knox vs Blair, Oliver & Scott [default removal]

[knoxvillain]

complaint sent to ICO

Also written to each of the CRA's asking them to contact BoS to substantiate the default. Failure of BoS to do this within 28 days, I've asked CRA's to suppress the info as per ICO's guidelines.

[knoxvillain]

FOS called today, my case has been assigned to an ajudicator. He asked me some questions about the circumstances of the default. He said that HBOS have said, without actually saying, that it seems the Default Notice was sent to a wrong address.

 

Now it was around the time of the default that I changed my address. I can't remember when exactly though when I look online, I have a statement from August at my old address and a statement for October for my address at the time. There isn't one for September! So I don't know when I updated my address!

[knoxvillain]

Sent "Cease & Desist processing my data" statutory notice to them today.

[postggj]

hi nox

cant believe this is still going on with hbos

i followed some of the advice given and had my default removed by hbos, but they had no agreement

i know of the endless letters back and forth, they just dont want to play ball.

i know how it affected me and hope alls well in the end.

what is it that once a default has been on your cra file its the holy grail to get it removed.

 

keep fighting

[knoxvillain]

hi postggj,

 

Thanks for stopping by my thread, was starting to get bored of just talking to myself! I can't believe it's still ongoing as well. How did you get yours removed?

 

I currently have complaints about this default to:

HBOS

The Financial Ombudsman

The Information Commissioner's Office

Experian

Equifax

Callcredit

 

So hopefully something will move soon. It's really annoying because I only had 3 defaults total. Vodafone remove theirs after a nice "please please remove it" letter, HBOS removed the other one because they didn't issue a DFN and I thought "woohoo one more too go and this is going well." Boy was I wrong, this last one has been a right pain in the butt. HBOS just won't move on it. In fact they're almost not talking to me now over it.

 

At least FOS is *finally* looking into it. I'm not holding my breathe though because I've heard from other people that most of the time FOS side with the banks.

[postggj]

http://www.consumeractiongroup.co.uk/forum/halifax-if-successes/116741-halifax-default-credit-agreements.html

 

have a look at my thread

its post 112 thats the clinch

 

no notification by hbos but discovered default gone on checking credit file

just left it at that

a week previouse they point blank refused to remove default

[knoxvillain]

I was reading through some of your threads, specifically the one about how long a bank has from default occuring to lodge a default on your credit record. I decided to look through my bank statements to see when the last payment went into the current account.

 

My employer paid expenses into my account on 13th July. A cheque for over £700 was paid into my account on July 17th and cleared on July 20th and then less than 2 months later on Sept 15th, they default me! How can they default me so quickly!

[postggj]

that point ,

i am at this point waiting for a reply from the ico

does not affect me directly but interesting

will let you know when they respond

[knoxvillain]

thanks, how long ago did you contact the ICO? I've seen people waiting 9 months to hear back from them?

 

According to the ICO's Guidelines on Defaults, where overdrafts are concerned it shouldn't be defaulted until at least 3 months!

 

http://www.experian.co.uk/www/pages/downloads/compliance/guidance_on_defaults.pdf

 

Specifically Page 8, section 15. I've written to FOS enclosing a copy of the above document and drawing their attention to the section and informing them that HBOS defaulted me in less than 2 months.

[postggj]

affraid its only been one month

but as its not a complaint only information, should not be much longer

[knoxvillain]

cool, I look forward to hearing the outcome.

[knoxvillain]

any comments on this:

The Financial Ombudsman Service

South Quay Plaza

183 Marsh Wall

LONDON

E14 9SR

 

CC: Retail Bank Collections, Trinity Road, Halifax.

 

Dear Sir,

 

FOS Complaint Ref: xxxxxxxxxx

Bank of Scotland Complaint Ref: xxxxxxx

 

I am writing to you in relation to the above complaint I have open against The Bank of Scotland PLC (BoS). I am aware that since I submitted the complaint, I have sent through a fair amount of additional information. I thought it would be helpful for me to write a summary of my complaint which contained all the points in one place.

 

On the 17th July 2006, I sent a Subject Access Request under The Data Protection Act to BoS requesting a list of all charges that had been applied to my account in the last 5 years. By this point, lots of customers had already been claiming their bank charges back and so BoS was well aware of my intentions when I submitted this request. I would say that from 17th July 2006, the balance of my Current Account was in dispute as I was disputing the lawfulness of the charges BoS had applied to my account.

 

On the same day, a cheque for £766 was paid into this current account and the funds cleared on 20th July 2006. As it would turn out, this would be the final payment I would make into this account. The reason behind this being, the level of unlawful bank charges being applied to my account became so expensive that if my wages were to be paid into my account, I would have been unable to pay my rent, council tax or household bills.

 

Less than two months after this final payment was made into the account, and without my knowledge, on 15th September 2006 BoS placed a default marker on my credit file with Experian, Equifax & Callcredit. I didn’t discover this default marker had been registered with the Credit Reference Agencies until November 2006 when I requested my Credit File from Experian.

 

Account in dispute

 

 

As mentioned above, at the point the default was registered, the balance of the account was already in dispute. It is against The Banking Code Section 13.6 states:

We may give information to Credit Reference Agencies about the personal debts you owe us if:

· You have fallen behind with your payments

· The amount owed is not in dispute; and

· You have not made proposals we are satisfied with for repaying your debt, following our formal demand.

 

No Default Notice Received

 

The reason for my lack of awareness of this default marker is that I did not receive a Notice of Default (DFN) from BoS prior to them registering this default marker. It is my understanding that under The Consumer Credit Act (as amended), it is required that BoS issue a DFN prior to registering a default marker to allow me to correct the conditions that are going to cause the default. Since I never received this DFN, I was effectly denied the opportunity to repair my relationship with BoS and any chance to keep my credit record clean.

After making further enquiries with BoS, they claim that their records show a DFN was issued on 15th September 2006. The same day that the default marker was placed on my credit file. It seems that even if BoS had sent this DFN to the correct address, it wouldn’t have helped me resolve the situation since BoS had already placed the default marker on the same day they sent out the DFN. This appears to be at odds with The Consumer Credit Act which states the DFN should allow me 7/14 days to comply with whatever conditions the bank sets out for me to resolve the situation.

 

Furthermore, since then, I have requested a copy of the DFN from BoS. They have stated they do not hold a copy of the DFN, only that it is indicated on their system that one was issued. This means I am unable to see the DFN to check that it is in the correct form and contains all the required items by The Consumer Credit Act. I suspect rather than being a proper DFN, the letter that BoS refer to was in fact just a letter informing me that the account had been passed to Blair, Oliver & Scott, BoS’ in-house Debt Collection Agency.

 

No correctly executed Consumer Credit Agreement

 

On 15th November 2007, I sent a statutory request for a copy of the original signed and executed Consumer Credit Agreement related to this account. To date, no Agreement has been sent by BoS that conforms with this request. They have provided me with a copy of the application form used to convert my student account into a current account however this is most definitely NOT a Consumer Credit Agreement. Not only are BoS in default of this request, they have now committed an offense under The Consumer Credit Act 1974. While they are in default of this request, it is my understanding that enforcement action is not allowed. While this account has now been settled, placing a default on my credit file is a method of enforcement. Without a properly executed Agreement, I do not believe BoS have any basis what-so-ever to put a default on my file.

 

Indeed, it would appear that The Local Authorities Coordinators of Regulatory Services (LACORS) would agree with me. Below is an extract from a letter they sent to The Information Commissioner’s Office in 2006. I have attached the full letter for your reference but have provided an extract below:

 

“The opinion of LACORS is that where a creditor accepts that an agreement is unenforceable against a consumer they should not be permitted to 'punish' the consumer by placing a record of the 'default' on their credit reference file. To do so would be unfair and unreasonable. It would also lessen the impact of the provisions of the Consumer Credit Act which make it clear that a creditor should not be allowed to enforce a credit agreement where the agreement is improperly executed.”

 

I would even put it that my case with BoS is even more severe than the agreement being improperly executed. In fact, BoS does even appear to have a copy of the Agreement on file at all. I am aware of other BoS/Halifax Customers having had their default removed when they have confronted them with the fact that BoS cannot produce a copy of the Consumer Credit Agreement and yet they refuse to remove mine. It appears that they are also inconsistent in the way they deal with these types of complaints.

 

Bank Charges

 

As mentioned above, I put the account in dispute as I felt the charges being applied to my account were unlawful. Within 12 months of the default being placed on my credit file for £1603, BoS refunded me OVER £3600 in bank charges which is more than double the amount they claim I owed them when they put the default on me. How can it be just that I be defaulted on an outstanding amount which is later refunded to me plus more!

 

Conclusion

 

I feel that Bank of Scotland has acted unlawfully & unfairly. I do not believe they have any right to place a default on my record, nor did they process it correctly. I feel I have been punished for claiming my bank charges back. I am asking the Financial Ombudsman Service to consider ordering Bank of Scotland to remove the default from my credit file permenantly. Furthermore, if The Financial Ombudsman Service finds in my favour, I am asking for compensation to be considered. This adverse credit information Bank of Scotland has placed on my credit record has made it impossible for me to obtain credit. This has meant I have had to continue renting a house when I was looking to buy. Also, it has made it impossible for me to move my credit card debt to other cards which would have allowed me to take advantage of 0% offers. It has been in Bank of Scotland’s interest to keep the default on my record as it forces me to keep the approximately £14000 of debt I have on 3 cards owned by HBOS Group and I’m sure they are aware that it makes it impossible for me to take this business elsewhere and so they can keep charging me interest and making money from it.

 

In the case of xxxxxx –vs- xxxxxxx, the judge ruled that an unlawful default would give rise to damages amounting to the amount of the default plus £1000. With this in mind, I am seeking £2603 in compensation from Bank of Scotland.

Thank you for your time and for considering my complaint.

Yours Faithfully,

 

Can anyone point me to the case mentioned in the last paragraph, I've seen it previously but can't find it.

 

My "stop processing my data" request showing as delivered today.

Edited July 22, 2008 by knoxvillain

[car2403]

any comments on this:

 

 

Can anyone point me to the case mentioned in the last paragraph, I've seen it previously but can't find it.

 

My "stop processing my data" request showing as delivered today.

 

Haven't read the whole letter, but the case is Kpohraror v Woolwich Building Society [1996] 4 All ER 119

[knoxvillain]

Thanks for that car2403, you're a star.

 

On this point, HBOS had registered another default against me in relation to a loan. They removed it after admitting that they had not issued a Notice of Default. (or at least there was no mention of one being issued on their system) Given this could I claim compensation from them for that?

[knoxvillain]

Experian's 28 days has passed so I've sent them an e-mail today formally asking them to suppress the default as per the ICO's Guidelines and if they won't do it then asked them to tell me why not.

[knoxvillain]

3 page complaint sent to ICO as I believe my data was processed in an unfair manner by BoS. In the ICO's Guidelines for Defaults, it seems to be recommended generally that arrears be for at least 3 months. In my case, BoS placed the default marker on my account in less than 2 months.

[knoxvillain]

lol they turned down my request for them to remove it as a "guesture of goodwill". Perhaps my outstanding complaints with FOS, ICO, Experian etc means there isn't much goodwill between us? hehe

[knoxvillain]

Update from FOS, they are still waiting to receive a response from HBOS. They are chasing them up today. *sigh*

[knoxvillain]

eeek, update from FOS, my case has been assign on Friday and they are reviewing the documents. It'll take some time apparently but he'll be in touch once he has with his "opinion on the complaint" (presumably the polite way of saying ruling?)

 

Man, getting nervous now, all these months of waiting and the next 4 years of my credit worthiness will be decided by this person. Going to be gutted if they find in HBOS' favour.

[postggj]

hi nox

 

as you know i have been following your thread for ages.

its about time you had a resault.

with my default with hbos, i had them dusted in six months, does not seem fair the hastle they giving you does it.

 

once again, good luck and have the bubly on ice

[knoxvillain]

thanks for your continued support postggj

 

As I've said previously, they removed the other default with minimal hassle (compared with this one at least), so I don't know why they have played awkward buggers with me on this one. In their latest comms, they claim they removed the other default as a guesture of goodwill. Nothing to do with the lack of Notice of Default then.

 

How confident I am about this one depends what day it is, sometimes I feel like I'm going kick HBOS butt and then other days I feel like they system is so geared against consumers that I don't stand a chance.

 

On a side note, I have asked FOS to omit the part of my complaint asking for compensation since I've discovered FOS can only award like £300. Should FOS find in my favour and I become credit worthy again, I will seriously be considering contacting a solicitor to seek proper compensation for both defaults to the tune of £5k or £6k. (the old default value + £1000).

 

At the moment the only thing that really matters though is clearing this default.

[knoxvillain]

sigh, still nothing from FoS yet. On the upside, I found a copy of my prelim letter to BoS asking for charges back which is dated BEFORE the default so that puts the account in dispute before the default was registered so hopefully that will make a difference. Scanned it and e-mailed it in. Hope they get to my case soon, all this waiting is killing me, I'll be gutted if I lose after all this.

[knoxvillain]

got a 3 page response from FOS today basically shooting down every arguement I made. I will post a scan shortly. Gutted....

[knoxvillain]

http://i214.photobucket.com/albums/cc92/knoxvillain2007/fos_response_pg1.jpg

 

http://i214.photobucket.com/albums/cc92/knoxvillain2007/fos_response_pg2.jpg

 

http://i214.photobucket.com/albums/cc92/knoxvillain2007/fos_response_pg3.jpg

[car2403]

What a load of tosh.

 

Have they read the Wilson cases?

 

Is the debt enforceable under the OFT s.74 Determination?