I've noticed a large number of searches by a company I have no connection to; Lowell Portfolio. These are listed as 'unrecorded searches' , which I understand means only I can see them but does the Data Protection Act not offer any protection in terms of who can search my file? This is a company I owe nothing to, I have never been contacted by them, I have never had any dealings with them yet they have searched my file multiple times. I understand a would be lender can access my file but this is not the case here. Should I write and ask them what right they have to access my personal financial data? Or is that simply awaste of time?

Hi (Halibutt)- That is correct, the agreement would have been from pre 2007 and I know for a fact they don't have the original agreement, or even a scan of it. They could possibly reconstitute one, but it wouldn't hold up in any due process. I learned the hard way not to take these things personally and that firing off letters and spouting consumer law can get you into trouble, so I'm inclined to let it go. I managed to negotiate my way out of a truly dire debt mountain a few years ago and the only creditor I couldn't reach agreement with was the one I choose to argue with. I got totally stitched up, fake agreements, scans posing as originals, offer letters "lost" in the post, court papers mislaid, outright lies on witness statements, lost payments, fake charges, just about everything you can think of, from a high street 'name' lender as well. If I'd had a decent lawyer I could have nailed them but I couldn't afford one and they knew it. Relying on the Judges mercy at a hearing after a plea of "I've been stitched up" was not an option. I won't send a letter or enter into communication of any kind unless it's absolutely necessary and even then I try to avoid the template stuff, simple, impersonal and don't pretend to be a lawyer.

Thanks for the replies. To be honest the content of the 'threatening ' letter is risible, looking into my personal finances simply means accessing my credit file (as someone above said), an unrecorded entry which is only visible to me. The other 'threats' are laughable, "we will send a field agent to discuss reasons for non payment", please do tell me when he's coming - I'll have tea and biscuits ready. Nowhere is the threat of legal action mentioned, I assume because they know the debt is SB. Although I'm tempted to send a SB letter I'm going to leave it, only because I know from bitter experience how time consuming these things are if you get drawn in. If they raise the possibility of legal action I'll jump on them but otherwise life is too short.

It's not on there, disappeared a while ago - last year sometime I think. Is that cast iron though? If it's off your credit file then the six years is up?

Hi Many years ago I had a credit card, I defaulted and was chased around a bit by the original lender. One day I called the original lender, whoever I got through to had either just been fired or was having a 'be honest it'll be good for the karma' day. They told me the lender had lost my original credit agreement, no record of it existed and I could stop making payments. Yes, I did fall off my chair! Over the years I've had a few DCA's contact me trying to chase up this debt and I've always ignored them or challenged them to prove the debt exists, the usual suspects, Wescot, Equidebt. Now it's been a very long time since I paid anything or acknowledged the debt in writing, probably around six years, but I don't know the exact date. Recently the pressure has been cranked up, more letters, a batch 'unrecorded' searches on my credit file. Then today I got a letter from yet another DCA, a sub division of Equidebt, threatening not legal action but to "begin a search into your (my) background and build an accurate profile of your finances ad pursue the best form of recovery action". I've no idea what that means, it could just be waffle. I could do nothing - has worked so far - or I could write and tell them the debt is statute barred and suggest they take a long walk off a short pier. However if I'm wrong and the six years isn't quite up could my letter be seen as an acknowledgement of the debt? Is there a way of finding out if my debt is now statute barred? Or should I simply write a 'prove it' letter? ie acknowledging no debt and challenging them to come up with a copy of the original agreement? Doubtless they could cobble together a 'reconstituted' agreement but that's a different story.

I acknowledged in time, and filed a defence in time, albeit an embarrassed one. Their PoC gave no cause for action, no date for the agreement, no date for a default, stated the agreement was for a 'charge card' that was 'exempt under the exempt orders Act' (words to that effect). I was at the time paying a monthly dmp on a credit card that was regulated by the CCA 1974 and I couldn't defend against an agreement I didn't have. The claim was stayed, nothing happened for months. Then out of the blue I get served with papers for a SJ hearing, which a Court has granted them, still a few months away. I've never disputed the debt, seems to me they just got fed up with the dmp payment and have taken me to court. Of course if I lose the SJ hearing they will be entitled to costs as well.

Sorry, that's what I meant, what are the time limits for me to do things? I assume they mean any requests from me for the other side to produce documents etc. must be submitted a certain amount of time before the hearing?

A date is set for a Summary Judgement hearing, so they have issued proceedings for sure. I don't need to see these documents as such, I need them brought to court, so is the N266 the correct form to use? Also, crucially, do you know what the time limits actually are?

I want to get the other side to produce various documents in court, at a SJ hearing. I've read that unless I challenge, or ask for documents to be produced, then it is assumed I am agreeing to their accuracy and authenticity - which in this case I certainly do not agree with. What form would I submit to the Court to request the other side bring various, original documents to the hearing? Thanks for any advice / information.

You might think there is more chance of a Howard Cohen winning Britain's Got Talent than of a creditor admitting a debt is unenforecable but in fact this did happen to me once. I was on the phone to Barclaycard, my policy was always to be polite and friendly, even if the opposition were not. Anyway, this operator I was on the phone to had clearly had a very bad day indeed, I suspect he had just been told he was losing his job. I sympathised then asked him, very politely, why I hadn't yet been sent a copy of my agreement, which I had asked for in writing. He went away to look up a file, came back after a few minutes and said "I can tell you why, because they've destroyed your agreement and have no longer have a record of it". I nearly fell off my chair. Absolutely true story.

Sadly not, my default notice was issued many years ago, well before I learned to keep everything. And although the burden of proof is supposed to rest with the claimant, you only have to read through these forums to see that there is an underlying assumption in court that whatever the claimant says can be taken as the truth.

I'm inclined to agree, the OFT guidelines seem fair and reasonable to me, and at least they provide some clarity. Especially the concluding part which says non compliance is no longer an automatic criminal act but could still be an offence under the Enterprise Act 2002 as it constitutes "a failure to provide information".

That's a great start. But in this situation would it be good enough? Our cast - LiP, a stout fellow, but regrettably short in pocket. Claimant's Barrister, oil on wheels @ £225 per hour with a hint of permatan, The Judge, a fully paid up member of Shoot The Poor and Kiss A Banker. LiP "You cannot show what method of postage was used" Claimant's Barrister "My client always uses first class post" LiP "Prove it" The Judge "the claimant is a respected firm, I have no reason to doubt their word" LiP "But the Interpretation Act says....unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post' Claimant's Barrister "And my clients ordinary course of post was first class" LiP "That's not proof!" The Judge "It is to me" Okay, childish, but you get the point. Will it stand up in court? Does 'ordinary course of post' mean second class?

How solid is the statement that if the claimant cannot prove first class postage then second class postage will be deemed the method of postage used? Is there a nice juicy bit of case law somewhere, or is it enshrined in a piece of legislation? Put it this way, when the Judge peers at you in court and says "where did you come by this piece of information you horrible little defendant you" is there something tangible to respond with?

Double posting

Okay I've read through the Waksman rulings. I must admit I'm still confused about one issue, whether the creditor has to supply a copy of the Terms and Conditions (especially the prescribed terms). Some paragraph's seem to suggest these must be provided, others seem to suggest something different. The same applies to whether a creditor has to send a copy of any other document referred to in the agreement. A specific example; in response to a s78 a creditor sends back a copy of the application form, which itself contains no Terms & Conditions, it says there are "Important Personal Details Overleaf" but otherwise fives no clues as to where the Terms and Conditions are. Does that comply with s78, post Waksman, or is the creditor in breach of section s78 for not including the Terms and Conditions, specifically the prescribed terms?

The Flaux judgement on enforcement (McGuffick v RBS) is being appealed? Is there a thread that gives more info?

http://www.judiciary.gov.uk/docs/judgments_guidance/mcguffick-v-rbs.pdf The relevant paragraphs start at 74 - The Meaning of Enforcement It goes on and I don't fully understand all the legal terminology, but the gist is there.

Okay, so I've done some research on enforceability and waded through a few judgements (my eyes are still aching). Judge Flaux gave a high court ruling that enforcement was not; reporting to a CRA, issuing a default notice, demanding payment or passing the account on to a third party for collection. Judge Flaux also agreed with a previous ruling made during Rankine v AMEX Europe - again in the high court - that commencing legal proceedings was not enforcement, it was a step toward enforcement (or words to that effect). Purely as a layman it seems the Flaux case was very optimistic, and perhaps unlikely to succeed. In the Rankine case the Judge slaughtered them, he believed they were lying and said so, particularly the wife who the Judge seemed to develop a personal dislike for! Either way these cases did for most arguments concerning breaches of s78. I think the only valid remaining use of s78 is if the breach is still not remedied by the time the case is heard - in other words if the creditor doesn't produce the agreement in court. This is only my understanding, based a quick read of the two relevant judgements. I've no legal training or experience at all.

Once the creditor raises the possibility of legal proceedings you can use the CPR. There is a very good thread here -http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html#post1868913 What I'm not sure about is how robust the CPR are when it comes to court action, i.e. whether a creditor breaching them is likely to influence a Judge very much.

If true then a s78 request is meaningless, it can be ignored without consequence. Technically I suppose the Judge cannot enforce if the creditor is still in breach once the case comes before court, but it seems a high percentage of DJ's are determined to side with the creditor whatever the circumstances. If you want the letter of the law applied more evenly you need to go to appeal, which is £10k minimum. As for why MBNA won't recreate your agreement - do you know if its a decision on your case alone, or generally do they not supply agreements? It may just be policy. Given that they are going with the Flaux they may feel the only time they are obliged to produce your agreement (recon or otherwise) is in court. I know that flouts OFT guidelines and whatever else but that doesn't seem to bother creditors or judges as much as it should.

Okay, thanks. So basically the only way to oppose a summary judgement is at the actual hearing? The Witness Statement has to be in 7 days beforehand? When do you hand over your skeleton argument? Sorry to butt into this thread, but hopefully this will also assist the OP, whose situation (and expertise) seems similar to mine.

Can you apply to court to have a hearing for summary judgement struck out? I mean before the actual hearing? I'd be interested to hear if you could.

What level of court did Judge Flaux give this decision in (saying starting court action was only a "step toward enforcement", anyone know? Has Carey done for this argument, or was Carey purely concerned with whether a s78 breach made an agreement terminally unenforceable? To me (total layman) that seems a very optimistic approach, did they really expect that to succeed? Would it not have been better to argue that the creditor did not have the right to start court action until he complied with the s77/78/79 request - focusing on preventing enforcement, which after all is what the Act says. Apologies if this is out of the loop, I haven't read all 118 pages of this thread and I must admit I'm not sure I fully understand Carey.

So what was the intention of the original 1974 act when it said (paraphrasing) 'You cannot enforce if you are in breach of s78'. Clearly it wasn't so a Judge could say "only I can enforce, so the claimant can do whatever he likes", which simply renders this portion of the Act meaningless. The Act must have had it in mind to prevent the lender / credit giver from doing something if he was in breach of s78.