knox vs Blair, Oliver & Scott [default removal]

[knoxvillain]

I don't know, can you clarify for me?

[car2403]

Ok. This is an overdraft debt, right? To be enforceable, they need to comply with a Determination set out by the OFT, stating that they should have sent you a letter confirming the details of the overdraft before, or shortly after you applied for it. If they can't demonstate that they have complied with that, the debt is unenforceable.

 

I have loads of links regarding overdraft challenges, but I don't have access to them yet - I'll edit this post tonight when I do.

 

In the meantime, here's something to mull over;

 

http://www.consumeractiongroup.co.uk/forum/barclays-bank/110184-car2403-barclays-bank-default.html

 

I don't understand what they mean by the comments that there are no "cases" outlining what is/isn't compliant with the CCA - as this is an overdraft debt, the agreement is exempt from s.60/s.61 CCA due to the s.74 Determination. Also, what is or isn't compliant with those sections is very clear, some of what is outlined in those Wilson cases.

 

This sounds like they are backing their "corporate" buddies, rather than addressing the issues you've raised. The issues they've highlighted aren't relevant in the way they have mentioned, however - you should seriously consider either asking for a review of the outcome of the case by someone more senior in the FOS, or take Court action. (Which would probably be quicker, seeing how long it's taken the FOS to get this far!)

[knoxvillain]

Hi car,

 

Thanks for your ongoing help. I'll be reading through your thread this evening. I have to admit that my first impression upon reading the response was that they don't seem very interested in helping me and seem to just make some assumptions that the bank must have been right.

 

From reading another thread I found on Google, is it right that an application form doesn't form an agreement and therefore since they have no agreement with me with the prescribed terms that it would have been impossible for me to default on a non-existant agreement? FOS seems to think the application form is enough.

 

I would like to spend a little bit of time fighting it out with this guy before moving up the ladder. It's at the informal stage where I can submit more information and arguments. My understanding is that once it goes to an ombudsman, his decision is final with no means of appeal.

 

I'm holding court as my "last resort" if all else fails through FOS. I don't want to expose myself to BoS's costs in court unless I have to.

[knoxvillain]

lol e-mailed the Adjudicator asking if he could let me know what address BoS are claiming they sent the Notice of Default to. According to him it was sent to my current address. That's strange because I didn't move here until March of last year, over 6 months AFTER the default so how could they possibly have sent it here! Throws the accuracy of Bank of Scotland's record keeping very much into dispute!

Edited October 10, 2008 by knoxvillain
spelling

[car2403]

Thanks for your ongoing help. I'll be reading through your thread this evening. I have to admit that my first impression upon reading the response was that they don't seem very interested in helping me and seem to just make some assumptions that the bank must have been right.

 

Agreed.

 

From reading another thread I found on Google, is it right that an application form doesn't form an agreement and therefore since they have no agreement with me with the prescribed terms that it would have been impossible for me to default on a non-existant agreement? FOS seems to think the application form is enough.

 

An application form can be a correctly executed agreement, but it must contain all the prescribed terms as required by s.60/s.61 and be signed by the Debtor, as a minimum, to allow it to be enforced.

 

The issue you have here, is that this is an overdraft. The difficulty is that the Bank account itself is regulated by the FSA and the Banking Code, but the overdraft agreement is regulated by the CCA, as running account credit under s.10. The other issue is that overdrafts are exempt from s.60/s.61 CCA, in that they don't need to conform the the requirements of form and content of those sections - but they are regulated by the rest of the Act - because of the OFT's s.74 CCA Determination saying so. This covers s.87/s.88, which outlines the process for Termination and Default of the agreement. Having said that, there is part of the Determination which states they have to tell you how they will terminate the agreement - if they have complied with the Determination correctly, they will only need to have sent (note, not ensured you've received) a Termination Notice. If they haven't complied with the Determination, they will be in serious trouble - if they haven't and they don't have a correctly executed credit agreement, then the debt is unenforceable due to s.65/s.127(3)

 

In other words, they only get the benefit of the Determination if they complied with it. If they haven't, you're on to a winner, as the debt can't be enforced against you.

 

There's more on this in those links (which I still don't have yet) and in my thread, linked above.

 

I would like to spend a little bit of time fighting it out with this guy before moving up the ladder. It's at the informal stage where I can submit more information and arguments. My understanding is that once it goes to an ombudsman, his decision is final with no means of appeal.

 

The FOS's decision is binding only on the Bank - you are free to take your case to Court, or to ask the FOS to look at the decision again, but the Bank has to abide by the decision.

 

I'm holding court as my "last resort" if all else fails through FOS. I don't want to expose myself to BoS's costs in court unless I have to.

 

How much is the debt?

 

If it's less than £5k, you're unlikely to be open to costs as it will fall in to the small claims track. There's always the chance it will go on the fast track, but you have a good case, IMHO, so costs shouldn't be a concern. (They will use them to try to scare you off, though... I just can't help but think that there is a reason why they promote the FOS route - and that has to be because they prefer that to going Court!)

 

lol e-mailed the Adjudicator asking if he could let me know what address BoS are claiming they sent the Notice of Default to. According to him it was sent to my current address. That's strange because I didn't move here until March of last year, over 6 months AFTER the default so how could they possibly have sent it here! Throws the accuracy of Bank of Scotland's record keeping very much into dispute!

 

I seriously don't get this - how can they prove that they sent a Default Notice that complies with the requirements of s.87/s.88 CCA if they can't produce a copy.

 

The Act doesn't state that there is a requirement to prove the content of what was sent explicitly, but there's an argument that it can be implied due to the wording of those sections.

 

If they can't produce a copy of the original Notice, how can they say they have lawfully Defaulted/Terminated the agreement?

 

I think the FOS is well off the mark with this decision, IMHO.

[knoxvillain]

I'll be looking into this a bit more over the weekend. I spoke to the adjudicator and apparently he requested the address change history for 2007 instead of 2006. So he apologised and got the right information.

 

Get this though, BoS allegedly sent out the Default Notice on FRIDAY 15th September. According to their records, my request to update my address was processed on the Tuesday following that, 2 business days later. He's going to try and get hold of the address change form but said they may not have kept it. He wants to check if BoS delayed the changing of my address at all. I spoke to BoS today and the lady said the branch should have kept the form so i'm going to write directly to the branch for a copy. Absolutely gutted that if I have changed my address a few days earlier, I would have received the default notice and could have dealt with it and avoided all of this.

 

I wasn't aware of the requirement for a termination notice, I'll send off a request for this and see what comes back. I've also asked the adjudicator to send me a copy of everything he's received from BoS to date and he was going to send it out today if possible.

 

We agreed that I'd come up with all my additional points and concerns in one place and get it to him by Oct 23rd so he can proceed. He recons it's kind of border line and things standing the way they do he doesn't think he can ask BoS to remove the default. Basically we need to get something to prove that the bank has done something wrong.

 

He also did say that FOS probably won't be able to do much around the validity of the Consumer Credit Agreement. Despite the fact that I directed him to the Wilson case he's still claiming that there's no case to show what is and is not a valid CCA. I'll refine this and put it more clearly in the letter detailing all my concerns. I figure I might as well put everything I have in front of them just in case it sways them. Failing that I'll be thinking of going to court. On the court note, I am in Scotland and the small claims limit is £750. I'm not too worried about money at this stage, is there a way I could bring it to court and keep it on small claims? If I remember from claiming charges, there had to be some monetary value for it to go to small claims?

 

PS the amount of the default was £1603, this was paid off by a refund of my charges and the account is now closed.

[knoxvillain]

ooooooooo small claims limit in Scotland has changed from £750 to £3000 in Jan 08.

[car2403]

ooooooooo small claims limit in Scotland has changed from £750 to £3000 in Jan 08.

 

You'd be claiming specific performance to remove the Default from your CRA file.

 

If you aren't bothered about money, it might not be worth even asking for damages for unlawful Default, meaning the claim would only be for removal of the Default. Most go for damages which increases the chances of coming off the small claims track, but ultimately only the Court can decide how to deal with your claim.

 

Here's those links;

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/31515-ccas-overdrafts.html

 

http://www.consumeractiongroup.co.uk/forum/formal-solutions-bankruptcy-administration/130621-can-you-cca-request.html

[knoxvillain]

Man, I thought I was the only one up at this time on a say morning

 

I thought for a small claims case there had to be some sort of monetary value to the claim?

 

Thanks for the links, I'll have a read through them now.

[knoxvillain]

Sending these:

 

Sort Code: xx-xx-xx

Account Number: xxxxxxxx

 

 

Dear Sir/Madam,

In September 2006 I came into the Bathgate branch to inform Bank of Scotland of a change to my address for the above account. This account is now closed. I was wondering if you’d be able to look out the change of address form that I completed and signed and send me a copy of it please?

I have an ongoing case with The Financial Ombudsman Service in relation to this account and a copy of this form would help me establish what happened around this time.

Thank you in advance for your assistance.

Yours Faithfully,

 

knoxvillain

 

The Data Controller

Bank of Scotland

The Mound

EDINBURGH

EH1 1YZ

 

DATA PROTECTION ACT 1998

SUBJECT ACCESS REQUEST

 

Dear Sir/Madam,

 

Sort Code: xx-xx-xx, Account Number: xxxxxxxx

 

Please supply me with all information I am entitled to under the Data Protection Act 1998. To include, but not limited to:

 

· Any and all internal notes about my account

· Any and all application forms, consumer credit agreements, contracts

· Change of address forms signed by me, held in a branch or elsewhere

· Letters sent by Bank of Scotland relating to overdraft

· Any default notices and termination notices issued in relation to the about account.

· Any correspondance sent to and received from 3rd parties such as The Financial Ombudsman Service

· Any information held to substantiate OFT s78 Determination in relation to the overdraft

 

I enclose the statutory maximum fee of £10. I understand that you have 40 days to comply with my request.

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

I would be happy to collect the Data from my local branch.

 

Yours Faithfully,

 

knoxvillain

[knoxvillain]

I've queried where the adjudicator got that 13.6 means that transactions need to be in dispute and he came back saying it's his own interpretation of it. How can "the amount owed is in dispute" be interpeted as "transactions on the account are disputed"????? I've asked him to seek further guidance on it. BCSB is being as useful as a chocolate fire guard at the moment.

[reallymadwoman]

Hi Knox,

 

I've just read your thread and thought the information in this post http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/136654-complaining-financial-ombudsman-service.html#post1448101 might be of some help. All of my complaints have been directly about how Blair, Oliver and Scott handled my accounts so your complaint is a bit different, but there might also be something else in the thread that might help.

 

I do have quite some experience of the FOS and every single one of my complaints has been turned down at first pass but I've ended up winning all of them, so don't give up.

 

My suggestion would be to basically pretend your starting again with the complaint and make a list of every single thing that you think BOS have done wrong, then write a paragraph on each one in the format

 

1. complaint

2. evidence

 

After that, go through the adjudicator's letter sentence by sentence and use your notes to respond to everything. Don't worry about repeating yourself, if it's worth saying once etc. As you go through, cross out in your notes everything that you've already mentioned, then at the end add in anything left over. Don't forget to stress how frustrating this company are to deal with (unless you've been very lucky!) with not replying to correspondence, misinformation etc. If you want evidence that they are regularly imaginative with the truth, let me know and I'll PM you the two case references I have for the FOS where BOS made inaccurate statements.

[jbscotland]

Very interesting post.

I would suggest that by pursuing this it should be removed.

 

I feel so close to understanding what I NEED to do now to get this removed and getting on with my life again, (mortgage on hold).

 

My apologies for this but I have posted elsewhere numerous times and go no replies.

 

I really need some help of my own and this seems the best place to ask it as BOS default which needs removed.

 

SUMMARY

 

My partner and I had default registered against us in 04/2004.

 

It was paid and reads as settled on Equifax and experian 04/2006.

I sent surlybonds letter away end of September and I have had no response.

 

I never sent the data subject notice with the letter.

 

Is this the same as Subject access request?

 

What is an s.10 and s.12 and is it worth sending this instead of surlys letter.

Should I just send a letter asking for a copy of the default and if not received ask for it to be removed as breach of 1974 consumer credit act?

 

Should I...

 

1) send it all again with the data subject notice, (if so how much postal order do i enclose)?

2) ask for copy of default and if not receive then what...?

3) at which point do I contact Info commisioner and di I enclose all letters sent?

 

HELP me please as I am so close to understanding what to do in order to get this removed.

Please no links. that is partly why I dont know what to do. I have been reading link after link for 6 weeks and I need clarification.

 

Can someone also post the address to send for BOS default removal, I sent to company secretary at HQ but other address's were mentioned.

Sorry for interrupting your post but please let it carry on and I will pst my experiences IF I can get further.

Edited October 19, 2008 by jbscotland

[car2403]

If you can start a new thread, where you can post up what has happened to date, we'll be able to dip in and advice how to respond;

 

"How do I...?" A Dummies' Guide to this Forum

 

[Here's the link to jbscotlands thread; http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/159867-bank-scotland-default-removal.html]

[knoxvillain]

thanks car2403

 

jb, I'll look in on your thread and help you if I can.

[jbscotland]

KV, what are your plans now to get your last default removed.

Surely you are not giving up.

[knoxvillain]

NEVER!

 

At the moment I plan to send a revised letter to the adjudicator (something I need to sort tonight) and see what he says. If he still won't ask for removal then I will allow my complaint to proceed to an Ombudsman for a formal ruling. If the Ombudsman also rules that it shouldn't be removed then I will seriously consider going through small claims court.

 

If at any stage someone tells BoS to remove the default and they do, I will then consider sueing the pants off BoS for compensation for both this default and the previous default they registered incorrectly and removed.

[jbscotland]

I agree, surely if a bank removes a default as the paperwork was never administered properly then this suggests years of paying high interest in loans etc due to having a bad credit score = $$$$.

 

I am furious with The Bank of Scotland, I have been struggling with debts for years since they decided to derfault me.

My partner and I got a loan for 5200.00 to consolidate.

We paid 13 payments of 211.13, called for a settlement figure and were told it would be 5969.00 to settle early!!!

We fell behind and got hit with this and have never been the same since.

 

If this default is not removed can the bank confirm in writing it will be taken off six years after the issue date? I have heard people say it is removed automatically but somehow I cannot rely on this as there is so much resting on it.. ie me getting on with my life and getting a low rate mortgage???

[car2403]

I agree, surely if a bank removes a default as the paperwork was never administered properly then this suggests years of paying high interest in loans etc due to having a bad credit score = $$$$.

 

Let me play Devil's advocate, just to prove a point here... (not like me, I know!)

 

How do you prove this is the case, exactly? How do you show that the interest rates you've had applied to loans/credit cards, etc, has been higher because of the default? How can you prove that you've been declined for credit because of this default?

 

Simple answer? You probably can't, in all reality. The reason? Lending and credit decision criteria is extremely commercially sensitive. Lenders will not tell you the reason you've been declined, so you can't prove the damage that has been caused.

 

It's for this reason that my advice would be to get the default removed, (which is hard enough!) then put the whole thing down to experience and don't get in to that situation again. Claiming damages makes getting the default removed more difficult.

 

Now, of course you claim damages, but you use it to negotiate the removal of the default. You don't use removal of the default to negotiate the damages.

 

Devils advocation over...

 

;)

[jbscotland]

I agree, however I think the banks unlawfully hold onto you as any application to join a different bank is usually rejected.

 

If...IF I get this default removed I will be really happy and move banks as soon as it is done as my credit rating will be excellent once this removed, ( I have worked tirelessly to ensure it will not happen again).

 

If it gets removed exactly 6 years after it was applied, I will still move banks as I literally hate them for kicking me when I was down.

 

The point is if it gets removed, I would be so relieved that I wouldn't want any further dealings with them anyway.

My partner and I make reasonably good money between us so I cannot wait to stroll in and cancel my account and go through them like a dodgy curry.

[knoxvillain]

car - it was more my intention to get the default removed and then go for damages, not the other way round. They have already removed one default which, although they'll never admit anything, was wrong.

 

jb - I hate BoS too and they've lost a customer of 10 years in me. I now bank with RBS. I was able to open a current account with them despite having the default. I had to do without a debit card for the first 6 months but eventually they issued me with a maestro card. I too make reasonable money and BoS have lost all possibility of future business from me in the form of mortgage, investments, savings etc I will never bank with them again unless I have no choice.

 

The only thing is, pretty much all the banks are the same. I'm sure RBS would screw me over as quickly as BoS did. The number of RBS threads on here is a testiment to that.

 

On the bright side, with a default, you don't worry about the credit crunch because we can't get credit anyways.

 

As for default removal, BoS will say in all their standard replies that it will be removed 6 years after it was applied. Probably not on the exact day though as banks normally process the info monthly I believe.

[knoxvillain]

My adjudicator is back from his holiday and says he will query banking code 13.6 and get back to me. I'm not holding my breath to be honest.

[knoxvillain]

lol he's now "out of office" until November 10th. AHHHHHHHHHHHHH!

[jbscotland]

In your posts on page 2 of this article, you advised,

 

 

 

"I didn't have to issue court action, I just sent them a letter saying they were in breach of the Consumer Credit Act 1974 because they didn't issue a Notice of Default and I got up this morning and found an alert from CreditExpert saying the payment history had changed on one of my accounts and I looked and my loan has changed from an 8 (default) to a 5 (not a default)."

 

I have received a fob-off reply basically with a default template letter attached. I was advised by car to not wait for the SAR details but to send them a letter advising that they are in breach by not sending me a True notice of default.

Can you send me the letter you sent them or even expand a little on the terminology used?

I am determined to get this default removed.

 

Any news on you saga?

[knoxvillain]

FoS is a joke

 

Dear Mr knoxvillain,

Thank you for your patience in awaiting my response.

The intention of section 13.6 of the Banking Code is to prevent a financial business from placing a case into default as a response to a complaint or dispute, to protect a consumer if they have been the victim of fraud, and other similar situations.

The Code has been worded to ensure the protection of customers in a variety of situations. It is not intended to allow a consumer to prevent a default being placed on their account by raising complaints or disputes in order to stall or prevent the default process.

I hope this clarifies my position with regards to section 13.6 of the Banking Code and provides you with sufficient information to allow you to respond in full to my initial view.

I am afraid that HBOS has not responded to my queries regarding a separate "Termination Notice" in relation to the default.

Will you be able to respond by 8 December 2008? If not, please can you let me know as soon as possible.

If I do not hear from you by 8 December 2008 I will assume you do not wish to continue pursuing the complaint with us and will close your complaint.

Yours sincerely,

Tim Edwards

 

So basically he recons 13.6 doesn't apply to me since I wasn't the victim of fraud. Well in my case I was defrauded by my own bank.