Dodgy Default Removal

[GerryPerry]

Okay folks, I'm a newbie here.

 

I need to get a default removed.

 

I have read with interest loads of successful claims against these sloppy bullying banks.

 

I had a J ohn L ewis C ard, which is being operated by H F C.

 

I call them earlier this year to clarify my credit limit and I'm told that I defaulted almost 10 months previously.

 

Strangely, all my credit ref agency files show the default as some seven months later than they claim.

 

I received no default letter, not in the ten months any other letter demanding the money I have defaulted, repayment of the account etc. Nothing on or in my statements in ten months to say I've defaulted either.

 

So I've done a S.A.R - (Subject Access Request), and just got a copy of my statements, and a copy of the front page of the agreement I signed, not the all the T&Cs, no default, no other correspondence, nothing.

 

 

I have written to them again asking for a copy of the default, copy of all other correspondence, and the logic behind automated decisions made on my account.

 

I'm wondering should I just cut to the chase and take them to court - they've had months to provide the data?

 

I was thinking:

 

 

1. Court Action - What do I claim to get the default removed?
   
2. Letter of Complaint - get financial ombudsman on the case - I believe I can get £400 if not satisfied?
   
3. Letter of Complaint to Information Commissioner - Any cash available on this one?
   

 

Any thoughts and advice welcome....

 

Cheers

 

GerryPerry (not my real name :grin: )

[GerryPerry]

Oh, and they have made loads of those £25 (hundreds of quids) charges when I was a bit tardy in paying on time - must get those back too....

[car2403]

Hi GP.

 

Check this out;

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/111211-defaults-background-removal-methods.html

 

 

Also, get those charges reclaimed...

 

[GerryPerry]

Thanks Car,

 

Here we go!

[MARTIN3030]

Okay folks, I'm a newbie here.

 

I need to get a default removed.

 

I have read with interest loads of successful claims against these sloppy bullying banks.

 

I had a J ohn L ewis C ard, which is being operated by H F C.

 

I call them earlier this year to clarify my credit limit and I'm told that I defaulted almost 10 months previously.

 

Strangely, all my credit ref agency files show the default as some seven months later than they claim.

 

I received no default letter, not in the ten months any other letter demanding the money I have defaulted, repayment of the account etc. Nothing on or in my statements in ten months to say I've defaulted either.

 

So I've done a S.A.R - (Subject Access Request), and just got a copy of my statements, and a copy of the front page of the agreement I signed, not the all the T&Cs, no default, no other correspondence, nothing.

 

 

I have written to them again asking for a copy of the default, copy of all other correspondence, and the logic behind automated decisions made on my account.

 

I'm wondering should I just cut to the chase and take them to court - they've had months to provide the data?

 

I was thinking:

 

 

1. Court Action - What do I claim to get the default removed?
   
2. Letter of Complaint - get financial ombudsman on the case - I believe I can get £400 if not satisfied?
   
3. Letter of Complaint to Information Commissioner - Any cash available on this one?
   

 

Any thoughts and advice welcome....

 

Cheers

 

GerryPerry (not my real name :grin: )

 

 

Welcome to the site.

The figure of £400 is not strictly true,any compensation is likely to reflect the individual circumstances of the complaint.

Maybe you are getting confused with the fee that financial institutions have to pay if they have a complaint investigated by the FOS.

The £400 is payable whether the complaint is upheld or not-suprisingly it has not really stopped the banks or card issuers from evading their duties-I guess 400 quid to them means far less than it does to us !!

[GerryPerry]

Der?

 

How do I upload an image of the agreement

[car2403]

Der?

 

How do I upload an image of the agreement

 

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

 

Check out post #15

[GerryPerry]

Okay, thanks Chris.

 

Not my day today..failed ethernet cable with dodgy link - taken me most of teh day to find it, then batteries go on wireless keyboard....arrghh.. manged to screw up getting my email here as half way through paypal it all crashed!

 

Anyway, enough....

 

Here's the agreement

 

 

 

">

 

That's all there is. Where's the T&Cs?

[GerryPerry]

Martin

 

tks for reply. Anthing that cause them pain and inconvenience nd costs is good for me!

[car2403]

Gerry,

 

Your right about the T&C's - I can't see the prescribed terms on that, (which are repayments, rate of interest and credit limit) so this is the letter that you need to send to them;

 

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

 

When you enter into a consumer credit agreement regulated by the 1974 Act, the agreement must be in the proper prescribed form (as set out in the Consumer Credit (Agreement) Regulations 1983, SI 1983/1553). This requirement is designed to protect the debtor, as the prescribed form contains important information and details of debtor protections and remedies under the 1974 Act.

 

The agreement must also be properly signed by both parties. You are legally entitled to a copy of the agreement (ss.62-63 of the 1974 Act).

 

If your agreement is not in the proper prescribed form or was improperly executed (signed) it may only be enforced by order of the court (s.65(1), 1974 Act); it may be that the agreement is not enforceable at all (subject to the discretion of the court).

 

The agreement states you have a right to cancel it -

In the OFT's document called "Cancellable agreements", (http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft018.pdf) under "Form and content of cancellable agreements"/"Signatures", it states;

 

Signatures

All agreements are to be signed by both customer and trader, or their representatives,

and the date of signature entered. The customer’s signature and its date must be inside a

box. This box can be of any size and appear anywhere in the agreement, but the wording

inside it must be easily legible and must follow that for the appropriate type of

agreement as set out in Appendix 2. The signature of the trader and its date must be

outside the customer’s signature box. Similarly the signature of any witness, and its date,

must also be outside the customer’s signature box.

 

a cancelable agreement should be signed and dated by both prties i it is to be properly executed if it is not it is enforceable only by order of the court section 65.

 

 

1983/1553

(3) The signature of the said document shall be made in the following

manner-

 

(a)

 

by the debtor or hirer, or by or on behalf of the debtor or hirer in the

 

 

case of a partnership or an unincorporated body of persons, in the

 

 

space in the document indicated for the purpose, and, subject to sub·

 

paragraph (e) below, the date of the signature shall be inserted in the

 

space in the document indicated for the purpose;

(b)

 

 

 

 

by the creditor or owner, or by a person on his behalf, outside any

 

signature box in which the debtor or hirer may sign and, subject to

 

sub-paragraph (e) below, the date of the signature shall be inserted

outside any such signature box;

(e)

 

 

 

 

in the case of a regulated agreement which is not a cancellable

 

agreement, the date on which the unexecuted agreement becomes an

 

executed agreement may be inserted in the document and in such a

case any other date specified in paragraphs (a) and (b) above need not

be inserted; and

Ill/Ix

 

 

In a nutshell, missing date of signature could mean improper execution, but would probably result in a Court order being issued for enforcement. If the prescribed terms are missing, s.127(3) prevents the Court issuing that order.

 

Also, it's Court all the way, IMHO, as the FOS probably won't be able to help you here - there's more info on that in this thread;

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/111211-defaults-background-removal-methods.html

Edited November 8, 2008 by car2403

[MARTIN3030]

Absolutely.

[car2403]

One thing, though, Gerry - DO NOT lose that copy they sent to you... It would be very easy to "add" the date of signature at some stage in the future, but you need to have that original to show that the agreement was "pre-contractural" and therefore void under s.59 CCA 1974. If it turns up at some point in the future, with a date on it that pre-dates their reply, you would have a very good case for throwing their claim/defence out and you could probably use the "F" word (no, not that one... the other one... ) as part of your submission.

 

[GerryPerry]

Many thanks for this Chris. I'll follow up on the link you suggest.

 

I have sent out one final letter to them on Friday, giving seven days, to provide copies of 1) all correspondence, (and for good measure I asked if you can't provide any then are you saying there hasn't been any?) 2) A copy of default notice - saying that one was sent is not enough, I need to see the actual letter sent, and 3) the automated logic.

 

In anticipation of them doing nothing, I will prepare the court papers and POC.

 

At the same time I think I'll set upon them the finance ombudsman and information commissioner - that should keep them busy.

 

By the way, that copy agreement they sent is in the safe! I have been toying with the idea of asking politely for all the agreement, ie getting them to confirm that's all they have.

 

One other thing Chris, I can't help but thinking that if you get some District Judge who is of the difficult non-consumer friendly kind, and their counsel prove that I didn't respond in time to the default notice (the one that was never received or communicated to me in ten months), then is my argument that the agreement was duff anyway and can't be enforced, QED, the default notice is invalid and must be removed?

 

(I note the difficultly you had with some of these unfriendly types in some of your other claims.)

 

Will the DJ go for that argument....?

 

Cheers

 

Gerry

[car2403]

The Default Notice issues are secondary to the enforceability issues - without an enforceable agreement, their can be no default (or Default) under it. Especially as the original contract now seems void by virtue of s.59.

 

I'd still send that letter I posted above, as it clarifies why they are still in default of your request.

[GerryPerry]

Will do. Let see what happens next.

[GerryPerry]

By the way, Chris, they didn't include any T&Cs in what they sent, just the Application Form with the signature as in the image posted above...I'll modify the letter accordingly.

[GerryPerry]

Well, after an absolutely mental time at work, hence not being able to do much on here, I get a letter on 13 November from another department, saying:

 

"thank you for your recent request about information we hold on you"

 

"We would be grateful if you could complete the attached form, blah blah, and send a copy of your driving licence or valid passport."

 

The form then demands a cheque fo £10.

 

I was so busy at work I just left it - never sent them anything

 

But lo, what do I get this morning, a 2 inch bundle of statements, screen shots of customer service agent actions, and reason codes.

 

Still busy, I haven't managed to wade through all of it but some interesting things leap out on first scan:

 

- No application form

- No copy of the default notice, and can't see the screen that says it was sent - lots of CSA post event when I'm chasing for SAR stuff saying one was sent, but I can't find it on any screenshot

- A CSR record saying that they'd received the form back and the cheque, what cheque, never sent one, nor did I return the form!

 

Q: is someone filling these screens in post event, because I can't see an dates on any of the screens to say when the entry was made?

 

- And no logic of the automated decision making

 

 

Glad I've got this data; the more I have the better.

 

So folks, next steps...

 

They have had lots of attempts now, and still not got it right.

 

Should I go for one final request for a copy of the whole agreement?

 

Or straight to court?

 

I'll ponder on that while I go to Twickers to watch England get pulverised by NZ - never mind, it was great being in Paris surrounded by loads of NZers who, so confident they were the best, had block booked tickets for the semis only to watch England beat France as they were knocked out. I'm sure we'll turn around in time for the world cup.

 

If anyone would like to see screen shots, let me know....

 

And any other thoughts and guidance welcome...

 

Cheers

 

Gerry

[car2403]

Ok Gerry, you have a very good case for getting this squashed (both the debt and the Default) but this isn't going to be an easy battle. If you want to know how tough, read through this when you get a spare few hours or so;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/110146-car2403-hfc-bank-default.html

 

The reason I think you have a good case is;

 

- The agreement they have provided is unenforceable

 

- The agreement couldn't have legally been defaulted, as you aren't technically legally liable for the debt so you can't have defaulted on the payments.

 

- The Default registered with the Credit Reference Agency is being unlawfully processed, as it's inaccurate under the DPA.

 

- They are legally bound by everything they have sent you. If they come up with "new" evidence at some point, they will have automatically breached the DPA by not providing it when you requested it.

 

For me, your next step should be to send them a letter outlining all this, and giving them notice to remove the Default under the DPA. If you look through the Defaults thread I linked to above, (plus you'll find it in the HFC thread linked above) you'll find a letter that you can adapt to suit your needs.

 

Once they've had long enough to comply with that letter, which is 28 days, you can issue a letter before Court action and start proceedings against them to enforce your rights.

[GerryPerry]

Many thanks for this. I'll get into that thread and then I'll be issuing the letter asap- recorded delivery of course. Oh by the way, their information to me came recorded delivery for the first time, so they must realise a fob-off isn't going to work.

[GerryPerry]

Okay Folks. I've sent John Lewis a final letter demanding that they remove the Dodgy Default. Checked my mail - nothing, no reply. Checked my rating - it's still there.

[GerryPerry]

So, here's a copy of what I sent.

 

XXXXXXXXX

XXXXXX

XXXXXX

 

 

XXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXX

Partnership Card Services

PO Box 3615

Birmingham

B3 2RJ

 

07 January 2009

 

Dear XXXXXXXXXXX

 

Recorded Delivery

Account Number: XXXXXXXXX

Your ref: XXXXXXXXXXXXX

Thank you for your letter dated 26 November 2008 and a letter dated 28th November 2008 (unsigned) from the Subject Access Request Team. I appreciate the effort that you have personally put into getting me this information.

I have now had the opportunity to review the contents with respect to Partnership Card Services legal obligations.

Partnership Card Services have still not fulfilled my Subject Access Request in full and I refer you in particular to the requests I have made in my letters of the 7th and 10th of November, of which you acknowledge receipt.

Following my review of your Subject Access Request (SAR) data, I note that records made on my computer files by your staff are inaccurate and misleading. One example is that you claim that I have been sent SAR information on 8 October 08 and that duplicates has been sent. This recording made by your staff or agents is inaccurate and misleading. I have kept a copy of all correspondence received by John Lewis in this matter, and I can categorically state that there is considerably more information in the SAR pack I received from you dated the 28 November than in the first pack of information. However, as you can see from my correspondence, it is not that the information was not received, but that it is was not complete as my subsequent letters and your responses have proven. This begs two key questions:

-How many times do I have to ask for information before I get complete information to which I am legally entitled?

-If records on my file are inaccurate and misleading, then how many other records on my file are inaccurate?

Partnership Card Services have had ample opportunity to provide information that they should be able to supply to me by law, but have not supplied, and I therefore assume that you do not have this information:

1.Agreement: a certified full copy of the signed agreement is required – not just a copy of the front page. If you do not have a copy of this, please state that this is the case.

2.Default Notice; A certified full copy of the Default Notice that is claimed to have been sent is required. If you do not have a copy of this, please state that this is the case.

3.Automated decision logic. I require details of the automated decision logic used during the process of dealing with my account. If you do not have a copy of this, or it cannot be reproduced, please state that this is the case.

The Default you have registered under my name within your company and with Credit Reference Agencies is false and must be removed immediately as:

a)The Agreement is unenforceable:

i)Referring to my letter dated 7 November:

To clarify, just sending a copy of the Application Form 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.

i)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.

 

ii)The Agreement is not dated by myself, and therefore is not properly executed and is also therefore unenforceable

b)There is no copy of any Default Notice in the SAR that is claimed to have been sent, and therefore no proof of compliance by Partnership Card Services with legislation on this matter, and therefore Defaults cannot be registered within John Lewis or its agents or any third parties

c)However, as the Agreement is unenforceable by law, no default could have taken place

d)Therefore, any registration of defaults within John Lewis, or any other third parties by John Lewis or its agents should be removed under the Data Protection Act

I demand that the default that you have registered within my name is removed within John Lewis, its agents and all third parties, for example, credit reference agencies, within 28 days from the date of this letter. Failure to comply with this request would leave me no alternative but to seek all remedies and compensations possible within law for Partnership Card Services breaches of the Data Protection Act and Consumer Credit Act.

If you do not normally handle these requests for your organisation, please pass this letter to your Data Protection Officer or another appropriate officer.

 

Yours sincerely

 

 

 

XXXXXXXXXXXXXX

 

 

So, Next I'm going to prepare the Claim and follow Car2003's advice.

 

I need to think about how to structure it.

 

I suppose I serve it on the person I've been corresponding with.

 

Cheers

 

Gerry

[car2403]

It's always the same in these situations - it's a stalemate at this point.

 

Until they take you to Court to enforce the debt, or you decide to challenge the agreement's enforceability in Court, there isn't anything else you can do about the CRA data.

[angel_1]

hiya

 

subbing if i may

 

as i feel i will soon be here with a few of my threads

 

so good to know that while it can be long winded there is always hope

 

good luck and let us know if you intend to take the court action yourself

 

take care and fab help as usual, again i learn something new today

 

laters angel x:cool:

[GerryPerry]

Thanks Folks. I just have the Particulars of Claim complete tonight. I need to make sure that the claims are several, and build up to removal of the default.

 

I will be making the claim myself. They get 14 days to respond I think.

 

Cheers

 

Gerry

[GerryPerry]

Der..do I use the HMRC MoneyClaim site, or do I use another HMRC service.... If anyone has the right link, let me know....