N1 help re CCA request failure and Default Notice non-disclosure

[un1boy]

Hi there,

 

I had an account with NTL which was sent to a DCA which was settled last year. The HSBC accounts are also with a DCA and I am paying those off.

 

I sent these letters to both companies on 10.08.2006:

__________

 

Sort Code: xxx

 

Account number:xxx

 

 

 

 

Credit Card Number: xxxx

 

After recently obtaining a copy of my credit file from Experian and Equifax I was concerned to note that your company has placed a "Default" notice against the above accounts in my name.

Further to this I have no recollection of ever receiving such a notice, and I therefore require you to substantiate this data at your earliest convenience.

1. You must supply me with a true copy of the alleged agreement you refer to. This is my right under your obligation to supply a copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit). Your obligation also extends to providing a statement of account. I enclose a £1 cheque in payment of the statutory fee for providing this information (to cover both accounts); cheque number xxxx.

2. You must supply me with a signed true and certified copy of the original default notice

3. Any deed of assignment if the debt was sold on

4. You are notified that you are obliged to supply these documents, whether you are the original creditor or not under S189 of the CCA 1974.

You have 14 days in order to supply me with this data; if you are unable to provide this data then I must insist that it is removed from my files as unsubstantiated. Please note that mere correction or amendment to the entry will not be acceptable.

___________

 

They received the letter 15.08.2006 as they were sent recorded delivery. As of today, it has been 17 days and only HSBC have cashed their cheque - which thye did yesterday.

What do I do now in terms of not making any payments to the currently active accounts with the DCA? Do I write to them or go to a local court?

 

Thanks in advance

[zootscoot]

Hi Un1boy,

 

Firstly you might want to remove your account no from above letter.

 

Regarding the debt

 

You need do nothing. Simply not pay. If they continue to chase right and tell them they have failed to comply with CCA request whish is a defence to any court action they may bring under the agreement. Be prepared however, they may bring proceedings against you.

 

Regarding the default

 

Send LBA of your intention to seek court order to get them to remove it.

 

Hope this helps

 

Zoot

[un1boy]

OMg, thanks for letting me knw about the account number. The card was closed though, so it cant be used - how embarassing!!

 

Thanks for letting me know about this. My main concern is though that I have sent the CCA request to the companies, not the DCA's - does this matter?

 

The 30 days isn't up yet, but the 12 is - should I call the DCA that hav my HSBC account and tell them the accounts are under investigation and payments will cease?

 

HSBC have cashed the cheque though, they haven't sent me an acknowledgement letter either, lol

 

I'm not entitled to get the default removed yet though am i - not until they have taken another 30 days?!

[zootscoot]

You'll need to do another CCA against the DCA. Then wait 12 days from when that is received before you stop paying. The CCA needs to be done to the company that currently owns the debt.

 

Do you know if it was HSBC or the DCA that defaulted you? Chances areit is HSBC. If HSBC you need to wait for the thirty days otherwise you'll need to do CCA on DCA and start the process over again.

 

Don't worry about the acknowledgement letter the fact that they have cashed the cheque proves they received the CCA request.

 

Hope this helps

 

Zoot

[un1boy]

Please follow my problem here:

 

http://www.consumeractiongroup.co.uk/forum/other-institutions/27877-lenders-havent-sent-me.html#post217007

 

Any advice is greatly appreciated.

[un1boy]

OK, thanks for this. I am a bit confused though.

 

HSBC and NTL are the ones who defaulted me, not the DCA's. So, I am right to send the s10/12 to them? However, if I want the payments to stop I have to send one to the DCA?

[zootscoot]

HSBC and NTL are the ones who defaulted me, not the DCA's. So, I am right to send the s10/12 to them?

Yes

 

However, if I want the payments to stop I have to send one to the DCA?

 

Yes a CCA request for a copy of the original signed agreement and the deed of assignment. No need to add the bit about default.

 

Hope this helps

 

Zoot

[un1boy]

oh fantastic - thansk for all of this zoot.

 

Could I get away with writing to the DCA saying that I have asked HSBC but they haven't supplied it?

 

Or should I now just send them the request and wait 12 days? No money though, eh?

[un1boy]

should I send this to the DCA then?

________

1. You must supply me with a true copy of the alleged agreement you refer to. This is my right under your obligation to supply a copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (as amended). Your obligation also extends to providing a statement of account. I enclose a £2 cheque in payment of the statutory fee for providing this information (to cover both accounts); cheque number xxxxx.

2. Any deed of assignment if the debt was sold on

3. You are notified that you are obliged to supply these documents, whether you are the original creditor or not under S189 of the CCA 1974.

You have the statutory amount of time in order to supply me with this data.

____________

[zootscoot]

Could I get away with writing to the DCA saying that I have asked HSBC but they haven't supplied it?

 

No

 

Or should I now just send them the request and wait 12 days? No money though, eh?

 

Send the request now. You will need to pay the fee.

Dear XXXX,

 

I do not acknowledge ANY debt to your company. I require you to supply the following documentation before I will correspond further on this matter:

 

1. You must supply me with a true copy of the alleged agreement you refer to. This is my right under your obligation to supply a copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit).

2. A signed true copy of the deed of assignment of the above referenced agreement that you allege exists.

 

You are notified that you are obliged to supply these documents, whether you are the original creditor or not under S189 of the CCA 1974. Non-compliance with my request is a criminal offence under the above Act and will result in a report being submitted to the relevant statutory authorities.

 

As you are aware, a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA and therefore is a complete defence to any court claim that is issued.

 

I enclose a £1 postal order (or cheque) in payment of the statutory fee, PO Serial Number xxxxx.

 

Yours faithfully

xxx

[un1boy]

ok, thanks loads for your help.

 

I'm going to send the letter to the DCA on Monday.

 

So am I right in thinking that if they can't provide within 12 days my account is held and I make no payments? I they then don't produce it another 30 after then it is removed?

 

So what if one provides it but the other doesn't?!

 

Thanks

[zootscoot]

I'm going to send the letter to the DCA on Monday.

 

Make sure it is sent either recorded or special delivery. Also do not personally sign the letter. Simply type your name.

 

After 12 the account is 'suspended' they can not enforce the agreement until they come up with the documents. So if they do produce the documents any time in the next 6 years they can then enforce it.

 

After the 30 days they have committed a criminal offence and you can report them to Trading Standards.

 

Are both accounts with the same DCA?

 

If they produce the original signed document this means the debt is enforceable however, if they fail to produce the deed of assignment they have not proved they own the debt so they can not enforce it. They may return it to the original creditor to enforce.

 

Hope this helps

 

Zoot

[un1boy]

Make sure it is sent either recorded or special delivery. Also do not personally sign the letter. Simply type your name.

 

Oh no!! Why is this? I signed the request I sent to the bank and to NTL, is this bad?

 

After 12 the account is 'suspended' they can not enforce the debt until they come up with the documents.

 

So, after 12 working days they cannot ask me to pay anything until they send me the docs?

 

So if they do produce the documents any time in the next 6 years they can then enforce the debt.

 

Even though after 30 calendar days from the 12 days it becomes unenforcable?

 

After the 30 days they have committed a criminal offence and you can report them to Trading Standards.

 

Ok, but I thought that after this timescale the Default had to be removed?

 

Are both accounts with the same DCA?

 

Well, both HSBC accounts are, which currently have active agreements which I have been paying. NTL account was with a different one, which was settled last year. There is information about a T-Mobile account I had too, no default just 'S' on my file. This should have been removed, shouldn't, seeing as once my contract ends, so does my permission to store/process my data.

 

Should I be writing direct to NTL now because the debt is settled?

 

If they produce the original signed document this means the debt is enforceable however, if they fail to produce the deed of assignment they have not proved they own the debt so they can not enforce it. They may return it to the original creditor to enforce.

 

Do you mean the signed credit agreement when you say "signed document"? So, without the deed of assignment HSBC would have to "reactivate" my accounts and take the debt direct from me?!

 

Wow, thanks for all this - I have been reading so much, but you've been at helping me to get my head around it.

 

I have writtent to Equifax asking them to remove NTL's entry as the contract has ended and so has my permission. I will see what they some up with.

[zootscoot]

Oh no!! Why is this? I signed the request I sent to the bank and to NTL, is this bad?

 

Don't worry to much although there is a slim chance they could try to forge your documents.

 

So, after 12 working days they cannot ask me to pay anything until they send me the docs?

 

 

Yes thats right

 

Even though after 30 calendar days from the 12 days it becomes unenforcable?

 

After the 30 days they have committed a criminal offence. The agreement is still merely suspended. Although chances are if they have the documents they would have sent them within the timescale.

 

Ok, but I thought that after this timescale the Default had to be removed?

 

Yes they have committed an offence and should remove the default, not entirely sure about the timescale for removing the default.

 

Should I be writing direct to NTL now because the debt is settled?

Yes to get the default removed.

 

 

Do you mean the signed credit agreement when you say "signed document"?

 

Yes

 

So, without the deed of assignment HSBC would have to "reactivate" my accounts and take the debt direct from me?!

 

Its the DCA that need to produce the deed of assignment. If they can not provide it the chances are they will return the debt to HSBC, although they may not. If they do then HSBC have to come up with the original signed document.

 

Hope this helps

 

Zoot

[un1boy]

great zoot, thanks so much for this.

 

have you has success with default removals yourself/

 

good point about the whole forging documents thing, didn't think of that, damn it!!

 

i think i've been getting a bit confused. What's the difference between the CCA and S10/12 request under the DPA? I'm currently doing a CCA request with a view to removing a default entered as they will hopefully not have the paperwork, right?

 

So what is the S10/12 request and what's it for? I thought it was this, lol

[un1boy]

*bump*

[SurlyBonds]

great zoot, thanks so much for this.

 

have you has success with default removals yourself/

 

good point about the whole forging documents thing, didn't think of that, damn it!!

 

i think i've been getting a bit confused. What's the difference between the CCA and S10/12 request under the Data Protection Act? I'm currently doing a CCA request with a view to removing a default entered as they will hopefully not have the paperwork, right?

 

So what is the S10/12 request and what's it for? I thought it was this, lol

 

Uniboy,

 

If there's no defalt notice, then the CCA 1974 rules that no default has occured.

 

Therefore, if no default has been served on you, and CRA that holds 'defaulted' account information on you is, effectively, holding inaccurate data, and you can inisist in its removal from your file.

 

Don't listen to their usual bulls**t that they will offer to put a notice of correction on your file... stick to your guns and insist on its complete removal - use the Acts term: "destruction of the data".

 

You can even swing the onus on the CRA to obtain a copy of the default notice from the lender if they think they have an exemption. Otherwise, they have 28 days in which to conform to your request.

 

The difference betweent the two acts is, essentially, that the CCA regulates how lenders should deal with borrowers and the way in which the procedures should be carried out. it is solely about credit arrangements.

 

Whereas the DPA is concerned about your data generally, which means that you use it for obtaining information from lenders. But, you can equally use it to demand a copy of your data from your dentist, health club, passport office, etc... organisations that the CCA would not be concerned with.

[un1boy]

Thanks for this clarification Surly. I've tried giving you and zoot some rep, but says I need to spread it around first, lol!

 

I'll keep you posted.

 

Just a quick question for you - I now you mentioned somewhere that we can request the CRA's or companies holding our data send us free updates quarterly. Can you tell me where the letter/post is?!

 

Thanks

[SurlyBonds]

Thanks for this clarification Surly. I've tried giving you and zoot some rep, but says I need to spread it around first, lol!

 

I'll keep you posted.

 

Just a quick question for you - I now you mentioned somewhere that we can request the CRA's or companies holding our data send us free updates quarterly. Can you tell me where the letter/post is?!

 

Thanks

 

Just send them a letter that you'd like quarterly updates that:

1) They confirm they are still maintaining their Data Protection Licence (Data Protection Act S17)

2) That the categories of data they are licensed to hold are still relevant to the data that they hold on you (S20)

3) The name of the current Data Controller for the company and their contact details. (S18.)

4) The names and addresses of all organisations that have searched your data over the last three months (S55) - just to satisfy yourself that you can cross-check this against the known persons that you have given permission to.

5) The names of every staff member within that CRA who has accessed, added, modified, deleted, printed or disclosed any of your data, including dates, times and reason code, with a table of the reason codes in plain English.

 

As all these are NOT specifically your data sets (for which you have to pay £2), it is the wrapping around your data file, you are entitled to know free of charge.

 

You can, actually, request it every month, but I think if they failed to comply and you tried suing them, then even a judge might think that a little excessive (or paranoid!). But three months is fair and reasonable, as many of these factors can change in that time.

 

There are about another 60 pieces of information that you can demand for fee but, again, we don't want to be as pedantic and petty as the CRAs themselves now, do we?

 

Just tell them that you require them to flag your file to send you this information every quarter.

 

Have fun! If you really want to bring down the Empire!

[THEVARNSTER]

sorry to hi jaCK

 

Just send them a letter that you'd like quarterly updates that:

 

 

3) The name of the current Data Controller for the company and their contact details. (S18)

4) The names and addresses of all organisations that have searched your data over the last three months (S55) - just to satisfy yourself that you can cross-check this against the known persons that you have given permission to.

 

 

 

very interested in the above snippets. When i get my credit file, i sometimes cant figure out which lender has searched me. Also the data controller for each company would be good so as to address letters directly.

 

can i see s1 and s55 or is there a template

 

thanks in advance

[un1boy]

Thanks surly.

 

Do you think I'm ok just sending the letter like this:

______________

 

I am writing to advise you that as per my rights under the Data Protection Act 1998 (DPA) that I require that you send me quarterly updates of the information you hold about me:

1. You must confirm you are still maintaining your Data Protection Licence (DPA S17)

2. That the categories of data you are licensed to hold are still relevant to the data that you hold on me (DPA S20)

3. The name of the current Data Controller for Experian and their contact details. (DPA S1)

4. The names and addresses of all organisations that have searched my data over the last three months (DPA S55)

5. The names of every staff member within Experian who has accessed, added, modified, deleted, printed or disclosed any of my data, including dates, times and reason code, with a table of the reason codes in plain English.

Please reply to this letter within 14 days to confirm you have acknowledged my request and that information listed above will be sent to me every quarter free of charge, as per the requirements of the DPA.

_________________

 

I do understand what I am asking however this is unknown terrirtory for me so I want to make sure I do it right and format it right! I don't want you thinking I'm just copying you.

 

Any advice/feedback is greatly appreciated!

[un1boy]

OK, well the letter's have gone to the CRA's now!

 

Thanks surly!

[un1boy]

Oh no - MCS the DCA that are colecting my debt from HSBC have cashed their cheque.

 

That was quick - they only received it on the 6th. I'm scared now, thinking they have got it all, damn it!!

 

What if the lender cashed the cheque but doesn't the docs - can you claim it back, hehe.

[SurlyBonds]

sorry to hi jaCK

 

 

 

 

very interested in the above snippets. When i get my credit file, i sometimes cant figure out which lender has searched me. Also the data controller for each company would be good so as to address letters directly.

 

can i see s1 and s55 or is there a template

 

thanks in advance

 

It's actually S18 ... unfortuantely the site HTML turns an "8" ad right bracket ")" into a "cool" smilie

Have edited the original post.

[un1boy]

Hi,

 

Just received this from MCS (the DCA):

 

We confirm no assignment took place on the account as we are an in house collection agency.

 

We have requested a copy of the agreement from our client and it will be sent to you upon receipt.

 

Any ideaas?

 

I have already sent this request to HSBC and they are well over their 12 days, so does that mean I don't have to pay now if HSBC still own the debt?

 

I'm a bit confused.

 

Cheers