Default notice

wayne99

cheers mate

wayne99

nid,

any joy yet pal ?

wayne.

never-in-doubt

wayne99 wrote: »

nid,

any joy yet pal ?

wayne.

Hmmm mate I have went through almost all my 2000 subs but can't remember where I put it - arghhhhh!!!

But basically if they have the names wrong, you should be able to get the default removed easily enough by contacting the CRA's - one default per debt and if they messed it up due to name errors, that is their fault....

I'd be sending a snotty letter to them - but I really am lost as to where my letter is - bummer! I'll look on CAG as I may have posted it over there!

wayne99

thanks mate

never-in-doubt

Hi matey,

Here you go - this will be sent to Phoenix/CAM......

Dear Sirs,

Account No: XXXXXXXX

On XX/XX/XXXX I wrote requesting that you supply me a true copy of the executed credit agreement for the above numbered account. 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 (CCA1974).

You are also writing to someone unknown at my address, my name that you're using on your letters to me does not match those shown on my credit file - again, additional proof that you have no regard for legal processes.

I recently requested a copy of my credit report from both Experian and Equifax and was horrified to notice there are several defaults against my name - all of which are actually unlawful due to the fact that an account may only have one default for the same debt. I currently have several, two are showing on my Equifax report and one shows on my Experian report.

I disputed these entries and requested that the original creditor arrange for a true copy of the CCA to be sent to me. I received a response dated 16/02/2010, containing a copy of what they purport to be a Consumer Credit Agreement. The document they sent, 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, all of the required terms are not present in this document. 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 OFT guidelines. These guidelines (issued July 2003 & updated December 2006) relate 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 the 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 the relevant governing authorities.

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.

Going back to the issue of the default(s); I'd like to 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 original creditor (Very) 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 can confirm that even if an enforceable contract could be presented to me it is still outside the terms and conditions of the Flexible Account Credit Agreement (copy attached) that data is shared with third party CRA's and as such, any behaviour whether conducted by SDFC Ltd or yourselves is unlawful as a result of such terms not existing in the contract.

The defaults are also incorrectly registered in their entirety - details below:

Equifax 1 - The Default Date shows 17/11/2007 - Company Name shows Shop Direct (SDFC Ltd).
Equifax 2 - The Default Date shows 16/11/2007 - Company Name shows Phoenix Recoveries.
Experian - The Default Date shows 16/11/2007 - Company Name shows Credit Account Management.

Since the agreement is unenforceable, the default notice is non existent, you have supplied evidence to support a claim by myself that this agreement does not relate to any account I might have held with the OC and you are identifiably in breach of The Data Protection Act 1998 in your conduct 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 also expect all defaults relating to this account to be removed within the next 30 days, failure to comply will result in more formal action being considered.

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

Yours faithfully




Sign digitally

never-in-doubt

Mate you need to also attach a copy of the Flexible Account Credit Agreement (to prove nothing there allowing them to share data) and a copy of their covering letter that shows the wrong name! Obviously highlight that point if you can with a bright yellow highlighter!

Good Luck - that should sort it for you mate, once and for all.

wayne99

nice one, mate i really do appreciate the time and effort you have gone to to help me with this, you are a gent.

wayne.

never-in-doubt

wayne99 wrote: »

nice one, mate i really do appreciate the time and effort you have gone to to help me with this, you are a gent.

wayne.

anytime matey - they should agree and remove the defaults now. If not we'll move forwards..... but i'd like to think they will take note of the above letter, regardless.

wayne99

update for you niddy,

i have recieved a letter today, i have attached it in jpg format, basically the crux of it is they are stating the cca is enforceable, they have ignored the reasons of my complaint as per your letter, and are mentioning credit limits etc i have mentioned nothing about credit limits lol, so basically they have completely ignored me.

letter from shop direct

page1
http://img405.imageshack.us/i/lastscan1.jpg/

page 2
http://img405.imageshack.us/i/lastscan2eh.jpg/

so iam kind of stuck, as i would of thought the letter we sent would of done the trick...

wayne.

never-in-doubt

wayne99 wrote: »

update for you niddy,

i have recieved a letter today, i have attached it in jpg format, basically the crux of it is they are stating the cca is enforceable, they have ignored the reasons of my complaint as per your letter, and are mentioning credit limits etc i have mentioned nothing about credit limits lol, so basically they have completely ignored me.

Right mate - they have ignored your last letter, just ignore them - they talk !!!!!! and cannot do anything anyways!

Idiots!