Very confused by Link Financial

[lisa2393]

Hiya all,

 

I had a credit card with HSBC and was paying regular instalements.

 

I was claiming back charges and requested a CCA at the same time which they could not produced so therefore the account was in dispute. Please note I did not stop paying my instalements and was not trying to escape any debt as I know this can be a bit of a hot issue

 

HSBC passed this debt onto Link Financial while in dispute.

I requested a CCA from Link Financial who again could not provide it but they have entered a default notice on my credit file.

I wrote to them with the standard letter from this site requesting a copy of the default notice and the fact that they had not provided the requested CCA.

 

I received a repy saying that they were again "unable to supply a copy of the CCA but would like to draw my attention to RBS Consumer Credit Act test case McGuffick v RBS.The findings of this case were that enforceability does not mean that the rights of the parties under a credit agreement were never accuired or are extinguished. Rihts under the agreement continue. It also decided that reporting to the credit reference agencies or passing information about credit agreements or the conduct of the account does not come anywhere near amounting to enforcement. Therefore the court held that there was no basis to prevent referral of information under the Data Protection Act 1998. It also held that passing on personal data in respect of a credit agreement, demanding payment, issuing a default notice, threatening legal action and bringing legal proceedings does not constitute enforcement."

 

Does anyone have any idea how to respond to this????

 

 

Many thanks

[lisa2393]

Bump

[mkb]

This post may help

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2504327.html

[cashins]

I received a repy saying that they were again "unable to supply a copy of the CCA but would like to draw my attention to RBS Consumer Credit Act test case McGuffick v RBS.The findings of this case were that enforceability does not mean that the rights of the parties under a credit agreement were never accuired or are extinguished. Rihts under the agreement continue. It also decided that reporting to the credit reference agencies or passing information about credit agreements or the conduct of the account does not come anywhere near amounting to enforcement.

 

Didn't think that would take long to show up!!!

 

In the McGuffick case an enforceable CCA existed.

 

I would ask them to explain exactly what rights they think 'were never accuired or are extinguished' in this case, when they cannot produce an agreement that states what exactly they were and ask them to remove the default.

 

David

[dx100uk]

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/149449-put-your-credit-reference.html#post1581179

 

dx

[lisa2393]

Many thanks for the information guys, much appreciated. x

[vint1954]

Hiya all,

 

I had a credit card with HSBC and was paying regular instalements.

 

I was claiming back charges and requested a CCA at the same time which they could not produced so therefore the account was in dispute. Please note I did not stop paying my instalements and was not trying to escape any debt as I know this can be a bit of a hot issue

 

HSBC passed this debt onto Link Financial while in dispute.

 

If the account was up to date, I do not see why they would pass on to link.

I requested a CCA from Link Financial who again could not provide it but they have entered a default notice on my credit file.

 

They cannot enter a default on your credit file if you are up to date with your payments? You need to complain about this to the OFT, FOS and ICO.

 

I wrote to them with the standard letter from this site requesting a copy of the default notice and the fact that they had not provided the requested CCA.

 

I received a repy saying that they were again "unable to supply a copy of the CCA but would like to draw my attention to RBS Consumer Credit Act test case McGuffick v RBS.The findings of this case were that enforceability does not mean that the rights of the parties under a credit agreement were never accuired or are extinguished. Rihts under the agreement continue. It also decided that reporting to the credit reference agencies or passing information about credit agreements or the conduct of the account does not come anywhere near amounting to enforcement. Therefore the court held that there was no basis to prevent referral of information under the Data Protection Act 1998. It also held that passing on personal data in respect of a credit agreement, demanding payment, issuing a default notice, threatening legal action and bringing legal proceedings does not constitute enforcement."

 

This case in the commercial court did indeed find as above. 2 points though, this case is now under appeal and there was an enforcable agreement found after proceedings had been referred. The main point being, that this case was heard where there was eventually an enforceable agreement found, hence the statement in the summing up that the case was one of a redeemable unenforcable agreement, meaning that once the agreement was found by the OC and it was enforcable, end of case. Bad test case as it went.

Regarding what is and what is not enforcement is heavily debated. Ultimate enforcement is taking you to court to enforce the agreement, however continued harrassment and CRA reporting must in some way be seen as a type of enforcement of the agreement, that is trying all means to make you pay. Its like saying death by a thousand cuts is only a problem after the 999th cut.

As far as McGuffick being relevant where they admit that there is no signed agreement, they are talking out of their backsides. Just remind them that the McGuffick case centred arround an enforcable agreement.

 

Does anyone have any idea how to respond to this????

 

 

Many thanks

Also have a look here.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/222663-cras-ocs-credit-ref.html

[lisa2393]

Many thanks for the info dx100uk very much appreciated.

[lexis200]

I like the the way they imply that bringing legal proceedings is fine when there's no agreement - how much have they twisted that case to suit their needs??

 

It's a carefully worded letter that one - in the first sentence they say they don't have an agreement, but they then go on to say exactly what they can do when an agreement isn't enforceable; two entirely different things bought together in one paragraph to make you think of them as one item. Tsk:rolleyes:

[lisa2393]

Hi guys

 

thought I would give you a quick update on my battle with Link!

 

Another letter received saying that they had issued thier respone to my Data Protection Act 1998 notice and reiterate at this time we are unable to provide a copy of your agreement however we draw to your attention the RBS Consumer Credit Act test case McGuffick v RBS.

 

They already stated this in their last letter which I responded to.

 

But they go on to say:

furthermore we would like to draw your attention to a similar case where a customer of ours raised a complaint to the Financial Ombudsman as we wereunable to provide a copy of the agreement. They requested removal of the default from the credit reference agencies. The FO stance on the issue was as follows: "it seems clear that you did not dispute owing the debt at the time and from the information available to me it appears that you have been paying towards this debt for a considerable time. As it appears that you have been paying towards this debt for a number of years I don't believe it reasonable or fair for me to conclude you should not continue to pay towards the debt simply because Link Financial has not ben able to supply you with a copy of the original agreement to which the debt relates. Similarly I do not believe that Link Financial is under any obligation to remove any default from your credit record if it is an accurate reflection of how the account has been paid.

 

Link go on to say that the information Commissioners Officer have made it clear that adefault on a credit file accurately reflects the paymentson the account then the fourth priciple of the Data Protection Act 1998 has been compiled with and the continuation of the reporting of the account is acceptable.

 

They conclude by saying:

the payments you have made towards your account are proof that this agreement exists. We enclose a transaction summery (nothing was enclosed with the letter)evidencing your payments. It is nonsensical that you would make payments on an account you are now disputing.

We will also strenuously defend that we have never attempted to enforce this agreement.

 

Now just to clarify a few things - I am not disputing the debt I had with HSBC which I have made payments to. I am disputing the debt with Link as it was sold to Link while in dispute with HSBC.

The original letter was for the removal of the default.

I have never made any payments to Link and have disputd the debt with them from the start.

 

Any ideas on how to respond to this or should I just go straigh to the FO?

 

Many thanks

[diamondgirl]

I would write back to them and say that as far as a the default is concerned you cannot see any reason why that has been placed as your payments have always been made (assuming you have not missed any) to HSBC. Also ask them for a copy of the said default notice. The account is not and has not been in dispute with them as you do not know who they are and that the account was and still is with HSBC.

If they have purchased this debt from HSBC to provide you with Deed of Assignment and Notice of Assignment which you have never been issued with.

Tell them that a copy of your letter is being sent to the OFT and the FO along with copies of their letters to you.

 

DG

[lisa2393]

Many thanks Diamondgirl, will get straight on it x

[lexis200]

Hi guys

 

thought I would give you a quick update on my battle with Link!

 

Another letter received saying that they had issued thier respone to my Data Protection Act 1998 notice and reiterate at this time we are unable to provide a copy of your agreement however we draw to your attention the RBS Consumer Credit Act test case McGuffick v RBS.

 

They already stated this in their last letter which I responded to.

 

But they go on to say:

furthermore we would like to draw your attention to a similar case where a customer of ours raised a complaint to the Financial Ombudsman as we wereunable to provide a copy of the agreement. They requested removal of the default from the credit reference agencies. The FO stance on the issue was as follows: "it seems clear that you did not dispute owing the debt at the time and from the information available to me it appears that you have been paying towards this debt for a considerable time. As it appears that you have been paying towards this debt for a number of years I don't believe it reasonable or fair for me to conclude you should not continue to pay towards the debt simply because Link Financial has not ben able to supply you with a copy of the original agreement to which the debt relates. Similarly I do not believe that Link Financial is under any obligation to remove any default from your credit record if it is an accurate reflection of how the account has been paid.Well this is utter ballcocks and another showing of the FOS's complete ignorance. No agreement means no legal obligation to pay. Granted it does not mean the debt has gone, we all know that, but it does mean they can not legally demand you pay them (they can keep bothering you, but they can't MAKE you pay), and equally there is nothing legally to say you MUST offer payment - especially coming from a DCA who can't offer up an agreement; it's one thing if the OC can't provide one, but for a third party to then come along and stake a claim with nothing more than a few statements to prove a debt is in my view stretching a point somewhat. This is a very moralistic view and one that should not be applied to something that has a legal base, especially when treatment by DCA's is so poor.

 

In addition to this, what does it matter what one of their customers was told by the FOS? 1) you may get a different person dealing with your case (hopefully one that has had some training for the job) 2) your case may be inherently different from theirs in ways they haven't bothered to tell you 3) it's not like what the FOS says is binding on either party, so it's really got bugger all to do with your particular case

 

Link go on to say that the information Commissioners Officer have made it clear that adefault on a credit file accurately reflects the paymentson the account then the fourth priciple of the Data Protection Act 1998 has been compiled with and the continuation of the reporting of the account is acceptable.No. The ICO suggests strongly that a legal binding agreement is necessary for reporting. This was posted by lifeafterdebt on the Pinky69's invalid defaults thread Information Commissioner`s Office's guidlines in relation to filing defaults states 'Any default record should be accurate. We normally expect a lender to keep records that are necessary to show an agreement exists and to support filing a default.'

 

They conclude by saying:

the payments you have made towards your account are proof that this agreement exists. No they bloody aren't!! They are proof that an account exists, they are sod all to do with whether an agreement exists:-xWe enclose a transaction summery (nothing was enclosed with the letter)evidencing your payments. It is nonsensical that you would make payments on an account you are now disputing.Did they really write this?? That's dreadful. It isn't nonsensical, it's a massive gesture of goodwill that you are giving them the benefit of the doubt and allowing them (ample) time to get the agreement to you.

We will also strenuously defend that we have never attempted to enforce this agreement.

 

Now just to clarify a few things - I am not disputing the debt I had with HSBC which I have made payments to. I am disputing the debt with Link as it was sold to Link while in dispute with HSBC.

The original letter was for the removal of the default.

I have never made any payments to Link and have disputd the debt with them from the start.

 

Any ideas on how to respond to this or should I just go straigh to the FO?

 

Many thanks

 

I have to say I highly doubt they'll send you a NOA or similar, and I'm not entirely sure they actually have to... I would be more inclined just tell them you don't deal with DCA's and that everything goes to HSBC unless you are categorically told by HSBC that you are to deal only with link, and more importantly, that HSBC will no longer accept your payments.

 

OH had an account with MBNA which was terminated in Dec '08 and sold to Debt Clear Recoveries. He's never paid a penny to them, it's all been paid to MBNA. Occasionally DCR send a letter saying he's missed last months payment - this is a little confusing considering it's on s/o and he's not paying them a bean - but other than that they gave up pretty quickly when I told them he wouldn't be dealing with them.

 

I would also reprimand them strongly for what they have written to you in that letter - grossly misleading and highly offensive as parts of it were, and inform them any further rubbish of that sort will be passed to Trading Standards!