Invalid Default Notices

[timtimbo]

Subbing, so I can read through in detail at a later date and start similiar action against my two defaults

[Undercover-Elsa]

DD - thanks for that, makes sense however it doesn't detract from the fact they only gave me 5 days (from the date of letter) to pay the arrears, there is no way on earth I could have done that because I probably wouldn't even have received the DN by then (given the state of our postal system ) and then they effectively terminated at the same time, so they didn't exactly give me much time, I wonder if the judge would take that into account? There is plenty wrong with everything that Crapot have sent me anyway, so I probably wouldn't even need to rely on the dodgy DN! Time will tell I guess!

 

Despite the time lapse IMO you'd still be OK with this DM, as even if the judge raised a hirsute eyebrow at repudiatory breach, any comment about you failing to take the advised legal advice at the time could surely be politely countered by stating that in your case their premature termination did not give you time to do so. However in their case they have had the considerable time since then, and access to substantial legal resources not available to you, to check that their procedures and paperwork were accurate in order to give them right of action. They have clearly failed to do so since they have proceeded to issue a claim in contravention of the statutory conditions of the CCA which state that the creditor must issue a default notice in the prescribed form before he is allowed to terminate the agreement / demand full balance /enforce through the courts etc...

As Bill Schidding said similarly earlier..."with respect Sir, why are we here??"

 

Elsa x

[Duffers Mum]

Hi Elsa - LTNS hope you are well! I'm just going to hope they don't go down the court route, not heard anything from them since they sent the Reconstructed Agreement and shiny payment card, am expecting another threatogram shortly!

 

DD - yes I made token payments to Sainsburys after I received the DN as a gesture of goodwill...have ceased these now as have no intention of paying Crapot anything without the proper paperwork in place and what they have sent me is far from the proper paperwork!

[Wilma Shoozfit]

So how about....

Reported a fraudulent transaction on my card.

Creditor investigated and agreed with my claim.

Letter arrived 'we have closed your account,cut up your cards and use these new cards with new numbers'

They transferred the o/s balance to the new card [new account?]

Question is should I have entered into a new written agreement for this or would previous terms and conditions have covered this?

 

Hi Middenmiss -

 

Did anybody come back to you on this? I think Section 85 of the CCA has relevance here - although I'm sure that some-one will correct me if I'm wrong

 

 

85.—(1) Whenever, in connection with a credit-token agreement, a credit-token (other

than the first) is given by the creditor to the debtor, the creditor shall give the debtor a

copy of the executed agreement (if any) and of any other document referred to in it.

(2) If the creditor fails to comply with this section—

(a) he is not entitled, while the default continues, to enforce the agreement;

and

(b) if the default continues for one month he commits an offence. - (my copies an old copy so this bit has since been changed)

 

Wils

[Wilma Shoozfit]

Back to the subject of defaults - Mercers sent me a default notice dated 23/05/09 - requesting approx £200.00 ( over limit amount and some?? missed payments)

 

 

Default notice under S87(1) reason being failure to pay minimum amount by due date as shown on statement.

 

I responded to this default notice by advising Mercers that in order to default as described I would have need to receive statements and as B/C had not sent statements and had ignored my request for them their default notice wasn't worth the paper it was written on.

 

Needless to say Mercers went away - at this time the balance included unauthorised PPI payments, charges for over limit brought about by unauthorised PPI (I'd cancelled it in Feb 2007)and interest on these.

 

My last payment to B/C was Dec 08, but when they refused to cancel the PPI and ignored my requests for copy of CCA and full response to DSAR - I withheld the January payment and used it to pay for the court fee for non- compliance of request under DPA, the claim was finally issued in Feb 09. Which was when B/C stopped my statements.

 

The default was never registered on my credit file but late payments have been recorded since Jan 09. - I check my file regularly and watch the balance going up and down on my B/C record as they ignored my refusal of the offers regarding the PPI & charges refund and my written requests for statements.

 

Today I have checked my file - I got a letter from Wescot - and wanted to see if the amount was the same as on my file, only to find that B/C have now registered the default! 01/08/10 1 year and 3 months after issuing the DN!

 

I sent a complaint to the ICO in November last year following the last letter I recieved from B/C, in which they, finally confirmed that they had in Feb 07 given me a "new account number", erroneously re-instated the PPI on this, and although the information they had supplied CRA's was inaccurate because it contained the unauthorised payments - they claim that they are "not allowed" to change it. They conveniently avoided the fact that if the payments hadn't been taken the account would not have gone over it's limit and would have been substantially less than they had been recording. As this was this part that I wanted changing as it affected my credit rating I was quite annoyed. They also failed to address their letter denying my PPI cancellation in Nov 08 and or why they refused to cancel the PPI and continued to apply it until April 09. I suspect they would have applied it in May - but they'd closed the account before it was due. The recorded information I have is that they closed the account in May which, even if it was Sunday 31st, it would have been only 7 days after their naff DN.-

 

 

 

It time I put a rocket under the ICO's chair to get some action on this

 

Wils

[AHole]

I have had an invalid default as well, written to the ICO but so far they have failed to understand that if there is no valid CCA there cannot be a valid default on it. I have written again, this time, spelling out the law... There was a funny phrase in the ICO letter, that I am 'legally liable' even if there is no CCA... Well the law says literally I am not 'liable' I wonder where the gentleman decided that I am liable when the law says the opposite...

 

Anyway, I got a solicitor nnow. Quicker and safer.

[dx100uk]

Back to the subject of defaults - Mercers sent me a default notice dated 23/05/09 - requesting approx £200.00 ( over limit amount and some?? missed payments)

 

 

Default notice under S87(1) reason being failure to pay minimum amount by due date as shown on statement.

 

I responded to this default notice by advising Mercers that in order to default as described I would have need to receive statements and as B/C had not sent statements and had ignored my request for them their default notice wasn't worth the paper it was written on.

 

Needless to say Mercers went away - at this time the balance included unauthorised PPI payments, charges for over limit brought about by unauthorised PPI (I'd cancelled it in Feb 2007)and interest on these.

 

My last payment to B/C was Dec 08, but when they refused to cancel the PPI and ignored my requests for copy of CCA and full response to DSAR - I withheld the January payment and used it to pay for the court fee for non- compliance of request under DPA, the claim was finally issued in Feb 09. Which was when B/C stopped my statements.

 

The default was never registered on my credit file but late payments have been recorded since Jan 09. - I check my file regularly and watch the balance going up and down on my B/C record as they ignored my refusal of the offers regarding the PPI & charges refund and my written requests for statements.

 

Today I have checked my file - I got a letter from Wescot - and wanted to see if the amount was the same as on my file, only to find that B/C have now registered the default! 01/08/10 1 year and 3 months after issuing the DN!

 

I sent a complaint to the ICO in November last year following the last letter I recieved from B/C, in which they, finally confirmed that they had in Feb 07 given me a "new account number", erroneously re-instated the PPI on this, and although the information they had supplied CRA's was inaccurate because it contained the unauthorised payments - they claim that they are "not allowed" to change it. They conveniently avoided the fact that if the payments hadn't been taken the account would not have gone over it's limit and would have been substantially less than they had been recording. As this was this part that I wanted changing as it affected my credit rating I was quite annoyed. They also failed to address their letter denying my PPI cancellation in Nov 08 and or why they refused to cancel the PPI and continued to apply it until April 09. I suspect they would have applied it in May - but they'd closed the account before it was due. The recorded information I have is that they closed the account in May which, even if it was Sunday 31st, it would have been only 7 days after their naff DN.-

 

 

 

It time I put a rocket under the ICO's chair to get some action on this

 

Wils

 

have you thought about reclaiming the unlawful fees then getting the DN removed by that method? as if the DN is solely made of charges, then if the refund, they must also remove the DN.

 

dx

[dx100uk]

I have had an invalid default as well, written to the ICO but so far they have failed to understand that if there is no valid CCA there cannot be a valid default on it. I have written again, this time, spelling out the law... There was a funny phrase in the ICO letter, that I am 'legally liable' even if there is no CCA... Well the law says literally I am not 'liable' I wonder where the gentleman decided that I am liable when the law says the opposite...

 

Anyway, I got a solicitor nnow. Quicker and safer.

 

the problem with that is both the OFT and the FOS are both down on record as saying an un-en CCA solely prevents court action

everything else is ok.

 

dx

[lexis200]

have you thought about reclaiming the unlawful fees then getting the DN removed by that method? as if the DN is solely made of charges, then if the refund, they must also remove the DN.

 

dx

 

Is this right??? If it is it's fantastic as at least two of OH's accounts have more charges than balance so the DN's would have been made up entirely of charges!

 

Sadly not the case with mine as I have very few charges:rolleyes:

[dx100uk]

Is this right??? If it is it's fantastic as at least two of OH's accounts have more charges than balance so the DN's would have been made up entirely of charges!

 

Sadly not the case with mine as I have very few charges:rolleyes:

 

yep, well look at it logically, the unlawful charges can be reclaimed, once done, they cannot argue, they've admitted they were unlawful by refunding them...gameover!

 

dx

[basa48]

the problem with that is both the OFT and the FOS are both down on record as saying an un-en CCA solely prevents court action

everything else is ok.

 

dx

 

The ICO use the same arguments, i.e. that if there has been any sort of financial relationship, whether based on a valid agreement or not then they deem recording to CRAs as within the DPA. The argument being they have a responsibility to record a debtors payment history regardless of any written contract.

[diddydicky]

and in my opinion they would be correct to do so

 

the CRA's report on the conduct of any financial arrangement or account between lenders and borrowers

 

their argument that any such information (assuming it to be accurate) then assists other lenders in assessing an applicant for subsequent finance applications is not only beneficial to them but ultimately to the benefit of the borrower

 

it certainly does seem to amaze me the number of times folk will complain that their credit files are being marked when they default on agreements and almost in the same breath accuse the lenders of getting them into trouible in the first place by forcing finance down their wallets

[lexis200]

Surely if there is no agreement, there is no consent to share/use info and therefore there is no legal way they can report. My personal information is my own business unless I specifically tell them they can use it. If they have not got my signature on a page which states this then that's not my problem. What is my problem is when they arbitrarily decide to report anyway with no consent from me.

 

Equally if you have an application (which they have stated is your agreement) where they have specified in the 'use of your info' bit that they will use your data in order to make checks as to your identity etc, but have absolutely nothing there about using it in any other way whatsover, then again they can't use it to do anything else. I have this particular one with the Co-op. Nothing at all to do with use of personal info for recording how you run your account, it's all to do with the application process.

 

How can that be justified?

[AHole]

Back to the subject of defaults - Mercers sent me a default notice dated 23/05/09 - requesting approx £200.00 ( over limit amount and some?? missed payments)

 

 

Default notice under S87(1) reason being failure to pay minimum amount by due date as shown on statement.

 

I responded to this default notice by advising Mercers that in order to default as described I would have need to receive statements and as B/C had not sent statements and had ignored my request for them their default notice wasn't worth the paper it was written on.

 

Needless to say Mercers went away - at this time the balance included unauthorised PPI payments, charges for over limit brought about by unauthorised PPI (I'd cancelled it in Feb 2007)and interest on these.

 

My last payment to B/C was Dec 08, but when they refused to cancel the PPI and ignored my requests for copy of CCA and full response to DSAR - I withheld the January payment and used it to pay for the court fee for non- compliance of request under DPA, the claim was finally issued in Feb 09. Which was when B/C stopped my statements.

 

The default was never registered on my credit file but late payments have been recorded since Jan 09. - I check my file regularly and watch the balance going up and down on my B/C record as they ignored my refusal of the offers regarding the PPI & charges refund and my written requests for statements.

 

Today I have checked my file - I got a letter from Wescot - and wanted to see if the amount was the same as on my file, only to find that B/C have now registered the default! 01/08/10 1 year and 3 months after issuing the DN!

 

I sent a complaint to the ICO in November last year following the last letter I recieved from B/C, in which they, finally confirmed that they had in Feb 07 given me a "new account number", erroneously re-instated the PPI on this, and although the information they had supplied CRA's was inaccurate because it contained the unauthorised payments - they claim that they are "not allowed" to change it. They conveniently avoided the fact that if the payments hadn't been taken the account would not have gone over it's limit and would have been substantially less than they had been recording. As this was this part that I wanted changing as it affected my credit rating I was quite annoyed. They also failed to address their letter denying my PPI cancellation in Nov 08 and or why they refused to cancel the PPI and continued to apply it until April 09. I suspect they would have applied it in May - but they'd closed the account before it was due. The recorded information I have is that they closed the account in May which, even if it was Sunday 31st, it would have been only 7 days after their naff DN.-

 

 

 

It time I put a rocket under the ICO's chair to get some action on this

 

Wils

 

Hello, I have sent this to the ICO, spelling out the law for them...

 

I am sorry to inform you that your reply to my previous letter does not satisfy me.

The Consumer Credit Act of 2006 12(1) states that a “default sum becomes payable under a

regulated agreement by the debtor or hirer”, as such regulated agreement does not exist, any default entered against my person would be in breach of the Act.

Moreover, 12(2) of the same act states that “the creditor or owner shall, within the prescribed period after the default sum becomes payable, give the debtor or hirer a notice under this section”; as it is evident from the documentation I have forwarded to you in my previous correspondence, MBNA have sent me a default notice after having entered the default, not before, which is confirmed in the letter from Esperian. This again, is in breach of the Act, therefore such default is not legal. I would also here like to refer you to section 88 (2) of the 1974 Consumer Credit Act.

In your letter, you also state that a credit agreement clearly exists yet I do not believe such agreement does exist. What exists is an unsigned printout with Adriano Bulla Bulla’s name on it and the ironic heading ‘Credit Card Agreement Regulated by the 1974 Consumer Credit Act’. That does not constitute an agreement, as the 1974 Consumer Credit Act, 61 (1) (a) clearly states that an agreement is a “a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner”. Such printout does not contain the prescribed terms, nor is it signed, therefore does not constitute an agreement, in fact, the very fact that I have never signed an agreement by definition implies that no agreement was ever stipulated. An agreement cannot by definition be a unilateral statement.

You also refer to section 15 of the 2006 Consumer Credit Act, which repeals Section 127 (3 and 5) of the 1974 Act: this section gives magistrates the freedom to enforce an imperfectly executed agreement, however, I would suggest that that is a matter for the judiciary to discriminate upon: MBNA cannot assign to themselves the role of the judiciary. The 1974 Act, (65.1) clearly states that “An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only [italics mine]”. This, still ignoring the fact that what I am referring to is not an improperly executed agreement, but the absence of an agreement (unless one would like to call such piece of paper an agreement) and ignoring the fact that there is no interest rate nor credit limit stated on such piece of paper.

Finally, under sections 77 and 78 (4) of the 1974 Act, as the account was in dispute, MBNA were not allowed to take any enforcement action including but not limited to asking for payment, applying charges or interest and communicating with any third party regarding the account, including credit reference agencies; they are therefore in breach of the 1998 Data Protection Act. The fact that MBNA have tried to neglect my disputing the account, which however, is evident from the documentation they sent me when I requested an SAR, is an aggravating factor on their handling of the dispute; I had in fact informed them of their legal obligations in my dispute, yet they chose to ignore it.

 

You also state that there is a “clear legislative intent that the absence of a signature on a credit agreement should no longer be an absolute bar to enforcement”. This does not seem to be the current judiciary trend, as one could quote hundreds of cases where the judiciary has ruled against the alleged creditor for breach of one section of the Acts, while I am sure I have outlined a series of breaches.

I would finally like to draw your attention to the fact that while such ‘piece of paper’ presented by MBNA as an agreement does not have my name on it, but Adriano Bulla Bulla’s, the defaults entered (as I said prior to an official, and incorrect notification vide CCA 2006, section 14) are in my name.

To conclude, I dispute not only the existence of such agreement, its regularity, its being in my name, but also the irregularity with which a default based on such agreement was entered with credit rating agencies, which alone should be sufficient to dispute such default.

In your letter, you state that there is a legal liability to a loan, however, in the absence of a credit card agreement, there cannot be such legal liability, unless the implication is that MBNA’s illegitimate claim with no proof or evidence to support it should be taken as valid, which of course is not legally viable. It is legally up to the creditor to demonstrate the existence of the loan, in the absence of such demonstration, the debtor cannot be assumed to be guilty of a default. This would contradict the very heart of our and the EU legal system. I am not aware of any law that distinguishes between a ‘legal liability’ and an ‘unenforceable agreement’. To be precise, the 1974 Act explicitly and a states that the ‘debtor is not liable’ (66.1). This clearly states that there is no legal liability. I therefore refute any legal liability, unless dictated by the law, and cannot take anyone’s judgement, except a magistrate’s, on my liability for such loan. I do not dispute that creditors should know of defaults in payments of debts; however, such defaults must be within legal terms, and cannot be arbitrarily imposed upon the alleged debtor or hirer. One cannot state that an alleged creditor’s claim is illegal yet at the same time there is a ‘legal liability in relation to a credit’. Having entered a default against me, MBNA have made a statement which is legally untrue, therefore untenable.

MBNA have behaved appallingly throughout this matter, to the point that I have been advised to take them to a CCJ. As to the alleged existence of a loan, I must state that MBNA have taken £2,500 from my account for an alleged loan of £2,000, yet have not produced a direct debit agreement, which I intend to have fully returned through my bank, Barclays.

I would also here like to point out that in the SAR documentation MBNA have produced a different Credit Card Agreement (still unsigned and lacking prescribed terms) from the one they sent me on my request, with an accompanying letter stating that that was the CCA I requested; I therefore suspect that they are trying, in vain, to falsify evidence. They have also sent me a letter stating that the agreement I have forwarded to you does not contain the legally prescribed terms because I had not asked for them, which, of course, cannot be defined otherwise as legal nonsense. They still have failed to produce any sort of agreement to date.

I look forward to hearing from you,

[diddydicky]

you have quoted " the law" but failed to mention or appreciate rulings under "the law" that have found differently!!

[diddydicky]

Surely if there is no agreement, there is no consent to share/use info and therefore there is no legal way they can report. My personal information is my own business unless I specifically tell them they can use it. If they have not got my signature on a page which states this then that's not my problem. What is my problem is when they arbitrarily decide to report anyway with no consent from me.

 

Equally if you have an application (which they have stated is your agreement) where they have specified in the 'use of your info' bit that they will use your data in order to make checks as to your identity etc, but have absolutely nothing there about using it in any other way whatsover, then again they can't use it to do anything else. I have this particular one with the Co-op. Nothing at all to do with use of personal info for recording how you run your account, it's all to do with the application process.

 

How can that be justified?

 

there may be no authority under that alleged agreement lexis- but the lender then falls back on the fact that irrespective of any "agreement" you entered into a financial transaction in which you used their money and paid it back at monthly intervals

 

unless they have no credit card receipts transaction documentation or no evidence that you ever acknowledged such an arrangement - then it is usually (99.999%) safe to assume that an arrangement can be shown to have existed

 

if they can then show that you did not stick to your part of the agreement or arrangement either monthly or defaulted on the arrangement altogether- then they will (succesfully) argue the case for noting your failings

 

at the end of the day, if something is true - then it cannot be libellous

 

if it is true that you murdered your granny- then you will be labelled a murderer- and no amount of argument as to how or why you murdered her will change that

 

if you entered into an agreement or arrangement with someone and agreed to make certain payments which you then did not make at the right times- whether or not that was a lawful or unlawful agreement- the truth of the matter would be that you defaulted on your side of the agreement

 

thus- if i loaned you £5000 and you agreed to repay me £100 per month and i broke the law by not being a licenced moneylender- whilst it may therefore be an unlawful loan transaction, and whilst i may then not be able to legally enforce recovery of the debt if you do not pay me as agreed it will not be defamatory to you if state to others that you failed to make the agreed payments

 

as far as i can see therefore, it matters not a jot whether the agreement itself was lawful or not- the truth would be the truth- and cannot be defamatory

 

there is no requirement for the CRA to show WHY a payment was missed or an agreement defaulted- they merely record the fact that it was-

 

if at a later date a court ruled that the entries were false or incorrectly recorded then you may have a remedy at law for damages

 

until the law does so- the CRA is entitled to take the report from the lender at face value-without you being able to stop it just as it is obliged to take any notice of correction up to 200 words from yourself to put on the file - without the lender being able to stop your notice of correction (unless either of you wished to take legal action of course)

 

the whole purpose of the CRA's is to report what has happened on an account not WHY it has happened

 

 

|ONLY (IMO) where a debtor is in a position where the entry on their file is the SOLE adverse information and causing them difficulty- would there be any mileage in getting involved in litigation to remove it- adn then there would of course be a question of damages if the debtor won the day.

 

if however the day was won and it then transpired that the debtors credit reputation was otherwise total shoite- then it would i think be a hollow victory

[AHole]

Which rulings?

 

The ICO stated that despite the agreement being unenforceable (there is NO agreement) I have a 'klegal liability'. That literally contradicts the words of the 1974 CCA, which states a debtor is 'not liable' for unsigned agreements. As the ICO are not judges, they have no right to interpret the law.

[basa48]

Well we may well get a judges opinion about this quite soon.

 

I am involved in a case where I am suing a creditor in just this situation.

 

The creditor has no agreement (not just an unenforceable one, no agreement at all). He has admitted as such in writing and has admitted he cannot enforce the debt.

 

I am suing (amongst other things) for damages for damage to my credit worthiness due to adverse recording and a DN against my credit file.

 

I am citing that they have no signature that I agreed to data processing, there is no agreement or agreed repayment schedule to be in default of (so I cannot be overdue repayments) so is inaccurate information, their own policy insists you must have entered a credit agreement for them to process. I never entered an agreement.

 

We have just returned AQs and are awaiting directions before trial.

[AHole]

Good luck with it, have a look at the 1974 and 2006 Consumer Acts, there is not much they can do to enforce an agreement that was not signed, even if they prove they have given you money, they cannot prove you have agreed to the conditions, nor that you have agreed to pay it back.

 

The irony in my case is that while the ICO agree there is no agreement, they still say that I have a 'legal liability' for the debt, yet this literally contradicts the law, and as they are no judges, they cannot interpret it. I have passed the whole matter on to a solicitor.Whjat THEIR polocy is does not matter; there are laws about it and no onecan act outside them.

 

You will find there are hundreds of rulings against enforcement, your case seems to fall within a long history of rulings against, mine ticks all the boxes (from absence of signature, to no prescribed terms, no CCA ever sent to me, 'enforced' overdraft, failure to stop the card when declared stolen, yet £200 withdrawn after such declaraion, double charges for 'late payment', changes in uinterest which were never communicated, Default entered before notice was served, wrong name on what they call agreement- a printout rather than an agreement, and every time I paid the difference of the arrears, they deducted it from their withdrawals to keep me overdrawn, I forgot, no agreement to withdraw money from my bank account, a clear case of fraud). I will of course ask for damages, and considering I am terminally ill, I will add that to their bill...

[AHole]

there may be no authority under that alleged agreement lexis- but the lender then falls back on the fact that irrespective of any "agreement" you entered into a financial transaction in which you used their money and paid it back at monthly intervals

 

unless they have no credit card receipts transaction documentation or no evidence that you ever acknowledged such an arrangement - then it is usually (99.999%) safe to assume that an arrangement can be shown to have existed

 

if they can then show that you did not stick to your part of the agreement or arrangement either monthly or defaulted on the arrangement altogether- then they will (succesfully) argue the case for noting your failings

 

at the end of the day, if something is true - then it cannot be libellous

 

if it is true that you murdered your granny- then you will be labelled a murderer- and no amount of argument as to how or why you murdered her will change that

 

if you entered into an agreement or arrangement with someone and agreed to make certain payments which you then did not make at the right times- whether or not that was a lawful or unlawful agreement- the truth of the matter would be that you defaulted on your side of the agreement

 

thus- if i loaned you £5000 and you agreed to repay me £100 per month and i broke the law by not being a licenced moneylender- whilst it may therefore be an unlawful loan transaction, and whilst i may then not be able to legally enforce recovery of the debt if you do not pay me as agreed it will not be defamatory to you if state to others that you failed to make the agreed payments

 

as far as i can see therefore, it matters not a jot whether the agreement itself was lawful or not- the truth would be the truth- and cannot be defamatory

 

there is no requirement for the CRA to show WHY a payment was missed or an agreement defaulted- they merely record the fact that it was-

 

if at a later date a court ruled that the entries were false or incorrectly recorded then you may have a remedy at law for damages

 

until the law does so- the CRA is entitled to take the report from the lender at face value-without you being able to stop it just as it is obliged to take any notice of correction up to 200 words from yourself to put on the file - without the lender being able to stop your notice of correction (unless either of you wished to take legal action of course)

 

the whole purpose of the CRA's is to report what has happened on an account not WHY it has happened

 

 

|ONLY (IMO) where a debtor is in a position where the entry on their file is the SOLE adverse information and causing them difficulty- would there be any mileage in getting involved in litigation to remove it- adn then there would of course be a question of damages if the debtor won the day.

 

if however the day was won and it then transpired that the debtors credit reputation was otherwise total shoite- then it would i think be a hollow victory

 

 

Here I detect a flaw, an agreement is by definition (plus 1974 CCA 61.1) agreed between two parties, if one party has not signed an agreement, then the other cannot dictate the terms of such agreement. Also the CCActs define a default as the failure to pay accordibng to a regulated agreement, iif there is no such agreement, there cannot be a default based on it.

 

The onus is on the alleged creditor to show that they are owed a debt, and they should stop using credit rating agenciies as their back up plans. Personally, I have contacted the agencies, and though they cannot renmove the default (though they will when a CCJ tells them) they have entered a warning about the reliability of the information received from MBNA>

[Guest HeftyHippo]

I disagree with some of what DD says

 

IMHO, if there is NO agreement, as opposed to an uneforceabl one, then the terms of any relationship cannot be established. Therefore, it cannot be proved that you defaulted. In any case, without an agreement, you never agreed to pay it back. Yes, common sense says you must have expected to pay it back, and the lender certainly expected you to, but if commons sense was enough, we wouldn't need legal agreements to spell out exactly what each parties rights and obligations were. The recording of a default signals that you didn't make the required payments for a particular period, but if there is no agreement, there is no proof of what they asked or required you to make by way of payments, and therefore, without proof of what you were supposed to do, how can it be established that you didn't?

 

I think there have been so many cases of no agreements and unenforceable agreements, that everyone (ICO

[Old Cogger]

As a Judge said in a high court case, no agreement then monies are a gift.

[Wilma Shoozfit]

have you thought about reclaiming the unlawful fees then getting the DN removed by that method? as if the DN is solely made of charges, then if the refund, they must also remove the DN.

 

dx

 

The amount I owe is not all PPI, charges +Int - I owe them something but not what they're asking. I haven't used this card since Oct 07 - since that time up until Dec 08 I was paying above minimum payment to clear the account - my payment didn't cover PPI installments (as I'd cancelled it!) and the balance crept up and went over the limit purely on PPI and charges, not through over use by me.

 

I admit I was foolish in not checking my statements - had I have done I would have realised that the balance wasn't reducing - but as I hadn't used the card I had no reason to beleive that it wouldn't be. It was only because a cheap holiday deal came up that I checked the balance on a statement to ensure I had sufficient available credit prior to using the card - I was shocked to find it over the limit, I reckoned I owed less than £1k and the balance was just over £2k.

 

It went downhill from there B/C denying I'd cancelled PPI, refusing to cancel it, stopping my monthly statements after I issued claim for non compliance of DSAR. ignoring my requests for statements, ignoring correspondence about their admin error even tho I'd sent them their own logs as proof.

 

No I'm not moaning about B/C lending policies - I am moaning because they took what they weren't entitled to and in doing so they reported incorrect and inaccurate information to CRA's which would imply to prospective lenders that I was spending beyond the limit on the card, which was misleading. The fact that I was refused credit on a 0% transfer deal and referred back to my credit file where B/C's entries are the only adverse reports speaks volumes.

 

The fact that they don't have an enforceable agreement came out when I took them to court for non-compliance I included the credit agreement in my claim as I reckoned that B/C would have micro-fiched it by then, therefore it would be part of their filing system and covered by the DPA. It just high-lights their sloppy admin

 

Wills

Edited August 15, 2010 by Wilma Shoozfit

[lexis200]

I'm not under any illusions that they can prove a debt DD, I haven't at any point said otherwise. In fact, I have often stated to people that it's pointless trying to say you didn't borrow money on the back of no/no enforceable agreement as any number of other factors can be bought into play to prove you had.

 

What I am saying is that with no signature to consent to them using my data (or in the case of the Co-op app I have, with no clause from them stating they will use my data to record how the account is run), they are not at liberty to put anything on a credit file. Yes they can prove I had money - so what? What they can't prove in any way is that I said they could mark my files to say so. If they can do this without consent then why exactly do we have to sign to say that they may use our information in this way, and more expressly why do we usually have to tick a box as well as sign to show that we have read and understood the specific paragraph/s explaining what they will do with our data?

 

These are two entirely separate arguments and simply because I borrowed some money does not give them an automatic right to put my information on a CRA file, unless I expressly tell them they can by signing to say so. The same goes for if there is no agreement, as has already been mentioned. If there is no agreement there is no data processing clause (and no signature!), therefore they can't say it is their right to report how you have run your account as they have never been given that right.

Edited August 15, 2010 by lexis200

[lexis200]

Well we may well get a judges opinion about this quite soon.

 

I am involved in a case where I am suing a creditor in just this situation.

 

The creditor has no agreement (not just an unenforceable one, no agreement at all). He has admitted as such in writing and has admitted he cannot enforce the debt.

 

I am suing (amongst other things) for damages for damage to my credit worthiness due to adverse recording and a DN against my credit file.

 

I am citing that they have no signature that I agreed to data processing, there is no agreement or agreed repayment schedule to be in default of (so I cannot be overdue repayments) so is inaccurate information, their own policy insists you must have entered a credit agreement for them to process. I never entered an agreement.

 

We have just returned AQs and are awaiting directions before trial.

 

Have you a thread for this basa?