Suspect I have no loan agrrement

[maybelline]

thanks noomill060, I have not paid hfc anything since I settled my only agreement with them several years ago!

[daipp]

Just a quick update.

 

In the last week on two different occasions Cahoot have sent my wife a copy of her Current Account application form from 2002 - which we never asked for. They have also returned her uncashed £1.00 Postal Order.

 

She did write on the 01-June-2007 advising them that due to their continued non-compliance with her request she would be witholding payment but as her current account is with them they still took it anyway She also seized the opportunity to remind them that she does not acknowledge the debt.

 

According to previous posts, she has to wait until 23-June-2007 before we should write again.

 

I'll keep you informed.

 

David

[daipp]

It is now 24-June-2007 and the 12 days + 1 month have passed. I have been reading thread after thread and can find no definitive piece of follow-up action for what to do next.

 

I have seen much advice and many various letters. Is there actually something specific.

 

Another problem I'm having at the moment is that Cahoot continue to take "repayments" from the curent account and there seems absolutely nothing I can do to stop them - any advice would be appreciated.

 

Many thanks

 

David

[maybelline]

it sounds like they are in default, they have not provided the information and are in breach of cca and dpa, can you stop the DD you are paying, how are they getting the payment, they would be unwise to take you to court for an agreement they do not have?

[maybelline]

reading back through, have you sent the appropriate letter in the set format for the agreement, also try looking at the Consumer Credit Agreement thread as this might throw some light on the running credit scenario, hope this helps.

[daipp]

reading back through, have you sent the appropriate letter in the set format for the agreement, also try looking at the Consumer Credit Agreement thread as this might throw some light on the running credit scenario, hope this helps.

 

Hi

 

I'm confident that the appropriate letter has been sent in the first place and I've also had a look at loads of threads, there just doesn't seem to be an appropriate second / final letter.

 

David

[daipp]

it sounds like they are in default, they have not provided the information and are in breach of cca and Data Protection Act, can you stop the DD you are paying, how are they getting the payment, they would be unwise to take you to court for an agreement they do not have?

 

Apologies, I should have used the multi-quote facility.

 

Cahoot are taking the loan payments out of a Cahoot current account. There is no direct debit, no standing order, they just take the payments. And obviously, there is no agreement to this either.

 

David

[Acerfan]

Hi,

Firstly, I really need to update this thread, and I really could do with some advice. I'll give a brief outline of what's happened in the last few months & will give a more detailed account later as I'm running really short of time now. I've had to put this on the back burner for a while due to family illness, so have really lost touch with how things are going.

 

In response to my S.A.R - (Subject Access Request), they first sent me a letter saying they didn't have all the info, such as account numbers that they needed & fee was £5.00 so returned cheque to me.

 

I resubmitted with £5.00 & same letter (which incidentally had account number on it when I sent it first time)

 

Received copy statements for loan

 

They then wrote (generic letter) If I'm requesting it to reclaim charges, they'll send it with X amount of time, and t was a free service.

 

Cheque was then cashed!!!

 

Received copy statements for a different account I hadn't sent SAR for.

 

Some time later, I received an offer of refund of charges (not full amount by the way) on a 3rd account. I hadn't made any query about charges, hadn't asked them for a penny yet & headn't even done a spreadsheet!!!

 

Then with the Test Case anounced, they wrote to say I could still get the money if I signed a full & final settlement form but if I wanted to continue claim, blah, blah, blah...

 

Now I've received 2 phone calls & a letter within a week, demanding repayment in full on all my accounts & telling me I've been trying to reclaim charges but the dispute's been resolved. I know I've let this slide for too long, but I really haven't had the opportunity to fully involve myself in this. I can appreciate that I've probably made as big a mistake in not doing anything as in maybe doing something not quite right, but I could really do with some advice.

 

Firstly, I need to get back to them by Monday!!! (I received letter yesterday dated 11th & giving me 10 days)

 

With regard to the loan account, they never fully complied with the CCA request by not sending me the agreement within the required time, not sending the documents relating to my cancellation rights & they never fully reponded to SAR.

 

The 2 other current accounts started accruing charges & interest on one when they tried to take payments I'd stopped to the loan account and on the other when they applied default charges - I haven't had the money to get back within my limit, so haven't been able to stop them spiralling.

 

So now they've defaulted me on all my accounts.

 

Can anyone advise me as to the best course of action please? I'd really like to try to get a letter in the post asap.

 

I'd really appreciate any advise anyone can give me. As I said, I've lost touch with events & feel a bit lost myself with this rearing it's ugly head again

[lookinforinfo]

Acerfan, I am sorry that I have not read all of your thread, so I may get some things wrong by only having read your last post but a number of things

stand out.

An SAR request is £10, not £5 and they may well hide behind that factor as it

does stipulate in the Act that the fee must be paid. And when you make such a request they must supply you with all the data they have on you from all your accounts-even the ones you weren't expecting.

 

Any dispute is resolved when you say it is, not them. So point out that you still have legitimate gripes and they cannot move until you are agreed with the outcome. That includes legal action.

 

Moving on to your loan account. No bank will cancel a d/debit from the current to the loan account. You could open a parachute account and put your money in there to avoid the bank taking payments for the loan.

 

I am not clear if Cahoot have supplied you with your original executed document, but if I understand you correctly, they are in default, but have not yet committed an offence?

 

If that is the case, do not write to them yet. Wait until they are in complete breach of the Act-you don't want to forewarn them that you are aware of

their failure to supply will make the debt unenforceable. Just let things lie.

 

Later on when you are sure they have no agreement, and they have committed an offence, then you can go back to them and do a deal with them. Something along the lines of give me all my charges back and remove defaults or you will be reported for committing a summary offence etc etc.

[Acerfan]

Thanks lookinforinfo,

I really appreciate your help and thanks for telling me about a dispute not being resolved until I say it is - I thought as I'd left it a long while, there may be some legal timescale.

 

I sent a CCA request nearly a year ago!!! They responded after the full deadline with pre-contractual info, wrong agreement, then finally correct agreement but incomplete (no documents relating to cancellation rights). I sent off the S.A.R - (Subject Access Request) request to try to get info on if they'd originally sent the cancellation rights (which they didn't send with the correct agreement).

 

I know they've comitted an offence by not complying within the deadline and by not sending all the documentation. They've also failed to comply with the SAR. I originally sent £10 but they returned it saying it only costs £5, so please send a cheque for £5 (which I did). They also said I hadn't given them all the information (which I had). So I'm none the wiser about whether they even followed the letter of the law when it was set up. I don't recall receiving any cancellation rights & certainly didn't receive a copy of any agreement at the time

 

The current account had 2 direct debits. 1 for the loan & the other for a repayment of £X a month for £X they'd paid into my account in error! These are direct debits I couldn't stop, but started te spiralling of charges. I'm not worried about not using these accounts as they were never my main bank account. I was just paying enough into them each month to cover the payments going out.

 

I guess what I want to say is that they're still in criminal breach, they've also failed to comply with my SAR request, defaults to be removed, I want all the charges & interest they've charged on the overdrawn balance back & they must stop chasing me for repayments as the accounts are still very much in dispute, quoting debt collection guidelines. (I also want the £5 back from the cheque they cashed after they'd then turned around and said the SAR was free)

 

Do you think that's alright? or is there anything else I've missed or could quote? I'm so far many 100s of pages behind on the Consumer Credit Act thread that I don't know if anything useful's been uncovered in the last few months.

Thanks again,

I really appreciate your help

[Jeff2000]

Hi acerfan,

 

 

Report them to Trading Standards if they are still in breach of your CCA request!

 

Also, if they are still in breach of your SAR, then report them to the Information Commissioner.

 

 

Regards, Jeff.

[lookinforinfo]

Well you can report them, but it is probably better if you can come to a sort of compromise with them. Point out how they are in breach of the Acts and that you are aware you can report them to the OFT and The Information Commissioners Office etc etc.

However you also want the defaults removed and your money back so ask if they are prepared to deal with you. IE give you what you want to avoid a

possible Court appearance , a fine etc etc. so that you both come out of the

deal with what you want or what you want to avoid.

[Jeff2000]

Well you can report them, but it is probably better if you can come to a sort of compromise with them. Point out how they are in breach of the Acts and that you are aware you can report them to the OFT and The Information Commissioners Office etc etc.

However you also want the defaults removed and your money back so ask if they are prepared to deal with you. IE give you what you want to avoid a

possible Court appearance , a fine etc etc. so that you both come out of the

deal with what you want or what you want to avoid.

 

 

 

Hi,

 

 

Yes, you can try to negotiate some sort of a deal. But if they won't budge, then report them.

 

Also, if you do manage to come to some sort of agreement, make sure you get it in writing!!!

 

 

Regards, Jeff.

[Acerfan]

Thanks for jogging my memory Jeff,

I did write to Trading Standards some time ago & a very helpful gentleman basically reinforced what we all know - that they are in default, not me. I think I've probably panicked myself more than anything with having been out of touch for so long. I'll write back to them & I'll keep Trading Standards informed. I'll also report them to the Information Commissioner. Is there a link for this or do I need to write?

[Acerfan]

Hi guys,

Just spotted your posts which popped up while I was typing. I have threatened reporting them before, so think I probably just need to emphasize it's in their interests to reach an agreement with me outside of court etc. I will keep TS informed though as they've been helpful & as a back up. I've told them time & time again that I'll only communicate in writing, (which they've pretty much adhered to), so I'll just have to hope they pay attention now. I'll definitely get anything they might offer in writing.

[Acerfan]

This is what I've got so far. What do you think? Any amendments?

 

22nd October 2007

 

Sort Code: XXXXXX Account Number: XXXXXXXXX

Ref: XXXXXX

 

Dear XXXXXXX

 

Since my last correspondence with you, I have received no satisfactory response from yourself or any of your colleagues. May I remind you of your obligations under the Consumer Credit Act 1974 and the Data Protection Act 1998 to provide me with the information I require. XXXXXXXXXX has continually refused to address these issues and has failed to comply.

 

Above and beyond this, you have further exacerbated the situation by attempting to enforce an agreement which under the law cannot be enforced, and by applying defaults and contacting a Debt Collection Agency with regard to accounts which are in dispute.

 

You are now in severe breach of the law regarding not only the Consumer Credit Act 1974 Section 77 request made to you on 27th October 2006, but also in your failure to respond fully to the Data Protection Act 1998 Subject Access Request I made on 14th March 2007. Your breach of the Consumer Credit Act 1974 is punishable on summary conviction by imprisonment or fine at level 4 of the standard scale. With regard to your failure to respond under the Data Protection Act 1998, I am fully aware that I am within my rights to open a complaint with the Information Comissioner or to begin a county court action under the Data Protection Act 1998.

 

My request

That the defaults be removed from all my accounts as they are currently in dispute. You are currently in default on the above numbered account which is unenforceable unless you can provide me with the evidence I requested. In reference to the correspondence I have received from the XXXXXXXXXXXX and XXXXXXXXXXXX, I must remind you that by continuing to pursue me for payment you are committing a further breach of the terms of Act (section 77 subsection 4) which states that:

 

(4) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement

 

May I remind you that the default period began on 20th November 2006 and continues until such a time as I receive the information as stipulated above.

 

My XXXXXXXX Account (XXXXXXXXXXX) and XXXXXXX Account (XXXXXXXXXXXXX) are currently in excess of their overdraft limits purely as a result of your excessive and unlawful charges, and attempts to withdraw payments for an unenforceable agreement. I request that you remove the defaults from these accounts and refund the charges and interest you have applied. Furthermore, I ask that you stop pursuing me for repayments on these accounts until such time as an agreement is reached.

 

I also refer you once more to The Office of Fair Trading Debt collection guidance document Final guidance on unfair business practices July 2003 (updated December 2006) which ‘is intended to set out the type of behaviour the OFT considers to fall within the category of unfair business practices which will call into question fitness to retain or be given a licence.’ It states that unfair business practices include:

 

· ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

· failing to investigate and/or provide details as appropriate, when a debt is queried or disputed, possibly resulting in debtors being wrongly pursued

 

· not ceasing collection activity whilst investigating a reasonably queried or

disputed debt.

 

· applying unreasonable charges, for example, charges not based on actual and necessary costs

 

· applying charges which are disproportionate to the main debt

 

· leaving out or presenting information in such a way that it creates a false or misleading impression or exploits debtors' lack of knowledge

 

· falsely implying or stating that action can or will be taken when it legally cannot

 

· putting pressure on debtors or third parties is considered to be oppressive.

 

· passing on debtor details to debt management companies without the debtors' informed prior consent

 

· misleading debtors into believing they are legally liable to pay collection charges when this is not the case

 

Should you continue to pursue me for payments in relation to these disputed accounts, I shall have no alternative but to report you to the Office of Fair Trading, the Information Comissioner and to fully inform Trading Standards of your many failings and breaches of the law. Likewise, if you cannot agree to my requests and come to an agreement with me which reflects your failure to properly execute an agreement, I shall have no alternative but to report you.

 

I await your rapid response

 

Yours faithfully

 

[Acerfan]

Slightly amended letter sent off. Also letter to DCA reminding them of Debt Collection guidelines & stating they can't chase debt.

 

Will update if/when I get a response

[Acerfan]

Time for an update. The 2 overdrawn accounts which they were trying to default are now cleared & closed due to a generous gift. However, I will be continuing to dispute the charges applied to both accounts. They also registered missed payments on these accounts with the cras which I'm sure has affected my credit rating.

 

Despite my numerous reminders to them that they are breaking the law in trying to enforce an unenforceable agreement, they haven't sent the cancellation rights & they've continued to harass me by phone, calling my home phone, my mobile & sending me text messages. I have spoken to them a couple of times purely to tell them they were in breach of the law and were not permitted to chase me for payment. One person lost her temper, saying 'how could I think it was right to borrow money then not pay it back' & I nearly lost mine, but managed to just hold back.

 

I have received more than one notice of default - the first arriving back in May (which I wrote to them disputing), the second at the end of November. The second default notice for the account in question stated that I owed the money to another bank which was part of the same banking group but is not the bank named on the alleged agreement. This account has now been passed on to the bank's Debt Collection agency who telephoned today. I simply told them that they were in breach of the law in chasing payment and the bank in question was breaking the law in passing my details on. I said I would not expect any more phone calls and hung up.

 

I believe that interest and charges have been applied to the account, but as I haven't received any statements and have been kicked off their internet banking, I couldn't say how much.

 

I'm not sure where to take this now except to follow the advice given by Trading Standards and to complain to the Financial Ombudsman Service.

[steven4064]

If they have not complied with a request under s7 of the Data Protection Act 1998 you could instigate court proceedings under the Data Protection Act for non-compliance.

 

As they have not complied with your request under s78(1) of the CCA they have no permission to pass on your data to any third party so you could and should issue a notice under s10 of the Data Protection Act.

 

In both cases you could sue them for damages under s13 of the DPA.

 

A case under the DPA would cost £130 in court fees but might be worthwhile as an alternative to the FOS, which is taking about a year to clear some cases at the moment.

[Acerfan]

Hi Steven and thanks for your response.

 

I've found the template letter for the section 10 notice, which I hope to be able to post tomorrow. As I received a letter yesterday from their recovery department, I know they have passed my info on and they say in their letter that they've registered the accounts with the credit reference agencies. (I will be getting a copy of my credit record as soon as possible to confirm). The thing is, the 2 accounts which were overdrawn have been in credit for nearly a month, but are still showing on the letter as being referred to recovery (with a credit balance). If I send the letter to the original bank, should I also send a copy to the recovery department with a covering letter, or do I need to send this just to the recovery department? & would I need to send 3 s.10 notices, one for each account, or could I just put all the account numbers on the one letter?

 

Also, what would be considered reasonable if I were to sue for damages? Would I be able to claim back the bank charges and interest, or would it just be the interest & charges they've applied whilst they've been in default? Are there any guidelines about what's a reasonable amount to charge for distress, admin costs, time taken up by dealing with it?

 

Thanks for all your help,

Acer

[steven4064]

Send the s10 notice to the bank, copied to the recovery department (and to the CRAs who shoul dput a not eagainst your file that the marks are in dispute) - as it's the same bank, you don't need a letter for each account but I would put both account numbers on the letter. Damages under DPA are usually left to the court's discretion.

 

As for bank charges, you could start a claim seperately for all of them but, unless it's a busines account, it will get stayed pending the OFT case.

[Acerfan]

Hi again and thanks for your help with this. I've sent the s.10 off & cc'd in the credit reference agencies & the debt collection agency, but haven't heard anything yet. I'll send off for my credit record once I know they've all received them & the 7 days have passed.

 

I have one other query relating to an unenforceable debt with a different lender who have failed to satisfy my CCA request as they were only able to supply a very poor copy of the application form which doesn't mention anywhere any reference to the Data Protection Act or disclosure of information. I don't want to send the standard s.10 notice to them as this would imply that I believe there is a contract, so I've modified it. Can anyone check it for me & let me know if it is good enough to send please? I need to get it off asap as they've already passed all my info on to a debt collection agency who I know will start harassing me in the next couple of days. I'll be sending off copies of the debt collection guidance notes too. Anyway, here's my version of the s.10 notice:

 

Address

Account details etc

 

cc Equifax, Experian, CallCredit, Debt Collection Agency

 

Notice pursuant to s.10 of The Data Protection Act 1998.

 

Whereas you claim that I have been a customer of XXXXXXXX since XXXXX and whereas you claim I consented to the disclosure by you of certain data to third parties, at no time did I consent and neither was it within the contemplation of the parties that I did consent to the processing by you of that data in any manner which would be unfair or inaccurate or which in any way would breach The Data Protection Act 1998.

 

Therefore Take Notice that I require that you cease from processing within 7 days of the receipt by you of this notice or else that you do not begin to process any personal data of which I am the subject insofar as that processing involves the communication or passing of personal data of which I am the subject to any third party and insofar as the said data relates wholly or in part to the implementation by you of charges which have been applied to my account in respect of defaults or contractual breaches and where the said charges which have been levied at a rate which is in excess of the administrative costs incurred by you as a consequence of the said defaults or breaches contrary to The Common Law.

 

This Notice is given on the grounds that the processing or continued processing by you of the said data will be likely to affect my credit rating and my reputation and cause substantial damage and/or substantial distress to me and my family members in addition to that which may already have been caused and that as the processing of the said data in the way referred to in this notice would violate the fourth, first and sixth principles of The Data Protection Act 1998 to do so would be unwarranted.

 

Many thanks for your help

[Acerfan]

To update

 

They have ignored my S10 notice & have continued to chase full settlement through a dca saying they have given me their final response

[steven4064]

Your next step is to send LBA under DPA - http://www.consumeractiongroup.co.uk/forum/bank-templates-library/6986-data-protection-act-non.html