Sar'd Debt Collector, heres the results...HELP!

magnersplease

My partner and I are in the middle of applying for a mortgage, so we both decided to view our credit reports on line. I was totally shocked to discover a big fat 8 on my report from a company called Cabot Financial. They filed the default in April of this year. I contacted them and they said they were acting for a mail order company called Simply Be. I had an account with them in 2007, and I paid everything off and closed the account. If I owed them anything it was under £20. Ive moved house twice since then. Yet on my report Cabot are stating Im £1400 in default.
Simply Be state they no longer have records on my account and I SAR'd Cabot financial. I posted them this letter back in early May.

Dear Sir Madam,

After recently obtaining a copy of my credit file from Experian I was concerned to note that your company has placed a "Default" notice against my name. Further to this I have no recollection of ever receiving such a notice, and I therefore require you to substantiate this data at your earliest convenience. I requested this on the telephone to your company two days previous.

I DO NOT ACKNOWLEDGE ANY DEBT TO YOUR COMPANY
With reference to the above account, or any other accounts, I request that you send me a true copy of this credit agreement before I will correspond further on this matter.

This is my right under the legislation contained within section 77 (1) and section 78 (1) of the Consumer Credit Act 1974, and I am entitled to receive a copy of my credit agreement on request.

Your obligation also extends to providing me with a statement of account. I enclose a £1
postal order, which represents payment of the statutory fee payable under the Consumer Credit Act.
I understand that a copy of my credit agreement should be supplied within 12 working days from the date of this letter.

I understand that under the Consumer Credit Act, creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act.
Also, since you are a Debt Collection Agency, I would also ask that you supply a signed true copy of the executed deed of assignment for the above referenced agreement.
This is an obligation, whether you are the original creditor or not, under section 189 of the Consumer Credit Act 1974.

Non-compliance with my request is a criminal offence under the above Act and will result in a report being submitted to the relevant statutory authorities.

In summary,
I DO NOT ACKNOWLEDGE THIS DEBT AND THEREFORE REQUIRE YOU TO SUBSTANTIATE THIS BY PROVIDING THE FOLLOWING DOCUMENTATION BEFORE I CORRESPOND FURTHER:
1.True copy of original credit agreement
2.Statement of account
3.Copy of the executed deed of assignment from Simply Be
4.Fair Processing Notice
As you are aware, a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA and therefore is a complete defence to any court claim that is issued.
Take note at this stage, that any legal action you may contemplate will be both vigorously defended and contested.
Further to the above, please ensure that any contact by yourselves is made in writing only to the above address. Telephone calls and personal visits will not be accepted and viewed as harassment.
As this account is now in dispute, I would also draw your attention to The Banking Code section 13.6:-
We may give information to the Credit Reference Agencies about personal debts you owe us if:
•The Amount Owed is Not in Dispute.
•The Office of Fair Trading provided a Code of Guidance that is in relation to Debt Collection: OFT 664 Response to consultation paper and final guidance on unfair business practices dated July 2003
Deceptive and/or Unfair Methods-
2.8 Examples of unfair practices are as follows:-
k. Not ceasing collection activity whilst investigating a reasonably queried or disputed debt.
If you continue in your pursuance of this account I will have no other alternative than to report you to both, The Information Commissioner and The Office of Fair Trading.
Furthermore, I shall submit a Consumer Credit Act 1974 complaint to the OFT upon the basis that you have failed to comply with the OFT’s direction of 5 April 2006 and are therefore not a ‘fit and proper person’ to hold a consumer credit license under the 1974 Act.
If you do not understand what this means then seek advice from your legal department.
I look forward to hearing from you within 12 days.

Yours faithfully



They replied with an apology bla bla bla, and that they would look into finding my documentation within 14 days.
That was over a month ago, so I then sent them this....

FORMAL NOTICE - ACCOUNT IN DISPUTE.


Dear Sir/Madam,

Thank you for your letter of --/05/2011, the contents of which have been noted.

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement and default notice for the above account.

On the __/05/2011 I wrote to you disputing debt to your company, requesting a copy of any credit agreements and other information under the Consumer Credit Act 1974 (Sections 77-79).

To date you have failed to comply with these requests in any way.

These documents I requested should be readily available as proof of your legal right to collect this account under the Consumer Credit Act 1974.

In my letter of the __/05/2011 I made a formal request for a copy of the signed, executed credit agreement for the above account under Sections 77-79 of the Consumer Credit Act 1974. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

Furthermore, you are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before you enter into a default situation.

These limits have expired.

As you are no doubt aware section the Consumer Credit Act states:

If the creditor fails to comply with Subsection (1)

(a) He is not entitled , while the default continues, to enforce the agreement.

And

(b) If the default continues for one month he commits an offence.

Therefore this account has become unenforceable at law.

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

Furthermore I shall counter-claim that any such action constitutes unlawful harassment.

Please note you may also consider this letter 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.

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

Should you refuse to comply, you must within 14 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 14 days I expect that this means you agree to remove all such data and defaults from my credit report.

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.
* 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 reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

Pleas supply me with a copy of your complaints procedure in writing.

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

Yours faithfully



Today I received a long winded letter from them, some of the main points being.....

We have been unable to obtain your documentation, yet we will continue to pursue the original lender.
It has been well established in English Law that "enforcement" construes obtaining judgement at court, The reporting of a default does not amount to enforcement.
They then go on to quote Section 10(2)(a) of the Data Protection Act, And that paragraphs 1 and 2 of this are entirely relevant to my case, as I signed a credit agreement with the lender.

Thing is, Im not aware of any credit agreement I signed, and even if I did, do they not have to have a hard copy of this?

Ive been so careful with my money and bills this last five years and to see this is a complete kick in the teeth. Especially now I need to apply for a mortgage..
Any advice would be great thank you, do I simply go ahead and report them?
Thanks in advance

Tixy

Did you send them a SAR or just the CCA request you've mentioned in this letter? You mention your SAR's them but doing a SAR is very different to the CCA letter you have put in your post.

If they cannot locate your credit agreement then they are right that they can continue to report to the credit reference agencies/ issue a default etc, all it stops them doing is taking you to court for this debt.

It sounds to me that you were actually intending to dispute that the debt existed at all, rather than ask for a copy of your CCA. If thats the case I would have suggested you sent the prove it letter and also asked for a full statement of account showing all transactions - this will establish if this was your account, if the transactions do amount to £1400 (it could perhaps be that someone who moved into your old address received a catalogue or statement and started spending on your account and ran up the debt for example). You won't be able to work this out unless you know what the balance is made up of.