Barclays OD - 5 Defaulted Accounts on CRa file !! 4 from lowells !! for the sane debt!!

[OneStepLeft]

Hi

 

Basically overdrafts are running account credit agreements covered in general by the CCA but are (by virtue of s74) exempt from Part V of the Act.

 

Therefore there is no requirement for a formal agreement and so nothing would be forthcoming under a s78 request. The banks only have to notify you in writing of your OD limit, interest rate and procedure for termination when you are granted an authorised OD. There would be no reason to send a statement under s78 either as you receive these monthly or on request anyway.

 

Regards, Pam

 

 

Are they still liable to provide a signed true and certified copy of the original default notice as well as any deed of assignment if the debt was sold on?

 

It appears I have erroneously sent a CCA request under 78 in this instance, but also asked for the above. Just want to know whether they are still obliged to reply and/or provide the supplemental evidence.

 

Thanks

[InKogneeToh]

Hi

 

There is no statutory obligation to supply a copy of a default notice or a copy of a deed of assignment.

 

However, if a default notice has been issued then a copy of this should be forthcoming if the creditor complies properly with a SAR - but I doubt if many actually keep copies!

 

Without a copy though, how can they prove that it was issued strictly in accordance with the CCA requirements or that you were actually sent the notice?

 

With regard to the deed of assignment, the same issue arises - if they can't show hard copy proof of a legal assignment then how can they assert that they now own the debt?

 

In my situation, I am not going to accept proof that Lowells actually own the 'alleged' debt until they prove it!

 

Regards, Pam

[OneStepLeft]

Thanks Pam.

 

So if they need to supply a default notice to confirm to S.A.R and do not, what recourse do I have as there is no statutory obligation as you stated? Perhaps the terminology is confusing me, but do they need to supply me with a copy of the default if I send a S.A.R?

 

Is the S.A.R template here relevant to me as I am not claiming bank charges. Does what I need fall under the manual access point?

 

Thanks.

[InKogneeToh]

Hi

 

If you make a SAR you can request either specific information only, or all data that they hold on you. If you request all, and they have kept a copy of the default notice then you should get it amongst the documents they send. This is only, of course, if they have a copy!

 

It would not fall under manual intervention it would be from their 'relevant filing system', i.e. your account folder or file.

 

You could try something like the following, which is what I sent to a creditor a couple of years ago. Obviously amend to your circumstances

 

Data Compliance Officer

company address

Date..............

 

Dear Sir/Madam,

Subject Access Rights Notice

Under the Subject Access Rights granted to me by the Data Protection Act 1998 I would be grateful if you would forward me details of ALL information you keep on me that falls within the terms of the Act. For clarification, I require ALL information, from ALL relevant filing and data storage systems under the control of your company’s data controller, which is in any way connected to me.

I understand that it is customary for the data controller to require proof of an applicant’s identity before releasing personal data. That proof can be obtained by comparing my signature on this notice with my signature on very recent correspondence with your company. I also understand that the maximum charge payable for this Information is £10 and therefore, to prevent unnecessary delay, I am enclosing a cheque for that amount.

My relationship with your company is via (details of account or ref. no.) and my addresses during the life of this agreement have been:

 

.................................

 

I understand that you have 40 days from the date of this request to supply me with this information and I look forward to your response.

 

Yours sincerely,

 

[OneStepLeft]

Thanks again Pam.

 

Theoretically speaking, if they do not send a copy of the default, do I have ground to do anything about it, or does the overdraft/CCA issue effectively mean I am, for the want of better words, screwed in my quest to remove my default using the method of attempt detailed at the learnmoney website. Does the s78 exemption for overdrafts mean I am stopped dead in my tracks or can I follow the same procedure omitting the CCA element.

 

The learnmoney letter (Remove Default Notices on a Credit File - We show you how) separates the CCA part from the deed of assignation and the default copy suggesting that I can pursue 2 and 3 independently.

 

Phew - sorry for the mini-thread hijack.

[OneStepLeft]

There would be no reason to send a statement under s78 either as you receive these monthly or on request anyway.

 

Regards, Pam

 

In this instance my account with the bank has been terminated and I no longer receive statements or can request them under normal methods. The debt has also been sold/allocated to a DCA. Which of these, I am not sure of.

[InKogneeToh]

Hi OneStep

 

I have read the info in the link you posted and there is nothing to stop you doing exactly the same. The s78 request is primarily for the copy of the agreement does not affect your purpose in any way.

 

I presume you have seen the default on your credit file so you can challenge the validity of that in the same way by asking for a copy (because you don't remember receiving one). You would not need to do a SAR for that. You can also challenge them to prove that they have the legal right to pursue the debt by sending you a copy of the deed of assignment. If these docs. are not forthcoming then you can insist that the default is removed as unsubstantiated.

 

The statement of account referred to in s78/79 is a specially prepared statement of the state of the account at the time of request. It is not the same as monthly bank statements, although if your account was active there would be no real need for the creditor to send you a special statement as well.

 

Regards, Pam

[tifo]

Pam, you're a bundle of help!

 

What action do you think Lowell will take after my request, other than the one i am thinking, i.e. no action.

 

Do you suggest anything else on my part?

 

However, they will need to do something because the OFT will be contacting them soon enough as i have given my permission to chase Lowell with my specific complaint.

[OneStepLeft]

I presume you have seen the default on your credit file so you can challenge the validity of that in the same way by asking for a copy (because you don't remember receiving one). You would not need to do a S.A.R - (Subject Access Request) for that. You can also challenge them to prove that they have the legal right to pursue the debt by sending you a copy of the deed of assignment. If these docs. are not forthcoming then you can insist that the default is removed as unsubstantiated.

 

*phew*

 

Thanks. So my request is legitimate?

 

Just to clarify though, I sent this letter to my bank, not the DCA the debt has been assigned/sold to. So when you say "You can also challenge them to prove that they have the legal right to pursue the debt by sending you a copy of the deed of assignment." do you mean they, the bank, or they, the DCA?

 

On a related note, as of yesterday, the bank had my letter 2 weeks and I only gave the 14 days to reply (that link says 28, but here says 12, so I went for 2 weeks). Is there an actual amount that they are bound to reply by?

 

Many many thanks.

[tifo]

use my letters that i posted here re default and modify as required.

[OneStepLeft]

use my letters that i posted here re default and modify as required.

 

Hi tifo,

 

But my issue is not with two defaults being added, just one. The bank, (legitimately, except I never received a notification or warning) added it, and have since sold the debt.

 

Unless you mean here as in this site, as opposed to this thread?

[InKogneeToh]

*phew*

 

Thanks. So my request is legitimate?

 

Just to clarify though, I sent this letter to my bank, not the DCA the debt has been assigned/sold to. So when you say "You can also challenge them to prove that they have the legal right to pursue the debt by sending you a copy of the deed of assignment." do you mean they, the bank, or they, the DCA?

 

On a related note, as of yesterday, the bank had my letter 2 weeks and I only gave the 14 days to reply (that link says 28, but here says 12, so I went for 2 weeks). Is there an actual amount that they are bound to reply by?

 

Many many thanks.

 

Hi again OneStep

 

This is all becoming a little muddled so I will try to clarify.

 

When you mention your letter to the bank I assume you mean the CCA request. Because this is a current account, that request is not really any use as mentioned before, but when relevant a CCA 77/78 request must be responded to within 12 working days of receipt.

 

If your aim is to get the default removed then you need to be certain who has entered it and your correspondence should go to them. You are challenging whoever issued the default to show that it was issued in the correct manner. A default notice has to be written in a certain way, have prescribed information in it and give 7 days ( or 14 from 2006) notice before it can be acted upon. If they can't produce a copy of the notice, and/or (if it is a DCA who has bought the debt) can't show legal ownership of the debt by way of a copy of the deed of assignment then you insist the record is removed from your credit file.

 

As this is a current account, if you are also wanting to claim back unlawful charges then you need to SAR the bank to get all your statements so that you can work out the charges.

 

Regards, Pam

[OneStepLeft]

Hi Pam,

 

Sorry about the muddling - I am having a hard time with this monkey on my back.

 

I am certain that my bank, not the DCA it has been sold to (very recently), entered the default as it was entered in 2004.

 

I guess my confusion is that I am challenging someone under section 77/78 of the CCA, but it has been stated here that this is not relevant because this is a current account. Therefore, under what (rule etc) are they bound to prove the default was issued, if 77/78 won't cut it.

 

If 77/78 won't cut it as you mention, then it is not a relevant request and therefore doesn't need to be responded to.

 

Or does my request for the copy of default and deed still fall under 77/78 and is executable regardless of current account statement, and it is only the true copy which will not be forthcoming?

 

Hope you can see what I mean.

 

Regards the S.A.R, then I am not claiming back unfair charges as I do not think it was that which caused them to default the account. They claim they repeatedly contacted me to pay money into my current account as it was largely a dormant account and I was within my agreed overdraft. The overdraft was for say £1000, and I was £950 overdrawn, however the default amount now states £1050. However they have stated it was my "failure" to keep it active which led to the default, not a bank charge and subsequently going over my limit.

 

[InKogneeToh]

Hi

 

There is no statutory obligation for a creditor to supply a copy of a default or deed of assignment and neither is included in a 77/78 request. You would be simply requesting that the bank prove that they issued a default notice in the correct format and that it was actually sent to you.

 

With the DCA, you are requesting proof that they now legally have the right to pursue you for the debt and to show this in court, they would need to have a deed of assignment. They have no 'legal' obligation to send a copy of this to you but your argument will be that they have not proved ownership.

 

On the subject of the overdraft, did they at any time state in writing that they were withdrawing the facility and that they wanted repayment in full? It seems a bit odd to me that you could have 'defaulted' on an overdraft unless they had demanded repayment either immediately or in monthly amounts and you had not complied. Just a thought!

 

Regards, Pam

[InKogneeToh]

Pam, you're a bundle of help!

 

What action do you think Lowell will take after my request, other than the one i am thinking, i.e. no action.

 

Do you suggest anything else on my part?

 

However, they will need to do something because the OFT will be contacting them soon enough as i have given my permission to chase Lowell with my specific complaint.

 

Hi Tifo

 

I have written similar letters to Lowell and also asked for a copy of the agreement. I am expecting NO response, in which case I will politely tell them to take a hike!

 

In your case, I would wait for your time limit to expire and then demand removal of the default notices or face legal action.

 

Hopefully the OFT will do your work for you but they are not always as proactive as they should be.

 

Regards, Pam

[OneStepLeft]

Hi

 

There is no statutory obligation for a creditor to supply a copy of a default or deed of assignment and neither is included in a 77/78 request. You would be simply requesting that the bank prove that they issued a default notice in the correct format and that it was actually sent to you.

 

 

Gotcha, thanks. So, if they do not reply, and it has been 14 days, what are my next steps if any?

 

 

With the DCA, you are requesting proof that they now legally have the right to pursue you for the debt and to show this in court, they would need to have a deed of assignment. They have no 'legal' obligation to send a copy of this to you but your argument will be that they have not proved ownership.

 

 

Here I do not want to pursue this. Fact is, I owe the money, and I intend to repay it. I am not trying to dodge a debt. The issue of a default without my knowledge is the issue I have a problem with, I will pay the DCA once this issue is sorted one way or another. I will, just to be on the safe side, exercise due diligence with the DCA, but as yet I have only had a single answer phone message from them asking me to call them, and I have no reason to believe it is a phony request. They have not sent a letter as yet so I assume they do not know my current address even though the bank sure does as I recently updated it when I moved to London (oblivious to this whole affair and at the same time the debt was sold - must be coincidence as otherwise they, the DCA, would have wrote and not called).

 

 

On the subject of the overdraft, did they at any time state in writing that they were withdrawing the facility and that they wanted repayment in full? It seems a bit odd to me that you could have 'defaulted' on an overdraft unless they had demanded repayment either immediately or in monthly amounts and you had not complied. Just a thought!

 

 

No, never. I had one phone call at one point, to ask me if I still wanted the account to be active since I had not paid any money in or taken any money out in a few months. I moved house, told them that I have moved (albeit with no proof), and after that I stopped receiving statements although I did get a letter from their credit card wing as I *have* a credit card with them (even today) on an unrelated matter to the new address. Presumably if they had tried hard, they could have matched the bank account to the credit card and seen that I had a different address registered with them. I would need to check dates though as I might have gotten that letter after they defaulted.

[InKogneeToh]

Hi,

 

I was not suggesting that you were, or even should, avoid the debt or that you should go to court. It is just that some (many) DCAs harass and intimidate debtors over alleged debts and even where it sometimes subsequently turns out they do not in fact own the debt or it is the wrong person they are chasing!

 

Some DCAs also issue court proceedings for a CCJ with very little prior warning! By asking them for proof of ownership you are just satisfying yourself that they have a right to enforce the debt and at the same time letting them know that you are not an 'ignoramus' that they can hoodwink!

 

You have only had one call at the moment but the longer it continues the more aggressive they are likely to become so it's always better for you to take control first.

 

If you did not receive a demand for repayment from the bank then it may be worth writing to them and asking how you have defaulted.

 

Regards, Pam

 

P.S I think you have inadvertently 'highjacked' tifo's thread so it would probably be better to start your own on this matter. I think you can ask a MOD to transfer all previous posts to your new thread and we can follow your progress there.

[OneStepLeft]

Hi,

 

I was not suggesting that you were, or even should, avoid the debt or that you should go to court. It is just that some (many) DCAs harass and intimidate debtors over alleged debts and even where it sometimes subsequently turns out they do not in fact own the debt or it is the wrong person they are chasing!

 

Some DCAs also issue court proceedings for a CCJ with very little prior warning! By asking them for proof of ownership you are just satisfying yourself that they have a right to enforce the debt and at the same time letting them know that you are not an 'ignoramus' that they can hoodwink!

 

 

Yep, agree totally, I just wanted to clarify my position as it seems to be different to a lot of people posting here. Sorry if I came across shirty or if I suggested you were suggesting I try and avoid it - it was not my intention.

 

 

If you did not receive a demand for repayment from the bank then it may be worth writing to them and asking how you have defaulted.

 

 

They did tell me over the phone that it was because "despite their best efforts to contact me and ask me to repay the warnings were not heeded".

 

 

P.S I think you have inadvertently 'highjacked' tifo's thread so it would probably be better to start your own on this matter. I think you can ask a MOD to transfer all previous posts to your new thread and we can follow your progress there.

 

 

I agree - I did mention this and apologise earlier. I do actually have one or perhaps two other threads on this subject, I just kinda jumped in here based on tifo's revelations. I guess I kinda do need clarity as some of the advice I have been given contradicts and I am stressing big time about this. Perhaps I will start a new thread separate. I would be grateful if you could drop by .

[InKogneeToh]

Yep, agree totally, I just wanted to clarify my position as it seems to be different to a lot of people posting here. Sorry if I came across shirty or if I suggested you were suggesting I try and avoid it - it was not my intention.

 

Hi OneStep

 

No apology needed.

 

I will check back on you soon to see how you are getting on.

 

Regards, Pam

[tifo]

In your case, I would wait for your time limit to expire and then demand removal of the default notices or face legal action.

 

Thanks Pam,

 

My case here is slightly different from the norm, because i have 2 defaults from Lowell Financial who do not own the debt, and never have even attempted to own it. They manage it on behalf of Lowell Portfolio, who have issued 2 defaults of their own (i don't mind 1 as they are allowed that, but only if they own the debt). I am told this is a huge matter under the DPA as it is total misuse of personal info and the Data Controller could be jailed or the company fined upto £5k.

 

So, the way i see it i do not need to wait to take legal action for the defaults, as that is a separate issue to the ownership of the account.

 

However, i am waiting only so i can build a better case and to give them an opportunity to redress their mistakes.

[InKogneeToh]

 

 

 

So, the way i see it i do not need to wait to take legal action for the defaults, as that is a separate issue to the ownership of the account.

 

However, i am waiting only so i can build a better case and to give them an opportunity to redress their mistakes.

 

Hi tifo

 

I don't think you actually put a time limit in your second letter did you? But I guess that after 14 days you could do a Letter before Action because it seems to me that the Lowell family like to play 'hide and seek' if they are challenged!

 

Regards, Pam

[tifo]

I don't think you actually put a time limit in your second letter did you?

 

No time limit, Pam, because i want the OFT to also investigate, as well as the ICO, TS and the CSA, so once i have more ammo, then a letter with a time limit.

[InKogneeToh]

Ah yes! Good strategy

 

No response to my hubby's CCA request yet. 12 days are up on Thursday. Then he will request a copy of his credit file and see if they have defaulted him also!

 

Regards, Pam

[InKogneeToh]

Hi tifo

 

I have just received a letter from Lowell - no copy agreement yet though!

 

Take a look at Post 100 on my thread and see what you think.

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/59677-re-assignment-debts-dcas-5.html

 

Regards, Pam

[tifo]

i just noticed that Barclays also have a default entry at Callcredit for this account, and it shows a balance outstanding. This is after they've sold it to Lowell Portfolio I Ltd.

 

That makes a total of 5 defaults for the one account now, from 3 companies!