading all the posts on this subject and I am also in same boat with Cabot and Lowell so I will pick up the tips,

 

Thank you everyone on this form who support us and guide us God bless you all

[Jean_B]

Please don't take this the wrong way, but might I suggest that while all of this is fine for venting your anger, personally, I don't beleive it will have any effect.

 

They are basically calling your bluff. Essentially, they are saying go ahead and take us to court then, otherwise we're carrying on as we are.

.

 

Nicklea you are spot on with this. I am in a situation with the evils of Shop Direct. There is a settled default I discovered from a few years back, no CCA, no paperwork at all. I have been through all the steps and gone back and fourth for months. Finally they said they would not remove the default or stop processing information.

 

The letter was basically saying "and what are you going to do about it?" That was the bottom line. I could write 500 letters to Shop Direct and they would still call my bluff.

 

I bet they have a right laugh reading these forums.. seeing the latest ploy we all come up with in a desperate attempt to get whats right.

 

I see so many theories on this forum, so much advice and only a tiny select few actually getting what they want. Most of those who do get their own way is down to the fact the company in question has a vested interest in helping.

 

I don't mean to sound defeatest but these companies are not going to give up. Im not prepared to go to court, although I wish someone would.

 

People reply and get the same response back, just in different words.

 

Has anyone on this thread been succesful at all?

[B3rty]

Has anyone on this thread been succesful at all?

 

Bump

[lickthewallfatboy]

the only way to deal with these idiots is to turn the tables right back on them

 

ie court orders to make them comply,along with compo if you can get it

[spartathisis]

I have just had a reply from the ICO regarding a complaint about MBNA. Had CC got into problems and they sold the debt to Cabot 10yrs ago, sent a SAR at xmas and found they still had all my details on record, although no agreement/app . So I sent a sec 10 stating that the time was beyond reasonable and also to provide the proof that I gave my permission to process my data. The reply was the standard, I must have given my permission and no they wont delete the files!

 

The ICO has decided that they are allowed to continue processing my data as the CRA's normally keep the info for 6 years!?!? They have closed the case:( I have sent a letter of complaint as I think they have had a junior member of staff compile a file on the case and done so incorrectly, quoting 6 yrs as reasonable, but failing to see they processing data 10yrs after debt sold.

 

I dont hold out much hope. Robbers way are processing my data, even though they have said they wont be chasing the debt anymore as they admit they have no proof of it, including assignment.

[diddydicky]

most credit agreements have a clause which allows the creditor to assign the debt to someone else - not aware that they have to state in the agreement in advance who that might be- therefore if they have a signed agreement (which they may be keeping up their sleeve- even if they have not provided it to you ), as i see it your argument is then scuppered!

 

when a debt is sold or assigned- it is transferred warts and all!! (IMO)

[the_shadow]

most credit agreements have a clause which allows the creditor to assign the debt to someone else - not aware that they have to state in the agreement in advance who that might be- therefore if they have a signed agreement (which they may be keeping up their sleeve- even if they have not provided it to you ), as i see it your argument is then scuppered!

 

when a debt is sold or assigned- it is transferred warts and all!! (IMO)

 

err I think you may have sped read that post DD, perhaps you want to read the post again... a debt defaulted 10 years ago and yet still being shown on the credit file????

 

I agree with spartathisis, he needs to complain and ask for the dates of the original default to be verified by the ICO.

 

S.

[WelshMam2009]

The ICO has decided that they are allowed to continue processing my data as the CRA's normally keep the info for 6 years!?!? They have closed the case:( I have sent a letter of complaint as I think they have had a junior member of staff compile a file on the case and done so incorrectly, quoting 6 yrs as reasonable, but failing to see they processing data 10yrs after debt sold.

 

It does sound as if this response has been given out with little regard paid to the specific circumstances Spartathisis. ICO appear to have come down on the side of the creditors/CRA's when it comes to processing date and seem unwilling to change that stance.

 

This is why the test case in London is going to be critcal regarding the recording of defaults on accounts in cases where there is no/unenforceable CCA.

 

Under statute of limitations I believe companies have to retain information for 6 years after a relationship/contract has ended. So presuming that the relationship is deemed officially ended after 6 years (statute barred status) it is possible that the DCA would retain info for a further 6 years making 12 in total. (Obviously depends on date of last payment/acknowledgement of debt).

 

However, they definitely shouldn't be processing information after the initial 6 year period in my opinion. I think the ICO need a few rockets fired up their rear ends to be honest and I'm disgusted by the response you've received.

[diddydicky]

err I think you may have sped read that post DD, perhaps you want to read the post again... a debt defaulted 10 years ago and yet still being shown on the credit file????

 

I agree with spartathisis, he needs to complain and ask for the dates of the original default to be verified by the ICO.

 

S.

 

i beg your pardon - i was responding to the opening post and forgot t quote it

 

- apologies

[spartathisis]

I knew you meant that DD;)

 

Am sure they dont have a CCA as Cabot have not been able to supply one for the last 7 months either!

[patrickq1]

It does sound as if this response has been given out with little regard paid to the specific circumstances Spartathisis. ICO appear to have come down on the side of the creditors/CRA's when it comes to processing date and seem unwilling to change that stance.

 

This is why the test case in London is going to be critcal regarding the recording of defaults on accounts in cases where there is no/unenforceable CCA.

 

Under statute of limitations I believe companies have to retain information for 6 years after a relationship/contract has ended. So presuming that the relationship is deemed officially ended after 6 years (statute barred status) it is possible that the DCA would retain info for a further 6 years making 12 in total. (Obviously depends on date of last payment/acknowledgement of debt).

 

However, they definitely shouldn't be processing information after the initial 6 year period in my opinion. I think the ICO need a few rockets fired up their rear ends to be honest and I'm disgusted by the response you've received.

 

looks like nothing has changed with the ICO incompetence inneptitude and only turn up for their salaries......i think you need to show this evidence to your local MP and ask for his assistance as you are aware all MPs are on the back foot and need to show being helpfull might keep them in a job...