Failure to reply to CCA request - 1st credit

momo1975

hi all, i sent my cca request to 1st credit and they never replied. so after 12+2 i sent them the letter saying that they are in default.

i have now got this letter today:

I refer to your letter dated 7th april 2008

we have asked our client on a number of occasaions to provide a true copy of the relevant agreement. we have sent another reminde to them today to remind them that your request remains outstanding.

in our opinion the failure of crditor to produce an agreement does not mean that the agreement becomes illegal or void. we therefore consider that we are fully entitled to action and pass on your personal data and this would not be in breach of Data Protection or OFT guidelines.

We therefore decline your request to remove your data from our files.

No interest has been added to your account since it was purcahsed by 1st credit Ltd

We are fully aware that you are not obliged to make payments.. Should you choose to cease making payments we will consider this to be in breach of the arrangement you ahve made with us. Please clarify your intentions.

Mr R A Kingdon
Strategy & Audit Controller.

Well......"In Our Opinion" What does this mean? "Please clairy your intentions" What does this mean? Do they know they are gonna loose this?

fermi

Some people who have taken this approach have successfully had the information removed.

However, the few cases I've seen where it has gone as far as a complaint to the Information Commissioner have resulted in the complaint being rejected. I'm not saying that is right or wrong, but it does seem to be the stance that the ICO is taking at the moment in these cases.

GeorgeUK

"In our opinion..." it's perfectly reasonable to walk into a shop and take any money we find in the till.

Just because they have an opinion doesn't make it correct or legal.

I'd play this by the book and stick to the templates and timelines specified. You may not get you information removed, but just because they think they have a right to keep your information does not mean they should. Do they have a legal right to keep you information on file? Not that they can prove.

In sending the 2nd letter, you have already made your intentions clear. After the 12+2 days, you are under no legal obligation to make payments towards the debt. They concede this point, but then go on to say that ceasing those payments will be a breach of the arrangements made with them? Which will result in what?

I'd cease payments to them if you haven't already done so and have the FO letter ready to send on 7th May. Then definately report them to TS and possibly ICO.

momo1975

GeorgeUK wrote: »

"In our opinion..." it's perfectly reasonable to walk into a shop and take any money we find in the till.

Just because they have an opinion doesn't make it correct or legal.

I'd play this by the book and stick to the templates and timelines specified. You may not get you information removed, but just because they think they have a right to keep your information does not mean they should. Do they have a legal right to keep you information on file? Not that they can prove.

In sending the 2nd letter, you have already made your intentions clear. After the 12+2 days, you are under no legal obligation to make payments towards the debt. They concede this point, but then go on to say that ceasing those payments will be a breach of the arrangements made with them? Which will result in what?

I'd cease payments to them if you haven't already done so and have the FO letter ready to send on 7th May. Then definately report them to TS and possibly ICO.

Thanks George, whats the FO letter? and who is the ICO? sorry newbie!

GeorgeUK

FO letter : impolite way of saying please go away.
http://forums.moneysavingexpert.com/showthread.html?p=9970513

ICO is the information Commissioners Office
http://www.ico.gov.uk/

smithja

if you need easier access to Bob Kingdom you can get him by email

[EMAIL="bkingdon@1stcreditltd.com"]bkingdon@1stcreditltd.com[/EMAIL]

and his boss Mike Cleary at:

[EMAIL="mcleary@1stcreditltd.com"]mcleary@1stcreditltd.com[/EMAIL]


If any of the debt includes default charges greater than £12 and a true copy of the orginial CCA is found, this should slow them down a bit too:

"Penalty & unfair charges – request for refund for Credit Card Debt Assigned to You with Reference xxxx

0n 5 April 2006 the Office of Fair Trading (OFT) announced that default charges which are set at more than £12 will be presumed to be unfair and unenforceable in terms of the Unfair Terms in Consumer Contracts Regulations 1999 (SI. 1999/2083). Charges above this sum will be subject to legal action by the OFT (press release 68/06 - online here: http://www.oft.gov.uk/News/Press+releases/2006/68-06.htm).

I would respectfully submit that if your organisation does not agree to immediately refund all unfair charges applied to my account, it will not meet the ‘fit and proper person’ test to hold a consumer credit licence under the Consumer Credit Act 1974. In that eventuality, I will submit a 1974 Act complaint to the OFT.

On a separate note, I am of the view that your charges represent a penalty and are therefore irrecoverable at common law. In the Scottish case of Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. (1904) 12 SLT 498 the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract. This is also the position in English law: Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79.

Your charges do not reflect any actual loss, instead they appear to represent a lucrative profit-making scheme. UK banks have recently given evidence to the House of Commons Treasury Committee on how bank charges are calculated: "The costs are going to pay for all the people we have who pursue debt, collect debt, speak to customers and chase payments. The way these charges are arrived at is by taking these total costs and making some assumptions about the volume that is going to come through to arrive at the individual charges" (2nd report, 25 January 2005, paragraph 50 - online here: http://www.parliament.the-stationery-office.co.uk/pa/cm200405/cmselect/cmtreasy/274/27405.htm).

Accordingly, the charges applied to my account are not a reasonable pre-estimate of the bank’s loss in relation to my account. Your charges would appear to represent a device to recover global losses (for example, loan defaulters, bad debt write off, including commercial lending in, and outwith, the UK).

Please refund these charges to my account within the next 7 days. I reserve the right to commence court proceedings without any further notice, and to seek an additional award for distress and inconvenience, together with legal expenses."

Best of luck, you may have the impression I am not very keen on the company, I'm not. In my opinion their business practices and model is immoral.

James

NickX

They haven't got a leg to stand on here.

Without a CCA, they will get thrown out of court if they do try to sue you for the debt.

They are just saying this in an attempt to recover the funds.

If I were you, I would write back to them and say that without the CCA to provide evidence of the debt, you make no acknowledgment of the debt whatsoever, and you do not expect any further communications from them.

Furthermore, I would say that if they do persist in making contact with you without providing the legally required documentation, you will consider this to be harrassment and will make a complaint about them to the OFT, Trading Standards and the local Police.

I think they know that they have no case and are just trying to intimidate you. Don't let them get away with it !

Good Luck

smithja

That is good advice by NickX

Remind them of The Administration of Justice Act 1970 Section 40:-

"Section 40 of the act provides that a person commits an offence if, with the object of coercing another person to pay money claimed from the other as a debt due under contract, he or she:

1. harasses the other with demands for payment which by their frequency, or the manner or occasion of their making, or any accompanying threat or publicity are calculated to subject him or his family or household to alarm, distress or humiliation;
2. falsely represents, in relation to the money claimed, that criminal proceedings lie for failure to pay it;
3. falsely represent themselves to be authorised in some official capacity to claim or enforce payment;
4. utters a document falsely represented by him to have some official character or purporting to have some official character which he knows it has not.

Paragraph (1) above does not apply to anything done by a person which is reasonable (and otherwise legal) for the purpose of:

• of securing the discharge of an obligation due, or believed by him to be due, to himself or to persons for whom he acts, or protecting himself or them from future loss; or
• of the enforcement of any liability by legal process.

It is also provided that a person may be guilty of an offence under paragraph (1) above if he concerts with others in the taking of such action as is described in that paragraph, notwithstanding that his own course of conduct does not by itself amount to harassment."

If they dont have a CCA and still state you owe them money, it then becomes a criminal matter and you are fully within your rights to report them to the nearest Police Station if they contact you again after you have run through the CCA procedure for establishing there is no agreement.

Then as I am sure many before you have report them to the OFT as unfit to hold a Consumer Credit license,

"Under section 25(2) of the Consumer Credit Act the fitness of a licensee can be brought into question by the actions of any of its employees, agents or associates, and section 25(3) defines ‘associate’ for these purposes as including a business associate."


This applies where they breach any of the DPA 1998, the CCA 1974, the Administration of Justice Act 1970 and also the Malicious Communications Act 1988.

James

jamesd

momo1975, they currently have a reason to hold your personal data: you are making voluntary payments as a result of their harassment and they need the data while you continue to do that to support the collection of those voluntary payments.

I suggest that you note that they are in breach of the CCA requirements and that you are therefore suspending the payments that their harassment led you to make for six months to give them additional time to try to find a credit agreement. If they have still not done so in six months you've given them more time than they are supposed to take and you'll cease the voluntary payments instead of just suspending them at that time. Their need for the data to support your voluntary payments no longer exists at that point.

You might also consider reserving your right to take action to recover the payments that you have already made.

Be sure that a court will see that you are bending over backwards to give them a chance to get things right.

momo1975

to everyone,who has posted a response to my message MANY THANKS!!!! I am gonna wait till may 1st when the 12+2+30 is up and then till em where to go (polity of course) I'll keep u all updated!

AGAIN MANY MANY THANKS !!!!!!!

Momo 1975

momo1975

Ok update time.

!st credit have today sent me a photocopy of the credit card application form. it has not been signed by the creditor (Halifax bank) it is only stamped with 'recieved' with a signatre next to it no where near any part of the agreement section towards the bottom. it actuallty also has an old address pre-printed only adtional info that has been filled in by hand is first name, phone number, job title, salary and a date and sorta signature.

Does this constitute a Consumer Credit Agreement??

While they have sent it there is no date on the enclosed letter and it wasnt even sent recorded delivery so if this is a Credit agreement then i might never have actually recived it...

where do i stand now??

Thanks momo1975