Overdraft Default, Proving Notice Was Issued

[OneStepLeft]

Hi all,

 

I have posted a couple if times before and have gotten well on my way to making some sense of my current situation regarding a default placed on my file with reference to an overdraft on a current account. There have been some recent developments so I would like to ask you all for advice as to my next move.

 

Summary:

 

I had a current account with an agreed overdraft limit of £1000. Mid 2004 I stopped using this account as a day to day account however I was still within the agreed overdraft.

 

I moved home in late 2004 and informed everyone of this fact. At some point statements stopped coming, although as I was not using the account I did not notice. A recent subscription of my credit report shows that a default was registered on the account in late 2004, with a balance of £1,050.

 

Important points that show up here:

 

Special Instruction Indicator: Partial Settlement
Special Instruction Start Date: 11/2006
Default Balance: £1050
Overdraft Balance: Satisfied

 

I went into the bank who were not helpful really, speaking to head office on the phone. They told me the debt had been sold and gave me the DCA details.

 

I truthfully had no notice of this action, or warning it was coming. I was told that they had tried to contact me, making reasonable attempts but were unsuccessful and there was nothing more I could do.

 

After reading here and elsewhere I sent the letter in the below link to the bank:

 

Remove Default Notices on a Credit File - We show you how

 

However I have since learnt that current account overdrafts are different to other types of credit covered in the CCA. With that in mind what options do I have at this point, and what does the bank *have* to comply with from within that letter?

 

The letter arrived on the 29th January and I gave them 14 days to reply, but I have not had any response whatsoever.

 

I am starting to really get stressed out about this, with no response from the bank so far suggesting they do not intend to reply. In terms of the default with the debt being sold, I am not sure who I need to chase with regards the proof of default.

 

Many thanks.

[OneStepLeft]

One tidbit of information I left out that could prove to be decisive, is that when I spoke to the bank, and questioned the fact they ever sent a notice, they could not tell me which address the default was served to. Could not tell me as in, even if they wanted to the information was not available.

 

This may still mean a document exists on paper with the address and obviously that would not be accessible to a phone operator I randomly called, but the fact it does not exist electronically on their system is reason for some cheer.

[OneStepLeft]

I had call back from Consumer Direct today after I contacted them about my predicament.

 

They had no specific information, but gave me the phone numbers for the Financial Ombudsman and the Nation Debt Line.

 

As an update, the letter sent to the bank was signed for on the 26th January and therefore today marks exactly one month since I sent it.

[Guest tlusnoc]

With all due respect, just because you stopped using the account, did you really think they would just allow you to remain overdrawn indefinitely? They want there money back and good luck to them is all I can say.

[OneStepLeft]

With all due respect to you, I am not trying to dodge the debt and it would be insulting to the intelligence of anyone let alone me to suggest that people expect banks to give away free money. If you read some of my previous posts in other threads you would have seen I am proactive in trying to pay this debt off (in full, right now). I am simply arguing that I had no reasonable notification this was about to happen or that it did eventually happen and I am asking the bank to prove they did. Not unreasonable?

 

In any case I actually no longer owe any money whatsoever to the bank as they sold this debt on to a DCA (who I am about to pay off).

 

To clarify, my dispute relates to the placement of a default, not whether or not I should pay the money. The latter, I have never disputed.

[OneStepLeft]

Further to this I should add that when I went into the branch, they had no record of the address I was living at when the default was actually issued. I actually have a letter from them to that address proving they knew of it, so I suspect that they sent the default to an old address. The reason for asking for proof is to see which address they claim it was sent to. If I have a letter proving they were aware of a new address but sent it to the old one, then I will be in a good position.

 

With reference again to the post two above if I was actually threatened with a default notice I would have paid it off straight away as it is not a large sum of money and not worth a default.

[InKogneeToh]

Hi OneStep

 

I have just looked at the record of the default that you posted up at the beginning of this thread.

 

It is possible that it was the DCA that issued the default, not the bank as the date shown on that entry is 11/06

 

Where did you get the info. from that it was registered in 2004? Also, does the entry say who has registered it?

 

Regards, Pam

[OneStepLeft]

Hi Pam,

 

I appreciate you stopping by

 

The 11/06 date refers to the special instruction of partial settlement which I guess refers to the bank decided to recover the amount partially via selling it to the DCA. I didn't think it was worth posting the full details it as I had already mentioned it in the post - sorry for any confusion. The default entry specifically mentions the bank.

 

Full details:

 

Company name:      
Account type:     Current Account
Special Instruction Indicator:     Partial Settlement
Special Instruction Start Date:     11/2006
Started:     08/1998
Default Balance:     £1050
Overdraft Balance:     Satisfied
Defaulted On:     11/2004
File updated for period to:     11/2006

I am about to finish the proceedings to pay a full and final settlement to the DCA this was assigned to. I am not sure who levied the £50 fee but I consider myself lucky it is only £50 so have no qualms about that.

 

I am wondering if the bank can even remove the default as technically shouldn't the DCA (Thames Credit) be maintaining this now? Note the file updated to date of 11/2006...

 

In 2 weeks the bank will have defaulted on my CCA request (14 days + a further 30). I am wondering what steps to take should this happen.

[InKogneeToh]

Hi

 

Did you send the CCA request to Halifax? If Thames credit have bought the debt it should have been sent to them as they are the new creditor!

 

Regards, Pam

[OneStepLeft]

Hi Pam,

 

Yes I sent the CCA request to the bank as at the time I was not 100% if the debt has been sold, and if so who to.

 

Most cases I have seen CCA's sent to DCA it has been to try and stop them chasing a debt but in this case I am happy to pay it, but am trying to get the default removed. I sent the CCA from Learnmoney rather than the standard one as the bank are the owners of the default (or at least according to the CRA).

 

I am a bit confused now considering my goal as to what to do especially since I have the letter pending. Should I still settle regardless or will this limit the pro activity of the DCA to comply.

 

Thanks,

 

Onestep

[InKogneeToh]

Have you asked them to send you a copy of this default notice. If they can't provide one how can they prove that they gave you the correct notice, or that it contained all that the CCA requires it to. A default notice has to be in a prescribed form and contain certain information, otherwise it is invalid.

 

So, if you haven't already done so I would ask Halifax for a copy as you never received the original. If they can't produce it then ask for the entry to be removed as unsubstantiated.

 

Regards, Pam

[OneStepLeft]

Hi Pam,

 

I sent the letter detailed in the link in my first post to the bank, more or less word for word which asks for a copy of the default notice and requests if they cannot do it then to remove it as unsubstantiated.

 

I am not sure if they have to comply with it due to the credit type - i.e. an overdraft. At the time I assumed the CCA request covered overdrafts but apparently there is some limitation on this type of account. If you look at the link in the first post you can see what I sent. I am wondering if the particular sections of the CCA I quoted were incorrect and thus my request under the CCA is void and hence the lack of correspondence from the bank.

 

In the letter you can see there are 3 points. (1) which asks for a true copy of the agreement under the CCA, (2) which asks for a true copy of the default notice, and (3) which asks for the deed of assignation. As only (1) is asked for under the CCA (as it is written), are 2 and 3 covered under the CCA or not?

 

Or is that irrelevant and if they do not comply I can complain to the authorities? In the example the bank reply, so if they don't (which does not look likely) have they committed a criminal offence as in most of the examples on this board?

 

Many thanks,

 

Onestep

[InKogneeToh]

Hi

 

Firstly, the deed of assignment is not covered under the CCA and the creditor or DCA has no 'legal' obligation to send a copy, but you are asking for proof that they own the debt and they will have to show this document in court.

 

Overdrafts are still covered by the CCA as a 'running account' but there is no requirement for a formal credit agreement as with other types of credit. However, if they have issued a default notice this has to be as prescribed by the CCA. Again, there is no 'legal' requirement for them to provide a copy for this but if it went to court they would have to, so why not now?

 

Regards, Pam

[OneStepLeft]

Okay that makes sense.

 

Assuming they do not comply with my request in any way shape or form in the next 2 weeks - what options do I have? Do I have any ground to complain (to anyone) at all?

[InKogneeToh]

If it was me, I would write again to Halifax with a specific request that they prove (by sending a copy of the original notice) that they actually sent one to you and if they can't to remove the record on your file as unsubstantiated. I would give them 14 days i.e. as for a prelim letter. If they don't respond then I would send a LBA giving them a further 14 days or face court action by you and a complaint to the ICO, OFT, FSA etc. That's what I would do but of course it's your call.

 

Regards, Pam

[OneStepLeft]

Thanks once again Pam.

 

I think I rushed into this at the beginning and I now have the benefit of hindsight

 

It would be much simpler if there was a specific consumer led process that included overdraft defaults. I would be happy to pay £10 to force them to comply and then have specific grounds to pursue them should they fail.

 

One last question I am having trouble with before I throw myself at the mercy of the Tube - but what would I be taking them to court for, assuming it went that far? If they are not legally bound to supply me with anything or prove anything to me and therefore will not breach their CCA due to the account type what grounds do I have to take them to court? Simply that they are not required to prove to me, but they must prove it to a court?

 

Thanks,

 

Dan

[InKogneeToh]

Hi

 

Your claim would be for damages/compensation for sharing incorrect or unsubstantiated information about your credit status with the CRA and thus damaging your credit rating.

 

In particular if you have evidence that this default has resulted in you being turned down for credit or having to pay higher interest rates as a 'bad risk' then you would be entitled to compensation. It is to do with the Data Protection Act that says that all personal data must be accurate, up-to-date and only kept for as long as absolutely necessary and that if not the data subject can seek redress through the court.

 

I will find the relevant part and copy it here for you in a while.

 

Regards, Pam

[InKogneeToh]

10. - (1) Subject to subsection (2), an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the ground that, for specified reasons-

• (a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and
  

• (b) that damage or distress is or would be unwarranted.

(2) Subsection (1) does not apply-

• (a) in a case where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met, or
  

• (b) in such other cases as may be prescribed by the Secretary of State by order.

(3) The data controller must within twenty-one days of receiving a notice under subsection (1) ("the data subject notice") give the individual who gave it a written notice-

• (a) stating that he has complied or intends to comply with the data subject notice, or
  

• (b) stating his reasons for regarding the data subject notice as to any extent unjustified and the extent (if any) to which he has complied or intends to comply with it.

(4) If a court is satisfied, on the application of any person who has given a notice under subsection (1) which appears to the court to be justified (or to be justified to any extent), that the data controller in question has failed to comply with the notice, the court may order him to take such steps for complying with the notice (or for complying with it to that extent) as the court thinks fit.

 

(5) The failure by a data subject to exercise the right conferred by subsection (1) or section 11(1) does not affect any other right conferred on him by this Part.

 

 

PLUS:

 

 

13- (1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.

1. (2) An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if-
   (a) the individual also suffers damage by reason of the contravention, or

• (b) the contravention relates to the processing of personal data for the special purposes.

1. In proceedings brought against a person by virtue of this section it is a defence to prove that he had taken such care as in all the circumstances was reasonably required to comply with the requirement concerned.
   
   14. - (1) If a court is satisfied on the application of a data subject that personal data of which the applicant is the subject are inaccurate, the court may order the data controller to rectify, block, erase or destroy those data and any other personal data in respect of which he is the data controller and which contain an expression of opinion which appears to the court to be based on the inaccurate data.
   
   (2) Subsection (1) applies whether or not the data accurately record information received or obtained by the data controller from the data subject or a third party but where the data accurately record such information, then-

• (a) if the requirements mentioned in paragraph 7 of Part II of Schedule 1 have been complied with, the court may, instead of making an order under subsection (1), make an order requiring the data to be supplemented by such statement of the true facts relating to the matters dealt with by the data as the court may approve, and

• (b) if all or any of those requirements have not been complied with, the court may, instead of making an order under that subsection, make such order as it thinks fit for securing compliance with those requirements with or without a further order requiring the data to be supplemented by such a statement as is mentioned in paragraph (a).

(3) Where the court-

• (a) makes an order under subsection (1), or

• (b) is satisfied on the application of a data subject that personal data of which he was the data subject and which have been rectified, blocked, erased or destroyed were inaccurate,

it may, where it considers it reasonably practicable, order the data controller to notify third parties to whom the data have been disclosed of the rectification, blocking, erasure or destruction.

 

(4) If a court is satisfied on the application of a data subject-

• (a) that he has suffered damage by reason of any contravention by a data controller of any of the requirements of this Act in respect of any personal data, in circumstances entitling him to compensation under section 13, and

• (b) that there is a substantial risk of further contravention in respect of those data in such circumstances,

the court may order the rectification, blocking, erasure or destruction of any of those data.

(5) Where the court makes an order under subsection (4) it may, where it considers it reasonably practicable, order the data controller to notify third parties to whom the data have been disclosed of the rectification, blocking, erasure or destruction.

(6) In determining whether it is reasonably practicable to require such notification as is mentioned in subsection (3) or (5) the court shall have regard, in particular, to the number of persons who would have to be notified.

[OneStepLeft]

Thanks Pam, I'll give it a shot.

 

Paying off the DCA (as much as it will pain me to do it after reading the experiences of others) presumably would not be a bad step right now as planned?

 

I only ask because of the issue of who is the data controller for the default in question right now, as the record has not been updated since 2006. If the DCA assume it (or have already assumed it) will they be the only ones who can remove it? It shows satisfied although it still shows an outstanding balance?

 

With thanks,

 

Onestep

[Glenn UK]

Part 14 of the DPA gives the courts the power to oder the removal amendment or correction of any entries on your credit file IIRC.

 

I would check that out too.

 

HTH

 

Glenn

[InKogneeToh]

Hi

 

You need to find out for sure who is now the data controller responsible for the entry. DCA's usually take over the responsibility for this when they buy a debt but not always. It's usually in the contract between creditor and DCA.

 

I'm not sure that paying off the DCA right now is the best course because they may be less likely to co-operate with your enquiries/requests once they have their sweaty palms on your cash!

 

I would be inclined to mention that you are quite happy to settle once the issues have been resolved - thus offering them a nice carrot!

 

Regards, Pam

[OneStepLeft]

Okay great, thanks.

 

So if the DCA is the data controller, they are the ones who will need to produce the copy of the default (even of they go via the bank to get it) and who I might subsequently have to take to court?

 

On reflection I cannot recall if the bank specifically said they had bought the debt or instructed the DCA to act on their behalf. At this point I have only had a voicemail from the DCA and not any contact via post. I figure the bank would be the best place to get this information, but will they likely give me the info over the phone? Writing to them hasn't helped as we know .

[InKogneeToh]

Hi

 

You could try phoning the bank, but unless you get to speak to some-one in authority then you are likely to be met with fop-off answers again.

 

If it was me, I would write to them requesting specific information i.e. if the account has been sold and if so when and who is now responsible for data control. I would also ask them for a copy of the default notice if it is them who issued it. It might also be worth doing a FULL SAR on the bank asking them for all information they hold on you.

 

You can't really deal with this until you get the facts. I would give them 14 days and say if they don't respond you will take the matter up with OFT, ICO etc.

 

Regards, Pam

[OneStepLeft]

Thanks again. I think I will write them as you have suggested.

 

I am a little concerned, well, more worried actually that the time being taken to sort this out will not help matters on the DCA's end and I doubt they will appreciate me stalling them for time.

 

Once more into the fray!

[OneStepLeft]

The plot thickens and I get much more confused!

 

I received a response today to the original letter I wrote (I have not sent the letter mentioned in the post above) and I am baffled by it.

 

The correspondence came in an envelope with an Aktiv Kapital (UK) postal frank on it. I assumed it was unrelated to the letter I sent bank and thought it was just a letter from the aforementioned DCA chasing the debt, which I believe is a sister company to Aktiv, (from what I can see a commonly discussed DCA here), another well known DCA, Thames Credit.

 

Enclosed was my original letter, the £1 postal order and an Aktiv compliments slip bearing the message "Please be advised the the attached correspondence has no relation to any account held by ourselves.".

 

There are multiple annotations on my letter. The word default has been highlighted in yellow pen and it had various "Received - date" stamps on it. This seems to be a well travelled letter. One of them is for Rosyth Retail Collection & Recovery (received on the 21st Feb by them, and forwarded by Halifax HQ the day before) which I can confirm this is Halifax Rosyth Retail Collection & Recovery. Following the chain this arrived at Aktiv on the 26th Feb and was subsequently sent back to me, arriving today.

 

So it seems Halifax think Aktiv hold/own the debt and forwarded it on, but Aktiv are saying it has nothing to with them, even though sister company Thames have made attempts to contact me regarding it.

 

All seems a little odd that they would not cross check. Or is this some fob off? Someone is at fault here...

 

:confused: