Sutton's default removal letters

pinkerton_angel

never-in-doubt wrote: »

Hiya

Ok, will be back shortly - let me catch up with everything cos its all scattered throughout the thread.... am a little confused to say the least!

Thank you, I know it's really confusing, sorry

never-in-doubt

pinkerton_angel wrote: »

Thank you, I know it's really confusing, sorry

Hiya

am working on this now for you! Nightmare lol..... trying to put all the acts into sense makes it harder, but getting there! Bear with me.

Can I check, the last communication was in 2007 when they said they couldnt find the CCA, is this right?

pinkerton_angel

never-in-doubt wrote: »

Hiya

am working on this now for you! Nightmare lol..... trying to put all the acts into sense makes it harder, but getting there! Bear with me.

Can I check, the last communication was in 2007 when they said they couldnt find the CCA, is this right?

Last contact with Cabot was in May this year when they responded to my 'leave me alone' letter with 'we're looking into your complaint' letter. Prior to that it was Jan/Feb of this year when they were prepared to accept £250 in f&f settlement but wouldn't remove the default.

Just checked my file and my last correspondence from Next was a letter dated 31 Oct 07 from their DP Manager and Legal Advisor, following my complaint to MOTA, they had actually said they would accept £650 in f&f settlement and WOULD remove the default from my account, I had to accept before 1st Dec 07 and of course like a numpty I didn't as I thought I knew better! Since then I've been dealing with Cabot.

Both Cabot and Next have filed defaults against me for the same debt.

Thanks

never-in-doubt

Pinky,

I'd be looking to send the following letter and see what they come back with. Worse case scenario it may mean making a token gesture in exchange for the removal of the default but it's best to try the 'Non Compliance' approach first and see what we get back from that!

Remember to copy the letter you got from Next dated 26 June 2007 - and send it to them with this letter...

Remember, do not speak to them on the phone - everything has to be done in writing, any responses please post on here for us to take a look at....

Good Luck

---

Letter to send to Cabot

---

Request for a copy of the Original Credit Agreement, Default Notice
and Notice of Assignment under the Consumer Credit Act 1974

Dear Cabot,

Re: XXXXXXXX

I write with reference to past correspondence, and in particular my CCA request to Next dated 13 June 2007 and their subsequent response dated 26 June 2007, a copy of this response is attached for your perusal.

I'd like to start by quoting the main point of that response;

"I regret to advise you that we do not hold copies of this documentation on our files and unfortunately can’t comply with this. I can advise you that your debt to Next Directory is not enforceable in a court of law. However, that does not mean that the debt does not legally exist and Next still has the right to seek repayment, using the assistance of debt recovery agents where appropriate".

"The goods that were charged to your account have been ordered by and delivered to you, without payment in full having been made for them. By placing orders, and accepting delivery of them, a customer is deemed to have accepted our terms and conditions. These are printed in the Next Directory, and are also available on our website".

"Although there is no known requirement to provide you with a copy of a default notice, or a deed of assignment, I have enclosed a copy of the default notice that would have been applicable in your case".

Breaking this down, piece by piece, starting with the first paragraph; It is evident that this quote is in direct conflict with the clause of Act Next are trying to hide behind, in that if we have no active agreement then they are not permitted to share my personal data. I'd like to remind you of the 1st, 3rd, 4th, 6th & 7th principles of the Data Protection Act 1998 which will show the evident breaches and which also confirm that the processing of my data is no longer allowed due to cessation of contract.

Lack of CCA also means lack of prescribed terms. Since there is no document, and therefore no 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 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.

The second paragraph mentions the fact that as I took receipt of goods; that I adhered to the terms. This is simply not true and without a valid agreement all goods are to be, and will be, deemed gifts.

As for the third paragraph, I can only assume that they are referring to The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (in conjunction with the CCA 1974, ss 58(1), 64(1), 180, 182(2) & 189(1)). In which case this would not be relevant due to s.87 of the CCA superceding this.

This account has been in dispute from the very beginning of my missed payments which is the reason I did stop paying, becsue the balance was not correct - I was charged for various items that were never delivered and so I utilised my right not to pay until the matter was investigated. At the time, Next passed the account to a DCA and added a default notice which is simply not permitted, especially not when an account is in dispute which to clarify, is the case and has been since back in 2005 whereby you initially defaulted me.

As a result of this, I hereby formally place this account into dispute whether retrospectively or otherwise and should be treated as being in dispute until further notice. You should also consider this letter as a statutory notice under s.10 of the Data Protection Act 1998 to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with the three (3) Credit Reference Agencies. Should you refuse to comply, you must provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a ‘legal right’; you must outline your reasoning in this matter and state upon which legislation this reasoning depends.

Going back to my request for the CCA, I require this as i have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed and, obviously if the agreement is improperly executed I would be entitled to ask the court to consider the agreement and make a declaration of the rights of parties to the agreement. At the present moment I am retaining my request under s.78 of the Consumer Credit Act 1974 and formally request that you provide me with said document at your earliest convenience. Failure to comply will result in my sending in more formal papers.

I must stress the secondary request will not be pursuant to s.78 of the CCA but will be made pursuant to the Civil Procedure Rules (Pre action protocols and Part 31.16) and therefore an unsigned copy would not suffice, only a copy of the original contract in its unaltered form would suffice in such circumstances, which we both know you will not be able to fulfil.

I feel it pertinent to also highlight the fact that it is your legal requirement to issue Default Notices pursuant to s.87(1) & s.88 of the CCA(1974) which, for the avoidance of doubt, is quoted below for your perusal;

s.87 Need for default notice

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum

It is a clear fact that you did not adhere to this because no default notice was ever received by me. The fact that you never issued me with a Termination Notice, a Notice of Default nor the minimum period of 14 days in which to settle the account means that the actual default registered against me is unlawful and should be immediately removed.

In light of the above, I would ask that you provide me with a copy of the Default Notice that confirms it was properly executed; I require the complete document with all its parts. The reason why I require this information is clearly as a result of the above, but for clarity, I require this document as I have reason to believe that there may be discrepancies within the Default Notice which may leave it improperly executed. The 'dodgy copy' I was sent last time is a clear breach of the CCA and will not be accepted nor tolerated a second time.

Since this matter is likely to be subject to proceedings and given that your organisation and/or Next is likely to be a defendant in any action which would be brought by me, I must draw your attention to Civil Procedure Rules part 31.16(3)(C)&(D) which gives the court the power to order you to disclose this document to me. The disclosure of this document will allow me to consider any claim I may have against your organisation and will allow for the matter to be dealt with, possibly without the need for costly litigation.

I do not consider this request unreasonable and therefore if you fail to comply with my request I will be left no option but to make an application to the County Court for an order made under the provisions of CPR 31.16 ordering you to disclose the document which I have requested. Additionally I will ask the court to make an order for my costs in bringing this application and reserve the right to disclose all communications in this matter before the court should such an application become necessary.

Taking into account everything within this letter, your clear lack of Consumer Credit knowledge and the unlawful practice of issuing Default Notices, I feel it would be best for both parties if this matter is resolved amicably, without the need of litigation, by you simply agreeing to remove the default notice with immediate effect.

I confirm I am more than happy to close all communication with the promise of no further action against you so long as you agree to, and ensure that, the following actions will be carried out;

• The Default Notice will be removed
• The Status of the account will change from “Defaulted” to “Settled”
• The Current Balance will appear as £0.00
• The Default / Delinquent Balance will be set to £0.00
• There will be no date in the “Defaulted Date” field (as it will be removed)
• There will be no date in the “Date Last Delinquent” field on the report
• This will apply to all 3 Credit Reference Agencies, namely Experian, Equifax & Call Credit

If you're happy with my proposal, please respond confirming each of the above points on official letter headed paper, and I will respond confirming closure by return, in which case I would not require the CCA, Default Notice or Termination Notice.

If you refuse then I do require the documents as noted above, for the reasons outlined within this letter and will take legal action against Next/Cabot beginning with enforcement to provide a true copy of the alleged Consumer Credit Agreement, Termination Notice & Default Notice, which they have clearly proved that they do not have. If they then do happen to provide one at a later date, in Court, this will strengthen my case against them because they will have committed an offence for non issuance within the prescribed timeframe thus resulting in the alleged debt becoming unenforceable with a full refund plus costs likely to be awarded to me.

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

I do hope we can resolve matters amicably and look forward to your response within 21 days from receipt of this letter.

Yours faithfully,




Pinkerton_Angel
(sign digitally - don’t give your real signature to them!)

pinkerton_angel

Thank you a million times, will update as soon as I get a reply.

wwwtom

never-in-doubt wrote: »

Mate, don;t rely on the SAR - mine took 12 weeks to come! Anyway, keep me updated with what happens and yea, you do right - chill out this weekend and see what happens

Catch you next week then

Hi NiD,

Just thought I would give you an update, no response as of yet.

SAR response dates I am a little confused about, is the time limit 40 calendar days or 40 working days?

Either way, they are late with their response, I'm being a little forgiving on them due to the postal strikes.

Also no response from the letter that you provided, and have also had an email from Experian saying that the NOC will be added in a few days time, I could reply telling them to forget adding it as it is in dispute at the moment, whats your opinion?

Thanks again,

Tom

jon_boy75

jon_boy75 wrote: »

one default only on one old, closed account

:rolleyes:

Hi NID

I sent my own version of that letter as advised (941). You mentioned before that there were a few steps left to take before resorting to any kind of legal procedure. Can you just tell me what they might be, just as a matter of interest and so I know what's next.

many thanks, as usual!!
Jon

catwoman150

I have put a bit of info into this thread if you need anymore info give me a shout.

http://forums.moneysavingexpert.com/showthread.html?p=23858283#post23858283

never-in-doubt

catwoman150 wrote: »

I have put a bit of info into this thread if you need anymore info give me a shout.

http://forums.moneysavingexpert.com/showthread.html?p=23858283#post23858283

Hiya

Can you tell me is the account defaulted or just in arrears? Have you seen your credit report, what is the debt? have you got an agreement in place? When did you take the facility out? Is is a citicard (credit card) or loan?

Please tell me as much as poss and i'll do you a letter to send off

never-in-doubt

jon_boy75 wrote: »

Hi NID

I sent my own version of that letter as advised (941). You mentioned before that there were a few steps left to take before resorting to any kind of legal procedure. Can you just tell me what they might be, just as a matter of interest and so I know what's next.

many thanks, as usual!!
Jon

Jon,

Post a copy up of what you sent mate and i'll have a look at it to get upto date.... my PM's all got deleted as I was full inbox so accidentally emptied it lol.

Cheers mate - catch you laters.....