Help with Default

[never-in-doubt]

Hiya,

 

Wonder if anyone with superior knowledge can help with a dilemma. Trying to get Cap1 to remove a default, lots of problems with them but they won't budge. Have never received a Default Notice nor a CCA and wonder if CPR 31.16 may be the logical next step....

 

Here is what's happened so far.

 

I sent this in response to many letters back and forth:

 

Request for a copy of the Original Credit Agreement, Default Notice and Notice of Assignment

under the Consumer Credit Act 1974

 

 

Dear Capital One,

 

 

Re:

 

Further to paying the alleged debt off, by way of Trust Deed, I have since learned that the agreement in question may not have been enforceable in the first place, moreso due to lack of receipt of Default Notice and failure to acknowledge laws set in place to protect the consumer, namely the Consumer Credit Act 1974 and the Date Protection Act 1998.

 

I have requested a copy of the Default Notice, no less than 3 times to date, and each time I have been rebuffed with an excuse; usually along the lines of 'Under s78 we are not required to send a copy of a Default Notice'. However the exact wording of s.78 (CCA 1974) clearly stipulates that you must issue this notice upon demand and if you fail to do so, that the agreement cannot be pursued any further.

 

In laymans terms, this would mean that if the Default Notice was never received by the debtor (me), the onus of proof is still required by the creditor (you) to show the documents were served correctly, at the address of the debtor. Simply quoting 'we confirm one was sent on XX date' does not constitute legal conformance as we both know.

 

You also continually quote The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (in conjunction with the CCA 1974, ss 58(1), 64(1), 180, 182(2) & 189(1)) but do not specify which area of the Act you refer to. I can only assume you refer to s.11 (Duty to supply copies of documents not to apply to certain kinds of documents) which, unfortunately is not relevant in any case so cannot be used by Capital One as an 'excuse'.

 

Any Default Notice must be served to the debtor giving them at least 7 days notice to come to some arrangement, until such time no action may be taken against a debtor. As Capital One never issued a Default Notice to me at my home address the default was unlawfully registered against me.

 

The Defaulted amount was originally £200 yet the amount showing as Default Balance is £440, as such I believe I am allowed to place this account into dispute whilst I investigate claiming back unfair charges which evidently makes up the difference from £200 to £440.

 

I must also remind you that only one Default is permitted per debt; as you have already added an unlawful and incorrect Default against me you must remove it immediately, obviously with no possibility of it returning due to the original errors at your alleged issuance and subsequent registration with the CRA's.

 

As a result of the above, I now formally place this account into dispute.

 

You should also consider this letter as a statutory notice under s.10 of the Data Protection Act 1998 to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with the three (3) Credit Reference Agencies. Should you refuse to comply, you must provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a ‘legal right’; you must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Regards to the issuance of Default Notices, my recent reply from the OFT is quoted as follows:

"We note your concerns that in the absence of a copy of the original agreement someone's liability for a debt can only lead to further query. However in circumstances like this we would view it as unfair practice under section 25(2) (d) of the Act and relevant to licence fitness if a trader failed to investigate and/or provide details as appropriate when a debt is queried or disputed"

This is self explanitory and covers what I have been saying all along, a Default cannot be issued without sight of a Default Notice - the Default is unenforceable without a true copy being in existence. As I have requested a copy on 3 separate ocassions and you have failed to respond each time I now consider enforcing removal via the County Court.

 

Obviously neither of us want to take this through litigation, and I therefore propose two options for you to consider;

Option 1:

You agree to remove all associated data from the credit reference agencies.

Option 2:

You disagree and wish to enter litigation over an alleged (satisfied) debt of £200.

Option 1.

 

As the disputed balance was indeed disputed (statutory notice under section 10 of the Data Protection Act, to cease processing any data in relation to this account), the balance was never paid as I was awaiting additional correspondence. The balance was never left due to any kind of fraud or negligence but due to the amount being in dispute. As a result, should I decide to take this through the County Court there is a high probability that my argument will become enforced.

 

Taking into account everything I have said, your clear lack of Consumer Credit knowledge and the unlawful practice of taking payment on a disputed account I feel it would be best for both parties if this matter is resolved amicably, without the need of litigation, for an amount of £200 that has been paid.

 

 

I confirm I am more than happy to close all communication with the promise of no further action against you so long as you agree to, and ensure that, the following actions will be carried out;

• The Default Notice will be removed
  
• The Status of the account will change from “Defaulted” to “Settled”
  
• The Current Balance will appear as £0.00
  
• The Default / Delinquent Balance will be set to £0.00
  
• There will be no date in the “Defaulted Date” field (as it will be removed)
  
• There will be no date in the “Date Last Delinquent” field on the report
  
• This will apply to all 3 Credit Reference Agencies, namely Experian, Equifax & Call Credit
  

If you're happy with my proposal, please respond confirming each of the above points on official letter headed paper, and I will respond confirming closure by return.

 

If you refuse then I will take legal action against Capital One beginning with enforcement to provide a true copy of the alleged Default Notice, which you have clearly proved that you do not have. If you do happen to provide one at a later date, in Court, this will strengthen my case against you because you will have committed an offence for non issuance within the prescribed timeframe thus resulting in the alleged debt becoming unenforceable with a full refund plus costs likely to be awarded to me.

 

Option 2.

 

 

I note that your company has placed a 'Default Notice' against an alleged account I held with you to which I have no recollection of ever receiving such a notice, and I therefore require you to substantiate this data.

 

1.

You must supply me with a true copy of the alleged agreement you refer to. This is my right under your obligation to supply a copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit. Your obligation also extends to providing a statement of account. I enclose a £1 cheque to cover the statutory fee.

2.

You must also supply me with a signed, true certified copy of the original default notice and Notice of Assignment.

3.

You must supply these documents, whether you are the original creditor or not under S189 of the CCA 1974.

Also, bringing the case back, retrospectively, the account continues to be in dispute and as such the Default is not only in breach of the Consumer Protection From Unfair Trading Regulations 2008 and the Office Of Fair Trading debt collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998.

 

 

As you are now in default of my Consumer Credit Act request (original request) and OFT Debt Collection Guidelines, I consider this account to be in serious dispute and remind you that whilst the alleged Consumer Credit Act request remains in default enforcement action is NOT permitted, under s127 this constitutes a complete defence at law. Consequentially any legal action you pursue will not only be fully and vigorously defended, it will also be averred as both unlawful and vexatious.

 

By pursuing me for the debt, whilst the account was formally in dispute, I am of the opinion that constituted a violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines and the Consumer Protection From Unfair Trading Regulations 2008.

 

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee and then remove the incorrect entry from your systems.

 

Remember, this letter is to be classed as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

Should you refuse to comply, you must within 21 days, provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a ‘legal right’; you must outline your reasoning in this matter and state upon which legislation this reasoning depends. Should you not respond within 21 days I expect that this means you have agreed to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute. The lack of a credit agreement is a very clear dispute and as such the following applies.

 

*

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

*

Any payment previously made should be refunded immediately.

*

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 do expect you to select Option 1 and remove all data from the credit reference agencies, resolving this amicably without the need for litigation and embarrassment on your behalf. The alternative, I have nothing to lose and will seek to redress this, plus my costs, through the County Court bearing in mind your gung-ho attitude and evident lack of knowledge of the Consumer Credit Act 1974.

 

I look forward to your response, within the quoted timescales.

 

Yours faithfully,

 

 

And then they replied, just today with the following letter which is what is stumping me - obviously with no CCA i'm prone to check if they do have an agreement (bear in mind account was opened in 2002)....

 

Dear

 

Account Number 1234567890

 

Thank you for your continued communication regarding your account.

 

To begin with, I would like to make it clear that we do not intend to continue with protracted correspondence with you regarding the removal of your default notice.

 

I would also like to make it clear that we are in no doubt that the default noticed was issued to you on the 12th May 2005 was produced correctly and therefore there is no dispute on your account regarding this matter.

 

You opened your account in October 2002 when you signed and returned the terms and conditions of your credit agreement to us. You then continued to operate your account in accordance with these terms and conditions for approximately two and a half years.

 

You continued to make purchases with your card until March 2005 and made payments to us until June 2005. The continued use of your card and your sustained period of making payments highlights your consent and clearly illustrates that you were operating your account on the basis of an agreement between yourself and capital one bank Europe plc.

 

Your outstanding balance is currently £385.77

 

With regards to your request to supply you with a copy of your default notice, as Kelly and Steve advised you in their previous letters, we are not officially obliged to provide you with a copy of the formal default notice. However, I have enclosed a copy of the notes which appeared on your account between the 13th April and the 12th May 2005. I highlight notes on the 13th April 2005 were you refuse to pay unless we stop apply fee’s. You also advised you would go to citizen advice bureau.

 

On the same day, we advised you that a default notice would possibly be issued. This was because of your heavy spending in March 2005 caused your account balance to reach £392.12. This equates to almost twice the amount of your agreed credit limit of £200.

 

In fact, as Kelly advised you in her letter dated the 4th June 2009, and I have highlighted on your enclosed notes, a default was issued on the 22nd April to request you pay the over limit amount. Because you did not pay the over limit amount, a statement of default was issued on the 12th May 2005 for £440.88. The default letters were sent to your address we held on file for you at that time. Please be aware, it is your responsibility to ensure we have the correct address on file for you.

 

You telephone in on the 19th May 2005 and spoke to Debitas Legal Services, our in house debt collection agency. You advised Debitas you were able to pay £50. Debitas advised you they would offer you an interest free payment plan to clear the default amount of £440.88. You agreed with Debitas, to an eight month payment plan of £55.11 each month. You made one payment of £55.11 with your debit card on the 19th May 2005. However, you broke the other seven payment agreements and that was the last payment we received from you.

 

Therefore, as Kelly and Steve both explained in their letters, we are not able to remove the default from your credit file as it was applied correctly.

You mentioned also section 10 of the Data Protection Act 1998. To explain under the DPA 1998 individuals have the right to ask an organisation to stop processing their personal data on the grounds that:

 

• ·The processing is causing or is likely to cause substantial damage or distress; and
  
• ·The damage or distress is, or would be, unwarranted
  

You have failed to set out in your letter precisely which processing you object to and why you believe it is causing, or will cause you, unwarranted and substantial damage or distress. Capital one has not undertaken any processing of your data, which has to our knowledge caused, or is likely to have caused, substantial unwarranted damage or distress.

 

In any event, you’re not entitled to serve a notice under section 10 of the DPA for the following reasons:

 

• ·Capital One informed you when you applied for your credit card and in the terms of your agreement how your data would be processed and you consented to the processing of your data by signing your credit agreement.
  
• ·The processing of your data is necessary for the legitimate interests of Capital One and the credit reference and fraud prevention agencies to which is disclosed and is not likely to prejudice your legitimate rights, freedoms or interests.
  

The information commissioner has confirmed that it is appropriate for lenders to share information about customers account with CRA’s and that it is appropriate for the CRA’s to retain this data for six years after the account was last active.

Your notice is entirely unjustified and inappropriate and as a result, Capital one is unable to comply with it.

 

Capital one believes also they are fully compliant with the Consumer credit act, the office of fair trading guidelines, the consumer protection from unfair trading regulations 2008 and all the consumer credit regulations 1983. I also believe that you received a separate response to your S78 query as you advised when you telephoned Karon Bullock on the 3rd July 2009.

 

If you’re still unhappy with the way your complaint has been handled, I strongly recommend that you contact the financial ombudsman service which is a free and impartial organisation which exists to mediate in disputes between customers and financial service companies. Their contact details are in our complaints leaflet which I have enclosed for you.

 

Yours sincerely

 

Any idea on what to send back? Do I risk CPR 31.16 or can I get them with something else? I am probably due the whole amount owed back as charges anyway which makes it more frustrating!

 

Any letters out there to cover this one.....?

 

Cheers guys

[harrassed senior]

Well having been in protracted correspondence with both Cap 1 and Experian over similar matters I can only re-iterate that they will both side together against you.

 

I personally think you have a valid point regarding the Default Notice (does this appear on your Credit File)?

 

Having threatened the Court Route and as this is under £5000 in may well be worth issueing in the small Claims Court. Have you also written to the CRA's and asked them to communicate your complaint direct to Cap 1.

 

Hopefully you may well get futher and perhaps better advice from the experts, but this will 'bump' you up at least.

[never-in-doubt]

Well having been in protracted correspondence with both Cap 1 and Experian over similar matters I can only re-iterate that they will both side together against you.

 

I personally think you have a valid point regarding the Default Notice (does this appear on your Credit File)?

 

Having threatened the Court Route and as this is under £5000 in may well be worth issueing in the small Claims Court. Have you also written to the CRA's and asked them to communicate your complaint direct to Cap 1.

 

Hopefully you may well get futher and perhaps better advice from the experts, but this will 'bump' you up at least.

 

Hiya

 

Thanks for the reply, yes it is on the CRA which is my whole point, just cos they say 'they confirm one was sent' - I still need to see it! Also, they cannot provide a CCA - but ultimately, their letter is just a fob-off, of course if I SAR them then they should provide the CCA but we all know they'll come back using the exemption that affords them omittance because it is old, they'll say it cannot be found in their 'filing index' which excludes their obligation for the CCA. Catch 22

[dx100uk]

On the same day, we advised you that a default notice would possibly be issued. This was because of your heavy spending in March 2005 caused your account balance to reach £392.12. This equates to almost twice the amount of your agreed credit limit of £200.

 

is this true?

 

dx

[never-in-doubt]

On the same day, we advised you that a default notice would possibly be issued. This was because of your heavy spending in March 2005 caused your account balance to reach £392.12. This equates to almost twice the amount of your agreed credit limit of £200.

 

 

 

is this true?

 

dx

 

I can't remember, it is referring to a phone call almost 5yrs ago..... but I do not remember such a conversation. That said, they could write anything - i guess i'd need their copy of a recording or it would be inadmissible (i'm hoping).....?

 

would it make a difference? Its still not a default notice though, just saying you'll issue one means little in the eyes of the law.

 

sorry can't be more specific.....

 

The balance didn't reach that just cos of spending, it was charges after going slightly overlimit, almost £200 of charges if I remember rightly.

[dx100uk]

well how about another tack then.

SAR them, reclaim the charges + int + 8% stat.

 

in the meantime, armed with your statements, you should be able to calculate if [with the charges removed] you were not over your limit.

 

when they have coughed and repaid the charges, if you were not over the limit, surely then by their own admission [by paying back the charges] they were at fault and should remove the default from your file.

 

that way you have them!

 

thats the way it used to work & cap1 did that for me in 2007.

 

dx

[never-in-doubt]

Thanks DX, good approach......

Edited July 17, 2009 by never-in-doubt

[dx100uk]

sorry ???

cap1 are a credit card company

the stay does not apply to them.

 

dx

[never-in-doubt]

Sorry ignore me - wasn't paying attention

 

So does it matter or change things that the account was included in a trust deed which has now been discharged, i.e. no balance is due?

 

They really don't want to remove the default which is frustrating cos it is unlawful and they do not have a copy to send me, similarly they have no CCA.

[GhostDebt]

It may be worthwhile having a read of the threads by pinky69.

who is currently taking 3 x banks to court over defaults recorded on a credit file.

 

http://www.consumeractiongroup.co.uk/forum/capital-one/209242-pinky-crapone.html

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/196312-invalid-default-notices.html

 

Regards

[never-in-doubt]

cheers, have read those but am still confused as to the next move.... have already SAR'd them, no CCA or D/N and only £160 in charges (there were 8 at £20) but can only go back 5yrs as scotland.

 

Also, it was a trust deed settled debt.

 

Thanks again for help.

[dx100uk]

still doesnt stop you reclaimg charges as above

 

dx

[Lapchien66]

sub