Default Issue - is this right?

[sillysow]

Hi All

 

I am hoping to be able to get a default removed for an old debt that was settled some time ago. I do not remember having ever received this default - particularly as I do not recall any relationship with London Scottish. I now realise they are part of Robinson Way - they are the people I paid.

 

I sent them a CCA request (London Scottish - as I said I have not ever had a relationship with them so was confused)

 

Please see attached their response - which I feel is not acceptable- any advice / suggestions?

 

http://i112.photobucket.com/albums/n182/ponypower_2006/LondonScot.jpg

[sillysow]

Not sure why the link has not worked -

 

[heliosfa]

No signed agreement = no regulated agreement

 

Without the regulated agreement, they had no "lawfull" right to default you and definitely no written consent to share your data with 3rd parties.

 

I'm not quite sure how to deal with this, perhaps a more knowlegable person could comment?

[sillysow]

Thanks for your response heliofsa - I have got a few defaults with people who cant produce a CCA.

 

Any idea where I go from here? Should I file in court?

[heliosfa]

hi silly,

 

Unfortunately (or fortunately for us ) people cannot really just go and start a court case out of the blue. People are expected to follow the "Pre-Action Protocols", which includes trying to resolve the issue pre court, then sending a "letter Before Action"

 

 

 

In this case, I would be tempted to send something similar to the following:

Dear Sir,

 

With reference to your letter dated the 2nd of February 2009, I must say that I am a bit confused. In one breath you say that there is, and never was, a signed agreement regulated by the Consumer Credit Act 1974 but in the next paragraph you start quoting section 189 of the aforementioned act.

 

Firstly, I feel that I must address your failure to comprehend the Consumer Credit Act. At no point in section 189 (1) is there mentioned a "Simple Assignee" or an assignment where only the rights can be assigned. The act is clear, however, that an assignment is of both the rights and the duties of any agreement. The relevant parts of Section 189 are quoted and emphasised below.

 

“creditor” means the person providing credit under a consumer credit agreement

or the person to whom his rights and duties under the agreement have passed by

assignment or operation of law, and in relation to a prospective consumer credit

agreement, includes the prospective creditor;

 

If you disagree with the above and can quote the relevant section of the act that enables a simple assignment, I will most happily accept that my interpretation is incorrect. It would be a clear case of miss-representation and deception if you continued to assert that you have only the rights of the agreement in light of the above.

 

 

This type of agreement should have been covered by an agreement of a form and content that complies with section 61 of the Consumer Credit Act 1974 and other related regulations. As you are no doubt aware, in the ruling in Wilson v First County Trust Ltd [2001], Lord Justice Chadwick stated:

 

"In effect, the creditor – by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms – must (in the light of the provisions in sections 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid; ..."

 

The act is very clear that a signature is required for such agreements and that a verbal or other implied acceptance is not deemed acceptance of a credit agreement.

 

Not only does this reinforce the position that this alleged debt was unenforceable, but I may also be entitled to reclaim all monies paid to yourself, and the original creditor, as such money was obtained in mistake and possibly by miss-representation and concealment.

 

 

Furthermore as you state that there is no signed agreement, you do NOT have my express written permission to process or pass on my data. Any such processing or passing of my data by yourselves is in contravention of the Data Protection Act 1988 and is unlawful. As such, I demand that you immediately cease processing my data and remove all entries you have made to my credit files.

 

Failure to remove this data within seven days could result in court action in which I would not only be seeking an order for removal of data, but I would also be seeking damages as suggested in “Kpohraror v Woolwich Building Society [1996] 4 All ER 119” for damage to my creditworthiness.

 

I trust that you will remove all of my data and respond favourably within 7 days,

 

Regards

xxx

I'd just get one of the more knowledgeable CAGers to check that before posting though.

[sillysow]

Thank you very much once again, your help is truly appreciated. I would of course send an LBA prior to commencing court action - its just that with a few of them, t-mob included - I appear to be banging my head against the wall. Arrow Global are another bunch! They all seem to flout Data laws left right and centre

[heliosfa]

not a problem, I know the feeling of banging heads with walls - we are doing it with Abbey at the moment!

 

It;s when they start saying they have a "legal" rght to process your data with no contract that you start to really laugh

[sillysow]

Head banging does seem a frequent activity when trying to sort these people out lol! !

 

~Once again many thanks

[freddyj]

Hi,

 

I have something similar with Next Directory. They have defaulted me and yet have stated that they do not have a signed agreement!!!

 

From what your saying then there is no way they should have passed on my details to a CRA? Am I correct in thinking this?

 

Would the Information Commissionaire or the F.O.S rule in my favour?

 

Thanks

 

FREDDIE

[sillysow]

Phew it has been a busy old weekend! On Friday I emailed the following to the MD:

 

 

Risk and Compliance Department

London and Scottish Bank Plc

201 Deansgate

Manchester

M3 3NW

 

12th March 2009

 

 

By Email and by Post.

 

To Whom It Concern,

 

 

“DATA SUBJECT NOTICE UNDER SECTION 10 OF THE DATA PROTECTION ACT 1998”

 

 

Letter Before Action.

 

I am in receipt of your letter dated 2nd February 2009. I also note that you have not yet responded to my letter dated 3rd February 2009.

 

I note the line of argument you adduce. I do not see the relevance as I am relying on the Data Protection Act 1998, section 10.

 

Whilst you argue that S. 136 Law of Property Act 1925 applies in this case. I do not see the relevance as I am relying on the Data Protection Act 1998.

 

I refer you to my previous letters’ dated 16th January 2009 and 3rd February 2009 where I argue that the DPA allows me to request that data is no longer processed where there is no amount outstanding, county court judgement or similar outstanding.

 

I thereby request that you update the information that you have passed to the Credit Reference Agencies at your earliest convenience. This should be within 28 days at the latest ( 9th April 2009) – failure for you to comply with my request WILL result in County Court action without further notice.

 

 

 

Since then emails have been backwards and forwards - please see below

 

 

Dear

 

We are not in breach of the Data Protection Act 1998. We have complied fully with the principles of the Act; your account has been marked as closed in our files and we have no reason to process your data any further. Do you have any evidence to suggest otherwise?

 

With reference to a copy of the credit agreement, this debt related to a mail order account and, as with most mail order accounts at that time, no agreement ever existed. However we purchased the debt from Next and under our assignment, we then became the Data Controller.

 

I will let you know as soon as I have confirmation that your credit file has been updated.

 

Kind regards

 

 

Complaints & Compliance Manager

Robinson Way & Co Ltd

Tel: 0161 830 2469

e-mail

 

 

 

 

From: Sent: 16 March 2009 10:22

To:

Subject: RE:

 

 

Dear ,

 

It is my understanding that I may request that you cease processing my data under section 10 of the Data Protection Act 1998 (so long as there is no outstanding balance, CCJ or other court action). I realise that I should give you a reasonable time period in which to do this.

 

I would also like to add, that you are unable to supply a true signed copy of the original Consumer Credit Agreement, and therefore you are not able to evidence that I ever gave permission for my data to be shared with third parties.

 

Yours Truly

 

 

 

 

 

 

========================================

Message Received: Mar 16 2009, 09:56 AM

From: "To: "Cc:

Subject: RE:

 

 

Dear

Are you thinking that the default should have been removed completely when you paid it? The date of your default was 25th November 2005. The details will remain on your credit file for 6 years from that date; even when the account has been paid. Under the Data Protection Act 1998, we have a legal obligation to update the file with the account status, which in this case means that we should have updated it with the words’ satisfied’ shortly after you paid the full amount. This will show to any future creditor that you had a default but that you have paid it. I believe this was done but I’m checking to make sure.

Kind regards

Complaints & Compliance ManagerRobinson Way & Co LtdTel: 0161 830 2469e-mail

 

From: ]

Sent: 16 March 2009 09:39

To: Subject: RE:

 

Dear

Thank you for your response.

 

I am not sure that you understand my request under the Data Prtection Act 1998.

 

Please see below - I have highlighted in red the parts that I feel are of particular importance. Risk and Compliance DepartmentLondon and Scottish Bank Plc201 DeansgateManchesterM3 3NW 12th March 2009 Re: By Email and by Post. To Whom It Concern, “DATA SUBJECT NOTICE UNDER SECTION 10 OF THE DATA PROTECTION ACT 1998” Letter Before Action.I am in receipt of your letter dated 2nd February 2009. I also note that you have not yet responded to my letter dated 3rd February 2009. I note the line of argument you adduce. I do not see the relevance as I am relying on the Data Protection Act 1998, section 10. Whilst you argue that S. 136 Law of Property Act 1925 applies in this case. I do not see the relevance as I am relying on the Data Protection Act 1998. I refer you to my previous letters’ dated 16th January 2009 and 3rd February 2009 where I argue that the DPA allows me to request that data is no longer processed where there is no amount outstanding, county court judgement or similar outstanding. I thereby request that you update the information that you have passed to the Credit Reference Agencies at your earliest convenience. This should be within 28 days at the latest ( 9th April 2009) – failure for you to comply with my request WILL result in County Court action without further notice.

Yours truly

Please contact me once your company has removed all data from its systems and indeed from all Credit Reference Agency files. Failure to comply WILL result in Court Action.

 

Yours Truly

 

 

 

========================================

Message Received: Mar 16 2009, 09:10 AM

From: ""

To: Cc: "

Subject:

 

 

Dear Thank you for your email dated 12th March 2009, addressed to , who has passed it to me for a response. According to our records, your account was paid in full on 27th November 2007. Your credit file should have been marked as ‘satisfied’ approximately 1 month after that payment was received. I have requested that the file is now checked and I will refer back to you in due course. In the meantime if you have any further queries, please do not hesitate to contact me directly. Yours sincerely Complaints & Compliance Manager

Robinson Way & Co LtdTel: 0161 830 2469e-mail hayley.felton@robinson-way.com As a responsible corporate citizen, we ask you to consider the environment before printing this email.*** Disclaimer *** This electronic communication is confidential and for the exclusive use of the addressee. It may contain private and confidential information. The information, attachments and opinions contained in this E-mail are those of its author only and do not necessarily represent those of Robinson Way Limited or any other members of the London Scottish Group. If you are not the intended addressee, you are prohibited from any disclosure, distribution or further copying or use of this communication or the information in it or taking any action in reliance on it. If you have received this communication in error please notify the Information Security Manager at ISM@London-Scottish.com as soon as possible and delete the message from all places in your computer where it is stored. We utilise virus scanning software but we cannot guarantee the security of electronic communications and you are advised to check any attachments for viruses. We do not accept liability for any loss resulting from any corruption or alteration of data or importation of any virus as a result of receiving this electronic communication. Replies to this E-mail may be monitored for operational or business reasons.Robinson Way & Company Limited, Registered Office: 201 Deansgate, Manchester M3 3NW Registered Number 885896 England.

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This email has been scanned by the MessageLabs Email Security System.

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______________________________________________________________________

 

As a responsible corporate citizen, we ask you to consider the environment before printing this email.

*** Disclaimer ***

This electronic communication is confidential and for the exclusive use of the addressee. It may contain private and confidential information. The information, attachments and opinions contained in this E-mail are those of its author only and do not necessarily represent those of Robinson Way Limited or any other members of the London Scottish Group.

If you are not the intended addressee, you are prohibited from any disclosure, distribution or further copying or use of this communication or the information in it or taking any action in reliance on it. If you have received this communication in error please notify the Information Security Manager at ISM@London-Scottish.com as soon as possible and delete the message from all places in your computer where it is stored.

We utilise virus scanning software but we cannot guarantee the security of electronic communications and you are advised to check any attachments for viruses. We do not accept liability for any loss resulting from any corruption or alteration of data or importation of any virus as a result of receiving this electronic communication.

Replies to this E-mail may be monitored for operational or business reasons.

Robinson Way & Company Limited, Registered Office: 201 Deansgate, Manchester M3 3NW Registered Number 885896 England.

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Edited March 16, 2009 by sillysow

[heliosfa]

Silly, you need to remove your details from the SAR at the top. you have left name, address and ref nos. there!

 

Thanks,

H

[sillysow]

Thank you !

Edited March 16, 2009 by sillysow

[heliosfa]

I've just seen another ref no. in there, Email dated 16th of March.

 

If you intend to see this through and are intending on taking them to court, I would be tempted to send the following...

 

Dear blah

 

In your E-Mail of Date you stated the following:

"With reference to a copy of the credit agreement, this debt related to a mail order account and, as with most mail order accounts at that time, no agreement ever existed. However we purchased the debt from Next and under our assignment, we then became the Data Controller"

 

I have highlighted the key point here. You state that no agreement existed between myself and Next. All regulated Credit agreements require a written and signed agreement and without a signed agreement, there can be no Credit Agreement. I do not understand how you could be assigned the rights and duties for something that does not, and never did, exist.

 

As you are aware, my express WRITTEN permission is required to process my data. As there was no written and signed agreement with Next, and Next have assigned the rights and duties of this non-existant agreement to you, you do not, and never have had, have my express written permission to process my data.

 

If you contend that I have given you my permission, I require you to prove that I have, at some point, give you this permission.

 

You also state that you have complied with the principals of the Data Protection Act. Please tell me how you can comply with the Act if you do not have my written permission yet refuse to remove data that you have shared without my permission?

 

I require you to IMMEDIATELY remove all account information from any and all Credit Reference Agencies that you have shared it with.

 

You have 14 days in which to comply and inform me that you have done so.

 

If you do not comply, I will start proceedings. I will also be seeking disclosure of any document that holds my written permission to process data, or a statement that you have no such permission, prior to filing at my local court in accordance with Part 31.16 of the Civil Procedure Rules.

 

I trust that this clarifies my position.

Regards,

[sillysow]

Out of interest who would be in trouble for selling it on without a CCA ? The original lender?

[heliosfa]

I don't think either of them will get into trouble. It would be worth a complaint to Trading standards & the OFT. I'd even be tempted to make a complaint to the Information Comissioner's Office as they have been banding about your info without consent

 

in my view, no CCA = all monies/items a gift (supported by case law) = no debt to sell on. The only way they might get "in trouble" is if the account had been in dispute with the OC and they sold it on while in dispute.

 

Thanks,

H

 

 

PS: that ref number is still in your post. You really need to edit it out to keep it away from prying eyes

[sillysow]

Thanks for that - hadnt spotted that one!

 

So what is my best way forward. I really want the default removed - thats all. The account has now been paid - so nothing else to gain.

 

Having now spoken to the original lender it would appear that there is no CCA anywhere to be found. Surely they cannot then place a default with the CRA's because they do not have my permission to pass the information to a third party.

 

Help!

[heliosfa]

How far are you prepared to go to get the Default removed? and did you send that E-Mail/Letter that I sugested earlier?

 

Also, do you remeber getting a Default Notice before they registered the Default? if so, I don't suppose you still have a copy? It's just another possible method for getting the Default removed.

 

Thanks,

H

Edited March 16, 2009 by heliosfa

[sillysow]

I have not sent anymore emails as I was starting to get frustrated - I have walked away and spoken to the original lender to work out the situation from there at the moment,

 

I would be willing to go to court if I was going to succeed!

 

I do not remember getting the original default.

[sillysow]

Hi all- just an update. I am still liasing with the original lender to hopefully remove the default.

 

However! I checked my credit report at the weekend - only to find out that Robinson Way had searched my file without permission! I have emailed them this morning - and they have said yes we did and no we still wont remove the default! Agggh

 

There was no permission for them to search - now what do I do?