Cabot claimform - old Citi Card 'debt' **SETTLED BY TOMLIN**

[coledog]

The 5th is the earliest really - you could even leave it another day, no point in sending too early.

[gettingsorted]

Thank you - I'll leave it till the weekend then.....

oopss nearly put me name down !!

[gettingsorted]

Account in dispute letter now sent and

 

 

have now received Citi's version of a SAR response (attached)

which includes statements up to Sept 2010.

 

 

The last statement I have is dated October 2006 and I have them all prior to that.

Also is a Customer Service Notes copy which includes three entries

- two mentioning account sold to Cabot and one mentioning my SAR.

 

 

There is a note on the bottom which says ALL CUSTOMER SERVICE NOTES PRIOR TO THIS PURGED FROM SYSTEM;

and now to the statements which are a nonsense.

..they appear to have stopped charging interest and penalties on the account in January 2008

and each statement from then on is requesting a minimum payment which is about 0.5% of the total debt

which is due by the 17 January 2008.

 

 

Every single copy statement from Feb 2008 to Sep 2010 states this ?

There is also a copy of the Income and Expenditure which I gave them in July 2006

- they do not have the letter sending it out but I do as well as the letter refusing to accept me onto a reduced payment scheme

in reply to my Income and Expenditure.

 

 

NO CREDIT AGREEMENT was enclosed but they have said that they have given me a copy of the information

held on the application (btw they got my name wrong !) this is just a computer print out.

 

How do I stand now ?

have they responded correctly ?

 

Also now that I have sent the account in dispute letter to Cabot can I try to get them to remove the default they have listed on my credit file

- I know that they can inform the Credit Agencies of the debt.

 

 

Are Cabot supposed to stop charging the interest onto the debt now the account is in dispute.

 

So sorry about all these questions - I have been reading through all the threads and I am very confused !

[the_shadow]

I'm afraid to say if you are not paying the relevant minimum repayments it does not matter what Citi have done or Cabot now... they are entitled thanks to someone called McGuffick vs Rbs to mark your credit file as defaulted.

 

S.

[silverfox1961]

Well you got slightly more than I did with my SAR.

 

As they say that customer notes were purged, how can they prove the account was defaulted correctly, terminated correctly or even assigned correctly.

 

Chances are Citi won't even have a copy of the agreement (but you never know) I would have thought it would be easier to send a copy of the agreement than to print out what should be on it.

 

Getting any more from them will be VERY difficult. I tried and even after intervention from the FOS, all I got was the T's&C's-no agreement

[gettingsorted]

Thanks shadow but as I read that case a CCA had been produced and it was been argued that it was not enforceable and tehn the judge found that it was.

Neither Cabot nor Citi have yet produced a CCA for this account yet.

 

If I cannot request the removal of the default what does this section of the account in dispute letter mean

 

"Please note you may also consider this letter 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.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

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 agree 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.

* 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 am now even more confusesd ?

[the_shadow]

Ok, McGuffick was a claims company taking RBS to court to gain an order of unenforcability, RBS could if they had wanted satisified the s78 request priot to proceedings but decided not to so they could obtain a legally binding definition of what exactly enfocement is in relation to non-conforming with a s77-s78 request.

 

A judge decided that everything bar obtaining an actual judgement was NOT enforcement, therefore if no s77-s78 response has been given they can still sell the debt, chase you and mark your credit file. The only thing they cant do is obtain a judgement against you.

 

The templates are out of date in regards the recent rulings of McGuffick and more importantly the Carey vs HSBC ruling, therefore caution needs to be exercised in using them and advice saught on individual threads prior to sending.

 

Apologies for mis-spellings, I'm writing this on a netbook with a small screen and smaller fonts

 

S.

[gettingsorted]

Thanks for the clarification; I did use the letter that was linked to me in this thread. I shall just wait and see what happens now.

[Master Chief]

Hi, your SAR response is pretty much the as same the one I got from Citi.

 

The statement at the end regarding s.7 (1) © is wrong or misleading, they told me that too so I phoned the ICO and asked them to clarify. It appears that they are saying 'we don't have to send you copies of the actual documents' or the actual documents themselves, depends which way you read it.

 

ICO's opinion, that they are probably saying in a roundabout fashion that they don't have the documents. But they do have to send you copies of ALL documents that they possess. Unless there is a specific exemption.

 

 

HTH

 

MC

[Master Chief]

If it helps, here is a copy of the letter I sent in reply:

 

 

 

 

Dear Sir/Madam

 

 

Re: Credit Card Account Number:

 

 

 

Data Protection Act 1998 - Subject Access Request

 

 

I thank you for the information that you sent me in response to my recent Data Subject Access Request, received and signed for by your company on 29/10/2010. However, you have not fully complied with my lawful request pursuant to Section 7 of the Data Protection Act 1998, and as a result the disclosure of personal information is incomplete.

 

For the purpose of S.7 DPA 1998, I have a legal right to ALL personally identifiable information that you hold on me that is not subject to specific exemptions under the act.

 

I have spoken with the Information Commissioners Office directly, who has confirmed that the above is correct. As the ICO is the regulatory body that ensures compliance of the act, I suggest that their interpretation of the DPA 1998 is correct and not yours. Unless you disagree, in which case I welcome your authoritative comments, which I will gladly pass on to the ICO.

 

Furthermore, please find below an excerpt from the ICO website, which I believe should clarify things for you completely:

 

 

 

You are entitled to be told if any personal information is held about you and if it is, to be given:

• a copy of the information in permanent form;
  
• an explanation of any technical or complicated terms;
  
• any information the organisation has about where they got your information from;
  
• a description of the information, the purposes for processing the information and who the organisation is sharing the information with; and
  
• the logic involved in any automated decisions (if you have specifically asked for this).
  

Your attention is drawn to the first bulleted item, which for your benefit I have underlined; this cannot be interpreted in any way other than: if your company possesses a document or data file with my name on it, on computer or in a manual filing system, then you are bound by law to provide me with a copy of it!. Unless, of course, there is a specific exemption.

 

Failure to comply with my request in full will result in me taking the matter up further with the ICO and beyond that, if necessary and appropriate, to seek enforcement and potential compensation via the courts.

 

I trust this now elucidates the matter with you and I respectfully request your assistance and compliance in completing my original request; for which you still have 15 of the statutory 40 days remaining. For your benefit, I enclose a copy of my original DSAR.

 

Yours faithfully,

[gettingsorted]

That's brilliant Master Chief - can i use the significant points in your letter and sent it out to them. TBH I don't think they've got any docs - if they have why wouldn't they send them ?

[Master Chief]

That's brilliant Master Chief - can i use the significant points in your letter and sent it out to them. TBH I don't think they've got any docs - if they have why wouldn't they send them ?

 

No problemo, use as you see fit.

 

I think you are right, unlikely they have got the docs. Why wouldn't they send them if they have? Because they are very busy with this type of request and they are bloody awkward!

 

MC

[gettingsorted]

Possible i spose - thanks for the letter thing - keep me posted how you get on - I think you're about a week or so ahead of me on the SAR.

[Master Chief]

Will do, good luck with yours too.

 

MC

[gettingsorted]

Just to keep anyone subbing informed copy of letter with RECON CCA received from Cabot - am now looking through the CCA threads for any help I can get to reply to this letter ! Struggling a bit now !

 

[ATTACH]23605[/ATTACH]

[gettingsorted]

Well Cit are now past their 40 days and nothing so far - Have sent Cabot a produce / confirm a signed CCA letter today - any idea where I go from here?

 

Cabot have now started phoning again- a couple of times a day atm, as the number is being displayed I am just not answering if i'm in. Am tempted to adapt the telephone harassment letter and to send it off as I have absolutely no intention of getting into a conversation with them.

Thanks

[MARTIN3030]

moved here-read a few of the other threads.

[gettingsorted]

Thanks - have been reading and am getting totally confused - do I write to them again or complain to the Information Commisioner ? There also the comments from a previous reply that if everything's been purged what proof do they have that the defaults, etc were done properly.....

[MARTIN3030]

You can complain to the ICO if they have failed to comply insofar as your personal data goes.

Some elements of CCA do not fall within the meaning of personal data-and they will no douby argue this.

Breaches under CCA are a matter for TS or consumer direct.

The other option for both of these issues is to file for a court order for disclosure.

They would then be required to give signed statement of truth that the info had been destroyed and was unavailable.

 

You are within your rights to ask if the info has been purged;

 

1.At what date was it purged.

 

2.Who purged it

 

3.What method was used

[coledog]

Useful letters in library on SAR requests, non compliance

 

http://www.consumeractiongroup.co.uk/forum/content.php?593-Data-Protection-Act-Non-Compliance-Template-Letters

 

I am in the same situation with Citi and another DCA who have sent a reconstituted agreement, so I doubt that they have an original.

 

You have to keep reminding Cabot that they have not provided an original agreement therefore the account is still in dispute. Send them a letter headed COMPLAINT for the attention of their complaints manager and ask for a copy of their complaints procedure. Copy in OFT and Consumer Direct. Complain about their telephone calls and them contacting you when you consider the account to be in dispute.

 

If they threaten legal action you can send a request under CPR and request a copy of the actual agreement under that.

[gettingsorted]

Well have now received the next instalment letter from Cabot (Copy attached) this is in reply to the following letter :

 

 

Start Copy

I refer to your letter dated XXXX , where you enclose a reconstituted true copy of an agreement. May I remind you that this account is still in dispute as you have not provided an original agreement.

May I remind you of your obligations under the Consumer Protection From Unfair Trading Regulations 2008 (specifically regulations 5 and 6) and the Office of Fair Trading Guidance on Debt Collection. I therefore request that you confirm whether you currently hold or have ever held a properly Executed Credit Agreement pertaining to the above account and if so please forward a copy to me by return.

I attach for your information a copy of the relevant Regs of CPUTR 2008 for your information

 

If you DO NOT have a signed, properly executed Consumer Credit Act Agreement pertaining to myself, then I require written confirmation by return (CPUTR 2008 reg 5 and 6).

I note from my call list that you have attempted to contact me on numerous occasions over the last few days if you continue to do so while the account is still in dispute I shall be complaining to the relevant authorities.

Susan Edwards, Head of Credit Investigations and Enforcement, Office of Fair Trading May 2008

Misleading statements to debtors

Sections 77 and 78 refer to supplying a copy of the ‘executed’ agreement within 12 working days of receiving a written request from the debtor. Failure to do so makes the agreement unenforceable against the debtor until a copy is provided. In addition, if the default continues for a period of 1 month the creditor is in breach of the Act.

 

Execution involves signing the agreement. If no agreement has been executed, it is impossible to supply a true copy of the agreement. Should a creditor supply a copy agreement, even though the debtor has never signed any agreement with that creditor, no indication should be given that it is a true copy or a copy of an executed agreement. To do so may contravene Regulation 5 of the CPRs and be an unfair or improper business practice.

The consequence of the debtor not having signed a credit agreement with the creditor is that the agreement is unenforceable except where the court orders that enforcement may take place. Where the agreement was made before 6th April 2007 the court is not able to make such an order unless the agreement was signed by the debtor.

 

Therefore it is misleading to state, when complying with a section 77 or 78 request, that the debtor has signed or would have signed (or similar) the enclosed agreement where the debtor has not done so. From 26 May 2008 such a statement will be a breach of the Consumer Protection From Unfair TradingRegulations 2008 (CPRs). Regulation 5 of the CPRs states that a commercial practice is a misleading action if it contains false information in relation to the main characteristics of the product (amongst other matters) and is likely therefore to cause the average consumer to take a transactional decision he would not have taken otherwise. The product in question is the credit agreement and the main characteristics include the ‘execution of the product’ (Regulation 5(5)(d) of the CPRs).

 

Telling a consumer that he signed such an agreement is also a misleading statement about his rights and the risks he might face as covered by Regulation 5(4)(k) of the CPRs.It is our view that it is likely that a consumer will take a transactional decision to make a payment under the credit agreement or to refrain from exercising his rights under the agreement as a result of being misled about whether he signed it.

 

Breach of Regulation 5 of the CPRs is a criminal offence under Regulation 9 and can also be enforced under Part 8 of the Enterprise Act 2002. Under section 218A of the Enterprise Act, where an application for an Enforcement Order is made the court may require the Respondent ‘to provide evidence of the accuracy of any factual claim’ (such as a claim that a debtor has signed a credit agreement).

 

In addition, it should be noted that threats to take action that cannot be taken is listed as one of the factors that will be considered in assessing aggressive practices in Regulation 7(2) of the CPRs

End Copy

 

I think they are just rattling my cage ! Do I write back indicating that the account is still in dispute stating that they have not replied to the specific questions in the letter namely those requiring them to confirm or deny that they have a true copy of the agreement ?

 

Have also received the attached from Citi in reply to my letter stating that they had not fully complied with my SAR ! I think I will just leave this at that.

 

Looking forward to seeing how Coledog and MasterChief are getting on !

Any advice gratefully received

Thanks

[coledog]

Sounds like they do not have an agreement (other than the recon) and there is also a lack of other paperwork including default notices etc. Standard Citi problem.

 

They could threaten you with legal action and you can then ask for documents under CPR. Bit of a waiting game I am afraid.

 

Certainly do not speak to Cabot on the phone, insist on everything in writing. They certainly have to abide my this.

[gettingsorted]

Still not received a reply to my letter sent in early January, but am getting standard letters asking me to contact them in respect of my debt which I am ignoring - should I just sit tight ?

[coledog]

IMO ignore, don't think they are going anywhere with this.

[gettingsorted]

Thanks - just need a bit of hand holding sometimes to strengthen my resolve !!!! Have you heard anything ?