Sutton's default removal letters

never-in-doubt wrote: »

default date?
last payment made date?

never-in-doubt wrote:

30 March 2009

Dear Credit Account Management,

Reference: A/C - XXXXXXXX / Request under the Consumer Credit Act 1974

In February 2009 I requested a copy of my credit report and noticed a Default registered against me by a company called Phoenix Recoveries. I disputed this entry and requested Equifax arrange for a true copy of the CCA to be sent to me. Littlewoods responded to this request on 07 March 2009, containing a copy of what they purport to be a Consumer Credit Agreement. I then wrote to Phoenix Recoveries to formally request a true copy of the CCA but instead received a response from Credit Account Management with an exact copy of the documents sent to me by Littlewoods and therefore request refund of the £1 statutory fee paid and clarity as to your exact legal position.

In response to this request I was supplied a document a copy of which is attached which did not comply with the requirements of the Consumer Credit Act 1974.

The document sent, purporting to be a credit agreement, does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document.

Further to these shortcomings the document supplied also bore a signature other than my own in the signatory box and so cannot possibly be held under any line of argument to be a 'true copy' of the executed agreement relating to any account held by myself such as prescribed by the law. A certified copy of my Passport was sent to Littlewoods, in my response to them dated 16 March 2009, which would clearly show my signature.

Further to this you have supplied a copy of an agreement dated 20/10/2004 yet you clearly state in the accompanying letter that my account was opened on the 25/09/2004; yet on the financial breakdown page this has an account opening date as 26/09/2004, I acknowledge this as further indication that you might be harassing the wrong person by chasing myself in respect of the debt you allege.

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states;

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced. In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection.

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states;

2.6 Examples of unfair practices are as follows:
h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

I require you to produce a compliant copy of my alleged credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40.

Despite your failure in the matter, I have been able to obtain a copy of the terms and conditions relating to an account of this type, specifically Littlewoods Direct Flexible Account.

I hereby bring to your attention that no agreement is given within the terms and conditions of this particular type of credit account for the original creditor to share data pertaining to the conduct of this account with third parties for the purposes of credit referencing. I admit to being surprised these terms do not include such a clause but am factually correct in stating that no such clause exists.

I notice that you have chosen to register a default against my person with the credit reference agency (ies) and draw to your urgent attention the fact that since such behaviour was not permissible under the terms of any original contract then it would be unlawful for this to be added after execution and transferred to yourself as a right under the original contract regardless of the manner in which this right was transferred from the OC to yourselves. You have inadvertently inserted a clause into the contract upon assignation permitting you to share data with third party agencies. As such behaviour is unlawful I request that you immediately cease and desist from sharing my data with any person who is not a member of your company or group of companies and withdraw any information you have shared about myself from each and every party to which you have supplied this information. I require written confirmation of this or your reasons for continuing to process my data in such a manner, despite no contractual right existing, within 14 days from the date of receipt of this letter. Failure to comply will result in you being served notice under Sec 10 Data Protection Act 1998 to cease and desist; failure to comply with such notice will result in my seeking enforcement through the Courts.

This does of course not alter the fact or present any intimation by myself that such contract exists. I have asked you to prove that a contract exists and is enforceable and you have failed. I simply advise you that even if an enforceable contract could be presented to me it is still outside the terms and conditions of the Littlewoods Flexible Account that data is shared with third party credit reference agencies and any such behaviour whether conducted by Littlewoods or yourselves is unlawful as a result of such terms not existing in the contract.

Since the agreement is unenforceable, the default notice is non existent and you have not supplied evidence to support a claim by myself that this agreement does not relate to any account I might have held with the OC; then you are identifiably in breach of The Data Protection Act 1998 in your conduct. Therefore it would be in everyone’s interest to consider the matter closed and for you to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages.

I respectfully request a response to this letter in 14 days.

Yours faithfully

azza2007 wrote: »

Hi guys I need a little bit of advice regarding getting a default removed from my credit file.

I got a Default in June 2007 for a Loan Account I had with Intelligent Finance. I have never received a default notice Just letters from there debt collection agency Blair,Oliver and Scott . I set up a payement with them and in September 2007 I made a partial settlement on the account.

I have been following the basic steps set out at the beggining of this post to get a copy of the Default notice but now I am a bit stuck as to what to do next.

I wrote to Intelligent Finance asking for an official copy of my default agreement on the loan account and got a "you have to wait 4 weeks" complaint letter reply.

I was getting a little impatient so I called them and they have supposedly requested the default for me 3 times now. The first on 30/03/09 and I have not received any of them.

On 25th April I got a reply letter to my original default request and basically this is what it says.

“To summarise, you have recently obtained a copy of your credit file and discovered a default has been recorded. You have no recollection of receiving any default notice and are requesting we supply you with a true copy of this notice. This request is being made under section 78 of The Consumer Credit Act 1974. If we are unable to provide this document you request we remove the entry from your credit file.

If I may explain; there is no obligation under the Consumer Credit Act 1974 to provide a Signed and certified copy of the original default notice. These terms refer to the agreement itself, not the default issued under the agreement. For your reference, the default is issued under section 87 (1) of the Consumer Credit Act 1974. We are obligated to record when a notice is issued (in your case 15th March 2007) and provide a copy of the template only. For clarification, there is no obligation for us to retain a copy of the actual notice document.”

So does this mean that if they do not hold a copy of the default notice on my account that this is unenforceable?


I have sent the second letter already and I have called them and they notified me they have 8 weeks set out by the Finanical Ombudsman

They have sent me a copy of the signed agreement with the above letter on 25th April but no default notice. So what do I do now ?

They have till 28th May then then 8 weeks is up.

Thanks

Aaron