Unenforceable bank loan - but they keep reporting to CRA's

[hereigo]

Hello Everyone,

 

I am trying to clear up my credit file (for future possible mortgage or loan reasons). I have a few questions, and am looking for general advice on what to include on a letter.

 

Long story short, I won a case Vs an RBS bank a few years back, for a loan of about £8k, there were all sorts of problems with the loan, ranging from PPI to no or invalid credit agreement and so on. It went to court and I won. (they backed out). Costs were paid to my solicitors and the loan became unredeemable unenforceable. (From what I understand anyway).

 

Now, this was several years ago, since then they continue to enter a non payment entry on my credit file every month, and send letters every six months or so saying they understand the debt cannot be enforced in a court, but it should still be repaid – non payment will be reported to the credit reference agencies. (the loan amount has not been updated for years)

 

I have been in touch with a CRA that have suppressed the entry while they wait for a reply. From what I understand they should not be putting entries in for a debt like this, but it seems to be an area where there is not much certain information and I have read conflicting reports. I also have had success in getting an entire account removed in relation to a credit card by a basic request to the CRA so I know it is possible.

 

What could I put in a letter for a company being more difficult and refusing to remove a entry, and what rights would I have to request for this to be removed, (at the very least the information on values is incorrect due to PPI and so on). Also I have one other question, Would this be removed after six years has expired, or as they claim the debt is still valid and send letters every six months, would that mean they would try and keep it on there for ever?.

 

Just a note to say I have seen a lot of bankers posting on a certain other forum, just to make it clear I am not interested in a lesson on morals from the banks or their PR teams who roam some forums .

 

Thank you in advance for any ideas.

 

hereigo

[dpick]

Hi the experts will be along but I believe that after 6 years of none payment and no writen acknowledgement of the debt then it is also statute barred and should be removed from cra files.

 

dpick

[BRIGADIER2JCS]

There can be no further court action on this now and RBS obviously did not try to get the judgement set aside.

What default date shows in the credit files?

All default entries are removed after 6 years paid or not, my guess is that the default entry has still time to run,and RBS are just being awkward.

 

I suggest a quick call to the Information Commissioners Office to get their take on the fairness of the continued reporting.

[hereigo]

Hello All, Thank you for the replies.

 

The default was in 2009, so time to run for the six years.

 

I went through the credit agency and said pretty much that the case went to court and that the account should be removed, gave the solicters details, worked for one credit card account - who deleted it completley without a fight, but the RBS bank are being difficult, so now there is a notice of dispute of the file and it's being supressed at one CRA and not the others as far as I am aware.

 

I am wondering if they refuse to remove it, what my next step should be?, I don't really know of any rules I can quote, or any cases or regulations that may carry weight. they claim the debt should still be repaid but they just can't take it to court, sounds wrong but I don't know exactly why it's wrong .

 

I could draft a letter along the lines of, in relation to account number ******* I request the account is deleted in accordance with the data protection act, as continued marks on the file serve no purpose. and so on.

 

Any ideas of anything I should be referring to, or any cases that may back me up?.

 

Thanks again

[BRIGADIER2JCS]

You will need to check the other CRAs as it will show place disputes on those as well.

[hereigo]

Thanks BRIGADIER2JCS,

 

I have checked Equifax and Callcredit, I cannot see Experian as I used the trial ages ago, but data of both seems to be the same.

 

Trying to figure out what to say next, as I want it removed on all the CRAs, it is possible going via one CRA could serve to get it removed on all CRA's (say if the bank agreed to delete the account?). Also should I send a letter to the bank directly or am I better leaving it with the CRA's?

 

I have a vague idea of saying something like please remove the entries, in relation to sections 41 - 43 of the Data Protection Act 1998, since the loan is unenforceable keeping it on the file is not acceptable, and as debt has not been established it should not be reported. Anything I could add, and so far Callcredit seem to be the most on the ball (they supressed the account after 28 days),

 

I had one other question, I understand the six years for it to be statute barred is not from the default date but from last payment? or?., I have red "AA and "BB" Early Arrears/up to 3 months late, listed on my account for nearly every month 2+ years before the default, with one green OK right in the middle, how could I work out when the six years would be up?

 

Thanks again

Edited February 14, 2013 by hereigo

[BRIGADIER2JCS]

Default date and statute barred date should not be viewed as the same.

 

Statute Barred == 6 clear years with no payment or written acknowlegment of a debt.

So for SB it means the date when a payment was due and not made, after which no further payment was ever made.

 

 

Deafult date = the date that a default is formally registered on an account this if correct procedures are followed should be no more than 6 months after the cause of action. I am pretty sure the answer to a challenge under sections 41-43 DPA 1998 will fail becuase a debt that is unenforceable in court is not extinguished and remains payable and collectable by all means short of court action.

 

Hope that helps.

[hereigo]

Thanks, as one company deleted an account without a fight I still have hope, I think I was told by a solicitor if a debt is irredeemably unenforceable / settled through courts they should not be reporting it, but I cannot recall or find anything relating to this.

 

Maybe something is possible in relation to the DPA and the information being incorrect, under which basis it could possibly be removed, (such as the default amount being wrong, or some other problem).

 

I will probably try the DPA 41-43 unless anyone has had success with anything else, or if I have anything at all to back me up on, if not will put something together with the DPA in and reference the court case, and hope they just remove it since it serves them no purpose and would be statue barred before too long anyway.

 

I did find a similar thread from back in 2008 but still seems to be nothing solid on the matter,

 

Thanks again for the help .

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?168048-Unenforceable-CCA-Agreement-what-happens-with-your-credit-report

[BRIGADIER2JCS]

You would I think need a copy of the judgement order regarding this the actual statement made by the judge would be vital.

[IdaInFife]

Even if a debt is unenforceable by court and an agreement still exists the company is still within their rights to update your CRF.

[BRIGADIER2JCS]

Iredeamably unen should get the entry removed, common sense on which English Civil Law is based would mean that the debtor quite claerly is not going to pay the debt, so it's is unreasonable to further report on it.

[hereigo]

Thank you for the replies, I got a letter from one CRA saying that the bank has not responded to the dispute, and they cannot amend it without permission of the bank supplying it. Not quite sure where to go from here, I know the CRA is responsible for the data they hold under the data protection act, and have a responsibility for it to be correct, and would be liable if incorrect?. hmmmm bit of a grey area. Thanks for help.

[BRIGADIER2JCS]

The CRAs act on the assurance of the organisation posting the data that it is up to date and accurate, they cannot unilaterally amend or remove the data.

[hereigo]

Thanks,

 

I may be missing something, but as the CRA is the Data Controller as described in the DPA, then unless there is a specific exemption (I cannot yet find one). the CRA would be liable for the data they hold?.

 

Schledule 1, part 1 (DPA principles 4,and 5)

"Personal data shall be accurate and, where necessary, kept up to date."

 

"Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes",

 

Also from the Consumer credit act 1974, section 159, (Excerpt)

 

"who considers that an entry in his file is incorrect, and that if it is not corrected he is likely to be prejudiced, may give notice to the agency requiring it either to remove the entry from the file or amend it.",

 

and further, it would appear, by not replying to my complaint and dealing with it, one CRA is commiting an offence under the Consumer Credit act/Data protection act, in particular by:

 

"Within 28 days after receiving a notice under subsection (3), the agency, unless it intends to apply to the [the relevant authority] under subsection (5), shall by notice inform the [objector] that it has received the notice under subsection (3) and intends to comply with it."

 

"If a person to whom an order under this section is directed fails to comply with it within the period specified in the order he commits an offence."

 

Am I missing something?. as it would seem there are grounds for compensation and at least removal in relation to the principles above?.

 

Thanks

Edited February 22, 2013 by hereigo

[BRIGADIER2JCS]

the section regarding an ''offence'' being committed on non compliance of a cca request was repealed years ago.

Data is supplied to the CRAs but as far as I know still ''owned'' by the creditor, fo compENsation to be paid you would have to prove actual loss, however it is possible to ask for financial redress as a gesture'''of goodwill'' for ''potential damage to credit reputation, this I have done for others successfully.

[hereigo]

Thanks BRIGADIER2JCS,

 

So it would seem one CRA is not complying correctly by addressing the issue within 28 days.

I have been reading the Data Protection Act and the Consumer Credit Act all night, my head hurts .

Well, one of them must be the data controller, I feel this is a grey area, and maybe a can of worms will be opened, A test case is needed to give much weight to any of this I imagine?.

 

I might also mention that failure to comply with the principles of the act may be referred to the Commissioner for the consideration that an enforcement notice be served under section 40, paragraph 3 of the Data Protection Act 1998, (and section 42) which would seem to be sound, at least in relation to providing a sufficent reply.

 

I am probably missing something out, but it seems roughly correct but if I am wrong let me know .

 

I'm thinking of something like

 

"

To: The Data Controller

Reference: xxxxxxxx

Re: Removal or adjustment of account

 

REQUEST FOR REMOVAL OF DATA UNDER THE DATA PROTECTION ACT 1998

 

I write in relation to the above referenced account. Your company (XXXXXXXX) (From here in referred to as the “Data Controller”) continues to supply information about an account which has been ruled as irredeemably unenforceable.

 

I would like to draw your attention to your obligations as the data controller under both the Data Protection act 1998, and the Consumer Credit Act 1974. In particular, section 159, paragraph 2 of the Consumer Credit act 1974, and schedule 1 of the data protection act, Principles 3 and 4 respectively.

 

The above states that Personal data should be accurate and up to date, and shall not be kept for longer than is necessary for that purpose. and further under section 159 of the consumer credit act 1974, releating to information that if not corrected is likely to be prejudiced. Considering this agreement is irredeemably unenforceable - keeping this information on file is not necessary.

 

I request this account be deleted from all Credit agency’s within 28 days of receipt of this letter. Please confirm your reply to this matter, and note that any failure to comply with this request may be referred to the Commissioner for the consideration that an enforcement notice be served under section 40, paragraph 3 of the Data Protection Act 1998, and section 42, request for assessment"

 

Yours Faithfully,

 

xxxxxxxxxx"

 

References:

Section 159, Consumer Credit Act 1974: http://www.legislation.gov.uk/ukpga/1974/39/section/159

Principles, Data Protection Act 1998: http://www.legislation.gov.uk/ukpga/1998/29/schedule/1

Enforcement, Data Protection Act 1998,(40) http://www.legislation.gov.uk/ukpga/1998/29/section/40

Request for an assessment: http://www.legislation.gov.uk/ukpga/1998/29/section/42

Edited February 22, 2013 by hereigo

[BRIGADIER2JCS]

Fine!!

[citizenB]

I write in relation to the above referenced account. Your company (XXXXXXXX) (From here in referred to as the “Data Controller”) continues to supply information about an account which has been ruled as irredeemably unenforceable.

 

 

 

You should expand on this by confirming that this was done by a Judge.. the date of the hearing etc..