default listed through son

[savinsav]

Thanks I appreciate everyones help ... I'll get that organised this afternoon

[Joijo]

Sorry putting my penny worth in.

 

On the agreement does it have your name in the top left or your sons name?

[savinsav]

Hey it has both our names, that's why I was asking if it would be anything to do with the data protection not showing me my sons signature???

[savinsav]

Hi guys, just an update for you .. I have received another letter from Moorcroft DC's saying that they will instruct a doorstep collector to call at my home, despite me sending them a copy of the letter on the 29th March, their letter is dated 8th April (a quick copy of the letter bigegg drafted for me is below) ... They are now the fourth DC's to try and collect this debt whilst it is still in dispute, the letter has worked for all of the others it just seems to be passed around from pillar to post.

 

Do you think if I was to write to the B of S and offer to take over the full payments, on the condition that they remove the default from my file ... would be something they would accept , or should I now just go down the route of reporting them to the various bodies with a possibility to legal action in the near future. I would rather avoid that road, but feel it is the only course of action that is going to have them sit up and take notice of me, this is almost a year now this has been dragging on and I am simply getting nowhere ....

 

 

I refer to your letter dated 19th March 2010

 

I must admit that I am rather bemused as to why this account has been passed to you, as it is in dispute with Blair Oliver Scott and has been since July of last year. You are now the fouth organisation who have attemped collection of this amount, whilst it remains in dispute.

 

Not only is this a breach of OFT collection guidelines, but is also in breach of the Consumer Credit Act 1974 and Data Protection Act 1988.

 

As Blair Oliver Scott are now in default of my Consumer Credit Act request, I consider this account to be in SERIOUS dispute.

 

As you are aware, whilst my Consumer Credit Act request remains in default, enforcement action is not permitted, under Section 127, this constitutes a complete defence at law.

 

Consequentially any legal action you may pursue will be averred as both UNLAWFUL and VEXACIOUS.

 

Now I would respectfully suggest that this account is returned to Blair Oliver Scott for resolution of these defaults and breaches, as you cannot lawfully pursue any enforcement activities.

 

Should Blair Oliver Scott choose to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including but not limited to, Trading Standards, Office of Fair Trading, Information Commissioner's Office, Financial Ombudsman Service and possible court action.

 

I am of the opinion that any continued pursuit of this by yourselves will be a direct violation of the Administration of Justice Act 1970 Section 40 as well as breaching a number of the OFT Collection

Guidelines and I will also file reports with the aforementioned bodies.

 

I would apreciate your due dilligence and look forward to hearing from you in writing to confirm your discontinuance in this matter.

 

Yours sincerely,

[Pinky69]

I would think there is little chance of the BOS removing the default even if you paid. Did they reply to your enquiry why both your names were on the agreement but only your signature? I wouldn't do anything but send Account in Dispute letters to DCAs until you have that clarified. Thereafter there is the rescission aspect to be explored but you need to find out the status of the agreement first. There is nothing on any of it to suggest it is a joint agreement.

[savinsav]

Thanks Pinky69, I will send them another letter asking them that. I sent a letter by recorded on the 29th Feb asking that very same thing, and have had no reply. Unfortunately when I enter the tracking number to trace the delivery, it keeps telling me that the item has been "taken from the delivery office for delivery this morning" .. it's been telling me that for two months now !!! It's not like them to not reply though it generally does take them a while .. but not this long!

[Pinky69]

Phone Track and Trace and find out what happened to it.

[savinsav]

Hi Pinky, I couldn't get a direct number for track and trace but got through to Royal Mail customer services which quite frankly was a complete waste of time! She advised me to fill in the compensation form and post it!!

So hopefully that was a blip as I can honestly say I've never had a problem with them not being delivered before this incident, so they should get it tomorrow.

 

I will definitely keep you posted, thanks again for your help.

[savinsav]

Hi guys .. Update time, Bank of Scotland have now been sent two letters, both of which I offer to make full repayment if they remove the default from my file ... Both times they have chosen to completely ignore me

 

So I am now at the stage where I definitely want to commence court proceedings. I can't believe how they have the gall to completely ignore

any inroads I try to make to rectify this situation. Surely it is in their best

interest to get their money back than nothing at all, which is what they're getting now!!

 

My question is how do I go about starting this, I also now want to mention the rescission (if you think that is a wise idea) .. I'm so bloody angry now, and I am completely motivated to get the ball rolling, granted, I wasn't around Christmas time, adn would rather have settled it any other way than the Court route, but I am feeling the negative effects of this bloody default personally now so I want it sorting sooner rather than later

 

So I need you guys help again, you've all been brilliant up to this point.

 

Thanks

[savinsav]

Please guys ... really needing some direction here, want to strike while

the momentum is up...

[savinsav]

Please .. please can somebody help me with this???

 

I need to know where I should start in order to take them to Court??

 

Maybe it's best I consult a lawyer??

 

If someone could point me in the right direction, I'd be most grateful.

[Pinky69]

I'm sorry I cannot help you with court proceedings as I live in Scotland under Scots Law. In view of the complications over the agreement and the rescission, I think it would be worth spending an hour with a solicitor for legal advice.

[savinsav]

Hi Pinky69 ... I'm in Scotland as well lol ...

 

But I am beginning to think that perhaps consulting one would be a good place to start.

[savinsav]

Bump ... anybody offer me any advice on my next step please???

[Pinky69]

BOS are probably not dealing with it because they have passed it on to a DCA. What exactly do you want to raise court proceedings about? Did you ever find out why only your signature was on the agreement?

[savinsav]

Hi, I want to raise court proceeding to have the default removed .. No I never did find that out either,as they never replied .. It has been at 4 different collection agencies, each to which I've sent the letter bigegg advised, so it's currently on hold!!

[Pinky69]

You can raise Summary Cause yourself but to raise Ordinary Cause you would need a solicitor. A Sheriff can insist on Ordinary Cause if he thinks a case is complex. You need to have done everything to resolve the situation before you go to court. Sheriffs expect court to be the last resort. BOS haven't replied but as it your case would be for a breach of the Data Protection Act, you can make a formal complaint to the Information Commissioner. They have a backlog of 9 months. They take the view that if you have had the benefit of the money and fell into arrears the a default is justified - they are not interested in rescission or the legality of the agreement - they, like the FOS, simply state they are not a court. So really they would be a waste of time but a Sheriff may ask you why you didn't go there before going to court. Defaults must be lawful AND accurate, so check the default figure against statements. Your argument against the default is that it was a joint agreement and you were not making the payments and knew nothing about the arrears or you could have done something about it. You did not receive Notices of Default or a Default Notice, in breach of S87 (1) of the CCA 1974.

BOS breached the Data Protection Act 1998 by passing your personal data to credit reference agencies when they had not warned you of arrears or their intention to enter a default. You have attempted to resolve this with BOS and have offered payment but they have not replied. A Sheriff accepting this will hinge on whether or not he believes your son didn't tell you anything.

 

You will need to produce everything in court - the agreement, your letters, the letters from the DCAs, statements and copies of the defaults entered on your reports. Attach copies when you raise proceedings and state that the originals will be produced in court. Your argument has to be enumerated in paragraphs - 1, 2, 3, 4 etc and not just one big long paragraph. You need to fill in the form (there are different types) for Summary Cause for someone to do something ie remove the default. You can also claim damages of £1000 for general damage to your creditworthiness plus costs and expenses. You "crave" the court to do something eg Crave 1 - I crave the court to order BOS to remove the default entry.

 

You have a lot of homework to do and a lot of preparation. You can download the relevant form on the Sheriff Court's website. You will have to do it in its entireity because it doesn't save. Good luck.

[savinsav]

Thanks Pinky, I'll download a copy of the form and start working on it, if you wouldn't mind, perhaps I can call on you for more advice through the forum???

I completely agree with you re the benefits of the money and the paying of it back, that would be fair. My son definitely deserves to have the default registered, as he was well aware that he wasn't paying the account, that's why in both the letters BOS have chosen to ignore, I stated that, so I just feel now that am backed into a corner, I have tried and tried to sort it out with them via letters. I know nobody on here advocates telephone contact .. but perhaps if I got to speak to someone higher than the average call centre member, I could get somewhere without resorting to court action? What do you think? I personally think I have given them ample opportunity to sort this out, they must know they're at fault and haven't carried out the proper procedures, are they banking on me not having the gumption to carry my threat of court action through??? I will definitely be seeking some sort of compensation as well!!!

 

On checking the court website, they say that the upper limit is £5,000 if you intend to raise a summary action. If the amount is higher, an ordinary action must be used. I'm not sure if the monetary value of the default would be a factor as that's 7,500???

 

Edited May 21, 2010 by savinsav

[savinsav]

Hey guys .. quick question ...

 

Upper limit for summary cause action is £5,000.

 

I am taking B of S to court to remove the unlawful default .. So I'm not sure what the position is re the monetary value?? The outstanding amount is £7,500 but this is not the reason I'm initiating court action or do I have to raise an ordinary action and hire a solicitor????

[Pinky69]

The claim you are making is unrelated to the value of the debt. If you want to claim more than £5000 in damages you will have to get solicitor for Ordinary Cause.

[babybear39]

Keep it simple sav

[Pinky69]

Also have whatever argument you are going to use ready when the Sheriff says your name is in the agreement and it is your signature.

[savinsav]

Thanks a lot guys. Now have a few days on holiday, so I am going to get working on this from tomorrow.

 

I have no problem in paying the monies owing. I understand that my name is on the agreement, but surely I had a right to be contacted to let me know the status of the account before they issued a default notice on my credit file. There is also nothing about a default notice or anything related to a default on my SARN info. They have not followed the correct and legal procedure prior to issuing this default, far less a moral one . I also think it should stand in my stead that I have offered on numerous occassions to pay off the balance owing myself, if they removed the default from my files, not my sons, he does deserve to learn a lesson from this .. This they have chosen to completely ignore??? I feel I have no alternative remaining to me other than to stand up and be counted. I might not get anywhere, but it has got to be worth a shot right? It's about time that the person who makes them their money at the end of the day, is treated with a little bit more respect, and less like a persona non-grata .... I will keep you posted as I'll need your input no doubt, again many many thanks.