Barclays breach the GDPR ??

[paulwlton]

Peter,

 

The termination notice has now appeared.

[Peterbard]

Oh thank goodness for that, had me worried for  minute.

 

Right so no argument now about the status of the account. Just to say what you already know. Termination refers to anything regarding the functioning of the agreement(contract). 

It does not mean the money is not owed, merely that there is no prescribed method of repaying it. The firm would have to take you to court or reach an agreement with you, or assign it to a DCA.

[Peterbard]

This is the appropriate section of the SOL 1980

(3)Where a demand in writing for repayment of the debt under a contract of loan to which this section applies is made by or on behalf of the creditor (or, where there are joint creditors, by or on behalf of any one of them) section 5 of this Act shall thereupon apply as if the cause of action to recover the debt had accrued on the date on which the demand was made.

[paulwlton]

The banks response back in 2019 denies the balance is statute barred. Now this raises even more issues regarding the status of the account registered at the CRAs. Although the balance has shown zero since it was settled in 2019 the accounts history has remained showing a status of 6. The bank should have removed this status once I’d informed them it was statute barred. The COA in Grace v Lloyds confirmed where an account is unenforceable a customers credit file should reflect this. 

 

Am I correct Peter, dx ??
 

 

“As regular correspondence has been issued about the outstanding balance, we don't agree that the account can be considered statute barred nor do we feel we're being misleading in stating this. However, I can assure you that we won't be taking any steps to pursue payment of the balance and we will be making the changes we promised”.

[Peterbard]

Hi Paul

Perhaps ask them for the case law which says that correspondence alone resets the SB. It would if you pro mised to pay, but nothing they can send acknowledges the debt.

 

The termination letter asks for full repayment, so after the 14 days or whatever, the account is in default, there cannot be monthly missed payments, because no schedule has been set up.

 

It s A loan as prescribed by the SOL section 6. The CRA should have described the condition of the account correctly six years ago and, therefore it should have dropped of the file.

The procedure they use is to place a Default on your file then backdate it, then remove the D altogether.

 

I have never seen Grace implemented TBH. Durkin is a bit questionable, as I remember it, the Scottish judgement was not defeated or modified in the lords, as they could not" go behind" it.

 

I have  lots of case law about the SB, and what can reset it and why.

 

[paulwlton]

Peter,

Surely it’s the termination letter that  gives the bank the cause of action and if they fail to  issue within 6 years the account becomes statute barred. 
 

The bank are wrong to state that sending an annual statement of account trumps the sec 6 SOL. 
 

I will ask them to confirm whether they are relying on case law or qualified legal opinion. 

 

 
 

[Peterbard]

Yes absolutely right. or to be exact the demand on the letter of termination plus whatever time they give you to pay..

 

As a point of interest, before the Sol, common law cause of action on a loan was when the loan is given, that is without a demand.

Edited January 31, 2021 by Peterbard

[paulwlton]

 

 

Data from telephone transcript dated April 2019.

 

 

 

Mr W referred to statute barred I adv we wouldn’t consider the acc to be statute barred as corres have been sent
Mr W feels this statement is dishonest, misleading, doesn’t fit in with statute barred legislation.

 

 

[Peterbard]

Hi Paulbefore.

 

Some people dont seem to be able to get their head around the fact that the SB works both ways.

Cause of Action on Statute Bar Resolved - General Debt Issues - Consumer Action Group

 

See above, this illustrates my point.

As well as protecting the creditor from indefinitely having the possibility of a claim hanging over him, it also ensures the creditor has a full six years to enforce. 

 

The judgement, acknowledges that before a credit agreement(not a overdraft) can be enforced a compliant DN must be issued as the CCA disallows any recovery action before that. When a cause of action is updated, it is because the customer indicates, "by promise or payment" that a new agreement to repay is being offered.

 

This of course resets the COA date. This is important, because even if you were to write to the creditor, as long as you do not say you are going to repay, it does not have the effect of restarting the SB.

 

This is all contained in old case law, which absent to any contrary clarification in statute is still binding. 

[paulwlton]

Can anyone improve the letter?

 

Cheers.

 

 

 

I am now in receipt of my personal data.

 

In 2019 you investigated my complaint and provided your response on the 22nd April. You supported my complaint that my account update was not completed on the agreed date and therefore offered a compensatory payment for distress and convenience.

 

In addition to supporting my complaint you acknowledged that recording the account at the credit reference agencies was longer than intended, however, your opinion was that the data was correct as the balance remained outstanding. You rejected my claim that the account was in a statute barred status from 2014 on the basis that you sent annual statements. 

 

Hitherto, you have failed to provide any case law or relevant statute that allows the sending of statements to circumvent the provisions set out in Section 6 Limitation Act 1980.

 

As you continue to insist that the account is not statute barred and reject the application of section 6 LA 1980 I would ask you to seek legal counsel on the matter before continuing to mislead and/or conceal. 

 

My contention that the account was time barred was totally reliant on Barclays having a cause of action, which  was, for the avoidance of doubt, the written serving of a notice for demand as confirmed in the Court of Appeal in (Doyle V PRA (2019)

 

Further to my contention that the account status of 6 is incorrect It was decided in the Court of Appeal (Grace & ANR V Blackhorse (2014) that where an account is unenforceable by statute the credit file must show this in the status, failure to do so renders the information incorrect and a breach of the Data Protection Act.

 

You have acknowledged that the extended reporting has impacted on my ability to obtain credit and employment, notwithstanding, that you believe the reporting to be correct. However, your claim is now a bad one with the emergence of the notice of demand previously withheld in 2019.

 

For the reasons set out above I request that you review the original complaint.

 

Yours Sincere                

[Peterbard]

Hi Looks great to me.  

Minor points

You may want to add that the failure to add a default marker removes your statutory protection in that there is no need for them to warn the debtor 28 days before trashing his file.

 

By labelling a default as something else, they seek to deprive the debtor of the benefit of the sol, which is unfair, I would say dishonest.

[paulwlton]

Thanks Peter.

 

 

[paulwlton]

 

As I intend issuing a claim in the courts I have asked a lawyer that specialises in this area of law for a written, detailed opinion on the matters I have raised. 
 

 

[Peterbard]

Can you say which one?

[Peterbard]

Its always a good idea to get a professional opinion from a barrister or above. unfortunately they cost, and there is sometimes a degree of self interest, if they think they are going to make money out of you.

So be wary.

 

Peter

 

 

 

[paulwlton]

Hi Peter

 

The detailed opinion will assist and Ill post it once received. 

Meanwhile Barclays have gone very quiet.

[Peterbard]

Hi Paul

On review, i would not depend on Grace. Despite this judgement being bigged up, it was lost by Sparkie i am afraid.

The only saving grace(pardon the pun), was that the Judge did comment that CRAs should have an additional ability to record the account status regarding enforceability.

 

He did not make a decision regarding statute bar. 

 

The GDPR came into force well after this in any case, and none of the recommendations were adopted, nor  were CRA's  instructed to create one. Just for clarity, CRAs still do not have the additional facility,

 

 

 

 

 

 

[paulwlton]

Hello Peter,

 

Is it not analogous to Grace?...the account was unenforceable by statute.

 

 

Your advice always appreciated.

[Peterbard]

The account was declared unenforceable under a section 127(4)issue some time earlier. THere is a write up here.

 

Risks around reporting to Credit Reference Agencies- Publications - Eversheds Sutherland (eversheds-sutherland.com)

 

 

[paulwlton]

But a statute barred debt does not require a court to declare the debt unenforceable?

 

It is fact that the account was unenforceable 6 years after the termination notice was served as per Doyle.  

 

I

 

 

Edited February 13, 2021 by paulwlton

[dx100uk]

statute barring means nothing in E&W other than any court judgement cannot be enforced...so they don't bother

[Peterbard]

The issue in grace was the recording of the default. Iit was avered by the claimant that if the debt was unenforceable the credit file should say so, as well as recording the default.
The same could be said in the case of an account which was statute barred, although this was undecided.
 

The bank loan bad been declared unenforceable for some time under a 127(4) issue if memory serves.

The recording issue is the only one that wasnt thrown out. Sparkie was all over the place with daft ideas, which i tried to tell him at the time.

Even this remaining issue was referred to future procedings or negotiation on the judge recommendation.

This had nothing to do with your case in any way. Yours is a straight foreward SB

 

 

[paulwlton]

Peter,

 

The creditor isn't legally obligated to register a default once a default/termination notice has expired, its totally at their discretion. What they did in my case was to keep the account status as active.

 

The account became statute barred/unenforceable from 2014 and as per Grace the credit file should have been updated to reflect this. Fourth principle Data Protection Act  requires ones personal data to be accurate and up to date.

 

Ive asked the expert to consider Grace, Doyle and Durkin. 

Edited February 14, 2021 by paulwlton

[paulwlton]

Para 38 Grace.
 

38. As for the second submission, I have not been persuaded that the shortcomings in the CRAs’ registration systems can excuse a registration which is in substance inaccurate because of an omission (namely that the ‘default’ related to an unenforceable agreement).  If an accurate registration cannot be accommodated, then the answer is for the industry to change its registration systems, and in the meantime for inaccurate registrations not to be made.

Quote

 

 

Edited February 14, 2021 by paulwlton

[Peterbard]

This was regarding additional information as well as the default marker. The judge felt that a D alone was not enough when an account was unenforceable, and that changes should be made by cras to there systems to enable to acommidate this additional information.

he also wondere if this should apply to An debts, nut made no comments.

since this judgment and the shake up administered by GDPR, there has been no such ammendments by cras, because no such instructions have been ordered.

if a subject thinks the lack of relevant information is unfair or inaccurate they should use principle one of GDPR.

But I still fail to see the relevance to your situation. There is already ample legislation regarding what the initial D should indicate, and recording of a default which you can use.

You don't need any unadopted case law which honestly refers to additional measures which should be applied.