No agreement - can I get default removed?

[GaryH]

http://www.addleshawgoddard.com/cdc/asset_store/document/data_&_info_ealert_1_april_09_155936.pdf

[davey77]

bummer

[Josie8]

Well I guess we're on a collision course then to the High Court and the subsequent appeals on this one. Hopefully it'll end up in a COA or HOL ruling that they can't impose a default in circumstances where the agreement is unfair - after all the inability to enforce the agreement is the financial penalty the Creditors pay for breaking the law. To allow them to default the affected borrower is to mock Parliaments intention.

[Lou89]

Credit reference agencies

 

13.5 When you open your account or apply for a card, we will tell you when we may pass your details to credit reference agencies and the checks we may make with them.

 

 

 

13.6 We may give information to credit reference agencies about the personal debts you owe us if:

• you have fallen behind with your payments;
  
• the amount owed is not being disputed; and
  
• you have not made proposals we are satisfied with for repaying your debt, following our formal demand.
  

13.7 In these cases, we will give you at least 28 days' notice that we plan to give information about the debts you owe us to credit reference agencies. At the same time, we will explain the role of credit reference agencies to you and the effect the information they provide can have on your ability to get credit.

 

13.8 We will give credit reference agencies other information about the day-to-day running of your account if you have given us your permission to do so.

 

13.9 If you ask, we will tell you how to get a copy of the information that credit reference agencies have about you, or their leaflets that explain how credit referencing works. You should contact the customer service teams at the following organisations:

 

Surely if there is no agreement there is no permission??

[johno23]

subbing

[craigers]

Lou, the banks argue you consent to them sharing your data with CRAs as a condition of your application, indeed your application will more than likely say this. If you have been defaulted as a result of unlawful charges then you should have a good case to appeal.

[Pinky69]

Oh bu**ar! That puts paid to a letter I have drafted saying get this off my file - you have no enforceable credit agreement. Back to the drawing board. Whilst there are experts in defaults around, where do I stand with a default entered after the issue of an invalid Default Notice? They didn't give me the required 14 days after service to remedy the breach then terminated the account, thus rescinding it unlawfully. If that can removed, I have only got the unenforceable one left. Hurray up High Court case!

[dx100uk]

not all bad though.

they must show 'trading' on the cc before they can default.

most dca's certainly wont have this info i bet.

 

dx

[hassled1973]

I have received a letter from Hillesden stating that their client is "unable to provide a copy of the documents requested under the CCA", however they state that "the default will remain on my file until the debt has been satisifed". Am I correct in the fact that a default can only be issued in respect of a valid regulated agreement (which they don't have). If so does anyone have a letter template available that covers this eventuality and additionally what recourse can I take should they decide to ignore the follow-up letter?

 

Thanks for any help. Great site by the way!!

 

C

[Pinky69]

The Information Commissioner put out a Notice this week that an unenforceable agreement won't mean a default entry will be removed from a file if the creditor has other proof of monies owed. When there is no agreement it means the debt cannot be enforced in court but you still owe the money and if the creditor has proof of that then a default won't be removed.

[Pinky69]

Defaulting Unenforceable CCA Debts - New Guidance from the ICO

[Docman]

This guidance from the ICO is nearly TWO years old. What's new??

[Docman]

On reading it agai, it is clear that this is a newsletter from a firm of solicitors who are trying to drum up business. It is not a statement of law. The reference to S 15 CCA 2006 is also misleading. S15 repeals S127(3) of the 1974 Act but only in relation to post October 2007 agreements. And in any case repealing S127(3) only removed the lack of discretion available to the court. IMHO, it is still open to the court to refuse enforce an agreement that does not comply with the requirments of S61 of the 1974 Act.

 

[Pinky69]

I haven't a clue what is new and what isn't (there is no need for sarcasm) -the question was about getting a default removed and it will be difficult on the grounds of no enforceable agreement.

[hassled1973]

Hi. Thanks for the response. Do you think there would be any value in trying to determine what "proof" they have? I assume an SAR would show this, I'm assuming I was just a name on a list - surely that wouldn't be seen as proof?

[vjohn82]

Hi. Thanks for the response. Do you think there would be any value in trying to determine what "proof" they have? I assume an SAR would show this, I'm assuming I was just a name on a list - surely that wouldn't be seen as proof?

 

An SAR, whilst costing £10, is invaluable to a certain extent because it means that you should get all of the documentation held by you.

 

I am in a similar situation to yourself where I have a default from a lender who now has no CCA. The guidance referred to above states this:

 

"Where a ‘debtor’ disputes the existence of any credit agreement, enforceable or otherwise, we would ask to see evidence of the agreement and of its terms."

 

It stands to reason that if they do not have an agreement then there is no case for us to answer in my opinion... but obviously the regulatory bodies seem to do as they please.

 

I understand that we have a case based upon the tenets of the Data Protection Act principles and I have started my own thread on this. Feel free to have a look at your leisure

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/198791-advice-needed-no-cca.html

[vjohn82]

Oh and within the guidance issued it states this:

 

"If the dispute has not been before a court, is the lender prepared to test their claim by seeking a CCJ or decree against the customer? If not, why not?"

 

This is one of the factors taken into account when the ICO investigates a dispute... it is the one main argument I am using to be honest because there isn't much else to go on

 

But hey let's see what happens!

[B3rty]

I think its interesting that the statement identified the difference between legal liability and enforcement and I wonder how many folk truly understand that.

[Docman]

We should remember that this is an extract from a letter from the ICO to a firm of solicitors who will be interested in defending banks and other credit companies from claims resulting from the failures of those institutions. What did Addleshaw's actually ask the ICO would be my first question?

The ICO can only base its decisions on what it has published as its guidance in the public domain. It cannot determine an issue in private with just one (interested) firm of solicitors.

Looking at both the announcement from Addleshaw's and the Technical Guidance from the ICO (which is dated 2 August 2007), I would make the following points:

1. S 15 of the CCA 2006 only applies to credit agreements entered into after the implementation of the 2006 Act which I believe was 1 October 2007. The court must still decline to make an enforcement order in respect of non-compliant pre-October 2007 agreements. Further, the repeal of S127 (3) for post Oct 07 agreements does not (in my view) preclude the court from exercising its discretion and still refuse an enforcement order. The clear message from the 1974 Act and case law was that if credit institutions didn't comply exactly with the requirements, they should lose out. All that the 2006 repeal did was to allow the courts to have some discretion about the decision.

2. The ICO refers to a legal liability. What liability I ask? There is case law which clearly states that in the absence of a compliant credit agreement, the law considers advances by creditors to be 'voluntary dispositions' or gifts.

3. The ICO guidance clearly states the factors taken into account by the ICO when making a judgment about disputes. Among these factors is the following ' Has the Court refused judgment to a lender and, if so, on what grounds?’ If the ICO is saying they can over rule the court, I would be very interested in challenging such a view.

As you say, vjohn, let's see what happens.

[Abby25]

subbing .. thanks I have this situation so really helpful.

[joneseyblod]

subbing

[militantconsumer]

Subbing also.

[cashins]

Well as someone pointed out what the ICO says is not the law and getting them to do anything is an absolute pain.

 

From what I have seen on CAG, most success in this area has been achieved by either threat of or actual legal action.

 

David

[GaryH]

This guidance from the ICO is nearly TWO years old. What's new??

 

The main ICO article is two years old, the 'new' bit is from April this year.

 

We should remember that this is an extract from a letter from the ICO to a firm of solicitors who will be interested in defending banks and other credit companies from claims resulting from the failures of those institutions. What did Addleshaw's actually ask the ICO would be my first question?

 

The ICO can only base its decisions on what it has published as its guidance in the public domain. It cannot determine an issue in private with just one (interested) firm of solicitors.

 

Looking at both the announcement from Addleshaw's and the Technical Guidance from the ICO (which is dated 2 August 2007), I would make the following points:

 

1. S 15 of the CCA 2006 only applies to credit agreements entered into after the implementation of the 2006 Act which I believe was 1 October 2007. The court must still decline to make an enforcement order in respect of non-compliant pre-October 2007 agreements. Further, the repeal of S127 (3) for post Oct 07 agreements does not (in my view) preclude the court from exercising its discretion and still refuse an enforcement order. The clear message from the 1974 Act and case law was that if credit institutions didn't comply exactly with the requirements, they should lose out. All that the 2006 repeal did was to allow the courts to have some discretion about the decision.

 

2. The ICO refers to a legal liability. What liability I ask? There is case law which clearly states that in the absence of a compliant credit agreement, the law considers advances by creditors to be 'voluntary dispositions' or gifts.

 

3. The ICO guidance clearly states the factors taken into account by the ICO when making a judgment about disputes. Among these factors is the following ' Has the Court refused judgment to a lender and, if so, on what grounds?’ If the ICO is saying they can over rule the court, I would be very interested in challenging such a view.

 

As you say, vjohn, let's see what happens.

 

All fair points. It's certainly not a statement of the law, and I too would be interested to know where the firm obtained it from. I've just checked the ICO website and it does not appear to have been released on there, so as you say it may be that it was just correspondence between the ICO and the solicitors.

 

Its an interesting question though; whether the lack of one or more prescribed terms making the agreement unenforceable also means there is no contract or liability at all. I would have thought that there was still a contract, just one thats technically unenforceable.

 

Having said that the House of Lords didn't appear to make any distiction between liability and enforceability in Dimond v Lovell, so the ICO may well be wrong. Lets hope so.

[mau_juaquez]

subbing