Default Notice Question.

[powerful_rogue]

Hi all,

 

I sent the letter off to Sainsbury along with a £1 postal order. This was a CCA request.

 

Yesterday I received a reply (two months later!)

 

Dear Mr Rogue,

 

Thank you for your letter dated 22nd June regarding the above account. Please accept my apologies for the delay in replying to you.

 

With regards to your request I would comment as follows:

 

Please find enclosed a copy of the original credit agreement as requested.

 

We do not retain copies of individual default noticies. This does not affect the validity of the default that we recorded on your credit reference file as being in default of the terms and conditions of agreement. In doing so we have complied with the banking Code and guidance provided by the Information Commissioners Office on the filing of the defualt notices. This was recorded when your account was transferred to our Legal Recoveries Deoartment in May 2002.

 

The account was not sold onto any other company, the final payment was received in August 2005 and I can confimm that the account is now closed.

 

I hope that this explanation finally clarifies the matter, as the default notice will not be removed until the relevant six years from the date of default.

 

 

Yours Sincerly

 

Team Manager

 

 

Is this right, they dont have to keep a copy of the default notice?

Any advice on what steps to take next, or should it just be left.

 

Many thanks

[SurlyBonds]

They have a requirement to retain copies of all transactions and correspondence pertaining to a financial product or service under the Consumer Credit Act and Financial Services Act, in addition to their other legal requirements under the various anti-money laundering statutes. Banks sometimes don't seem to realise that a bank ledger doesn't just include the statements - that's why they also have to microfiche cheques and other financial instruments (that have been transacted on the account) for six years. However, contracts that last longer than six years have to be kept accordingly, e.g. mortgage papers, etc.

 

If they can't come up with a copy, then technically, they haven't served one.... if they haven't served one, then there's no default...if there's no default, then no lawful right exists for them to register a default marker on your credit file. Under the "relevancy of data" litmus test in the Data Protection Act, there is no relevancy for this default on your account, and then you can escalate the argument to "incorrect data" being held, which they have a duty to correct upon you servig them with a "data subject notice".

 

I'd serve them with a Statutory notice to remove the marker. That then gives them 21 days in whch to write back conforming to your request, or showing reasonable grounds why they won't conform to your request. They have to back up their argument with actual documents, or you can go staright to the County Court, and file a claim asking the Court to Order them to remove it. they are then going to look right prats if they suddenly produce a copy during the Allocation stage.

 

Also, if Sainsburys have lost the default notice, have they also lost the original signed agreement? If they can't look after something more recent, is there a chance that they also don't have your original contract.

 

Ask them for the signed contract. Again, if they can't provide it, then no contract exists. How can they go to a Court and provide a copy to prove you had an agreement, if they've lost it? let alone, start trawling through the Ts&Cs that they claimed you signed.

 

Also, this allows you to kick them either way as, in the longer term (if you did take the matter to Court), you could show a complete lack of care (fiduciary duty) in the administration of your account, and an attitude to record keeping that is contrary to the FSA requirements.

 

However, if they do have the contract, then they are going to look very big ars*s to have lost something more recent (the default notice), yet do still have the original contract, as it follows by logical argument that more recent documents should also be available if older ones are still retained.

 

Either way, don't let them fob you off with a load of claptrap about "no requirement", as this is utter nonsense, and sounds like some Neanderthal call-centre amoeba-like letter-writing Muppet, has just chosen the best looking letter from the template menu, and tried that one on you.

 

BTW, the additional bulls**t about the Banking Code not requiring them to retain anything is a big red herring. The Banking Code is a voluntary code, NOT a legal requirement like the CCA or Data Protection Act or the Financial Services Act. However, saying that, turn the Code around on them by quoting Section 2 of said code:

Our Key Commitments to you:

 

 

"We will treat all your personal information as private and confidential, and operate secure and reliable banking and payment systems."

 

 

 

I don't think anyone will agree with them that "losing" or not retaining vital transaction and agreement documents pertaining to important considerations about your account would be considered "secure and reliable".

 

"Banking systems" refers not only to the actual ledger computers that store your account transactions, but also all other systems (be they manual or otherwise) that form part of the running, administration and management of your account.

 

Go get them!

[powerful_rogue]

Surlybonds,

 

Thanks for the wonderful reply. I apologise for not replying sooner.

 

There is some great points that you have mentioned there.

 

Would you or anyone else be able to suggest how to put this in a letter to send off?

[dave]

Have a look here, in case yoiu haven't already seen it:

 

http://www.consumeractiongroup.co.uk/forum/legalities/24013-defaults-proposed-method-removal.html

[dave]

Oops, just seen it in your sig.

[powerful_rogue]

Dave,

 

Thanks for your reply.

 

I have been following those steps, but the letter I received back stumped me a bit!

 

Wasnt sure on how to word the reply.