Sent SAR but today received Court Claim form

[libbyb]

I have replied via email, so the author of the letter will be aware on Monday. Hop I haven't done the wrong thing! As follows:

 

email to Shoosmiths:

 

I have received your letter dated 14th December today. I have noted the contents and will reply by registered mail after the weekend. I have also made note that the Request for Further Information has not been replied to after a period of one full month, even though this information is time sensitive and you, as solicitors, are fully aware of the implications of this. The date of that request - as recorded on my facsimile transmission report - was 17th November, the day I received the court documentation issued on the 16th. As agents acting on behalf of On Line Finance and handling correspondence on their behalf, would it not be your duty to pass on the Subject Access Request, together with the statutory fee of £10.00 to your client? Am I to correspond directly with On Line or yourselves as their agents?

In the interim you have also received notification that I have entered into a Debt Management Programme with Consumer Credit Counselling Service, which you have also failed to acknowledge. Has this notification had to be circulated to yet another department and be sat in a holding file until your set in-house time period has elapsed?

[JonCris]

Oh dear!

By NOT passing on your SAR they may have been negligent having placed their client in the position that you could now take court action against their client to enforce your request..............Again Oh dear!!!

[lookinforinfo]

Libby, the extract below is taken from guidance notes by the Information Commissioner in relation to the Data Protection Act and while the Solicitors

are not data controllers, they will be well aware that they are acting as their

agents. Perhaps you could send a copy of your last email to the Information Commissioners Office asking for his assistance in dealing with the Solicitor since time is running out for your son and they appear to be deliberately stalling. And pointing out that the solicitors while well aware of the legal privilege afforded them from the outset, failed to disclose it until the month had elapsed.In addition it will have not gone unnoticed by the Information Commissioners Office that

companies use solicitors so that they can hide behind client privilege to

evade conforming to statutory requests.

 

" However, the Commissioner’s advice is that a data controller should act promptly in requesting the fee or any other further information necessary to fulfil the request. A deliberate delay on the part of the data controller is not acceptable.

The Commissioner might make an adverse assessment of a data controller where the data controller delays requesting payment of any required fee, or the provision of any further information to enable him to comply with the request, where such delays result

in the response to the subject access request being provided after forty days from receipt of the original subject access request."

 

JonCris is pefectly correct that it may well enable you to take legal action

yourself. Going through the Information Commissioners Office may be quicker and cheaper to achieve the

result you want.

 

You are free to take whatever action you think best of course.

 

 

Information Commissioner

Wycliffe House, Water Lane, Wilmslow, Cheshire. SK9 5AF Telephone:01625 545 700 Facsimile: 01625 524510

e-mail: [email protected] Website: Information Commissioners Office – Information Commissioner's Office

[libbyb]

Thanks - not slept much thinking about all this again. Will I have to summarise the above detail for the Information Commissioner and copy them with the email so they are aware of the time scales which will lead to my son not having the detail he needs to defend this charge in court? Should I also send copies of the letter and email to the court so that it is in their hands with the original documentation? Thanks for this advice lookinforinfo - and all of you.

[JonCris]

Do it all! Make sure as many as possible know of the situation.

 

If the ICO (one can hope) contact Shoosmiths direct they won't be happy & the person dealing with your case could be in for a bit of gardening leave

[libbyb]

Thanks JonCris. I will write by email to The information Commissioners office now, and I will print off a copy of this email and the one sent to Shoosmith, plus a copy of their letter of 14th December, to the court so that they are aware of this non-compliance to both requests.

[libbyb]

I will write to Shoosmith's on my son's behalf - he will sign it later today, I will copy the court with the email sent to Shoosmith's last night and the letter received from them - in which it clearly shows that they have failed to respond to to either requests, have advised that in the letter and even confirm in this letter that a month has elapsed since the request was made. I will email the Information commissioner's office and ask for their assistance in obtaining the Subject Access Request information and the information requested on 17th November as per the letter suggested by Sherlock above.

[libbyb]

Hi, have started the work on this now, but the email address for the Information commissioner is coming up as error? I have visited the website and it also comes up with an email address [email protected]

 

but hotmail will not send from this either - I am sending from my son's email account.

[libbyb]

Just one question - nothing further has been received from the court - do we need to do anything else or is it safe just to wait to hear from them? (but putting copies of shoosmith's letter and lack of co-operation re SAR and Request for further Information?)

[libbyb]

Question to SHERLOCK: Are you still waiting to hear re your case? The 28 days are up on this money claim, I am forwarding my fax to the information commissioner requesting help as the SAR and Request for further information have been held by shoosmiths for a full month - and that is stated in their letter, apart from copying correspondence are we supposed to be doing anything further with regard to contacting the court? I am genuinely frightened that we have missed something and my son will be arrested or something??? What happens next?

[SHERLOCK]

Hi Libby,

 

I just wrote a really long thread in reply and it timed me out, oh and my soup went cold

 

You prompted me Libby, so I rang the courts as today was my AQ due date.

 

Haven't received anything from claimant, so sent them a S.A.R - (Subject Access Request) and CCA requests, they're a disgrace.

 

Your son cannot be arrested for owing money to a creditor, only refusing to pay your taxes I believe??

 

Relax if you can Libby, the account is in dispute and they wouldn't dare try to enforce anything whilst it is with the courts.

 

THE ONUS IS ON THE CLAIMANT TO PROVE THE CLAIM AMOUNT IS CORRECT AND LAWFUL.

 

The judge can force them to provide the documentation and wouldn't be happy if they turned up in court with it and hadn't sent you a copy, but it could happen.

 

Your son is not running from the debt, he just wants to pay the correct, lawful amount.

You can then counterclaim for any unlawful charges.

 

if there is an outstanding amount, provide the judge with your sons income and expenditure(with any supporting information) and offer a 'Fair and Reasonable monthly payment'.

 

At the end of the day, no matter the amount, the courts will not make your son pay above what he can afford,

 

Have a nice Christmas,

 

SHERLOCK

[SHERLOCK]

BUT, the judge may order you to the stocks for being a BAD, BAD mummy and pelt you with rotten veggies........

 

SHERLOCK

[libbyb]

Hi Sherlock - sorry about your soup! I have had two emails back from shoosmiths today, one advising that the 'Request for further Information' will be handled by a colleague and reiterating that they were unable to fill the SAR, so the cheque will not be presented. The other says:

 

Dear Sir

I have been handed responsibility for this matter and have been passed a copy of your Request for Further Information.

I confirm that I am arranging for copies of the Agreement and an explanation of how the sums involved were calculated to be sent to you as soon as possible.

My colleague will be dealing with your Data Protection Subject Access Request seperately from these issues.

If you wish to discuss any aspect of the documents sent to you when you receive them please contact me directly on the numbers set out below.

Yours sincerely

******* ********.

If they just copy what is on the court claim document then that by itself will not enable my son to contest the charges - albeit that they notified im in August 2005 that they were taking the car which they did, then nothing until 1st November 2006 - and the court claim says that he has clocked up alost £1300 in interest since then, even though they have made no effort to advise him of his final debt upon selling the vehicle. He really needs the SAR to show the list of illegal charges in addition to this, is it worth writing to On-Line direct for that - and should we let them know that we have written to the information Commissioner for assistance in this matter? (and that we have sent copies to the court? I have tried to treat all this as a job - something I do but it's not my problem - but I struggle when they write so dismissively to my son and it makes my blood boil!

[libbyb]

BUT, the judge may order you to the stocks for being a BAD, BAD mummy and pelt you with rotten veggies........

 

SHERLOCK

 

I agree with you about the stocks - I should have given this boy a clip round the ear when he first got a sniff of credit - or when the creditors first got a sniff of him!

[SHERLOCK]

Libby I hope a moderator can help you the nearer this gets to a full hearing (if it ever does) as I only have my experience and others advice, that have served me well up to now, to rely on.

 

They will put you right with regard legal aspects and possibly even another angle to come from.

 

It is all circumstantial at the minute coz you do need that S.A.R. and when you get it (they are legally bound to provide it) you at least then have a starting point.

 

It may work out that your sons debt is a fraction of the claim, and don't forget Libby you can also reclaim with interest.

 

As I say, get the info then come back and hopefully it will be a lot clearer and whilst it is ongoing nothing can happen with chasing the debt and any correspondence with the creditor I would get in writing rather than phone calls,

 

SHERLOCK

[Gruffle Gaw]

There is a template on this site about how to deal with companies that don't fulfil their Data Protection obligations through the courts.

 

Extrapolating here and I'm sure someone will correct me if I'm wrong, but would it be possible to make a counter-claim along these lines as well as submitting your defence?

 

Alternatively, would it be possible to persuade the judge to adjourn the case because they have not supplied you with the documents you need? I often hear solicitors request adjournments on these grounds when I go to court (as a journalist, I might add, not a defendant!).

[libbyb]

I have replied to their email:

 

Thank you for your response - which has taken surprisingly less than the one full month it has taken for your colleagues to reply to my original letters.

Quote:

"My colleague will be dealing with your Data Protection Subject Access Request seperately from these issues."

Your colleague's email advises the request is not being dealt with by Shoosmith at all.

With regard to the Subject Access Request, this has a time limit of 40 days from the date of receipt - I was under the impression that this would be adhered to as there was no response from Shoosmiths to the contrary - I was not expecting a letter a month later advising that you were not dealing with the request. I am sure that this could have been turned around in a much shorter period thus enabling me to apply direct to On Line Finance for the full statement of their account of this agreement including the breakdown of their charges.

I have written to the Information Commissioner in Wilmslow, Cheshire with the details of this request, together with your Company's response, as I feel this has been extensively delayed in order to affect any defence I am able to submit to the court. I have sent copies of all correspondence to date to the court to show that I am actively trying to resolve this claim and to illustrate that I have, so far, been denied the information that I am entitled to receive both from yourselves and your client.

I look forward to recieving the documents that you have confirmed you will be sending to me in your email (below).

 

Have sent off 2nd SAR direct to On Line Finance - that won't get back now for at least 40 days but the letter willhave been copied to the court together with the post office receipt for the registered 'sign for' delivery.

[libbyb]

thanks Gruffle Gaw! If we can avoid counter claims it would be better for my son - however if at the end of all this he has to do that to get justice then so be it. Sadly you only learn the hard way about debt, and how come there are so many people involved in the 'industry'. Even more sad it how it affects you mentally - you just feel hunted, and however well you are doing in your work or anything else, it's something you can't shut off from.

[libbyb]

Received the copy of agreement and the breakdown of charges today from Shoosmiths. They "understand theire has been some delay in getting these documents to you for which we apologise". The request was 17th November and the reply is 21st December!

 

Hover, the upshot is that if they "do not receive the sum of £6.908.67 by 4pm on the 28th December 2006 we will proceed to enter Judgement against you without further notice."

 

Is that all they have to do? Is the claim in the court just to allow them to set judgement or is there a right to reply? He can't pay that money - it is still a lot more than he was asked to pay in the first letter which was £4,400.

 

Does my son now contact the court (but because of Christmas it will be too late now) should he send in his income and outgoings and a letter to the court advising that he disputes the charges (they are listed at £810.83). Is that the next step?

[SHERLOCK]

Hi Libby,

 

I've read back through the thread, have you got the statements from Online yet, not a breakdown of charges, every penny that went in the account.

 

Clearly they have processed unlawful charges if as you state the £150.00 unpaid dd payment as an example.

 

Strongly propose a stay of their actions until you receive the online statements, the breakdown is not enough, does your son have bank statements?

[lookinforinfo]

Libby, the S.A.R - (Subject Access Request) should include their T&Cs. In it there will be a section devoted to what happens in the case of defaults. IE what they charge [if anything]

for missed direct debits, and under what circumstances they can

repossess the car. [it is possible that they did get a Court Order to repossess the car, which would explain the time lag you mentioned before they

recovered the car, and may help to explain the £800 odd charges they claimed. If they didn't get a Court order and there should be some reference to it in the S.A.R - (Subject Access Request) documents, and the T&Cs say they should have done so, then

one of two alternatives arise. Either they should not have repossessed the car, or your son voluntarily returned it. If the latter, your son has nothing to pay. Not sure what the former result would be, but I would assume that this

case would be possibly rejected, but others may know for sure.] ]

As your son repaid over half the amount, that should be covered in the

T&Cs-what does it say?

If the T&Cs are not included, write to the Court asking for a stay [delaying

the case] as you are awaiting further documents from OnLine, and others

they have sent were late arriving.

Whatever happens, your son must go to Court on the due date to argue

his case. If he doesn't, the Court may well virtually rubber stamp the £6000

odd claim against him. And it may be that he should not pay any money at all. So it is important that he goes.

His argument is

1] he has already paid over half.

2] some of their charges may not be a fair reflection of their liquidated damages.

3]the sale price of the car has not been included in the equation. And this

is relevant because they would have received far more from the sale of the car by selling it now, than they would if the contract had run its full course.

 

Don't suppose you have heard from Information Commissioners Office yet. Ask them their views on the

repo in view of the amount paid, and the amount they are demanding.

[libbyb]

Hello - back here at a late hour again! I started to contact shoosmiths via email, and I have to say that the replies were a lot more immediate! In today's post we received the response to the "Request for futher information" but on line they had responded with pdf files of the statements of account and charges. This confirmed that On-line terminated the contract on 04-05-05 and they have charged interest from then of 14.8% which has amounted to over £1380 to date. The last letter he received from On Line was dated 04/05/05. The next correspondence was 01-11-06 from Shoosmith claiming this £4,400 rapidly followed up by our SAR on 14-11-06 after consulting this site -the rest is documented above. How will we be sure of getting the detail into the court by 28th before the 4pm deadline - they make it sound as though it is already dealt with. quote "that if they "do not receive the sum of £6.908.67 by 4pm on the 28th December 2006 we will proceed to enter Judgement against you without further notice." This sounds as though they have the final say, not the court - is that the case?

 

Not heard from the Information Commissioner's office yet, and although my email advised shoosmith that the IC's Office had been contacted, they did not acknowledge that advice. How do we propose a stay of their actions. I thought we should write to the court - hopefully arriving by 28th, and include the two statements one of account and one of charges they have supplied - including the envelope they arrived in dated 21/12/06 and copy of their letter showing their deadlline. no 'working days' until tuesday 27h December! Also they list the insurance - 60 months of 24.44 - and gap insurance 4.64 per month - following this termination in May 2005 is this 18 months overcharge of that policy - if the contract is terminated can the policy still stand? This is all over the place, sorry, just feel that we are wasting our time now, they seem confident that they just flick a switch and the court will find in their favour.

[libbyb]

Hi - Lookinforinfo - the SAR has not been responded to, just the "Request for further information". It looks as though Shoosmith have had the statements sent to them in pdf format, and it shows a refund of credit charges of £700+ on 04/05/05 - this then being the date of the termination of the contract. Will the court accept these breakdowns after my son has gone through them and listed the unlawful charges - i.e. £30 for a returned Direct debit and £15.00 for a letter advising him of this? The insurance he was 'strongly advised' to take out to ensure he got the car? I don't think, but hopefully I am wrong, that the Information Commissioner's Office will respond in time to be of any help - Christmas is not always a blessing - all phones are off and the post is out of sync!

[libbyb]

Hi Libby,

 

I've read back through the thread, have you got the statements from Online yet, not a breakdown of charges, every penny that went in the account.

 

Clearly they have processed unlawful charges if as you state the £150.00 unpaid dd payment as an example.

 

Strongly propose a stay of their actions until you receive the online statements, the breakdown is not enough, does your son have bank statements?

 

Sherlock - how do I propose a stay of their actions? I mean within these time constraints?

[djweeble]

Libbyb, sorry to butt in, but I've only just read this.

 

In your earlier posts you said that they had sold the car, but you don't list a figure for how much they sold it for, have they told you how much ? and have they taken it off the total owed ??