Defaults - background, removal methods, challenges and taking a claim to Court

[car2403]

Hello everyone,

 

NOTE: This post is the result of many hours searching through the forum threads on this subject - if I've missed anything, please post a reply and I will edit this opening post so the most correct information/advice appears at the top. (You will need to read the entire thread to understand the whole issue, however!) I'd also ask that you don't "state your case" on this thread - please start your own thread and make a post to this one with the link, which will make this easier to read.

EVEN BIGGER NOTE - February 2010: There has been some very recent caselaw surrounding the challenging of Defaults (namely, challenging CCA agreements) that HAS NOT been included in this post from August 2007. I would SERIOUSLY advise you to start a thread, in the right place in the forum, BEFORE you begin following the advice below. That way, folk can direct you along as you go. One of these days, I'll get around to updating this with recent developments. (Fingers crossed...)

 

 

After spending a LOT of time with other CAG-ers recently over the bank fee/charge issues, I'm now turning to look at the resultant "Default" issues that I've came across while doing it. (I have a personal interest, as you'll soon see from the links in my signature!)

 

Now, excuse my frankness, but there is a lot of information/posts in the "Data Protection and Default Issues" forum (amongst others) regarding this issue - and I, for one, (and I know I'm not the only one, seeing posted replies to my threads) am confused by the amount of information.

 

The aim of this post is to clarify all the other posts, so I suggest that we all work together to get this right as this will be the first place we can "direct" those new to the problem.

 

(Also - if enough of you ask for it - I may even achieve my first "sticky status" post... which hasn't happened before! Woo hoo!)

 

Background:

 

The background to this is dead simple, really!

 

Any company that has "charged" fees to your account/agreement, etc, can be pursued in a few ways to "reclaim" those fees if they are unreasonable. I won't spend longer on this issue, as there are far more detailed posts in the sticky/FAQ posts around in the relevant forums.

 

Some of these companies have seen fit to terminate customer accounts/agreements and some, in doing so, have also deemed themselves to "have the power of a County Court Judge" and have recorded a "Default" against the customers credit file with one/all of the CRA's. (Credit Reference Agencies)

 

Why is this such a problem? The Defaulted account will remain on your credit file (according to the CRA's, at least - more on this later) for 6 years and will effect any future credit applications you may choose to make. Companies that use these credit searches usually will either decline your application, or - in the case of the "sub-prime" market - (those that lend money to people with less than perfect credit histories) hike up your APR or add additional fees to accepting the application, because of this negative credit record.

 

I don't believe this can be right - the accounts are, at least partially, based on illegal/unenforceable account fees/charges. So how can these companies get away with it? This brings me on to the challenges!

 

Removal methods:

 

Now, I'm not an expert on this issue, so I'll leave it to those more experienced to highlight the removal methods that we can use to get this situation sorted;

 

Challenging the company using the Consumer Credit Act 1974;

 

http://www.consumeractiongroup.co.uk/forum/legalities/11659-how-get-your-default.html

 

Challenging the company using the Data Protection Act 1984 (as amended);

 

http://www.consumeractiongroup.co.uk/forum/legalities/24013-defaults-proposed-method-removal.html

 

Using a combination of the CCA and the DPA (again, read both links above)

 

Challenges:

 

There are a few challenges to using the methods above that I have came across; (feel free to share yours in reply, referencing your thread)

 

The company fails to supply some, or all the information required in your CCA request

 

These companies seem to think that it's fine to ignore a legal request for information that you are entitled to under the Consumer Credit Agreement - they don't seem to care that this makes the debt unenforceable in certain circumstances, or that the Default that you can legally challenge doesn't live up to the legal standards laid down in Statute!

 

Regulators that can't see the "big picture" and almost "refuse" to consider each other's opinions

 

As the Data Protection Act (DPA) is enforced (outside of a Courtroom, that is) by the Information Commissioners Office, this office is unable to consider a company that has defaulted on a Consumer Credit Act request, as this is outside of their scope - they even state to "contact the Financial Ombudsman Service" in their responses!

 

The Consumer Credit Act (CCA) is enforced (outside of a Courtroom, that is) by the Financial Ombudsman Service (FOS/FSO) - this office is unable to consider a company that has failed to satisfy the requirements of the DPA, as it is outside of their scope - they even state to "contact the ICO" in their responses!

 

This rediculous situation leaves consumers with only 1 option - take a case to Court and **hope** that you can pursude the Judge that your opinion is right and this company is wrong in what they have done.

 

Uncertainty over how long this information can be held for (processed) by each party

 

There is no clear authority on how long "defaulted accounts" can be displayed on your credit file. (This also applies to payment/arrears history's, financial associations - and pretty much every bit of "data" that exists about you as an individual)

 

The companies/CRA's claim they should process and display this information for a minimum of 6 years. This is again them making the rules up as they go along, as there is NO clear authority for this - some believe that this is a result of Money Laundering Legislation/Regulations that state information should be "held" (note, not "processed" or "displayed"!) for a period of 6 years after the account is closed. What seems to have happened is that "6 years" is now accepted as industry standard, (also note, not legally required!) so these companies are now refusing to remove this incorrect information until after it has expired beyond 6 years.

 

Credit Reference Agencies (CRA's) that don't care about us individuals, as their "customers" are paying their wages - and some even have VERY close relationships with them!

 

There are 3 main CRA's - CallCredit, Experian and Equifax.

 

But - who are the "customers" of these Agencies, that are charged with keeping our information up to date and accurate?

 

Well, you'd be right in thinking that "we" (the consumers) were their customers - but, sadly, you'd be wrong!

 

The "customers" of these Agencies is actually the Companies that supply them with information, as they pay a fee (presumably - it's all very underhanded IMHO!) to access the information they hold and also share information about your account - including the fact it has been defaulted incorrectly/illegally - with them to share with their other "customers".

 

This situation is ludicrous, as these CRA's always say "contact us to complain about your information being incorrect", but are notorious for saying "this is supplied by our customer as factual information - take your complaint up with them, not us".

 

If you look really, really closely, you'll also see that some of the "Debt Collection Agencies" used in these cases are actually owned by the Credit Reference Agencies - or they have very close links to each other. (Members of the same "Group" of companies, etc) This sounds very much like a "cartel-affair" to me!

 

So, how can you challenge these defaults? All this leaves those that haven't had companies "back down" when challenged with only 1 place to go to enforce your rights - and that is the inside of a County Courtroom!

 

Taking a claim to Court:

 

This is not only difficult because many people don't want to sit in front of a Judge to state their case, but there is also a distinct lack of legislation/case law and precedent that you can use in a legal argument based on enforcement of the CCA and DPA!

 

This is a situation that these companies actually encourage, as they don't want to be bogged down with legal argument over a single account - but instead are only interested in making incorrect decisions about individuals on a mass basis, then refusing to state their case for doing so! (This sounds very like the "Illegal charges" issue that is currently ongoing, so hopefully this is going to gain the same momentum!)

 

They actually discourage customers from going to Court by "making them believe" that they - not the Court system - are the ultimate authority on the application of English Law!

 

They do this in such a way that **most** consumers would give up and go away with their tail between their legs - of course, us CAG-ers aren't **most** consumers, are we? (All say "yes, Chris!"...Sorry about that, but this post was getting a little serious and I think I lost the plot for a second!)

 

Now, having said all that - remember that the law that related to illegal fees/charges has been around for over 200 years, but the Banks/Regulators don't recognise that it is "good law" and apply it in these instances? (This is a post on it's own, but basically the contractual law surrounding unenforceable penalties has been around for 2 centuries, but the Banks think they can act against it because it makes good "business sense" - and the regulator (the OFT) seems to agree with them!) Well, this is the same situation - you could argue that processing incorrect information about you is defamation of character! These legal principles have also been around - as "good law" - for centuries also! We should remember that when discussing this issue and not be blinkered into only thinking about the CCA and DPA.

 

 

So, going to Court... We now need;

• Bullet-proof "Particulars of Claim" (POC) to issue our claims
  
• Some sound "follow up" that we can use in response to the Court process. (Allocation questionnaire responses, outline of Court Bundles, legal precedent for our claim and a statement of evidence that states the issue at hand and probably some of the issues encountered and discussed in this thread)
  
• The bottle to take the claim all the way, Win or Lose
  

WARNING AND DISCLAIMER:

 

 

These templates are intended as a guide only - I don't suggest you commence a claim based SOLELY on these templates, but this is a starting point!

 

You should start your own thread relevant to your own individual circumstances, as each case has its own merits and pitfalls, where you can get specific advice from our resident experts!

 

If you start a claim without doing this, please don't blame me or CAG if you don't get the outcome you want!

 

Particulars of Claim:

 

 

How's about this for POC to kick off the discussion?

 

[bLUE BRACKETS]: REPLACE WITH THE RELEVANT INFO

[RED BRACKETS]: FOR INFORMATION AND CAN BE REMOVED/ALTERED IF NECESSARY

 

1. Claimant is alleged to [hold/have held] an [account/agreement] with the Defendant, numbered [account/agreement number] [- a debt that the Defendant continues to pursue]

 

2. A “default” appears on the Claimant’s credit reference file relating to the [account/agreement]

 

3. The Defendant; [Alter this to suit your claim]

[a) Has defaulted on his obligation to respond to a request from the Claimant pursuant to s.77(1) & s.78(1) Consumer Credit Act 1974, under which the alleged agreement is alleged to operate;

b) Has failed to comply with a Statutory Notice issued by the Claimant pursuant to s.10 & s.12 Data Protection Act 1998;

c) Has applied the “Default” without complying with the requirements of s.87 Consumer Credit Act 1974

d) Continues to process data regarding the alleged default with Credit Reference Agencies]

 

4. The Claimant has suffered damage, namely [an increase in Interest rates and monthly payments made to other Creditors, due to the adverse credit information since being recorded by the Defendant] [Alter this to include damage you've suffered]

 

5. The Claimant respectfully seeks;

[a) A declaration that the debt is unenforceable under the Consumer Credit Act 1974;

b) Rectification, blocking, erasure or destruction of the inaccurrate data, which the Court can order under s.14 Data Protection Act 1998 – including details passed to the Credit Reference Agencies

c) Costs and damages at the discretion of the Court] [Alter this to suit your claim]

 

Follow up - Allocation questionnaire;

 

There is already a VAST amount of information on the forums regarding AQ's and their uses - take a look, here, for example;

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/11644-allocation-questionnaires-guide-completion.html#post90317 (Thanks to jonni2bad for the original post!)

 

Notes for completing a small claims track allocation questionnaire - Form N149

An online PDF version of the form is HERE

 

Section A - Settlement

 

"Do you wish any further action in this claim to be postponed for one month so that you and the other party can attempt to settle the claim either by informal discussion or by alternative dispute resolution?"

 

You have given ample opportunity to resolve this matter with the Defendant so there is no need to allow further time. TICK NO

 

Section B - Location of Hearing

 

"The claim will be heard in the court to which this form must be returned. Is there any

reason why it should be transferred to another court to be heard?"

 

If the reply address is your local court, then TICK NO. If the reply address has changed to another location, then TICK YES and state that since you, as a private individual, are claiming against a company who carries on business in this location, then the case should be heard locally to you.

 

Section C - Track

 

"Do you agree that the small claims track is the most suitable track for this claim?"

 

TICK Yes

 

Section D - Witnesses

 

"So far as you know at this stage, how many witnesses (other than yourself) do you intend to call to give evidence at the hearing?

Enter the number of witnesses you intend to call to give evidence not including yourself or any expert witness"

 

Typically this would be 0

 

Section E - Experts

 

"Do you want permission to use an expert’s report at the hearing?"

 

Unless you know otherwise, TICK NO

 

Section F - Hearing

 

"Are there any days within the next four months when you, an expert or a witness will

not be able to attend court for the hearing?"

 

Unless you know of specific date that you cannot attend court (holidays etc) then TICK NO.

 

Section G - Other Information

 

"In the space below, set out any other information you consider will help the judge to manage or clarify the claim, including any other information you consider should be supplied by the other party."

 

Give details of any other information that you consider will help the judge to manage the claim, referring as necessary to any documents you might have attached. Bear in mind however that at this stage you need not attach all other documents which you wish the court to consider at the hearing. This is something you will later be asked to provide.

 

You should state here that you believe the case will last no longer than 1 hour.

 

You may wish to add reasons why the case is more suitable for Small Claims Track if your claim value exceeds £5,000 or provide reasoning why the other side should provide evidence of their costs!

 

I recommend that you include a request for the Judge to order Special Directions, as follows; (Thanks and recognition goes to Paul - pt2537 - for this template)

 

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that this document must be disclosed before this case can progress any further

 

A suggested template for Draft Directions, which we advise that you include with your AQ... (Thanks and recognition goes to Paul - pt2537 - for these Draft Directions)

 

 

 

In the XXXXXX County Court

 

 

Case Number XXXXXXX

 

 

 

 

 

number XXXXXX

 

 

 

 

 

 

 

Between

 

 

 

 

XXXXXXXX - Claimant

 

 

 

 

and

 

 

 

 

 

XXXXX - Defendant

 

 

 

 

 

Draft Order for Directions

 

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations
  
• Default Notice compliant with s87 (1) Consumer Credit Act 1974 andConsumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,
  
• Document, contract or deed of assignment
  
• Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.
  
• Copies of any statement or other document relied upon
  

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

The Defendant shall within 14 days thereafter file and serve the following

• An amended defence sufficiently particularised in response to the documents supplied by the claimant
  

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

.

Section H - Fee

 

"Have you attached the fee for filing this allocation questionnaire?"

 

You should note that if you do not pay this fee it might lead to your claim being struck out.

 

If you are the claimant, depending on the value of your claim, you may have to pay a court fee. If you have not applied for fee exemption or remission, the fee must be sent to the court at the same time as your completed questionnaire - in other words, you could get help from the court.

 

If you are in receipt of certain benefits, or if this fee would cause you undue hardship, it may be possible to pay nothing, a reduced fee, or even have the payment deferred until a later time.

 

Contact the Court directly if you think this applies to you.

 

Section I - Signature

 

This questionnaire must be signed by only the party to the claim, or litigation friend, or legal representative.

 

Follow up - Court Bundle:

 

WORK IN PROGRESS... Attachments for the bundle will follow later, but here's the basic content so far;

 

- All correspondance with the Defendant

- Responses to any complaints you have made to the Financial Services

- Ombudsman or the Information Commissioner's Office - this is vital to show you've already exhausted all "informal"/non-Court routes to resolve your query and will also fuel the Judge's disappointment that the official regulator isn't willing to sort themselves out!

 

- Relevant case law summaries; (THIS IS STILL WORK IN PROGRESS - PLEASE HELP BY POSTING A REPLY SO I CAN UPDATE THE 1ST POST)

Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998

- failure of a Default Notice to be accurate invalidates the Default Notice (this can be used in a cross argument with s.98 CCA 1974 Termination Notices, issued on Current Account Overdrafts, also)

Kpohraror v Woolwich Building Society [1996] 4 All ER 119

- failure of a Default Notice to be accurate is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give aa claim for damages in the sum of the amount of the Default, plus £1,000 in substantial damages caused to credit reputation

 

Wilson v First County Trust Ltd - [2003] All ER (D) 187

-

- Consumer Credit Act 1974

 

- Data Protection Act 1984

- Data Protection Act 1998

 

This is a WORK IN PROGRESS... feel free to contribute by posting in reply.

 

Follow up - Statement of Evidence:

 

 

 

Claim Number:XXX

 

 

 

In the XXX County Court

 

 

 

 

Between:

 

XXX

 

 

(Claimant)

 

 

 

and

 

 

 

 

 

XXX

 

 

(Defendant)

 

 

 

 

 

_______________________

 

 

STATEMENT OF EVIDENCE

 

_______________________

 

 

 

 

 

 

 

 

[bLUE BRACKETS]: REPLACE WITH THE RELEVANT INFO

 

[RED BRACKETS]: FOR INFORMATION AND CAN BE REMOVED/ALTERED IF NECESSARY

1. I, [insert your full name here], am the Claimant in this case. I am a litigant “in person” and I make this statement from my own knowledge and experience.
   
   
2. The Claimant is alleged to [hold/have held] an [account/agreement] with the Defendant, numbered [account/agreement number – a debt that the Defendant continues to pursue]
   
3. The Defendant claims that the Claimant has defaulted on [his/her] obligations under the [account/agreement] and has recorded a “default” on the Claimant’s credit reference file (held with the Credit Reference Agencies) as a result as this.
   
4. Upon discovering that the Defendant had recorded such information, the Claimant sought to request the following information from the Defendant; [Alter this to suit your claim]
   [a) Pursuant to s.77(1) & s.78(1) Consumer Credit Act 1974 (as amended): [Remember to change this to the wording of your CCA Request]
   i. A true copy of the original executed credit agreement;
   ii. A signed, true and certified copy of the original default notice;
   iii. Any deed of assignment where the debt has been sold on.
   b) Pursuant to the Defendant’s obligations under the Data Protection Act 1984 (as amended); (in the form of a Data Subject Access Request) [Remember to change this to the wording of your DPA Subject Access Request]
   i. Details of all default charges for unpaid items and fees charged for managing each account in the Claimant’s name;
   ii. Copies of all original executed Consumer Credit Act regulated agreements for each account held in the Claimant’s name;
   iii. Details of all manual intervention that has taken place in relation to the Claimant, or on accounts held in the Claimant’s name, with documentary evidence of such;
   iv. Details of logic involved in any automated decisions made by the Defendant about the Claimant, or the Claimant’s accounts, held with the Defendant.
   
5. The Defendant; [Also alter this to suit your claim]
   [a) Has defaulted on it’s obligation to respond to the request, within 12 days, from the Claimant pursuant to s.77(1) & s.78(1) Consumer Credit Act 1974, (as amended) under which the alleged agreement is said to operate;
   b) Continues to fail on it’s obligation to supply the information requested under the Consumer Credit Act 1974, (as amended) thereby committing a Criminal offence under s.77(4)(b) of that Act;
   b) Has failed to comply with a Statutory Notice issued by the Claimant pursuant to s.10 & s.12 Data Protection Act 1998; (as amended)
   c) Has applied the “Default” without complying with the requirements of s.87 Consumer Credit Act 1974; (as amended)
   d) Continues to process data regarding the alleged default with the Credit Reference Agencies]
   
6. The Claimant has suffered damage, namely, but not limited to, [an increase in Interest rates and monthly payments made to other Creditors, due to the adverse credit information since being recorded by the Defendant][Alter this to include damage you've suffered – if you have evidence showing this, that’s all the better so include it in your bundle! The aim is to show the Judge that you have suffered from the Defendant’s actions and that this isn’t just a “administrative task” of tidying up your Credit File without reason]
   
7. The Claimant respectfully seeks;
   [a) A declaration that the debt is unenforceable under the Consumer Credit Act 1974; (as amended)
   b) Rectification, blocking, erasure or destruction of the inaccurate and unsubstantiated data – which the Court can order under s.14 Data Protection Act 1998 – including, but not limited to, those details passed to the Credit Reference Agencies by the Defendant in relation to this [account/agreement]
   c) Costs and damages at the discretion of the Court.] [Alter this to suit your claim]
   

 

This is a WORK IN PROGRESS... feel free to contribute by posting in reply..

 

I'm hoping that this post has grabbed your attention, especially if you are in this situation, as we need to work together to get this sorted out - safety in numbers! The aim of the post is to start pulling the "going to Court" information together and issue some claims to see where we get with this.

 

If you have any of this already, or experience of a Court claim over the same issue, please share your experience - in your own thread, with a link posted here - and we'll get the ball rolling!

 

Bring it on!

Edited February 5, 2011 by car2403
Adding additional Case Law summaries

[car2403]

Thanks Painty - thought I was the only one reading this post for a minute there!

 

I too have had 2 removed using these techniques, (Grattan and OnLine Finance) so they seem to work. Just a case of others trying the same and tweaking the content before we can say it's a solid method.

 

Re: your POC for the Default bits - I know you're still waiting on Court action, but are they similar to mine above?

[car2403]

I can't see why you'd have to pay the fee of £150.00? Depends what you are claiming for, I suppose.

 

If it's straight forward, take a look at the ICO leaflet on enforcing DPA breaches under the "Part 8 procedure", on page 15 here;

 

http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/taking_a_case_to_court.pdf

 

The more complicated cases are dealt with under Part 7, which is slightly different

 

You might get away with it if you can show "damage" and come up with a monetary amount and commence your claim for that amount, though. (s.13 DPA 1998 - claim damage from increased credit interest rates due to adverse credit incorrectly/unlawfully recorded, for example) That's a dodgy route to take, as your claim may be thrown out - the Court should be able to tell you the best way to do it though.

[car2403]

In theory, yes, but you'd need to have strong evidence (probably a report from your existing creditors showing the reasons why you are paying a higher rate of interest) and even then the Court can decide that the damage is too remote, if they want.

 

If would make a good basis for removal though, so worth including any of these details on your claim and supporting bundle. It might even get their mind focussed on settling early by opening the negotiations up around default removal if your claim is sound!

[car2403]

excellent post, but why the Data Protection Act 1984 (POC)? and the Data Protection Act 1998?

 

also, case law is needed and one case that allows £1000 + £default amount as compensation is Kpohraror v Woolwich Building Society - [1996] 4 All ER 119 - see thread here http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/115630-pricing-default.html

 

Failure of a Default Notice to be accurate not only invalidates the default

notice (Woodchester Lease Management Services Ltd v Swain & Co NLD

14 July 1998) but is an unlawful rescission of contract which would not

only prevent the Court enforcing any alleged debt, but give the Defendant

a counter claim for damages. (Kpohraror v Woolwich Building Society

[1996] 4 All ER 119)

 

Thanks - I've made these changes to Post #1

[car2403]

Updated the original post to reflect current, ongoing cases and claims...

[car2403]

Nick,

 

There is a template POC on the first post of this thread - I would always advise starting a new thread in the Default sub-forum, outlining your case first, so you can get specific advice on your case. Each case has it's own merits and using a template POC is dangerous, IMO.

 

As for the CRA's, generally they are only "following instructions" from creditors in continuing to process - I'd suggest that you complain to them as part of the process of querying the entire Default, sending them the relevant notices in addition to the creditor. Including them on a Court claim is technically correct, but I've missed them off mine in favour of asking for an order under s.14(3) DPA, where the Court has powers to order the original creditor to stop processing inaccurate data with any third parties - not just with CRA's.

[car2403]

Depends on the type of assignment - Legal or Equitable?

 

Legal would be the DCA, who assumes the legal rights and obligations of the original creditor.

 

Equitable would be the original creditor, as the DCA is simply "collecting" the balance on their behalf and has no legal rights or obligations.

 

If there are any issues over assignment - such as the assignment process not being followed or documented - you'd have to issue to both and ask the Court to decide on the issue of assignment to say where the obligations under the agreement sit.

 

Again there's no single answer, so start your own thread to get specific advice on your case and the merits of it.

[car2403]

There now seems to have been a shift in the Information Commissioners Office's opinion on how the CCA applies to inaccurate Defaults - see here for the info;

 

http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=1924&d=1201857472

 

and then this letter from a CAG member (flash) in response to a ICO complaint submitted;

 

http://www.consumeractiongroup.co.uk/forum/general-debt/125119-ccas-post-april-2007-a-post1360850.html#post1360850

 

(I've reordered the pages here so the letter reads correctly)

 

Here is the complete letter from the Information Commissioners Office:

 

 

 

 

They seem to be backing up faster than a Securicor Van going "beep... beep... beep"!

 

Interesting - definately one to watch. (I may have to revise the first post on this thread in light of this if it represents the ICO's view now!)

[car2403]

Looking at my credit histopry I have 2 defaults for same item one on 16 2 07 ie First Credit and one on 29 9 07 for barclaycard for same debt . As no properly executed agrement has been sent me only application form with not all prescribed format what do i do write to ioth to get removed surely I cant be defaulted by 2 seperate entities for same debt what do I do ? I should point out there are penalty charges I havent claimed for yet Regards Gaz

 

Best off starting a new thread, as your questions will get lost on here.

 

Basically, it depends what type of assignment took place for them to pass the debt on - there shouldn't be 2 entries for the same default, but who has the right one depends on the assignment that happened.

 

Penalty charges in any default balance will make the amount on the Default Notice unlawful and inaccurate, giving rise to a rescission of contract preventing the Court enforcing the debt.

 

Once you've got your thread up and running, come back here and post a link so we can offer help directly.

[car2403]

Hi Chris, very interesting thread, subbing as I'm about to embark on this myself.

 

Have I read the letter from the Information Commissioners Office correctly if my understanding is that

1) If there is an "irredeemably unenforceable agreement" (prescribed terms missing??) under the CCA (or no agreement where there should be one presumably?) then the Information Commissioners Office's stance is that the default should be removed.

 

2) If there is an agreement which is enforceable either on it's own merit or likely to be enforced with an order from the Court ("improperly executed") then the Information Commissioners Office's stance is that, even if the amount is incorrect, a Default should be registered.

 

My understanding of the letter is the same as yours - however I disagree with his view on inaccurate Default amount on a Default Notices, given the authorites in the first post on this thread. The ICO offers advice and opinions, but doesn't see himself being bound by caselaw precedant - just as well we still have the Court route to enforce our rights then, isn't it!

[car2403]

Hi Steve,

 

Start a new thread and paste up all the details you have here, to make sure you get the right help;

 

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

It looks like you need to send a DPA SAR, rather than a CCA request, but they should still be able to provide the Default Notice to substantiate the entry on your Credit File.

[car2403]

As it has stated it's a work in progress so I look forward to any further updates or additions

 

It is a work in progress, but that's because its a relatively new area of law that we're wading in to - or, its not "new", just a different approach bringing a few other areas together.

 

Don't be fooled in to thinking that this doesn't work though - take a looky here, for just a few examples;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/124065-default-removal-successes.html

[car2403]

Hello Chris!

 

Going back to the Information Commissioners Office's Letter in Post #27, and specifically to their Comments under the Title "Impact of the Consumer Credit Act 2006", they seem to be assuming this is retrospective. They are mentioning Case Law from 1991 [1999] in relation to the CCA 2006 changes in respect of s127(3)-(5). I understand these changes do not apply to Agreements made prior to approx 2007 onwards (or whatever date the CCA 2006 came into force).

 

Did you read it like that? Or have I misread it?

 

I can see a reason for mentioning the CCA 2006, but they should've made it clear that this only applies to Agreements that came after CCA 2006, and not before.

 

Good Thread BTW.

 

Cheers,

BRW

 

The 2006 Act is not retrospective;

 

The agreement was made before s.15 of theConsumer Credit Act 2006 came into force - therefore, those sections otherwise repealed by s.15 Consumer Credit Act 2006 remain in force

 

s.15 came in to effect in April 2007.

[car2403]

Hello Chris!

 

My concern is that the Information Commissioners Office's Letter does not seem to have realised this.

 

Cheers,

BRW

 

You should be concerned, because they are wrong.

[car2403]

Hello Chris!

 

Looks like anyone making a Complaint to the Information Commissioners Office regarding an Agreement made prior to April 2007, would be wise to mention that the CCA 2006 is not retrospective in respect of s127(3)-(5), just to disabuse them of that little misconception!

 

Cheers,

BRW

 

It looks like (seeing other threads making complaints to the ICO also) that this was a one-off and hasn't been repeated. I think the individual concerned has had some training as a result of complaints referred back for further review.

 

You are right though, in that those making complaints now need to include this information in the complaint, otherwise it could be kicked back in the same way.

[car2403]

2Grumpy, I'm using this exact bit of ICO advice in my case against O2, which is due to be heard next Friday;

 

http://www.consumeractiongroup.co.uk/forum/telecoms-mobile-fixed/111666-car2403-o2-wescot-dca.html

 

It's interesting that O2 are relying on the ICO's view on Credit Agreement Data Sharing to allow the CRA to continue sharing my data after the end of the contract, but they haven't commented on the technical guidance given by the ICO on registering the Default in the first place...

[car2403]

I think you need a new thread, jermainedefoe;

 

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

This way we can keep an up to date thread on the advice you've been given - I have a feeling it's going to get legally technical, as citizenB is right.

[car2403]

The costs of the claim wouldn't be included in the Court fee - the fee is calculated depending on which CPR Part the claim is brought under; if you want default removal, classed as specific performance, it's under Part 8, in which case it's £150 as a "non-monetary claim" or, if you are claiming damages, it's under Part 7, which depends on the amount of damages you're claiming.

 

A claim of £1000 in damages would attact a £75 Court issue fee.

 

Don't forget those all important Allocation fees, also.

[car2403]

Next - cca request sent, they eventually sent a blank cca and state this is all they require to do by law. What do I do next?

 

Send them something along these lines;

 

Dear Sirs,

 

Account Number: XXX

 

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I note that you have replied to the above by sending a copy of an application form and your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

 

Yours faithfully

 

 

RBS - never replied to cca request (banked the £1) its been over 2 months now and I have heard nothing, where can I now take this?

 

That's a tough one. Most RBS agreements are unenforceable;

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/110150-car2403-rbs-plc-default.html

 

There are others successes around the forums.

 

Up to you really - you could complain to the Financial Ombudsman, the ICO or you could take Court action against them yourself.

 

Before you do anything, I'd suggest you start your own thread (if you haven't already) and get some specific advice on your own case, as each case comes with it's own merits and pitfalls;

 

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

[car2403]

There are lots of trains of thought on the CRA issue - here's mine;

 

The CRA processes whatever the Creditor shares. If the Default recorded by the Creditor is inaccurate, or wrong, for whatever reason, your beef lies with the Creditor, as the Data Controller under the DPA. Challenge the Creditor, then, not the CRA.

 

Now, the CRA is a Data Controller under the DPA, also. The CRA doesn't need your consent to process your data, so long as they have a legitimate reason to process it. Whether credit scoring is a legitimate reason is questionable, IMHO, but the Courts/ICO seem to think so. All these issues just complicate a dispute between Debtor/Creditor, if you ask me, so I'd challenge the **Creditor**, rather than banging my head against a brick wall that is the CRA.

 

There are a lot of threads around on these issues, though.

 

My 2p worth...

Edited June 8, 2009 by car2403
Creditor, not Debtor... d'oh!!!

[car2403]

Oh dear.

 

Do you have a thread, basa48?

[car2403]

Sorry, no, not for this episode (I do have one for my Egg battle, but that's a bit quiet for now). That's why I posted here.

 

The "Oh dear" worries me !

 

I've just realised I started discussing this issue in post 77 of this thread. Sort of going it alone since then (following a bit of good advice from PT)

 

Ok, then. The s.59 bit worries me. That section effectively says that the agreement itself doesn't have a legal basis, as it was pre-contractrual in nature and can never become a regulated agreement. The reason I'm worried about it is that, if the arguments on that section are accepted, the agreement will never have existed, meaning you were never entitled to the benefit of the advances made under it. Could mean you have to repay everything you've ever borrowed from the creditor, as you weren't entitled to draw on those funds.

 

You really need a thread, as this is way off topic here and I am probably confusing and causing concern unnecessarily - it's just that it jumped out at me when I read that.

[car2403]

I see your concern and I have always wondered about using s.59, however....

 

If it comes to that direction of argument I would argue the creditor was happy to proceed without said contract (i.e. gifted me the monies) whilst I probably repaid everything I borrowed (plus interest) except for what debt remains.

 

Too late to start a thread for this as the request for judgement by default (no acknowlegment from creditor) is in awaiting judgment.

 

Don't think I can change it now.

 

Well, there's still the unjust enrichment point of view from the Creditor to consider.

 

Let's hope you get Default Judgment, but then I'd expect a set aside application on the basis that the claim is flawed. Sorry.

 

Might be best to start a thread, anyway, then.

[car2403]

You could amend and remove the s.59 part, yes.