***DERAvsHFC Bank***

[dera2005]

Hello all,

 

First of all i would like to say whata fantastic forum, Applogies if this is posted in the wrong forum if it is please feel free to move acordingly.

 

in 2003 i took out a £3000 loan with HFC bank of which i was paying back to them for a while. in 2004 i got into some financial difficulty and missed about 6 payments. I tried to explain my situation to the bank and as usual they wasn't interested.

 

So they ended up defaulting the loan. I am now on track once again paying back the loan under the original repayment terms.

 

This loan was never sent to a DCA and i have about 3 months left until the loan comes to term and finishes.

 

I wrote to HFC asking them to remove the default and asking them to supply proof under s77 & s78 of the cca.

 

Also asking them to supply a true copy of the signed agreement and a true copy of the defult notice.

 

Today i got a letter back explaining that the account was defualted due to non payment from January to May of 2004 and therefore cannot be removed.

 

They have sent me a default template, But no statement of account or a copy of the signed agreement, Stating that they are unable to locate a copy of the agreement at this time although if it is located it will be forwarded on to me.

 

My question is surely if they cant find or produce a copy of the signed agreement then this alledge debt is un-enforcable.

 

Can someone give me some guidance on this as with regard to my next steps.

 

Many Thanks

 

Dera.

[dera2005]

anyone ??

 

**Bump**

[diskmandave]

My question is surely if they cant find or produce a copy of the signed agreement then this alledge debt is un-enforcable.

 

That's about the top and bottom of it...

 

But as you only have 3 more payments to make, rather than go through rigmorole of inhouse collections, then to DCA, then to debt being sold on to the likes of Cabot or Robinson Way and it all starting again maybe you could use this info' to negotiate a reduced settlement?

 

A trip to Trading Standards is always helphful, you can locate your local office here;

Trading Standards Central - Trading Standards and Consumer Protection information for the UK

 

But you're right in thinking, No Agreement=No Enforceable Debt.

 

Best wishes, Dave.

[dera2005]

Thanks for the info dave. I really need to get that defualt removed though and it seems that what ever way i turn it seems im constantly bashing my head against the wall.

 

Any idea's as to what i can do to get it removed ???

 

Many thanks for the reply

 

Kind Regards

 

Dera

[powelll]

Thanks for the info dave. I really need to get that defualt removed though and it seems that what ever way i turn it seems im constantly bashing my head against the wall.

 

Any idea's as to what i can do to get it removed ???

 

Many thanks for the reply

 

Kind Regards

 

Dera

 

Only the original creditor who supplied the info to cred ref agency can ask for the default to be removed. If they refuse to do so then you need to weigh up whether you want to go CCA route with associated hassle or whether you accept that you did in fact take out the agreement, you did owe the money and you did default on the original agreement.

 

Even if the bank had been reasonable with you and agreed to a reduced repayment plan for a certain period they would still have issued a default notice as it's a legal requirement under CCA regs when you are not paying as originally agreed. This default will stay on your file for 6 years.

 

So if you want it removed you need to dispute the fact that they have the right to process your information by sending CCA request, then if they don't comply ( 12 working days then an additonal 30 days ) approach either trading stds or the information commissioner if they still refuse to remove the default.

 

Or as already mentioned you could make removal of the default a condition of any settlement you come to.

[dera2005]

Just getting all my information together and i will post once its all in order

[rory32]

Another way to dispute the default is if the default notice was not served or if it does not comply with the regs.

[dera2005]

***UPDATE***

 

I sent a request to HFC on 2nd July 2007

 

heres what i sent:-

 

HFC Bank Correspondence Department

Central Complaints

PO Box 3607

Birmingham

B1 2XJ

Date: 2nd July 2007

Dear Sir or Madam

Account number - xxxxxxx

 

After recently obtaining a copy of my credit file from Equifax I was concerned to note that your company has placed a "Default" notice against my account in my name.

Further to this I have no recollection of ever receiving such a notice, and I therefore require you to substantiate this data at your earliest convenience.

1. You must supply me with a true copy of the alleged agreement you refer to. This is my right under your obligation to supply a copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit). Your obligation also extends to providing a statement of account.

2. You must supply me with a signed true and certified copy of the original default notice

3. Any deed of assignment if the debt was sold on

I would request that this data is provided to me within the next 28 days, if you are unable to provide this data then I must insist that it is removed from my files as unsubstantiated.

Yours faithfully

dera

[dera2005]

I got a standard we are looking into your request blah blah on the 13th of July but it had the wrong account number qouted on it. Phoned them about this and they were very applogetic and advised be to destroy the letter.

[dera2005]

I then asked if they could fax and post my responses due to the postal strike they agreed to this.

 

i called them on a number of ocassions chasing my data -

 

also i find it strange that i write to central complaints department but get a response from collections....

it baffels me.

 

on the 26 of july 2007 i got this response please see image below

 

[dera2005]

page 2 was a blank page and i also recieved this in the post too!! is this my signed credit agreement lmao!!

 

[dera2005]

Page 3 is a copy of the letter i recieved back in 2006 with regards to the same compliant im raising now

 

 

[dera2005]

and finally page 4

[dera2005]

So I was not happy with this response since they have had over a year to find the my agreement!!!!

 

I also really need a copy of my agreement because i think they have added ppi on to the account of which i DID NOT agree to or sign for.

 

also they havent sent any or statement of account

 

So i have replied to them with this:-

[dera2005]

30th July 2007

 

 

Dear Danielle,

 

 

Thank you for your fax dated 26th July 2007

Upon receiving your fax however I noticed that you recall a complaint was previously raised on this account and that the questions raised in this complaint are the same from the previous complaint and have not changed. You advise me to refer to the findings raised in the response received 24th May 2006.

 

 

 

I refer to my letter dated 2nd July 2007 which was delivered via Recorded Delivery to your offices on 3rd July 2007.

You have failed to acknowledge this request by not supplying the requested documents.

 

The documents I requested should be readily available as proof of your legal right to collect on this account.

In my letter of the 2nd July 2007 I made a request for a copy of the signed, executed credit agreement for the above account under Section 77(1) and Section 78(1) of the Consumer Credit Act 1974 and a true signed copy of the Deed of Assignment. In addition a full statement of my account should have been sent to me detailing all debits and credits to the account.

 

 

You are reminded that you are obliged to supply these documents

The Consumer Credit Act allows 12 working days for this request to be carried out before your company enter into a default situation. If the request is not satisfied after a further 30 calendar days, your company commit an offence. These time limits expired on 23rd June 2006 respectively.

 

 

As you are no doubt aware, Section 78(6) states:

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; and (b) If the default continues for one month he commits an offence.

 

 

Therefore on 23rd June 2006 this account became unenforceable at law and no further payment will be made by myself to the account, I require you to stop collecting on this account as you have failed to comply with a request for a true signed copy of the said agreement, and other relevant documents mentioned in it, and failed to send a full statement of the account, under the relevant sections of the Consumer Credit Act 1974. Further, I do not acknowledge any debt to HFC BANK in relation to this account.

 

I require the following action from HFC BANK:

 

 

1. All payments made to date to HFC BANK for this account of which I calculate £2689.06 should be refunded in full to my bank account.

 

 

2. Removal of all defaults entered by HFC BANK. Note this is to be a complete deletion and not merely an amendment.

 

 

3. I look forward to compensation under Section 13 of the Data Protection Act 1998 to be offered for the processing of my data in the manner it has been done over the past number of years.

 

 

4. After a full refund of all payments with interest and compensation are received by myself, you will be required under Section 10 and Section 12 of the Data Protection Act 1998 to cease and desist all manual and automatic processing of my data within your company and any other company within your group.

 

 

If you do not respond positively to my request, court action may be taken under Section 14 of the Data Protection Act 1998 to force HFC BANK or any other company within the group to comply with the refund of all monies paid, removal of all defaults maintained and compensation for damage and distress as a result of unlawful data processing. I may also pass the matter to the relevant enforcement authorities including, but not limited to, the OFT, the Information Commissioners Office, Trading Standards, the FSA, the FOS and my local MP.

I look forward to your reply within 14 days to resolve the matter amicably.

 

Yours Faithfully

 

DERA

[dera2005]

I got a letter faxed to me the same day explaining that they are investigating and will respond shortly.

 

But on the phone Danni explained that she would esculate to executive complaints and the HFC legal team.

[dera2005]

Any Comments on the above would be great,

 

I really hope i can get my money back it certainally would come in handy.

 

Also if anyone has any knowledge of where they stand legally i wouldn't mind an insight

 

Many Thanks

Dera.

[tomterm8]

Did you actually recieve the default notice?

[dera2005]

hi tomterm8

 

Nope and when i asked for a copy all they sent was a blank template of what it looks like but i never recieved an original ever.

[tomterm8]

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

 

I would say, that it is best to continue paying your debt, and that if you can honestly say you did not recieve the default, an Affidavit in Support attesting to the fact that you do not recall ever receiving a default would be an especially effective tool.

 

It should not be used if dishonest, but would swing the burden of proof in a court in your favour.

 

I would also send a S.A.R. and check if the debt was subject to any unlawful charges BEFORE the default was issued. If the default was inaccurate, then it was never served (this is effective where the agreement is for minimum payments).

 

~ Tom.

[dera2005]

cheers for the info Tom I am going to concentrate on the fact that they have failed to comply with my CCA request at the moment and see what that brings if i get nowhere with that then i will proceed with the above.

[dera2005]

*Bump*

[dera2005]

anyone have any comments on how to proceed with the above ?

[rory32]

1. All payments made to date to HFC BANK for this account of which I calculate £2689.06 should be refunded in full to my bank account.

 

You will not get a refund. The lack of a credit agreement does not mean that the debt does not exist. It just means that the debt is unenforceable.

 

What you really do next depends on what outcome you want.

[dera2005]

Hi Rory

 

Thats what i have requested as you can see from my letter i have sent.

 

Ok so what about any type of compensation having the default removed from my file ect due to the debt not bein enforcable and the remainder being written off ???