knox vs Blair, Oliver & Scott [default removal]

[knoxvillain]

I had a loan with the Bank of Scotland. About a year ago I defaulted on it due to financial difficulties. Yesterday I cleared the debt of £2000 with a refund of bank charges. Back in March 2007 I wrote to Blair, Oliver and Scott asking for a copy of the consumer credit agreement for the loan. I have never heard anything from them about it ever. i called them today and the very nice lady said she saw nothing about a letter but on March 26th 2007 she could see payment of £1, the £1 I sent with my recorded delivery letter. She says she has requested the agreement for me however they are very much now in default of it. Since I have cleared the debt, whats the best way of getting the default removed? Is their default on my CCA a good tool to use against them?

 

I also just cleared my £700 overdraft which was made up entirely of charges with my charges refund and again they had stuck a default to me over this. I intend to send a CCA request off shortly for this one.

 

Any assistance would be appreciated, now I've got my charges back, getting rid of the 2 defaults is my top priority.

Edited August 1, 2008 by knoxvillain

[Paintball]

Hey there

 

You should consider using this method Defaults - a proposed method for removal and the full template letter and also subscribing to this useful thread in this very forum Defaults - background, removal methods, challenges and taking a claim to Court

 

Keep us posted ...

[knoxvillain]

despite this account being settled it is still not been marked as satisifed. Have sent them a letter asking them to remove the default since they've defaulted on the CCA request.

[Mike220359]

Hiya just have a look at this thread.

 

Mike

http://www.consumeractiongroup.co.uk/forum/general-debt/56001-mike220359-blair-oliver-scott.html

[knoxvillain]

Thanks and well done, hope I am as fortunate. Both debts that were defaulted have been settled now but I want rid of the defaults as I would like to be able to apply for a mortgage in the next few years. will keep you posted.

[knoxvillain]

ok I got a response from BoS with regards to my request to remove the default. They have FINALLY produced a copy of my CCA 8 months later and they are saying they won't remove the default. Am I stuffed? The copy is literally a photocopy. Help please. I don't want to be stuck with a default for the next 5 years.

[car2403]

Does it have the prescribed terms and has it been executed correctly? Post it up (personal details removed) and I'll have a look.

 

Regardless though, the Default included those charges so, technically, the Default is unlawful and should be removed.

 

I have a few claims on this issue, if you want to take a look at my threads you'll see what I mean.

[knoxvillain]

BOS_CCA_copy.jpg - Image - Photobucket - Video and Image Hosting

 

I've claimed back all the charges now, I thought if I went down the unlawful charges route my case would be put on hold for the OFT case? Thats why I decided to look at the CCA and/or Data Protection routes.

[car2403]

Okey dokey, on first pass, here's my thoughts;

1. This is quite clearly an application, rather than a credit agreement.
   
2. It seems to contain the prescribed terms, which are amount of credit and repayments as it's a fixed term agreement.
   
3. It says "terms and conditions set out overleaf and in the schedule which together constitute the agreement" at the top and "I confirm I have read the information sheet "use of data" and agree...".
   
4. The interest rate isn't shown.
   
5. Doesn't include a statement on the protection and remedies available under the Act.
   
6. It's been signed by both you, as the debtor, and The Bank Of Scotland, as the creditor.

For 1., this doesn't really have any effect as an application can "become" a credit agreement if it contains all the prescribed terms and is executed correctly - considering 2, that looks ok.

 

3. means that the agreement doesn't embody all the terms of the agreement, which is a requirement of s.61(1)(b) CCA 1974. Have they provided you with these additional terms and conditions, as they will still be in default of your request if they haven't?

 

4. shows it's missing the rate of interest - they can get away with this as they have shown APR. The amount of each payment looks wrong to me, as an APR of 11.9% on a £5,500 loan over 60 months would be £120.40 per month, not £122.81. The closest I can get to that figure is 12.87%. Now, there are allowed tolerances in APR, but they can't exceed the APR by not more than 1% or have a rate which falls short of the APR by not more than 0.1% - the difference here is 0.97% higher.

 

5. means the agreement is improperly executed under s.60(1)© as it's missing this prescribed term. The agreement can be enforced by Court order only, so is subject to s.127(1) prejudice clauses. If you can show you were prejudiced because of this, the Court may not give an Enforcement Order.

 

I can't see the date of your signature - the Banks is dated 11 July 2002. What is the date of your signature? If it's before this date, this is a void agreement under s.59(1). (prospective agreements are void)

 

I think I'll get some experts in to your thread to take a look - the APR thing may be effected by the fact that there were 2 months before the first payment became due under the agreement, rather than 1. Peter Bard is our resident CCA/APR/Interest rate expert, so I'll see if I can get him to pop in as a minimum. I'd also like someone to confirm my thoughts on this, as I'm not a complete expert on these technicalities.

 

As regards the Default, I'm assuming they haven't provided you with a copy of the original signed and certified Default and Termination Notices? If they can't prove they Defaulted you properly, this is the best way (other than having an improperly executed credit agreement - see above) to challenge the Default recorded. Technically, you can't chase this under your CCA request now as you've settled the account - you can, however, ask for this as part of a Data Protection Act S.A.R - (Subject Access Request). Send them this;

 

Dear Sir/Madam,

 

 

Bank of Scotland: ********

s.7 DATA PROTECTION ACT 1998 – DATA SUBJECT ACCESS REQUEST

 

 

I request that Bank of Scotland provides me with all details held regarding my accounts, including, but not exclusively as I require access to all information relating to me as a Data Subject under the Data Protection Act;

 

§ Details of all default charges for unpaid items and fees charged for managing the above account, which I have paid in the last six years

§ Copies of all original Consumer Credit Act agreements for each account held in my name

§ Details of all assignments, whether equitable, absolute, legal or otherwise, of the account and documentary evidence of such assignment

§ Details of all manual intervention that has taken place on accounts held in my name, with documentary evidence of such.

§ Details of logic involved in any automated decisions you made about me, or my accounts with you.

 

Please note that this is not an exclusive list, as I require access to all information held by Bank of Scotland regarding me, as a Data Subject under the Data Protection Act.

 

I understand that Bank of Scotland is obliged to provide this information under the Data Protection Act 1998. I have enclosed a cheque for £10 to cover the statutory fee that can be charged for this service.

 

I look forward to hearing from you within 40 days from the date of this letter and before [enter date of 40th day after receipt here], in any event.

 

Yours faithfully

 

The good news is that the Default and Termination Notices would (probably!) have included the charges you've recovered - as this is the case, it renders the Default amount and therefore the whole Default inaccurate, which is good news;

 

1. Failure of a Default or Termination Notice to be accurate not only invalidates the Default or Termination 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 Claimant a claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

The bad news here is that you've already settled the account - had you known this before you did that, you may have not needed to pay due to their failure to follow the correct process! :o

 

The good news, on the other hand, is that you have a very good chance of getting the Default removed. (Which is what I think you're going through all this for, from your posts?) You can also claim AGAINST them, using the cases above, for substantial damages to your reputation (cross read = credit rating) to the value of £1,000 - have a read here;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/115630-pricing-default.html

 

So, send your SAR off to see what you get back from that. In the meantime, you can issue them with the Surleybonds letter, adapting it to suit your case so far, which you'll find here;

 

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

 

You can also look here to see what you have to go through if they don't remove it, which is a possibility - IMO, the only effective route is to take a claim through Court;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/111211-defaults-background-removal-methods.html

 

If you want to see this in action, take a look through one of the many, many claims I have ongoing - all going through different stages of Court proceedings now. There are also a lot of other examples in the Default sub-forum, which you'll find here;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/

[Peterbard]

Hi

I to cannot get the APR to match he agreement

 

could you tell me how long after the agreement date you made your first payment as this is a little unclear on the agreement itself this of course effect the APR

 

Best regards

Peter

[knoxvillain]

Sorry it's taken me so long to post back, thank for your replies. The Bank of Scotland seems to be ignoring me now so I've decided to lodge a complaint through FOS about this.

 

Have they provided you with these additional terms and conditions, as they will still be in default of your request if they haven't?

 

No they didn't

 

I can't see the date of your signature - the Banks is dated 11 July 2002.

 

it's not readable on the copy they sent me but it looks like it's possibly 12/7/02. My credit record shows the loan started on 11/7/02 though.

[car2403]

If the APR is wrong - thanks Peter - that would make the agreement improperly executed.

 

Peter will confirm, I'm sure.

[knoxvillain]

Finally got a response from HBOS saying that their Customer Care Managers are looking into the points I have raised and I will hear back within 4 weeks....blah blah.....standard letter.

[knoxvillain]

Hi there,

 

I got another letter from HBOS today and I need some help figuring out if they are right and if not how I can go about countering them, he's the most interesting part of the reply:

 

In reponse to your request for a copy of a Notice of Default Issued, I can confirm the following:

 

That due to non payment of the contracted monthly repayment of £122.81 and subsequent arrears accruing on your agreement, that it was transferred to our debt recovery agents Blair, Oliver and Scott in October 2006 for a balance of £2068.01.

However, due to contact from a third party acting on your behalf, an arrangement proposal was recieved and set in place for reduced payments. Our third party arrangement policy at the time enabled us to agree a proposal and transfer your account to our debt recovery agents with an arrangement offer in place for future administration.

In this instance, we did not issue a notice of default nor are we required to by law.

 

They basically go on to say that they won't remove the default. They also said they don't have a record of my request for my CCA and had I contacted them directly instead of Blair, Olicer & Scott I would have got it within 14 days.

[car2403]

Hi there,

 

I got another letter from HBOS today and I need some help figuring out if they are right and if not how I can go about countering them, he's the most interesting part of the reply:

 

 

 

They basically go on to say that they won't remove the default. They also said they don't have a record of my request for my CCA and had I contacted them directly instead of Blair, Olicer & Scott I would have got it within 14 days.

 

Sounds like a fob off to me. BS&O will be debt collectors under s.145(7) and agents under s.175 - as such, they had a contractual duty to their client to pass your document request on. If they haven't, their client is scuppered, as anything received by an agent is deemed served on the client at the same time.

 

If they have Defaulted your Credit File because you defaulted, they have to issue a Default Notice under Part VII of the Act (s.87/s.88) or the Default is unlawful. Any policy they have will be overridden by the Act, as a sovereign piece of primary legislation.

[knoxvillain]

Thanks for that, is there any circumstance under which a bank can put a default on my credit record without issuing a notice of default first? I get the impression from Experian's website that I can only be defaulted once my credit agreement has been terminated by the bank and from what i can see under the Consumer Credit Act, the bank needs to issue a Notice of Default to terminate the agreement. So therefore to default me they MUST issue a notice of default first and give me 28 days to comply with the terms? Does this sound right?

[car2403]

They can record a Default against you, but without being able to show that they've complied with Part VII of the CCA 1974 (s.87/s.88 ) the Default will be unlawful and should be removed.

 

If the agreement is unenforceable, they can't Default you as a Default is a form of enforcement.

 

Experian is a funny one, as they say that a status of "8" (being 8 or more payments in arrears) is equivilent to being Defaulted - they also seem to rely on the fact their customers also use this as part of their decision making processes when dealing with applications. It is possible to be 8 months in arrears without being Defaulted, so take their advice with a pinch of salt, IMHO.

 

They must issue a NOD before Defaulting you, as this is the prescribed process. The CCA says they should give you 7 days to comply, but this was amended to 14 days by regulations and amendments.

[knoxvillain]

So basically now they've admitted in writing that they didn't issue one, they don't have a leg to stand on and should eventually remove it after several letters telling them to do so?

[car2403]

In theory, yes as they are bound by that statement under s.172.

 

In practise, you need to query the agreement with them, then take them to Court for Default removal as they are unlikely to give in so easily.

 

Take a look at the MANY threads I've got relating to Default removal, as it's a long drawn out process, but you tend to get there in the end.

[knoxvillain]

Ah well, I'll just make sure I get compensated then

[knoxvillain]

Spoke to Experian this morning and they said that creditors should issue a Notice of Default but apparently 99% of the time they don't. He wasn't very helpful in telling me if they were legally required to or not, he said I should google the Consumer Credit Act LOL!

[knoxvillain]

Acknowledgement recieved from FOS.

[knoxvillain]

Some useful info courtesy of my local CAB:

 

Extract from the Banking Code:

Credit reference agencies

13.5 When you open your account or apply for a card, we will tell you when we may pass your details to credit reference agencies and the checks we may make with them.

13.6 We may give information to credit reference agencies about the personal debts you owe us if:

. you have fallen behind with your payments;

. the amount owed is not in dispute; and

. you have not made proposals we are satisfied with for repaying your debt, following our formal demand.

13.7 In these cases, we will give you at least 28 days' notice that we plan to give information about the debts you owe us to credit reference agencies.

At the same time, we will explain to you the role of credit reference agencies and the effect the information they provide can have on your ability to get credit.

13.8 We may give credit reference agencies other information about the

day-to-day running of your account if you have given us your permission to do so.

__________________________

The following is an extract from the CAB information system re the issuing of a Default Notice for a debt:

The client is in breach of an agreement

If a client is in breach of an agreement, for example, s/he stops paying money owed under a credit agreement, or causes permanent damage to goods on hire purchase, the credit provider could take certain action to enforce the agreement, for example, repossess goods, or demand earlier payment of all money due. If the agreement is regulated under the Consumer Credit Act 1974, the credit provider is not allowed to start any enforcement action until s/he has issued a default notice to the client. However, there are some exceptions to this rule.

Default notices

Default notices must be served in writing if the client is in breach of the agreement and the credit provider wants to enforce the agreement by:

. terminating the agreement

. demanding earlier payment of any sum if this is allowed by the terms

of the agreement

. repossessing any goods or land

. terminating, restricting or postponing any rights given to the

client as part of the agreement, for example, use of goods

. taking property which secured a loan.

Default notices are not necessary:

. to allow a credit provider to restrict or prevent the client from

drawing further credit, for example, stopping cheques or demanding the return of credit cards

. where a breach by the client triggers another term of the agreement

to come into operation, for example, where the agreement states that if the client defaults on one instalment, s/he has to pay the whole amount back immediately. The default notice is necessary only for the original breach and not for non-compliance with the triggered term

. if the credit provider is suing only for the arrears without

terminating the agreement or demanding earlier payment of any of the loan

. if the credit provider is taking civil legal action (other than for

breach of contract) against the client, for example, where the client has wrongfully disposed of goods under a hire purchase agreement.

The default notice must follow a certain format and include:

. details of which part of the agreement was breached

. if the breach can be remedied, precisely what action has to be taken

to remedy it, and the date before which action must be taken. For example, if a client has only missed one payment, s/he may be able to remedy the breach by making the payment by a certain date. If the amount claimed by the credit provider is more than is necessary to remedy the breach, the default notice is invalid

. if the client cannot remedy the breach, for example, if s/he has

caused permanent damage to goods on hire purchase, what compensation is required, and the date before which it is to be paid

. the consequences of not complying with the default notice and, in

hire purchase and conditional sale agreements, the restrictions on the credit provider's right to repossess protected goods (goods where the client has paid more than a third of the total cost). In Scotland, goods are protected whatever has been paid and the credit provider always needs a court order to repossess them.

The date specified in the default notice must not be earlier than seven days (fourteen days from 1 October 2006) after the service of the default notice.

The date of the service is the date the default notice is delivered by hand or sent by post. Service by post is effective service, even if the default notice is not received by the client.

If the credit provider takes steps to enforce the agreement before the date specified in the default notice, or fails to serve a default notice, or if the default notice fails to follow the correct format, or the client does remedy the breach, the client's breach of the agreement is regarded as never having taken place and the credit provider is not allowed to count on it as a breach for any other purpose.

If the client has received a default notice, s/he can apply to a court for an order which could vary the terms of the agreement before the credit provider can take further action (a time order). In Scotland, there is no fee for applying for a time order.

[car2403]

The Banking Code isn't worth the paper it's written on, IMHO - not least because there's generally no recourse for not following it.

 

Most of this seems to be from the OFT's documentation on CCA/Defaults - did the CAB tell you that, or are they just claiming the credit for it?

[knoxvillain]

what you see above is pretty much the e-mail they sent back without the niceties at the beginning. So I guess they are claiming credit for it