car2403 -v- On:Line Finance Ltd

[car2403]

I had a finance agreement with On:Line Finance Ltd back in 2001 - HP for a car I'd bought at the time. I had an accident in the car which wasn't my fault, but wasn't covered by the insurance at the time, (this is a thread on it's own, so I won't bother here - blah, blah, blah!) but OLF terminated the agreement and defaulted me with the Credit Reference Agencies.

 

On my account - I actually have ALL the statements I need already - I have over £500 in fees. Returned DD, "reminder letters" and "deliquent account management fees" to name a few.

 

So - here comes another claim from the Ombudsman's service for these charges. His office has already acknowledged my paperwork - oh, and OLF have NEVER replied to any letter I've sent them so it's over the 8 week period for complaints already.

 

Bring it on!

 

P.S. I'm also starting action against them for the default, as mentioned here;

 

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

 

and;

 

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

 

Which you'll find in this thread;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/99772-car2403-line-finance-ltd.html

[car2403]

Just had a letter from the FSO saying that they "can't deal with the issues I've raised in my complaint" and have referred my complaint to the Finance and Leasing Association.

 

I rang them to find out what that means and - apparently - as the complaint isn't relating to the current financial year, (the account was opened/closed in 2002) they've referred me to the FLA;

 

FLA

 

I've had a look here and they don't seem to have much power - they can't decide my complaint for me, only work with me and their member to attempt to resolve it.

 

I'm seriously considering just taking this to the Court instead, now? Any advice?

[car2403]

I've issued my claim via MCOL today

[car2403]

Acknowledgement of Service filed - SOC sent to Court and OLF

[car2403]

This is truly bizarre;

 

- 10 April 2007; Data Protection Act S.A.R sent. Reply received virutally immediately, which I thought was a bit odd, along with a "statement of charges" showing, what I thought were anyway, charges applied and an increasing "balance amount" after each charge. This is then totalled to the amount of my claim.

- 19 April 2007; first approach letter sent

- 9 May 2007; LBA sent (after several delays wasting time with the FSO - see above)

- 3 July 2007; claim issued via MCOL

- 18 July 2007; claim acknowledged, SOC sent to the Court and Defendant

- 7 August 2007; Notice of transfer of Proceedings received to local court, along with a defence.

 

Their defence reads;

 

Blah, blah, blah...

 

3.

On the 14th May 2007 we received a letter from the claimant referring to default charges which have been applied to the account. The claimant asked that we repay these charges as a gesture of goodwill.

 

4.

A reply was sent confirming the position that no refund was due as no fees had been paid on the account. A copy of this letter appears as page one of the exhibits.

 

5.

The defendant puts forward that that charges have been applied to the claimant's account but these have not been paid by the claimant and therefore a refund is not due to the claimant. A copy of the charges that have been applied to the account appears as page two of the exhibits.

 

This statement is true... blah, blah, blah

 

Attached is a letter dated 14th May that they are referring to, which also refers to a letter dated 9th May, "confirming the position that no refund is due as no fees have been paid to the account... as we have answered this query previously, we are unable to assist you any further in this matter".

 

The letter they've produced - (14th May) and also presumably the letter they refer to - (9th May) has been addressed to my old postal address at which the account was held at. I've checked and the S.A.R., the first approach letter and the LBA have all been sent including my current address and referring to my old address to allow them to identify the me/the account.

 

Now I'm totally confused!

 

The defence seems to contradict itself as well;

 

"no refund was due as no fees had been paid on the account"

 

But;

 

"The defendant puts forward that that charges have been applied to the claimant's account but these have not been paid by the claimant and therefore a refund is not due to the claimant"

 

Any ideas? If this is right, which I can't see happening, I at least want to claim my issue fee of £80 back from them because of their clerical error and, therefore, lack of reply to my letters.

 

Can I rely on my Data Protection Act S.A.R., as below, as they've responded with the wrong information if that is the case?;

 

I request that On:Line Finance Ltd provides me with details of all default charges for unpaid items I have paid in the last six years.

[steven4064]

Hi car

 

I'm confused too. Could you post the 10 April letter (personal data removed of course) so we can see what they said.

[car2403]

It isn't really a letter - it was just a printed page with "statement of charges" shown with an increasing balance on each entry with a "with compliments" slip attached.

 

This is the only thing I've received from them.

 

I've drafted this, which I'm sending to them today - I don't think the Court will be impressed if I turn up to this claim without trying to sort this out first!;

 

I refer to the claim mentioned above and the defence which has been submitted to Northampton County Court.

 

I wish to seek clarification on this issue further, so that this claim can be effectively resolved without the need to further involve the Court – I would, therefore, appreciate it if you could reply in confirmation of each of the issues raised below;

 

1) In your defence, you state;

 

“4. A reply was sent confirming the position that no refund was due as no fees had been paid on the account. A copy of this letter appears as page one of the exhibits.”

 

Please note that neither this letter, nor the letter that you refer to as being dated 9 May, have been received by me. I notice that this letter - and presumably the letter dated 9 May - has been sent to an old address at which the agreement was held – [OLD ADDRESS IS HERE]. I haven’t resided at this address for almost 4 years. Please note that my current address, to which your reply to this letter should be sent, is shown at the top of this letter – this is also the address that was included in 4 letters to you, dated 10 April, 19 April. 9 May and 20 July 2007. I have enclosed copies of each of these letters, for your information.

 

2) Also in your defence, you state;

 

“5. The defendant puts forward that charges have been applied to the claimant's account but these have not been paid by the claimant and therefore a refund is not due to the claimant.”

 

This information seems to contradict itself, in so much as “charges have been applied” but “have not been paid” – can you please provide a detailed explanation of this statement and its meaning? I would like to point out that to date, despite my efforts to communicate with you regarding my complaint, you have failed to provide this explanation – and have failed to provide this in your defence to this claim. I would also like you to note that, after sending you a Subject Access Request on 10 April, (in which I specifically requested details of all charges applied and paid by myself in the last 6 years) I received the list of charges to which you refer in your defence. At no time have you stated that these charges have not been paid, until now. Indeed, this list of charges was provided as a direct response to my request for details of charges applied and which have been paid by me.

 

I look forward to receiving your response to these enquiries for further information at your earliest convenience.

[steven4064]

I wonder if they mean that the charges have been debited to your account but, as you have not cleared the account, they have not been paid. If they do, it shows they don't understand accounting (or the law).

 

If this is indeed the case, what should happen is that repayment of the charges should then clear the account (or at least that element made up of charges).

[car2403]

That does make sense.

 

I think this may not work, as I settled the account with a reduced payment and they "wrote off" the remaining balance - presumably, this is included, but neither their correspondance or litigation contains enough detail to suggest this is the case.

 

I'll have to wait and see how they reply, so I'll keep the thread up to date when that happens.

[steven4064]

Right - we may need to be a bit careful here otherwise you may be open to a charge of "unjust enrichment" which could scupper your claim. Keep us informed of their answer and go slowly.

[car2403]

Right - reply from OLF. (Eyes down, look in for a full house!)

 

Thank you for your recent letter dated 7th August 2007.

 

As you can see from the statement of charges that was sent to you on 17th April 2007, there is a continuous amount, indicating that no fees were ever paid by yourself, therefore no refund is due to be paid to you.

 

We apologise that your new address was not updated at this point and therefore subsequent letters were sent to your old address.

 

You state in your letter that paragraph five of our defence — ‘charges have been applied to the claimant ‘s account but these have not been paid by the claimant’, contradicts itself, these are the facts of the charges on this account. These were applied to the account from March 2002 until September 2002.

 

We accepted a reduced settlement figure of £5,753.20 in April 2003, a saving to you of £2,885.23. The account was then closed. We were not asking for the charges to be paid.

 

I have enclosed a copy of the new statement of charges showing that the fees have been written off showing a balance of 0.00.

 

If there are any queries please do not hesitate to contact me on XXX

Yours Faithfully

Now they have included a copy of the "statement of charges", showing some new entries where they've "written off" the charges - but, I'm still not understanding it despite asking for a detailed explanation?

[car2403]

Having thought about this now, I don't want to pursue this claim as I think it's on dodgy ground because of their responses.

 

I now want to tie this together with my attempted default removal I've been pursuing with them - see here;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/99772-car2403-line-finance-ltd.html#post932318

 

So I was thinking of sending this;

 

Dear Sir/Madam,

 

 

car2403–v- On:Line Finance Limited (Claim No: XXX),

 

s.78(1) Consumer Credit Act 1974 Request, account “Default” and

 

On:Line Finance’s Data Protection Act non-compliance

 

 

 

I refer to your letter dated 20 August 2007 and thank you for clarifying the information I requested further to your defence entered to this claim. I also appreciate you acknowledging that your responses to my previous queries haven’t been received, which is why the claim has escalated in to a Court claim – this is a situation that I wish to resolve quickly, with your cooperation, without further involvement from the Court if possible.

 

As you rightly state, the account was settled in full and final settlement, by payment of £5,753.20 in April 2003. I therefore still dispute that £370.63 was charged in the form of fees for defaulting on payments or management of the account. Whether these fees were “applied” to the account (or entered in to your system in another way) or not, as suggested in your defence, is a matter of fact. This is a fact that I am prepared to argue against, when ordered by the Court at the relevant time in these proceedings, and I will seek contest the application of these fees as per my previous correspondence – these having being taken into account when On:Line Finance offered full and final settlement of the account.

 

You may not be aware that I have recently communicated with On:Line Finance regarding a “default” marker that appears on my credit file, held with the credit reference agencies, regarding this account. During these communications, I made a legal request to On:Line Finance under s.78(1) of the Consumer Credit Act (CCA) 1974 for; (i) a true copy of the original credit agreement, and (ii) a signed, true and certified copy of the original default notice. This request was sent on 9 June 2007. As you know, the CCA allows On:Line Finance 14 days from the day the request is sent to reply – a failure to reply is deemed as a “default” on the legal obligations of a lender regulated by the CCA. Furthermore, a failure to provide this information as requested for a further 30 days after this time means that On:Line Finance have committed a criminal offence under the CCA and Data Protection Act 1984, as amended. The deadline for this information to be provided was, therefore, 23 June 2007 (first default) and finally 23 July 2007. (Second default date) To date, I have received no substantive reply from On:Line Finance regarding this request and the information requested remains unsubstantiated.

 

Aside from not being able to substantiate the default information that is being processed with the credit reference agencies, On:Line Finance is also in default of it’s obligations under the Data Protection Act 1984, as amended, as I have served a statutory notice under s.10 and s.12 Data Protection Act – this statutory notice being dated 8 July 2007 and allowing 21 days for On:Line Finance to comply with my statutory notice.

 

You should be aware that I have already referred my complaint regarding the Consumer Credit Act request to the Financial Services Ombudsman and the Finance and Leasing Association. My complaint under the Data Protection Act has also already been referred to the Information Commissioners’ Office.

This situation has caused me damage – namely, amongst others;

 

§ Stress and distress of having to correspond with On:Line Finance, as well as time taken to do so, without receiving substantive responses to the many letters that I’ve wrote;

§ Time spent researching the legal issues and investigating the basis of On:Line Finance’s continued processing of incorrect and unsubstantiated information about me as a Data Subject;

§ Having higher rates of interest applied to mortgages and other loans that I have taken out, due to the adverse credit On:Line Finance have recorded against me;

§ Court fees in issuing my claim.

 

Due to this damage, I am interested in resolving these issues sooner rather than later. Therefore, I would like On:Line Finance to consider, as a gesture of goodwill;

 

§ Removing the default that has been applied to my credit file, as this information clearly cannot be fully substantiated by producing a legally binding agreement and copies of “Default Notices” required by the Consumer Credit Act. (This information also being illegally recorded by On:Line Finance under the Data Protection Act)

§ Refunding the Court fee of issuing this claim to me. (£80.00) I believe that this fee could have been avoided if On:Line Finance had responded to my previous correspondence by sending these to the correct address.

 

If On:Line Finance is willing to agree to performing these actions, I will agree to withdrawing this claim and agreeing that the issues surrounding fees “applied” to the account (leaving issues as to whether they were, in fact, applied or not to one side) will be settled between ourselves and will not be subject to further claim in the future. I will also inform the Information Commissioners’ Office and the Financial Services Ombudsman/Finance and Leasing Association that my complaints logged with them have been resolved amicably and no further action is required on their behalf.

 

You should be aware that failure to consider this request fairly and to respond positively will result in me exhausting every remedial avenue possible to enforce my legal rights in this situation – including contacting Trading Standards to inform them of your criminal failure to deal with this situation effectively. This is, of course, a situation that I would like to avoid – as I am sure that you are also.

 

I look forward to receiving your response to this letter within 7 days.

 

Yours faithfully

 

Any thoughts or other advice before I send this to them?

[steven4064]

I have made some suggested corrections/changes to one paragraph

You may not be aware that I have recently communicated with On:Line Finance regarding a “default” marker that appears on my credit file, held with the credit reference agencies, regarding this account. During these communications, I made a legal request to On:Line Finance under s.77(1) of the Consumer Credit Act (CCA) 1974 (as amended) for; (i) a true copy of the original executed credit agreement, and (ii) a signed, true and certified copy of the original default notice. This request was sent on 9 June 2007. As you know, the CCA allows On:Line Finance 12 days from the day the request is sent to reply – a failure to reply is deemed as a “default” on the legal obligations of a lender regulated by the CCA. Furthermore, a failure to provide this information as requested for a further calendar month after this time means that On:Line Finance have committed a criminal offence under s77(4)(b) of the CCA and also an offence under the Data Protection Act 1984. The deadline for this information to be provided was 23 June 2007 (first default) and finally 23 July 2007. (Second default date) To date, I have received no substantive reply from On:Line Finance regarding this request and the information requested remains unsubstantiated.

 

[car2403]

Thank you! I'll send this off today and see if I can rattle their cage a bit...

[car2403]

This is bizarre - I've received this from the Court today;

 

Standard order for stay for settlement with consent of all the parties

 

All parties having agreed, DISTRICT JUDGE X orders that this claim is stayed until 03 October 2007 to enable the parties to attempt settlement.

 

On or before 17 September 2007, one of the following steps must be taken;

either

the claimant must notify the Court that the whole of the claim has been settled; (see note (i) below)

or

the claimant or defendant must write to the Court requesting an extension of the stay period, explaining the steps being taken towards settlement and identifying any mediator, expert, or other person heloing with the process. The letter should confirm the agreement of all the other parties. (see note (ii) below)

or

all the parties must file a completed allocation questionnaire at the Court. Where a settlement of some of the issues in dispute has been reached, a list of those issues should be attached to the completed questionnaire. The list must be agreed with the other parties and must indicate that it has been agreed.

 

Date 22 August 2007

 

Note (i): Where settlement of the claim is achieved before the end of the period of stay, the following will be taken to include an application for the stay to be lifted;

(a) an application for a consent order to give effect to the settlement.

(b) an applicaiton for approval of a settlement where one or more of the parties is a person under a disability: and

© the filing of a notice of acceptance of monies paid into Court, or an application to accept monies paid into Court out of time.

 

Note (ii): Extenstions to the period of stay will fenerally be no more than 1 month

 

I think this may be a mistake, but hopefully OLF will think about this carefully and take me up on my offer!

[steven4064]

You could perhaps phone them and say you are interested in reaching an agreement as the court obviously wants. The bottom line is that, if no agreement is reached by 3 October, you will have to submit an AQ (download here) by 17 October.

[car2403]

Just rang as per your advice Steven...

 

Thought I wasn't going to get anywhere initially, as they stuck to their version of events over these charges still claiming they hadn't been paid - I then spoke to someone more senior and we've agreed in principle that the claim will be withdrawn if the default they've registered is removed.

 

I'm happy with this, if they stick to their word, (I already have the Consent Order draft in my email!) as I wasn't interested in pursuing the charge reclaim but the default was causing me a headache. Of course it's a "goodwill gesture" to remove it, after me challenging it under the Data Protection Act/CCA in my other thread;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/99772-car2403-line-finance-ltd.html

 

SUCCESS!

[steven4064]

That's Wonderful - let us know when it's all done and dusted.

[car2403]

Received a letter from OLF - not from the guy I spoke to - that says;

 

“the “Default data” filed by us at the credit reference agencies is amended to show your account as settled”

 

This isn't what was agreed, so I've sent this;

 

I refer to our recent conversation regarding the complaint above and to a letter I have received from X, Litigation & Recoveries Manager, dated 31 August 2007.

During our conversation we agreed that this Claim would be withdrawn if Online Finance agreed to complete removal of the Default data held with any credit reference agency – I note from X's letter that this is referred to as “the “Default data” filed by us at the credit reference agencies is amended to show your account as settled”.

I refer you to my letter to Online Finance dated 5 July 2007, in which I already advised that the Default was “marked” as satisfied on 18 September 2002. (Copy attached)

Please note that I require complete removal of the Default information being processed with all credit reference agencies – not just that the Default being marked as “satisfied” or “settled”.

I have amended the wording of paragraph 1 of your draft consent order to reflect this and to clarify the terms of our agreement and attached this for your signature and submission to the Court. I hope that this is to your satisfaction.

I look forward to hearing from you at your earliest convenience.

Yours sincerely,

I've also changed the wording of the agreement order to go to the Court, as that was ambiguous - I think they may have tried to pull a fast one after signing the original so, no chance of that now I've redrafted it. (It just needs their agreement, which I'm yet to receive)

Interestingly, I've received a letter from the Finance and Leasing Association - handled the complaint forwarded from the Financial Ombudsman Service, as it wasn't relating to the current financial year - stating that the letter I received is the final response from OLF and that, if I didn't agree with the response, I can now refer the complaint to the FOS. It must be just red tape that means you go to the FLA first then back to the FOS if not satisfied - if they don't agree to removal of the default I'll see them in Court for the charges (win or lose, but it will cost them to defend anyway!) and back to the FOS re: the default registered.

Hopefully this will all be over in the next week or so...

[steven4064]

Keep at them car, don't let them get away with anything

[TheAnalyst]

Settled is good, the last status marker showing will be "S" instead of "D" wich as I understand it is what would show had all the payments been made and the account settled as per the terms of the agreement?

[car2403]

I agree - settled is good, but total removal is better. A settled account still shows as a defaulted account, which is my issue - lenders still look on it as a terminated agreement and it's still frowned upon as adverse credit.

 

I think this thread shows that you shoudn't settle for "settled", but use that as a backstop if you can't get complete removal.

[TheAnalyst]

Thats not actually quite right in many cases (and I suspect yours too)

 

For example, my defaulted Carphone Warehouse account ... they have agreed to replace the D with an S so all reference (default balance, default marker) will be removed and replaced with S instead showing as if I had settled the account without it actually ever being defaulted in the first place.

[car2403]

Nothing from the Court yet - I'll wait until next week and ring them to see if they've received the Consent Order... might have to chase OLF again if they haven't. I may have to file an AQ, as ordered, to get the ball moving faster...

 

The Court is too busy staying Charge reclaims to deal with these cases properly!

[car2403]

Rang the Court and they haven't received the Order

 

I'll have to ring OLF again to see what's going on - they probably disagree with my reworded Consent Order... here we go again...!