NI court - late placing of a Default By Barclaycard/lowells - **SETTLED OUT OF COURT**

[johndeevoy]

I have been putting a lot of creditors off for over a year now but the defaults are really starting to hurt.

 

 

I want to take on Barclays first as they sent a copy of a T&C booklet as their s78 response (as I know they do quite a lot).

 

I also asked them under pre-litigation discovery and data protection laws to provide me with a full and exact copy of a signed agreement and they haven't bothered.

 

I want to issue against them and had a quick look around the site to see if there are any template POCs I could use as I seen a good one around somewhere but cannot find it now.

 

I need help with the particulars of claim. Thanks.

[silverfox1961]

Hi,

Here is one example you might adapt:

 

http://www.consumeractiongroup.co.uk/forum/lloyds-bank/49571-havinastella-lloyds-tsb-3.html#post1592782

[johndeevoy]

Thanks Silver. Those POC look good re: Data Protection, but I need further particulars of claim if anyone can point me to some further links?

 

ie. I want the Court to make an order of unenforceability under s142 CCA due to Barclays being unable to produce an agreement bearing my signature;

 

I sent Barclays a Statutory Notice under section 10 DPA last year but I have yet to hear about any creditor giving a stuff about these notices. I also want the Court to make an Order directing Barclays to cease processing my data with CRA and to award me compensation for the damage caused to my credit file.

[johndeevoy]

Just some thoughts this morning in relation to the legal aspects of 'sharing data with credit reference agencies'.

 

The power to 'share data with credit reference agencies' is granted to the creditor under the credit agreement. It is therefore purely a contractual right granted to the creditor by the debtor.

 

This is repeated again and again in posts I have read, from guidance from the ICO and the banks and credit card companies themselves saying 'you allow us to process your data with third parties under the terms of the agreement'.

 

Now, given that this is purely a contractual right granted to the creditor by the debtor, it follows that the debtor can withdraw from this at any time. Legally, the position is that you can write and withdraw from this part of the contract, albeit you would be breaching the terms of the contract to do so. This is the interesting part: the creditor has absolutely no legal recourse against you if you breach the contract in such a manner as the creditor suffers absolutely no loss by such a breach!

 

Therefore, if you put your creditor on notice that you are withdrawing any rights for them to share or process data granted under the agreement and even that you recognise this as a departure from the terms of the agreement and invite them to sue you for any losses they have incurred (and can prove in Court) resulting from said withdrawal of processing rights.

 

After such a letter has been issued, it is clear in law that the creditor has absolutely no rights to process your data with third parties and you could potentially sue them for damages for continuing to process data with credit reference agencies.

 

Anyone have any comments on this? These are just my own opinions and I would add that I do not have any specific knowledge of any Credit Reference Agency regulations or suchlike.

 

I would add that such a position would be the complete and utter downfall of the whole 'credit referencing game' as debtors could simply withdraw the processing rights as soon as they realise that they are going to default etc.

 

On this basis, I'm sure that there are some good counter-arguments or even regulation in respect of my above post, but none that I am aware of at present.

 

I would add also that I understand the fact that withdrawing your right for the creditor to process data under the agreement could be grounds for the creditor to terminate the agreement and issue proceedings to recover the full amount owed.

 

Even at this, such a position is still advantagous to many debtors out there. Personally, I wouldn't give a monkeys whether they 'terminate' the agreement or not, as at present my creditors are chasing me for full balances anyway and are defaulting my credit file which is causing me further problems e.g. cannot get even a 100 pound overdraft and cannot get any additional borrowing on my mortgage (even though I have large equity in the property).

 

bump

[hacksaw]

The templates library has a "Section 10 notice" where you can withdraw your consent to the continued processing of data, like you rightly said:

 

http://www.bankactiongroup.com/resources/templates-library/48-bank-templates/234-s10-data-protection-act-notice-if-you-have-been-defaulted-for-unlawful-penalties-

[johndeevoy]

Yes, it's all been done before.

 

As far as I can tell from this forum not many people take proceedings against their creditor for continuing to process their data after a Section 10 notice.

 

If more people did so then the banks may have to reconsider their position when facing a Section 10 notice rather than just ignoring it as they do at present.

 

BUMP

 

Please point me towards some draft POC I can use for the issues as set out in posts 1 and 3.

 

Thanks

[chrispaxon]

Hi Group,

 

I was traced by a DCA last year regarding a debt, and after months of hassling them for a copy of the credit agreement they eventually admitted to never having one and the finance house that originally had the debt are no longer trading. This debt is now over six years old and the default has now been removed from my credit file. My question is can a DCA search your credit file without them having any signed credit agreement giving them permission ? I ask because although the debt is removed the search is still there

 

 

Thanks

Chris

[johndeevoy]

Sigh - nobody have any links to any draft POC?

 

Its a good question Chris and one I don't have the answer to. My own opinion is that, given that a credit search can negatively impact your credit score, that permission should be obtained from you by any party wishing to search your file. However, I know from reading on these forums that this doesn't apply to DCA's. I am interested in the legal position, can anyone legally search your file without permission? Surely there is some form of legal protection here given that searches can have a negative impact. What if someone has a grudge against me and decides to search it 1000 times destroying my score?

[hacksaw]

John, if a company searches your file 1,000 times, it will find it very hard to justify in court or to the ICO why they would need to make that many searches. Also CRAs state that searches by the same company on the same date are counted as one search.

 

As for permission to search your credit files for debt collection and tracing purposes, this was given when you signed the agreement with the bank. The DCA's act as agents for the bank and therefore they believe they have the right to search your credit files. When the debt is sold to them, they will have that right anyway because they will own the debt.

 

When a DCA searches your credit files, it affects your score if they do a "credit search" and not an "unrecorded enquiry". For example, Lowell searched my Experian file twice, late October and early December (after the Electoral Roll update, to check I still live at my address). They were both unrecorded enquiries, meaning that other lenders can't see them when they search my file when I apply for credit etc.

 

As for Equifax, another DCA (Clarity Credit Management) searched my file under a "Credit search" with the words "Outstanding Debt" which will be seen by other lenders. This was for a statute barred debt, so I sent Equifax an online query saying that the debt is statute barred along with proof. They sent it to the DCA but they didn't respond, so after 28 days Equifax removed the search!

[johndeevoy]

Ill try to keep this brief.

 

 

I had severe financial difficulties in 2006/2007 and discovered this site and started asking for copies of credit agreements etc from my creditors.

 

 

Barclays never provided me with one for a credit card account I had opened in 2004, they just kept sending stock T&C conditions.

I put the account 'on dispute' with them.

 

 

Barclays defaulted me sometime in 2008

.Recently they sold the debt to Lowells and Lowells are recording a new account on my credit file with a default showing as Jan 2011

(I assume this is when they bought the 'debt').

 

 

The Barclays account has disappeared from my credit file.

I am seriously considering legal action against Lowells and i would like any comments on my arguments below:

 

 

1) A creditors right to record information with the CRA arises due to their T&Cs.

Therefore a DCA that has bought a 'debt' has no legal right whatsoever to record information about me with the CRAs.

It is no longer a running account, simply a purported and unproven debt.

 

 

2) Even if Lowells has some legal right to record information about this 'debt', the records should show that a default occurred in2008

(even though I disputed the account and I don't believe any Credit Agreement exists).

If what Lowells has done is allowed then this makes a mockery of the 6 year statute limitation as a creditor can simply sell a debt onto another company

(in particular another 'in house' company under the same parent group) every 5.99 years and default your credit file in perpetuum.

 

 

3) The original creditor was put on notice that the account was in dispute in 2008.

Barclays should have made an application to the Court for enforcement of the credit agreement if they wished to continue with recovery of the amount claimed.

As they did not and the account is now closed,

 

 

the purported 'debt' that they sold to Lowells cannot exist as it was never deemed to be enforceable by the Court.

Barclays also now cannot make an application for enforcement of an agreement that has been extinguished.

 

 

These are my main arguments - if anyone can help with a critic or provide any guidance on case-law or statute

that I can refer to it would be very much appreciated (I read up on all this stuff in 2008 but simply dont have the time to trawl through it all again).

 

 

Many thanks!

[craigers]

john, i'll answer best i can.

 

1) lowell have a right under ownership.

 

2) the lowell default should be 2008. contact the cra with proof that lowell bought the debt from barclays and also refer them to previous credit report with barclays default dated 2008. they should change the date. they won't and instead will contact lowell but lowell should then instruct cra to change date.

 

3) account in dispute then it shouldn't be sold on. simples!

 

i would say this, lowell are pussies. i've beaten them on two separate accounts. it took a wee bit of time, but i got there eventually. keep at them and i'm confident you will win.

[deniseg4]

Your situation is fairly similar to mine. I have a perfect credit file except one default from HFO in February 2006, for a Barclaycard that I defaulted on in 2005. After 7 years of hiding from my credit file, I only discovered it one month ago. If I had longer to wait than February for it to be removed, I'd fight them all the way. To me it just seems like another cheap trick DCA's play in order to pressurise you into paying.

 

Good Luck!!!

 

Denise

[craigers]

denise, why let it lie. if its prevented you getting credit and you truly believe it is inaccurate then go for the jugular ie compensation.

[johndeevoy]

Just wondering if any folks here know the legal basis on which a creditor can continue to share information about your account with third parties after the account has been terminated?

 

Obviously, you are forced to grant your consent to the creditor processing your information with credit reference agencies when signing the contract, but that consent only exists while the contract exists.

 

When the contract is terminated all rights and duties under the contract are also terminated. Can anyone tell me where the actual legal right is for banks to process your information outside of that granted under individual contracts?

[Ganymede]

If all rights and duties are extinguished when the contract is terminated then how are the Claimants able to enforce their rights by issuing proceedings...

[silverfox1961]

Hi

You say 'teminated'. Do you mean closed with nothing owing which is different from terminated.

 

Teminated but not closed means that a creditor can still pass on details as you have given permission

 

Closed with nothing owing means no more data processing

[johndeevoy]

What is the difference between 'closed' and 'terminated'? If someone terminates a contract that is it over and done with. Do credit agreements give the creditor a right to only terminate certain parts of the contract as it sees fit? A debt can arise if a debt has been acrued under a contract but once a contract is terminated you cannot claim to still have rights under the contract ad infinitum.

 

Can you point to any case law to support what you say about the difference between 'closed' and 'terminated'?

 

Ganymede said:

If all rights and duties are extinguished when the contract is terminated then how are the Claimants able to enforce their rights by issuing proceedings...

 

A good question. They are not able to enforce their rights under the contract as the contract no longer exists. If a creditor terminates a contract then it can only issue proceedings based on a debt acrued under the contract. As always the onus is on the claimant to prove their claim, including proving compliance with the CCA1974/2006.

[Ganymede]

You don't need case law to understand the difference between a closed account where all monies are repaid and the obligations under the agreement are fulfilled and the termination of a contract when the debtor defaults on the payments leaving an outstanding balance.

[Gaston Grimsdyke]

Oh no here we go again. Termination by reason of breach allows the injured party not to perform his part of the contract any further, it has no effect on his remedies against the other party arising out of the breach, e.g. to claim damages. And of course the damages for failing to pay under a credit agreement equal the balance owing under that agreement. Termination means the creditor is under no further obligation to provide credit/

[johndeevoy]

Oh no here we go again. Termination by reason of breach allows the injured party not to perform his part of the contract any further, it has no effect on his remedies against the other party arising out of the breach, e.g. to claim damages

 

Firstly, I did not say that termination of a contract affected any of the remedies available. Of course one can claim damages if one has suffered loss due to the other parties breach of a contract. I only suggested that termination of a contract ends the contract, and with it all rights and obligations, but not remedies.

 

It is open to any party to a contract to terminate same at any time albeit that they run the risk of being sued for damages due to non-performance. But wherein lies the loss to a creditor if the right to process information with third parties is terminated? There is no loss.

 

Also, by your very reasoning, if the creditor breaches the contact (lets say by failing to comply with statue which is an implied term of any contract governed by statue), then the debtor is also entitled to terminate the contract. Therefore, if a debtor is faced with an improperly executed agreement the debtor is fully entitled to write to the creditor advising that the creditors right to process information with third parties is withdrawn until such time as the agreement is enforced by the Courts.

[johndeevoy]

My credit file is nearly clear apart from a few that are due to drop off soon

 

 

but there is one which is under the control of Lowells that I have no other option but to sue them to remove.

 

 

A brief background is that the default was placed on my file in 2010 but relates to a pre 2007 agreement.

The OC never complied with my s77/78 request and it is clear that they do not have a signed credit agreement.

 

 

Lowells are saying that they have not been able to obtain this from the OC so they are closing their file

and will not be attempting recovery but refuse to remove the default.

The matter is now also statue-barred as the last acknowledgement I made of the debt was in 2008.

 

My question is whether this case is still good law as I intend to make it the basis for my claim against Lowells:

 

In Wilson v Secretary of State for Trade and Industry [2003] UKHL 40, [2004] 1 AC 816, [2003] 4 All ER 97,

the House of Lords explained that the 1974 Act was, like the Moneylenders Act 1927 before it,

designed to tackle a significant social problem.

 

 

The activities of some moneylenders have given the money lending business a bad reputation.

Something had to be done to protect the borrower, who frequently, indeed normally, would be in a weak bargaining position.

 

 

Protection of borrowers is the social policy behind the legislation.

Part of that policy is to be achieved by setting stringent rules, which have to be complied with by the ender

if his money lending agreement is to be enforceable.

 

 

The strictness of the discipline imposed on lenders is illustrated by the following passage in the speech of Lord Nicholls:

"Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender.

He loses all his rights under the agreement, including his rights to any security which has been lodged.

 

 

Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security.

 

Obviously, this would include the rights to process data with CRAs and issue defaults etc.

Lowells cannot have assumed these rights if the OC did not possess them.

 

I am also aware of Grace -v- Blackhorse regarding "irredeemably unenforceable" agreements and I also plan to refer to this judgement in my case, as a statue-barred debt is clearly "irredeemably unenforceable" and therefore should not carry a default with the CRAs.

[renegadeimp]

The OC did have the right to place a default, as you did default under the agreement.

 

Now, when a debt is sold, ALL rights and obligations are transferred to the new owner. Including management of any markers already on the credit file ( the new owner cannot add a new default. They can only update one that was already there). Of course, either company can remove it as part of a settlement agreement. However, you are talking about lowells here who are repugnant and dont care about the debtor. They will keep your default there purely out of spite if they cant get money from you.

 

What you need to remember though, is just because the debt is statute barred, or there is no CCA, the debt is still live just not collectable. The status of the account should be marked as such, but very rarely ever is. The DCA keeps the default there but normally is sneaky and says they will remove it if you offer a settlement figure. Lowells however go one step further into murky waters and say that it will only be marked partially settled instead of removing it completely. Like i said. They do this out of sheer spite.

[citizenB]

2010 - was that when the original creditor first placed the default marker ?

[johndeevoy]

2010 - was that when the original creditor first placed the default marker ?

 

Yes

 

The OC did have the right to place a default, as you did default under the agreement.

 

Now, when a debt is sold, ALL rights and obligations are transferred to the new owner.

 

The case law I refer to in my original post would indicate that if the OC cannot satisfy s127 CCA CCA1974 then they have no rights under a pre2007 agreement. Just wondering if it is still held as good law?

[dx100uk]

nope

cant see anyway you can achieve this.

 

 

when was you last payment/use of the debt

and what was it and who was the org creditor please.

 

 

dx