Default Removal – Ford V HFC

[pford]

write updated the responce letter now feed back needed. Most well welcome on this. Most of it the same just added Data Protection Act to it changes are in blue yes or no? and who do i send it too the Data Cntroler or the P*** who sent the reply

 

 

Thank you for your letter dated 30th October 2006. I am very disappointed that you have failed to respond positively to our letter of the 29th August 2006. with in the statue of the Data Protection Act 1998 you had 21 days to respond to this notice.

 

We would draw your attention to the terms of the contract which you agreed to at the time that we opened our account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

 

You state in your letter that the default notice was sent to us on the 15th May 2003. If this is the case it is our contention that the example default notice that you have supplied is in Breach of the Consumer Credit Act 1974 section 88 for convenience I have reproduced this section for you.

 

88 Contents and effect of default notice

 

(1) The default notice must be in the prescribed form and specify—

 

(a) the nature of the alleged breach;

 

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken?

 

© if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

 

(2) A date specified under subsection (1) must not be less than seven days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those seven days have elapsed.

 

(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1) if the seven days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

 

(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply with it.

 

(5) A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

 

The example copy that you have supplied is not in the correct format or contains any of the required information; from the Office of Fair Trading own Matters Arising during the lifetime of the agreement, Consumer Credit Act 1974 see enclosure for the relevant section of this paper.

 

You also state that it was a requirement of this said notice that we make 50% of our monthly payments to you. If this is the case HFC Bank are also in breach of the Consumer Credit Act 1974 section 89 for convenience I have reproduced this section for you. At this time we were already making the required payments in lines with the agreement we had in place.

 

89 Compliance with default notice

 

If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1) (b) or © the breach shall be treated as not having occurred.

 

Section 89 of THE ACT clearly states that compliance with the notice shall be treated as not having occurred.

 

Yet on the 31st October 2005 you filed a Default Notice on our Credit Reference Files, this has breached our rights under section 87 of THE ACT again I will reproduce this section for you.

 

87 Need for default notice

 

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

 

(a) to terminate the agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

 

(2) Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective.

 

(3) The doing of an act by which a floating charge becomes fixed is not enforcement of a security.

 

(4) Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.

 

With reference to your letter you state that in December 2005 you wrote to us offering to rewrite this outstanding debt on a lower repayment which we duly accepted and the new loan commenced on the 20th December 2005 that was your choice.

 

Furthermore we are frankly shocked bye your statement, our notice does not fall within section 10(1) of the Data Protection Act 1998 we will quote this in full.

 

In summary, I do not feel that HFC Bank have acted inappropriately or breached the Data Protection Act 1998. The Information that has been reported on your Credit File is accurate and does not fall within Section 10(1) of the Data Protection Act 1998 and we do not believe that any unwarranted damage or distress has been caused. We are unable to remove this information as it shows a true reflection of how the account was maintained.

 

In response to this statement I must reminded you that the First & Second Principle of the Data Protection Act 1998 quite clearly states that Personal data shall be processed fairly and lawfully.

 

We are frankly shocked that you have operated our account in this way as we had always reposed confidence in your integrity and expertise as our fiduciary.

 

In summary, in relation to this former loan contract, we are formally instructing you, as an authorised officer of the Bank, from this day onwards, to:

1) cease to continue storing, processing or communicating our data;

 

2) remove all such data from automated process systems, as per the provisions of Part II, Section 12 (1) of the Data Protection Act, namely:

(1) An individual is entitled at any time, by notice in writing to any data controller, to require the data controller to ensure that no decision taken by or on behalf of the data controller which significantly affects that individual is based solely on the processing by automatic means of personal data in respect of which that individual is the data subject for

the purpose of evaluating matters relating to him such as, for example, his performance at work, his creditworthiness, his reliability or his conduct.

 

Of particular note is the Acts own term “his creditworthiness”;

 

3) cease to disclose any data to any third party including, but not restricted to, Equifax plc, Experian Ltd and Callcredit plc; and

 

4) instruct Equifax plc, Experian Ltd and Callcredit plc to remove all data pertaining to your records on us, to the extent that no data entry in relation to this account will exists on our credit files.

 

If you do not comply fully within 14 days then we shall begin court proceedings against you without further notice.

Yours faithfully

 

[un1boy]

Looks good to me!

[nathal]

Waiting with anticipation...

[pford]

Great lette,r just a few little bits and bobs (soz to be so pedantic) they are all in bold, with "corrections" or whatever next to them...

 

 

Only them few wife was a bit more on the **** take when she looked at it. Well she is a secretary to a company secretary

 

i will learn one day to let her read my rants and facts first

[un1boy]

lol, fair enough mate!

[pford]

Well had a response to my letter before action:x

 

 

Thank you for your letter dated 3 November 2006 addressed to Mr C J Rivers that has been passed to me in order that I may reply on behalf of HFC Bank Limited. I regret to learn that you remain unhappy with HFC Bank and that we have been unable to bring this matter to a satisfactory conclusion for you.

 

Having carefully read and noted the comments made in your most recent correspondence, I must advise that HFC Bank has nothing further to add with regard to this matter. I note your intention to issue court proceedings against HFC Bank Limited should you not receive a Favourable response and I regret that chosen to pursue this course of action.

 

However, in closing, I must advise you that the bank will vigorously defend any legal action you may decide to pursue with regard to this matter.

[Tinkerbelle]

Take em to court.

[aardvark the lecturer]

Hear Hear, you should also check back into Dayglo's 'life back' thread, thats just gone through AQ stage and theres some very promising stuff on interpretation of the Data Protection Act as well.......

[gargoil]

I'm now in exactly the same boat with them. Hav eha dthe same above reply fob off so will be starting action shortly!!

[LeeS80]

Interesting to follow this one, I've got exactly the same situation. They restructured my loan and gave me new payments of £xx per month, which I haven't missed once.

 

What I wasn't told at the time is that a default would be placed on my credit file, and now theres a second entry from HFC! Surely as this original account had closed, that agreement has ceased and they can't store data regarding it?

[pford]

well acording to the banking code they are allowed to:mad: but way i read it is if i asked for it. they asked me to rewrite the debt

 

Where the subscriber considers the customer’s personal and financial circumstances to be exceptional and unlikely to improve, the subscriber may, among other options, consider writing off or not pursuing part or all of the customer’s debt(s). Where write-off is requested by a customer or adviser but is not considered appropriate by the subscriber, the subscriber must give their reasons in writing. If the subscriber agrees to a write-off, then the debt may be registered as a default with the credit reference agencies.

[pford]

well another reply of experian

 

 

I am sorry your correspondence has not been dealt with as quickly as you wanted. Although we deal with thousands of queries each day and legally have 28 days to respond to each one, we really do try to reply to every letter and e-mail as quickly as we possibly can.

 

By querying the disputed information, we have fulfilled our legal obligations under the Consumer Credit Act 1974 and the Data Protection Act 1998. The account information we hold actually belongs to the lenders, as previously advised. Only they can amend it or tell us to amend it for them. We cannot amend or delete entries without lender's direct consent.(and what about my consent) I would advise you that as a licensed client of Experian each supplying lender is obligated to ensure that the information they provide us with is accurate.

 

I note your comments regarding HFC refusing to discuss the matter with you and I appreciate the frustration this matter is causing you. I refer you to our previous communications advising you to contact the Information Commissioner (formerly the Data Protection Registrar) about this matter. The Office of the Information Commissioner governs both what we and lenders do with regards to information on credit reports.

 

Kind regards

[un1boy]

well another reply of experian

 

 

I am sorry your correspondence has not been dealt with as quickly as you wanted. Although we deal with thousands of queries each day and legally have 28 days to respond to each one, we really do try to reply to every letter and e-mail as quickly as we possibly can.

 

By querying the disputed information, we have fulfilled our legal obligations under the Consumer Credit Act 1974 and the Data Protection Act 1998. The account information we hold actually belongs to the lenders, as previously advised. Only they can amend it or tell us to amend it for them. We cannot amend or delete entries without lender's direct consent.(and what about my consent) I would advise you that as a licensed client of Experian each supplying lender is obligated to ensure that the information they provide us with is accurate.

 

I note your comments regarding HFC refusing to discuss the matter with you and I appreciate the frustration this matter is causing you. I refer you to our previous communications advising you to contact the Information Commissioner (formerly the Data Protection Registrar) about this matter. The Office of the Information Commissioner governs both what we and lenders do with regards to information on credit reports.

 

Kind regards

 

I got exaclty the same reply, give or take the HFC name!!

[LeeS80]

Hi pford,

 

Any progress?