Sutton's default removal letters

never-in-doubt

ElkyElky wrote: »

Mum.

Did your mum/gran (sorry forget specifics) post the letter then? It'll be funny cos the lender will get that and think !!!!!! - hahah - they will not be expecting it will they?

ElkyElky

never-in-doubt wrote: »

Did your mum/gran (sorry forget specifics) post the letter then? It'll be funny cos the lender will get that and think !!!!!! - hahah - they will not be expecting it will they?

Yeah, she sent it yesterday. She received another letter from the same DCA today with the usual "You have 7 days or we *may* begin court proceedings"

No they definitely wont be expecting it. I think most of these complanies plays on the hope that people don't know their rights.

gurujosh

i think its a cricket day today thats why everyone wants a day off

never-in-doubt

marcellep wrote: »

Okies thanks so much for all your help!

---

Letter to send to Capital One

---

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

Dear Capital One,

Re: ERC/AS/12-54193215

Further to paying the alleged debt off, by way of Trust Deed, I have since learned that the agreement in question may not have been enforceable in the first place, moreso due to lack of receipt of Default Notice and failure to acknowledge laws set in place to protect the consumer, namely the Consumer Credit Act 1974 and the Date Protection Act 1998.

I have requested a copy of the Default Notice, no less than 3 times to date, and each time I have been rebuffed with an excuse; usually along the lines of 'Under s78 we are not required to send a copy of a Default Notice'. However the exact wording of s.78 (CCA 1974) clearly stipulates that you must issue this notice upon demand and if you fail to do so, that the agreement cannot be pursued any further.

In laymans terms, this would mean that if the Default Notice was never received by the debtor (me), the onus of proof is still required by the creditor (you) to show the documents were served correctly, at the address of the debtor. Simply quoting 'we confirm one was sent on XX date' does not constitute legal conformance as we both know.

You also continually quote 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)) but do not specify which area of the Act you refer to. I can only assume you refer to s.11 (Duty to supply copies of documents not to apply to certain kinds of documents) which, unfortunately is not relevant in any case so cannot be used by Capital One as an 'excuse'.

Any Default Notice must be served to the debtor giving them at least 7 days notice to come to some arrangement, until such time no action may be taken against a debtor. As Capital One never issued a Default Notice to me at my home address the default was unlawfully registered against me.

The Defaulted amount was originally £200 yet the amount showing as Default Balance is £440, as such I believe I am allowed to place this account into dispute whilst I investigate claiming back unfair charges which evidently makes up the difference from £200 to £440.

I must also remind you that only one Default is permitted per debt; as you have already added an unlawful and incorrect Default against me you must remove it immediately, obviously with no possibility of it returning due to the original errors at your alleged issuance and subsequent registration with the CRA's.

As a result of the above, I now formally place this account into dispute.

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.

Regards to the issuance of Default Notices, my recent reply from the OFT is quoted as follows:

"We note your concerns that in the absence of a copy of the original agreement someone's liability for a debt can only lead to further query. However in circumstances like this we would view it as unfair practice under section 25(2) (d) of the Act and relevant to licence fitness if a trader failed to investigate and/or provide details as appropriate when a debt is queried or disputed"

This is self explanitory and covers what I have been saying all along, a Default cannot be issued without sight of a Default Notice - the Default is unenforceable without a true copy being in existence. As I have requested a copy on 3 separate ocassions and you have failed to respond each time I now consider enforcing removal via the County Court.

Obviously neither of us want to take this through litigation, and I therefore propose two options for you to consider;

Option 1:
You agree to remove all associated data from the credit reference agencies.

Option 2:

You disagree and wish to enter litigation over an alleged (satisfied) debt of £200.

Option 1.

As the disputed balance was indeed disputed (statutory notice under section 10 of the Data Protection Act, to cease processing any data in relation to this account), the balance was never paid as I was awaiting additional correspondence. The balance was never left due to any kind of fraud or negligence but due to the amount being in dispute. As a result, should I decide to take this through the County Court there is a high probability that my argument will become enforced.

Taking into account everything I have said, your clear lack of Consumer Credit knowledge and the unlawful practice if taking payment on a disputed account I feel it would be best for both parties if this matter is resolved amicably, without the need of litigation, for an amount of £200 that has been paid.

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.

If you refuse then I will take legal action against Capital One beginning with enforcement to provide a true copy of the alleged Default Notice, which you have clearly proved that you do not have. If you do happen to provide one at a later date, in Court, this will strenghten my case against you because you 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.

Option 2.

I note that your company has placed a 'Default Notice' against an alleged account I held with you to which I have no recollection of ever receiving such a notice, and I therefore require you to substantiate this data.

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 to cover the statutory fee.

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

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

Also, bringing the case back, retrospectively, the account continues to be in dispute and as such the Default is not only in breach of the Consumer Protection From Unfair Trading Regulations 2008 and the Office Of Fair Trading debt collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998.

As you are now in default of my Consumer Credit Act request (original request) and OFT Debt Collection Guidelines, I consider this account to be in serious dispute and remind you that whilst the alleged Consumer Credit Act request remains in default enforcement action is NOT permitted, under s127 this constitutes a complete defence at law. Consequentially any legal action you pursue will not only be fully and vigorously defended, it will also be averred as both unlawful and vexatious.

By pursuing me for the debt, whilst the account was formally in dispute, I am of the opinion that constituted a violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines and the Consumer Protection From Unfair Trading Regulations 2008.

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee and then remove the incorrect entry from your systems. Remember, this letter is to be classed as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

Should you refuse to comply, you must within 21 days, 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. Should you not respond within 21 days I expect that this means you have agreed to remove all such data.

Furthermore you should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute. The lack of a credit agreement is a very clear dispute and as such the following applies.

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.
* Any payment previously made should be refunded immediately.
* You may not add further interest or any charges to the account.
* You may not pass the account to a third party.
* You may not register any information in respect of the account with any credit reference agency.
* You may not issue a default notice related to the account.

I do expect you to select Option 1 and remove all data from the credit reference agencies, resolving this amicably without the need for litigation and embarrassment on your behalf. The alternative, I have nothing to lose and will seek to redress this, plus my costs, through the County Court bearing in mind your gung-ho attitude and evident lack of knowledge of the Consumer Credit Act 1974.

I look forward to your response, within the quoted timescales.

Yours faithfully,

marcellep
(sign digitally - don;t give your real signature to them!)

never-in-doubt

gurujosh wrote: »

i think its a cricket day today thats why everyone wants a day off

Yea Yea! Cricket - what is that? :rotfl::rotfl:

I needed a day off to compose Marcellep letter :eek: :eek:

gurujosh

never-in-doubt wrote: »

Yea Yea! Cricket - what is that? :rotfl::rotfl:

I needed a day off to compose Marcellep letter :eek: :eek:

Cricket is people waving sticks and throwing things at each other rather fun :rotfl:;)

jon_boy75

this letter is excellent!

Sammy_Girl

Hi Guys :hello:

NID - I sent that last letter off last Monday (08/06/09) but we didn't put a timescale on it. Do you think I should give them another week or so cos they answered the last one at the end of the second week.

Many thanks

never-in-doubt

Sammy_Girl wrote: »

Hi Guys :hello:

NID - I sent that last letter off last Monday (08/06/09) but we didn't put a timescale on it. Do you think I should give them another week or so cos they answered the last one at the end of the second week.

Many thanks

Hiya, we told them to respond within the statutory timeframe didn't we? If so they have 21 days.

Anyway, not much more to do - you need them to reply or you have to go issue a N1 which starts to cost you money - that is why legal action is the last last resort and you try threat after threat first!

Just hold fire, you have to be reasonable - a week (even 2) isn't long enough thus statutory limits are used and this will be 21 days for the letter you sent. :rotfl:

never-in-doubt

jon_boy75 wrote: »

this letter is excellent!

am trying to get rid of a default posted by Abbey falsely. they havent responded to my SAR and Im unsure what to do next. I sent them a follow up giving them another week!

according to the ICO, i need to raise a complaint with them as they enforce the DPA.

so, false default and now non-compliance...can i not just deal with both in the county court by submitting a claim, or should i just go through the ICO and see what they decide?

many thanks in advance
Jon

Hi Jon,

The Abbey are a shambles, thus they are really called Shabbey (in disguise)..... you need to follow up with a default notice to them (intended action) but forget the ICO, they will take too long.

Can you start by saying why you had a default and give me some background.

Regards to the Default - you need to send the following letter: #32