barclaycard default removal

[Guest willowb]

LOL.......what a shame!

 

 

 

I'm trying to get this all condensed for you in this post so that it can become clearer to me and you.....

• On the 21/7/06 I sent Barclaycard the 'friendly' letter to get the default removed to which I got the usual 'we keep defaults on record for 6 years response.....'
  
• On the 12/9/06 I sent SB's template (forgot to put the stat notice in so sent that on a few days later....I know!:-| )
  
• The following response was received.....I hope you can read it!

 

 

So, as far as I can see they did not give me a justified reason for not complying with the notice.

• They did send me a copy of the Default Notice from Dec 2002 (when they said that it wasn't issued but infact our file says it was) but they have not sent me this 'Formal Demand' they claim to have sent in Feb 2006 (they admit that they never sent it to us but to Gregory Pennington who were acting on our behalf at the time, but actually they weren't as we had cancelled the arrangement with them that month so we never saw this 'Formal Demand' - it's all very suspect in my view!)
  
• I then issued then with an LBA on 10th Oct 2006...

• And this was the response I got to the LBA.....

 

 

 

Which may have been a justified response to my Statutory Notice but it was 21 days over the time limit.

 

Does this all make sense?

 

I've just previewed the post LOL I did resize them all to 'small web doc' but as ever the pc has made it's own decision.....sorry!

 

Wxxx

[dayglo]

hiya.

 

Ok that has cleared a few things up for me.

 

first of all - there are two types of defaults (maybe 3)

 

i) one that complies with S.87 CCA

and

ii) one that a lender sends to a CRA as a marker on your credit file.

 

the third is some halfway house, for example a utility supplier not regulated by CCA can send a 'default notice' as in - you have defaulted on your agreement - rarely do these end up on your credit file but sometimes do.

 

anyway,

 

i) doesn't always lead to ii)

ii) doesn't need i) before it can happen.

 

e.g. Vodafone, not covered by CCA can send a default to a CRA pretty much anytime they like, they don't need to tell you that they've done it, and they certainly are under no obligation to send a paper copy (it stinks, I know, but that's they way of the world)

 

 

the reason for the discrepancy between the default dates in this particular case is becasue there are the two types of deafult at play here. One of them as covered by the CCA and the other, some time later, sent to the CRA.

 

obtaining copies of the CCA default as you are entitled to do will show up dates that don't always match up with the dates on your credit file.

 

Having said all that, unless you can find anything that is materially 'inaccurate' to enable us to go after them on the grounds of processing inaccurate data under section 14, I think all this is by the by!

 

The good news is that there is NOTHING in any of thier letters that even reference the S.10(1) notice let alone give justified reasons for not complying with it!

 

So, I think we should write a letter to them and the court, along the same lines as my letter yesterday (we may need to consider amending the PoC at the same time) changing the emphasis of the claim to one of 'not complying with a properly issued S.10(1) Notice'

[Guest willowb]

God you're good!

 

Right, I'm off to print your letter....

 

So, let me get this straight....

• I need to amend my poc, as like my Abbey claim shifting the emphasis to the non-complance with my Stat notice.
  
• I need not reply to either of their defences?
  
• I need to write a letter to Barclaycard and Abbey using your template as a guide?

Have I got it straight now?

 

Wxx

 

Dayglo if I could buy you a drink I would, please know how utterly thankful I am for your time and patience:)

[dayglo]

stop thanking me - we haven't achieved anything yet.

[Guest willowb]

Stop spoiling my fun! I like thanking you:D .....just you being here to hold my hand is enough. If I do fail then at least I am trying and I couldn't even do that without you.......so there!

 

 

Wxx

[dayglo]

God you're good!

 

Right, I'm off to print your letter....

 

So, let me get this straight....

• I need to amend my poc, as like my Abbey claim shifting the emphasis to the non-complance with my Stat notice.

That's what I would do - but that's only because I have no experience in default removal process using the consumer credit act process. There may be others that would advise going down the CCA route. I'm sorry I can't be more definite.

• I need not reply to either of their defences?

True - you must however be able to explain your case to the court in terms they understand and accept. That is why I found yesterdays process so useful for me. Imagine trying to talk someone through your claim and persuade them that you are right but at the same time, try to understand the otherside's argument. remember you can't resort to "it's just not fair! arguments!"

• I need to write a letter to Barclaycard and Abbey using your template as a guide?

I think that would help, although there is a lot in my letter that is very specific to the responses I received from Vodafone. Nearly all the generic paragraphs in there were lifted into my draft of your new PoCs. Any such letter may end up looking just like your amended PoC

 

 

Have I got it straight now?

 

 

Wxx

 

Dayglo if I could buy you a drink I would, please know how utterly thankful I am for your time and patience:)

 

That's my best view based on what we know now.

[dayglo]

strange - I had posted some comments as a reply to your post #78 but they've gone!

 

I'll have to try and remember what they were and try again.

[Guest willowb]

Dayglo.....by shifting th onus from the DPA stand point to the Stat notice non-compliance issue (although this was mentioned in my LBA, because I'm such an idiot I had not mentioned it in my poc) this totally changes the poc.....is this definately allowed? especially now that they have filed a Defence against the origional poc?

 

Wxxx

 

And, the question I posed a while back concerning the charges, do you know if I can still go ahead with this as a separate claim against them even though I have this claim on-going?

[dayglo]

Dayglo.....by shifting th onus from the Data Protection Act stand point to the Stat notice non-compliance issue (although this was mentioned in my LBA, because I'm such an idiot I had not mentioned it in my poc) this totally changes the poc.....is this definately allowed? especially now that they have filed a Defence against the origional poc?

 

I don't know that's definitly allowed - sorry. I've got little experience of the court process, I'm learning as I go. Maybe you could tag the new PoC onto the end of the existing one? I suppose the worst that can happen is that it's not allowed and you have to start again.

Wxxx

 

And, the question I posed a while back concerning the charges, do you know if I can still go ahead with this as a separate claim against them even though I have this claim on-going?

 

Yes. These are two completely separate claims. 1 is for non-compliance with a properly issued S.10(1) notice the other is for refund of unlawful charges.

 

 

All the previous advice has been "if your default was caused by charges then bring a claim for charges and include default removal as part of that claim"

 

It would appear we have three choices.

 

1) amend the existing claim to include charges and then connect the default to the charges.

 

2) have two separate claims 1 for non-compliance with S.10 notice and 1 for unlawful charges.

 

3) amend the existing claim to to non-compliance with S.10 notice and bring a separate new claim for bank charges.

 

I genuinely don't know which one is the best for this situation except that linking defaults to charges to get them removed has a stronger track record than any other method.

 

remember - I've only filed two default claims. 1 settled out of court and the other is pushing me all the way, please be careful and wary of putting too much emphasis on what I'm doing, mine could all blow up in my face quite easily.

 

Sorry this probably doesn't help you very much

[Guest willowb]

I know that it's all a work in progress Dayglo but I view this place as people climbing on a huge learning curve and those that are higher up that curve pass a rope down to those who are lower. I like to think I do that for people when I can and you have done that for me today.

 

Wxx

[dayglo]

that's a very good way of putting it. to keep the theme going, different people are trying different ladders and different ropes!

[Guest willowb]

Hi, it's me again!

 

So, I'm writing to Barclaycard to instruct them to end the contract, here is the letter.....

 

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

 

Dear Sir/Madam,

 

With reference to the above account; As and from the date of this letter I am instructing Barclaycard to close this account forthwith.

 

A full and final settlement was accepted from Barclaycard on the 30th March 2006 (I have supporting evidence to this effect) and therefore I would like written notification that Barclaycard has closed the account completely.

 

Yours Faithfully

 

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

 

And here are my amended POC.......:o

 

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

 

The Claimant held a current account ***************with the Defendant under their Terms and Conditions from 6th June 2000.

 

1. Part 1(1) Data Protection Act 1998 defines Data Processing as reproduced below

"Processing" in relation to information or data, means obtaining, recording or holding the information or data or carrying out any operation or set of operations on the information or data, including-

(a) organisation, adaptation or alteration of the information or data,

(b) retrieval, consultation or use of the information or data,

© disclosure of the information or data by transmission, dissemination or otherwise making available, or

(d) alignment, combination, blocking, erasure or destruction of the information or data;

 

2. Barclaycard (The Defendant) is processing the Claimants' personal subject data consistent with paragraphs 1.0(a)(b)© above in that they maintain an entry in the credit file held on their behalf by the three Credit Reference Agencies (CRAs) in the UK.

 

3. Section 10(1) Data Protection Act 1998 states that an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the ground that, for specified reasons-

(a) The processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and

(b) That damage or distress is or would be unwarranted.

 

4. The Claimant issued a Notice to the Defendant, dated 29th September 2006 to cease processing personal data in accordance with his rights under Section 10 (1) of the Data Protection Act.

5. Section 10(1) is subject to Section 10(2) which states that

(2) Subsection (1) does not apply-

(a) In a case where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met, or

(b) In such other cases as may be prescribed by the Secretary of State by order.

 

6. In respect of Section 10(2)(a) none of the conditions described in paragraphs 1 to 4 are met in this particular case and in respect of Section 10(2)(b) The Secretary of State has not prescribed an order relevant to this particular case.

 

7. Section 10(3) Data Protection act 1998 describes the obligations of a Data Controller upon receipt of a notice issued under Section 10(1). The data controller must within twenty-one days of receiving a notice under subsection (1) ("the data subject notice") give the individual who gave it a written notice-

(a) stating that he has complied or intends to comply with the data subject notice, or

(b) stating his reasons for regarding the data subject notice as to any extent unjustified and the extent (if any) to which he has complied or intends to comply with it.

 

8. Section 10(3) requires the Defendant to reply stating justified reasons (if any) for refusing to comply within 21 days of receipt of the Notice.

 

9. The Defendants' response to the Claimants' notice did not set out any justification as to why the Defendant has not ceased to process the Claimants' data.

 

The Defendant therefore, has not complied with their obligations under Section 10(3) in that they have neither ceased processing data nor replied with justified reasons as to their non-compliance with the properly issued notice under Section 10(1).

 

In accordance with his rights under Section 10(4) the Claimant requests from the court an order to the Defendant that he comply with the Notice issued under S.10 (1) as the notice appears reasonable and the Defendant has failed to give justified reasons for non-compliance within the 21 day period. The Claimant is seeking an order from the Court that the Defendant ceases to process the Claimants' data.

 

10. The Claimant maintains that the continued processing of his personal data is unwarranted in this particular case. In particular that the continued processing causes substantial damage and distress.

• As a direct result of the Defendant's continued processing of the Claimants' data, the Claimants have been refused 'full' current account facilities and only offered 'basic' account facilities. With the 'basic' account, the Claimant is not entitled to a cheque guarantee card and the debit card issued with the account (electron) is refused at a lot of places which causes embarrassment to the Claimants and the fact that the Claimants no longer have a cheque guarantee card is extremely inconvenient.
  
• The Claimants are unable to obtain a competitive mortgage due to the continued processing of personal subject data. The Claimant maintains that the processing of this data causes damages to the extent that additional mortgage interest applied to their account at a cost of £50.32 per month compared with a typical high street mortgage provider.
  

£50.52 X 26 (months - the time the default is due to remain on file) = A total predicted loss of £1,313.52

 

As a result of the default maker that is being maintained as part of the Defendant’s processing of the Claimants' data, substantial and disproportionate damages have been incurred.

 

The continued processing for 6 years is excessive in this case and is carried out for longer than is necessary against principle 5 of the Data Protection Act 1998.

 

11. The Claimant signed a civil contract with the Defendant on 6th June 2000 in which it was agreed that the disclosure of personal data in relation to the contract would extend only to such times as the conclusion of the contract. At no time did the Claimant grant permission, either expressly or implied, for the Defendant to abritrarily extend that permission to store, process or disclose any personal data beyond the cessation date of the contract.

 

• It is the Claimants' contention that the defendant's perceived right to abritrarily choose to extend the length of that contract without the Claimants' knowledge or agreement would be unlawful and unenforceable under the provisions of the Unfair Terms in Consumer Contracts Regulations (1999).
  
• The Defendant has failed to provide the Claimant with any evidence to prove agreement to such terms in perpetuity, and it is therefore the Claimants' contention that the Defendant is in breach of both the contract itself and the Data Protection Act 1998, by the Defendants' continued disclosure of personal data.

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

 

Sod the tea! I need a glass of wine!

 

Wxxx

[dayglo]

[Guest willowb]

Cheers!

 

Wxxx

[Guest willowb]

In response to this letter (from above post)......

 

Dear Sir/Madam,

 

With reference to the above account; As and from the date of this letter I am instructing Barclaycard to close this account forthwith.

 

A full and final settlement was accepted from Barclaycard on the 30th March 2006 (I have supporting evidence to this effect) and therefore I would like written notification that Barclaycard has closed the account completely.

 

Yours Faithfully

 

I received this response.....

 

 

No mention of them actually closing the account which is what I requested.....blighters!!!

 

 

Anyway, I'm to fill in this N244 for the amended POCs.....with Number6s help I've got this far.....

 

First box Just ticked [no hearing] and left the rest.

 

Part A 1. name:)

2. (what I am seeking?) The removal of a default marker placed on the Claimants' credit file.

3. (why I am asking for this order?) The Claimant mistakenly omitted in his origional POCs that the Defendant had not responded satisfactrily to his statutory notice.

 

part B I wish to rely on......I've ticked [the attached]

 

In Part C I will attach the stat notice and their response to it.

 

 

Does this sound ok to you????

 

Wxxx

[dayglo]

yes it does sound ok.

 

I would write back to them using the phrase.

 

"I am terminating this contract, please acknowledge"

[Guest willowb]

Will do dayglo!

 

Good to see ya hun:)

 

Wxxx

 

p.s where has your 'spiritual sidekick' gone? lol

[dayglo]

I think he is actually doing some work. I think we've both been guilty of neglecting the day-job a bit since we found out about you lot!

[Guest willowb]

That's understandable!

 

Wxxx

[Guest willowb]

Hi peeps, just got this from the Court....

 

 

I can't believe that they've been allowed this much time to get their AQ in:mad: there's no way on earth that they won't so, we shall see.....

 

Wxxx

[hondamad21]

Hi Willowb,

 

I just wanted to wish you the best of luck with this.

I today sent my statutory notice to egg to stop processing my data.

 

Anyway again Best of Luck!!!!

 

Hondamad

[Guest willowb]

And to you too, thank you:)

 

Wxxx

[dayglo]

hi willow - situation noted! Still time for them to get it in place by 8th Feb. The next week will be a real insight into their intentions long term. Keeping fingers crossed for you.

[Guest willowb]

Thanks sweetie:D ....I've got my toes and legs crossed too, even plaited my hair! lol

 

Wxxx

[bill-k]

Just putting my head round the door, Willow, to wish you well with this one after all the work you guys have put into it.