barclaycard default removal

[sycostill]

ditto

[Guest willowb]

1. agreed. sadly there is no requirement for a CRA to adjust the default flag just because the account is in dispute.

 

2. I agree, no point writing any further just yet.

 

3. have you gone treasure hunting yet?

 

1. I have notes put in place which means diddlysquat but it's unlawful for financial institutions to process your data to CRAs whilst an account is in dispute so I could write to them and tell them to stop until the claims have been settled.

 

2. ......I know! I won't bother and wait a little.

 

3. Ok! did I miss something:confused: lol

 

Wxx

[dayglo]

1. I have notes put in place which means diddlysquat but it's unlawful for financial institutions to process your data to CRAs whilst an account is in dispute so I could write to them and tell them to stop until the claims have been settled.

 

Is It? :o can you point me in the direction of any evidence of this little gem?

 

2. ......I know! I won't bother and wait a little.

 

3. Ok! did I miss something:confused: lol

 

I'll PM you!

 

Wxx

 

comments in red.

[Guest willowb]

I've just copied this from a letter I recently sent to NW...

 

Having sent a Default Notice to us whilst the account remains in dispute, Nationwide is in danger of breaking Section 13.6 of the Banking Code, where it states that a financial institution may only pass on details of debts to the Credit Reference Agencies if the debts are not in dispute.

BINGO!!!

Wxx

 

P.s I'll be treasure hunting tonight me hearty!

[dayglo]

I've just copied this from a letter I recently sent to NW...

 

Having sent a Default Notice to us whilst the account remains in dispute, Nationwide is in danger of breaking Section 13.6 of the Banking Code, where it states that a financial institution may only pass on details of debts to the Credit Reference Agencies if the debts are not in dispute.

 

BINGO!!!

Wxx

 

P.s I'll be treasure hunting tonight me hearty!

 

ok that makes sense - I doubt we can make them 'remove' defaults even temporarily if they were put on before the account was disputed though?

[Guest willowb]

Why not?

 

To be honest, when I discovered it I thought that's what everyone had been doing here! not that I'd read it anywhere here, I just assumed it. Why not give it a go?

 

If they file a defence to my claims then I'm certainly going to try it!

 

Wxx

[dayglo]

my only remaining default is vodafone - they're not covered by the banking code unfortunatly.

[Guest willowb]

Well, bang on time! their defence arrived this morning!

 

here it is.......

 

---------------------------

1. Save for any admissions made herein, the Defendant denies the Claimant's claim and puts the Claimant to strict proof.
   
2. The Defendant will contend that the particulars of claim are in summary form and that the claimant has failed to state any cause of action against the Defendant or to establish legal liability for the sum claimed as alleged and the Defendant invites the Court to strike out the claim pursuant to the Court's powers under CPR 3.4:o
   
3. Notwithstanding the Defendant's contentions in paragraph 2 above, the remainder of the Defence is pleaded without prejudice to the Defendant's right to amend its Defence in the event that the Claimant properly pleads a cause of action.
   
4. It is admitted that the Claimant signed a Barclaycard credit card agreement with the Defendant dated June 2000 for the provision of a credit card to be used in accordance with the terms and conditions of the credit card agreement. Under the terms of the agreement there were, amongst others, under the heading 'Fair Processing Notice' terms that Barclaycard will be entitled to store and process personal information and to share data with Credit Reference Agencies relating to the Claimant's account. (no mention of a continued right to do so after the contract had ended though?)
   
5. On the 19th December 2002, a default Notice was issued to the Claimant, following the account going into default.
   
6. It is denied that the Defendant did not have permission to store, process or disclose personal data beyond the cessation of the credit card agreement and the Defendant will refer to the agreement for its full terms effect. It is not admitted that the agreement has ceased and the Claimant is put to strict proof. (I'll have to send a CPR request for further information for their t&cs at the time as I don't have a copy)
   
7. The Claimant's contention, in the third sentence of his particulars of claim is denied and the Claimant is put to strict proof. The Defendant will contend that the Claimant has failed to set out how the Unfair Terms in Consumer Contracts regulations (1999) applies and it is denied that the Defendant is, or would, in the circumstances described in the Paerticulars of Claim, be in breach of such regulations in any event.
   
8. The final paragraph of the POC is denied and the Claimant is put to strict proof. It is further denied that the Defendant is in breach of contract of the Data Protection Act 1998 and the Defendant will again contend that the Claimant has failed to set out the breach of the DPA alleged, which breach, is denied in any event.
   
9. It is denied that the Claimant is entitled to either the removal of a Default Notice or the sum of £35.00 and the Claimant is put to strict proof as to his alleged loss. The Defendant will contend that the Default Notice was correctly issued following a default occurring on the claimant's account.

------------------------

 

Right, so there it is.....everything certainly does happen at once hey!

I'll be able to spend more time on this tomorrow but right now it's feeding time at the zoo!

 

Wxx

[dayglo]

wow - two at a time... there may be some value in requesting one months stay for one of them if time to concentrate and work on them properly is limited. Is that a valid suggestion or are you under other time pressure as well from somewhere else?

[dayglo]

is this default settled? the defence claims that the contract has not ended - is this true?

[Guest willowb]

Yes it is settled! It was settled in full back in Feb/March (I'd have to check exactly when).

 

I think I may ask for a stay......I'll know more how I feel about it tm.

 

Wxx

[dayglo]

has the contract ended though? do you still have a balance on there?

[Guest willowb]

Hi dayglo, it's like this......extract from a letter I wrote to them......

 

.

 

Thirdly, the account was was settled in full in May 2006. May I then ask why, on closer inspection of the account statements, does there still remain an outstanding balance of £517.54? I have to say that this is not ethical and is misrepresentative of the account as the settlement I made with you was a full and final one. I believe that you are acting unlawfully by keeping this balance showing on the account when my credit file clearly states that the account is 'satisfied'.

etc etc

 

That last point!!! I hadn't even noticed before.....Oooooooh I could just throttle someone:mad: Excuse me whilst I go and kick a cushion lol.

 

 

 

 

45. Where a default occurred but a lender has formally accepted in full and final settlement a smaller amount than that owed under the terms of the original agreement, then the default should also be marked as settled or satisfied. It would be unfair to process personal data so as to record an outstanding balance on a default when a lender has led a customer to believe that the matter had been formally and finally concluded.

 

 

This is what they wrote back to me about it.....

 

 

When a full and final offer is accepted, the credit file is marked as settled, and although the balance does not show nil, we do not pursue it.

 

we hope this is of assistance to you NO IT ISN'T!!!

 

 

 

Wxx

[dayglo]

Hi dayglo, it's like this......extract from a letter I wrote to them......

 

 

 

 

 

 

 

This is what they wrote back to me about it.....

 

 

 

 

Wxx

 

ok, I don't agree with their actions but I can understand what they have done.

 

I had a £16k default with Natwest, they accepted £10k as full and final settlement. At this point they marked the account 'settled' and reduced the balance to zero. Although the customer services team told me they intended to seek a way of recording it as 'partialy-satisfied' the CRAs have no such facility though! It looks like B/card have found a way to achieve the same result as Natwest were trying to do.

 

Ok - despite all that, I think that is irrelevant when it comes to ending the contract.

 

I would send a letter to them formally ending the contract.

 

if they write back asking for the £500odd pounds - write back to them with the 'full and final settlement' letter and tell them the contract is ended again.

 

We can't proceed with the default removal whilst there is doubt about the status of your account with them. We need to get this issue cleared up.

[Guest willowb]

I've just looked at our file and it says....

special instruction indicator: partial settlement.

Current balance: satisfied

 

I can't understand how they can get away with this! Do you think the fact that they have expressed an acceptance of a full and final settlement in that letter will do the trick?

 

I should phone the Court on monday and ask for a stay, do they agree to 'stays' on request or can the other party contest it?

 

What if they don't end the contract in time? I'm stuffed aren't I?

 

Wxx

[dayglo]

This is what I was trying to describe.

 

Lenders don't really want you to get away with paying a lower final settlement without making sure the rest of the lending world are aware that you 'partialy settled' - that doesn't mean that they think you still owe them money (check what it actually said in the settlement letter) it just 'alerts' other lenders to the fact that you borrowed x but only paid back about 75% of x

 

This shouldn't affect the status of the contract though. It's either 'live' or it's ended.

 

They can 'get away' with this because, unless you tell me otherwise, this appears to be an 'accurate' reflection of your credit account with them.

 

I need to read this thread through again because I think they are all merging into one big mess in my head!

[dayglo]

ok so if read this correctly, there isn't an issue of claiming chrges on this account? A straight 'default removal' claim.

 

Willowb, You issued a S.10(1) notice in September sometime , within the 21 days that followed, did they in anyway give you a 'justified' reason for not complying with the notice?

 

I'm looking for any suggestion that they are claiming any of paras. 1 to 4 of schedule 2 are met.

 

This means any one of these being true

 

1) you gave consent (if your contract is still live then they have your consent)

2) A contract is in place (ditto above)

3) They have a legal obligation to process your data

4) It's in your interests to process your data - (this is never true!)

 

now, as you know, if any of those 4 are true, your S.10(1) notice is not valid. the strange thing is, I were B/C and any of those 4 were met, that would be the first and last thing I'd put in a letter to you. something like

 

"thanks for your S.10(1) notice. Please note that the contract we have is still in place, therefore paras. 1 and 2 of schedule 2 are met therefore in accordance with S.10(2) your S.10(1) notice is not valid - go away!"

[dayglo]

My ccomments in blue

1. Save for any admissions made herein, the Defendant denies the Claimant's claim and puts the Claimant to strict proof. ok
   
2. The Defendant will contend that the particulars of claim are in summary form and that the claimant has failed to state any cause of action against the Defendant or to establish legal liability for the sum claimed as alleged and the Defendant invites the Court to strike out the claim pursuant to the Court's powers under CPR 3.4:shock: ok - we can deal with that, an amendment of the 39 paragraph version I wrote for my claim today should fit the bill.
   
3. Notwithstanding the Defendant's contentions in paragraph 2 above, the remainder of the Defence is pleaded without prejudice to the Defendant's right to amend its Defence in the event that the Claimant properly pleads a cause of action. ok
   
4. It is admitted that the Claimant signed a Barclaycard credit card agreement with the Defendant dated June 2000 for the provision of a credit card to be used in accordance with the terms and conditions of the credit card agreement. Under the terms of the agreement there were, amongst others, under the heading 'Fair Processing Notice' terms that Barclaycard will be entitled to store and process personal information and to share data with Credit Reference Agencies relating to the Claimant's account. (no mention of a continued right to do so after the contract had ended though?) I know, this is what Natwest and Vodafone put in mine, we say no clause to say you can't continue processing after the ending of a contract, and they say 'no clause to say we can't'. I have a feeling there is a bigger problem coming up.-
   
5. On the 19th December 2002, a default Notice was issued to the Claimant, following the account going into default.
   
6. It is denied that the Defendant did not have permission to store, process or disclose personal data beyond the cessation of the credit card agreement and the Defendant will refer to the agreement for its full terms effect. It is not admitted that the agreement has ceased and the Claimant is put to strict proof. (I'll have to send a CPR request for further information for their t&cs at the time as I don't have a copy) Not neccessary, I am certain that the B/C contract you signed will contain a standard 'data disclosure clause' and that is all they are saying here. The big problem we have is stated here "It is not admitted that the agreement has ceased and the claimant is put to strict proof" - Can you prove the agreement has ceased? I'm not sure if the issuing of a default notice automatically makes an agreement 'end' - I don't think it does.
   
7. The Claimant's contention, in the third sentence of his particulars of claim is denied and the Claimant is put to strict proof. The Defendant will contend that the Claimant has failed to set out how the Unfair Terms in Consumer Contracts regulations (1999) applies and it is denied that the Defendant is, or would, in the circumstances described in the Paerticulars of Claim, be in breach of such regulations in any event. They make a fair point, unless we are going to show lack of reciprocity we may have some trouble proving UFTCC(1999) applies.
   
8. The final paragraph of the POC is denied and the Claimant is put to strict proof. It is further denied that the Defendant is in breach of contract of the Data Protection Act 1998 and the Defendant will again contend that the Claimant has failed to set out the breach of the Data Protection Act alleged, which breach, is denied in any event. ok - you haven't stated exactly how they have breached the DPA. For example, have they failed to respond to a S.10(1) notice with 21 days and then failed to comply with the notice, or have you alleged that they are processing in accurate data in breach of section 14? We can fix this though with the long version of the claim information I mentioned earlier
   
9. It is denied that the Claimant is entitled to either the removal of a Default Notice or the sum of £35.00 and the Claimant is put to strict proof as to his alleged loss. The Defendant will contend that the Default Notice was correctly issued following a default occurring on the claimant's account. I'm sure they will. This is the point I mentioned a while ago, if you claim damages, whoever small, you have to prove them. Now we should be able to do this by showing an increase in mortgage payments or increased cost of credit. We could have avoided this but it would have meant paying the £150 fee so swings and roundabouts.

 

the good news - only 9 paragraphs, and they have not mentioned that if the agreement is still valid, your S.10(1) notice is not valid automatically.

The bad news is that, with them claiming your agreement is still in place, we have a problem if this is true.

My advice is as follows.

1) apply to the court for a stay of 1 month when you receive the AQ, not before and wait until the very last minute before filing your AQ, in fact, write to the court and ask for an extention (think of a reason, any reason!) We are going to need every possible day we can!

2) Write to B/C asap ending the contract and include copies of the 'full and final settlement' letter with it.

by the time you've done that we may have written your 'full statement of claim' and we can use that to amend your PoC.

phew..... I'll help as much as I can. I'm not buggering off like some fella we used to know!

Dayglo.

[Guest willowb]

I read this after I pmed you dayglo:eek:

 

You know I've had a glass or two of wine and so, I feel it best to come back tomorrow.... dayglo, if I could give you a.....

 

 

I would :>)

 

.....thank you.

 

Wxx

[dayglo]

well clear your bloody inbox then I can send my reply then!

[dayglo]

it's up to you, happy to chat tonight or tomorrow. Whatever suits you best.

[debt_mountain]

It is admitted that the Claimant signed a Barclaycard credit card agreement with the Defendant dated June 2000 for the provision of a credit card to be used in accordance with the terms and conditions of the credit card agreement. Under the terms of the agreement there were, amongst others, under the heading 'Fair Processing Notice' terms that Barclaycard will be entitled to store and process personal information and to share data with Credit Reference Agencies relating to the Claimant's account. (no mention of a continued right to do so after the contract had ended though?) I know, this is what NatWest and Vodafone put in mine, we say no clause to say you can't continue processing after the ending of a contract, and they say 'no clause to say we can't'. I have a feeling there is a bigger problem coming up.-

 

But we also didn't add a clause saying we could use their car on a Monday for work, they can hardly say that because it was not in the agreement then it could be fact.

 

Surely a contract it to explicitly detail what is in place.

[dayglo]

But we also didn't add a clause saying we could use their car on a Monday for work, they can hardly say that because it was not in the agreement then it could be fact.

 

Surely a contract it to explicitly detail what is in place.

 

exactly - I love this stuff, where is your clause that prevents me from sending you beans on toast every ten minutes.....

 

I see no clause that prevents me from lots of things, doesn't make them sensible though!

[dayglo]

hey - I got a ferrari tonight!

[dayglo]

 

D'oh - It was fun whilst it lasted