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Wescot return CCA payment and.said send to RBS

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Having been hiding under a rock for some months now good old Mint aka RBS have sent a DN - dated 15th Dec. They say it should be assumed to have been served day after so I guess that makes it 16th according to their version of first class pos at this busy festive seasoin?? (no stamp and not recorded etc)

 

Ignoring fact there is no actual date noted - they say 17 days from blah blah..

 

on this basis alone what shoudl the date be they 'default' me legally??

 

ps. They have previously temrinated account, I complained, they changed their minds, I complain etc etc, they send me statements for a fair few months and no threats.... until now.

 

According to my SAR returns from Equifax etc the account was never defaulted that I can see but soem details missing

 

thanks!

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I cannot believe you complained about a termination of agreement when they hadn't previously issued a DN - that would have rescinded the agreement. How did they undo the termination? The envelope has no postmark so you can state the truth that you received it today. In law they would have had to give you 20 days - receipt on the 4th day after postage, assuming receipt by second class post plus 14 clear days (not working days) thereafter - and weekends don't count for postage(Queen's Bench Practice Division 1985). The best thing to do is scan this DN minus your personal details and we will see if there is anything else wrong with it. And this time sit on your hands and say nothing until they terminate again.

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I know I know!! This was some months ago when I did not know better. Being hit on all sides and not enough info in the brain.

 

Is a termination not a termination unless they default you? Ithought is they asked for all monies back now as I had not complied with a DN that was them up the creek a bit regardless of whether they defaulted me or not?

 

I kept complainting they should not have terminated despite their 'apology'.... no reply.

 

Another factor was the reply I got to another query from group Litigation stating they had complied fully with stat obligations etc etc (ref CCA) 'notwithstanding that the original, signed agreement has been misfiled in our records'. They then mentioned 'we are satisfied that we can demonstrate to a court, if required to do so, that a loan would not have been set up in our systems and drawn down without a signed agreement'...

 

I am still unsure if they ever did default me or not - the SAR from Equifax has some parts missing it seems from this account only whilst others have a status breakdown for what I can but assume are months or periods of time (does not say). Have not taken a credit report out because this will waken the DCAs up it seems. Will dig out my last SAR to Mint to see although they kept sending bits here and bits there it's all a bit confusing and probably parts missing.

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Oh they've sent DN before by the way which I recall I paid in time.

 

They sent me termination letter.

 

I then complained after this termination letter saying they should have provided a valid DN in order to terminate

 

BUT did not check whether they had defaulted me.

 

They sent letter saying they 'retracted' the termination and they have 'nothing further to add'

 

I told them they were out of order and had terminated me unfairly etc?

 

Triton then came into existence. I complained about the fact they had acted illegally already etc.

 

RBS replied saying CCA 'entirely valid and enforceable' asking me to reply saying why I thought otherwise. They then say 'Even so'..... validity of debt etc.. remain due etc..

 

Next letter from RBS in response to acted illegally etc on termination again reinforce 'although we had retracted the cancellation of the card further payment was required' (They mention card here not account!)

 

Thye then say another DN sent out and if I do not etc etc then the account will 'be cancelled' (!)

 

Two months later is next letter from them in response to my letter detailing why I though their DN was invalid (they asked!) and their reply from group Litigation (a trainee) stated they had complied fully with stat obligations etc etc (ref CCA) 'notwithstanding that the original, signed agreement has been misfiled in our records'. They then mentioned 'we are satisfied that we can demonstrate to a court, if required to do so, that a loan would not have been set up in our systems and drawn down without a signed agreement'...

 

It does get very confusing because they sent DN ad hoc it seems - terminated me when I'd paid and when I did not pay did nothing?!

Edited by willtheywontthey

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From what you say there is no agreement and for all they say they cannot take you to court without one. Their argument that they wouldn't have drawn down a loan without an agreement doesn't stand because they have to produce evidence of the loan - agreement, T&Cs (the original) and statements - and that the agreement was with you. RBS don't have any older agreements and they know it.

 

Now, the termination. They cancelled the first one after first sending out a DN. So they sent out a second DN, which in law they are entitled to do if the agreement hasn't been terminated, and we have already discovered that doesn't give enough time in law to remedy the breach. There are other things in law that can be wrong with it and if you scan it we can decide if there are other things wrong with it. Now just sit tight and wait to see what they do.

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thanks yet again- I thought one definition of termination occurred when they asked for full amount when they should not do eg when not defaulted? (amount paid as they requested at that time).

 

I also forgot to mention that they also commented that 'as you know you have defaulted on the repayment.....' I think that's what made me think they had indeed 'defaulted' me - or does defaulted on repayments mean I have just failed to make repayments?

 

Anyhow - back to the date issue - when should the last date be then with all this festive holidays etc... compared to the 17 days they stated?? (see first post)

 

I will find the so-called cca and the make-believe reconstituted one tomorrow and post up.

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A termination letter does ask for the full amount. And "defaulting on repayments" means what is says. The date according to their miscalculation is 4 January. The date according to the Queen's Bench ruling is 7 January. What they didn't work out is that there is a weekend in the middle of the prescribed postage time and weekends don't count as postage time. They also only counted 3 days for delivery, whereas in law 4 days is allowed for the receipt of second class postage, the it is 14 clear days after that - holdays, weekends, everything included.

 

Lets get this straight so you understand what you are doing. There is no agreement - they have told you they "misfiled it". In other words they have stuck the application form on a microfiche and cannot fnd where they put it in the system. You had a previous DN and termination and that is now irrelevant. In spite of you telling them what was wrong with the first one, they have made a pig's ear of the second DN. Now all you do is nothing and wait until they send you a termination notice. I would still like to see the DN they have just sent you.

 

Required reading for you -Queen's Bench Practice Direction on Postage 1985

Consumer Credit (Enforcement, Default and Termination Notices) regulations 1983.

 

You will get them on the net if you google.

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Thanks for the advice and links. I will try my best to figure out what the jargon means but I think Klingon is easier to comprehend. This legal jargon just frazzles my brain after a few words! Honestly.

 

Based on Mint terminating the account (why are they allowed to do this twice anyhow - just because I complained and they changed their minds?) then what confuses me is how can I ever know whether they terminated the account on the 'wrong' date other than they happen to kindly send me a letter dated

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I got a termination letter 5 months after an unlawful DN. It doesn't matter when they send the termination notice. What matters is that they sent it after issuing an unlawful DN - that is what causes the rescission. And - yes - legally they can do it twice because you got them to change their mind over the first termination.:rolleyes:

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so they can basically do that all over again...? ie new DN and new termination IF they ever find out DN invalid on dates? pretty sure first DN was invalid as well.

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The key is the DN. They can send a new DN if they haven't terminated after the first one. They did terminate but you didn't accept it so they cancelled the termination. So now they have sent a new DN and all you can do is wait until they terminate again.

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They really are confusing me - received today the usual monthly statement - obviously minimum payment is sky high but they've terminated account (this is what they did last time after terminating it).

 

Any clues if this is normal activity? They also charge me interest as in a normal non-terminated account. Hmm?

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Have you had a termination letter? They cannot charge you interest on an unlawfully rescinded account - they account no longer exists. All they can charge you for is any arrears that existed prior to the unlawful termination. If they have definitely terminated the account them write and tell them you accept the termination. Then the next time they ask for payment of the balance you can tell them they cannot pursue the balance as they unlawfully rescinded the account and why. Only do this is if you are 100% sure the account has been terminated.

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If the default notice i9s wrongly dated, thats one thing. If it also asks for the whole balance, thats another thing. In which case, asking for the whole balance rather than the arrears to be paid, isnt that the same as unlawfully terminating? Even though they havent sent a termination notice? Therefore we should accept the unlawful termination / rescission of contract asap?

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Asking for the full balance without issuing a DN is unlawful rescission. If they ask for it on a DN you have to be careful because sometimes the arrears and the full balance are the same thing. You can write and tell them you accept the termination.

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So the ICO got RBS / Mint to reply to some of my SAR / DPA complaints ie missing stuff.

 

1. They said that they are unable to locate the 'application' form (they do not have guts to say 'agreement' ) for the Advanta account

2. They said Advanta superseeded by Mint account and they sent this 'agreement' to me in the past (recon. one I recall)

3. They said they only have notes for about 12 months 2007-2008.

 

How can they claim to have sent the agreement if a. it was superseeded and they know I never signed a new agreement for the Mint. How can they expect to have a true agreement if they only have notes for 12 months ie 2007 -2008....?

 

I need to write back to ICO and am finding it quite difficult to find something relevant to try to get RBS / Mint to clearly state they have not got an agreement for the Mint...because it was Advanta I alllegedly signed for. I need to get ICO to put pressure on them to admit the Mint 'agreement' is somehow a breach of DPA - it must be somehow if they admit they have no original Advanta agreement and never signed for a Mnt one. Add to that they have no pre 2007 data (Advanta account 2000 or earlier I recall)

 

Just posting here in case anybody with better knowledge ofDPA finer points could guide me a bit more. I would like to get more than the usual 'it seems they have not complied with DPA etc and oh shucks' from the ICO. Can the ICO not tell them to not process data etc if I can prove (somehow) RBS have no agreement and have admitted so (sort of)

 

Thanks

 

Oh - are banks not supposed to keep 6+ years worth of notes. Any clue why RBS / Mint only have 12 months worth??

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They must keep a copy of all transactions on the account for 6 years after the account is closed or they are in breach of Section 9 of the Money Laundering Regulations.

 

They clearly do not have an agreement for this - I trust you have already put the account into dispute. Issue Mint with a Section 10 Notice and if they continue to process your data after that complain again to the ICO.

 

Go through the Notice to amend it to suit:

 

Legal notice issued under Section 10 of the Data Protection Act 1980

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thanks pinky. I've somehow managed to miss out on the s10 letters - never sent one of these - usual ones are in dispute, sar, complaint to ico.

 

Is the county court follow-up practical or just a threat?

 

Do OCs actually take notice of this s10 letter?

 

thanks

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They are bluffing - they have nothing to go to court with. Since there is no agreement, if they breach S10 complain to the ICO.

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basically the DCA has sent my pound back and sent letter back saying their client has told them to tell me (!) to send a pound to their clients stating its a s78/78 request.

 

I was asking the DCA for a CCA - as they are acting on behalf of client (OC) surely the rules/guidelines put the onus on the DCA to get the CCA? The DCA should nto send payment back to me and say their client wants me to send it to them?!! This is first time I've had this response.

 

Any comments?

 

ps. It's Wescots and RBS are clients

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Guest Cartaphilus

Wetcloths did similar to me last week. I am tempted to send it with this paragraph highlighted thus so they get the message!

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

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thanks for the reply. Wonder what they're playing at? Unless i'm mistaken the DCA has an obligation to get the cca to me or send it back to clients?

 

Has anybody got anything else specific on this matter to assist in a repsonse?

 

Which regs can I quote they have breached - if any?

 

Is there anything concrete here so I can make a complaint to ICO?

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Guest Cartaphilus

I've also been pondering as to whether it's because no CCA exists and they are just playing games as a result by sending it back but not admitting to anything. I am probably wrong on that but ... just a thought.

 

When I posted this last week, I was told if I got any further letters from them that they had defaulted on my CCA request and treat as such. By sending them the account in dispute letter until such time as they produce what was requested. Down to them if they can't take notice of what the letter says, not me remind them. Just what I was told so next time I have any letters that is what I will send them (but am still in two minds whether to send it to them again with the above paragraph highlighted, failing that I shall have to draw in crayon I suppose (shrugs) or neon coloured felt pens).

Edited by Cartaphilus

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Very few CCAs exist from RBS. They must provide you with a copy on request. It is for them to get the copy of the agreement from RBS if they don't have one. They cannot be bothered because they know it is not worth their while. You do not need to send a CCA request separately to RBS. The 12+2 days starts form when they received the request then you can put it into dispute. They will sell it in to another DCA and all you do then is send them the Account in Dispute letter too.

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Thanks. RBS have even told me they cannot find the cca and told ICO they have no documents from date of original card (Advanta) so I'm confident RBS side is sorted (in dispute and that illegal termination scenario).

 

I just wondered why on earth a DCA would send cca request back to me and not try to get it or failing that why not just pass it back to RBS? That's the norm isn't it?

 

I do realise that one cca request to OC should be adequate - especially if it's been put in dispute but I have also found that sending a cca to each of the DCAs that comes along send them packing usually. This is a new approach to me. Strange though?

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