CCA unenforceable+I live in Taiwan!

[debtisbad]

Re: CCA unenforceable+I live in Taiwan!

My pleasure Enaid. Maybe I should claim back all the money previously paid on th3 4 accounts. That's what is being advertised by Lawyers now for unenforceable CCAs, claim back every peeny you ever paid.

Mmmmmm....tempting....but that would make me be a bit like a debt collector

[enaid]

Re: CCA unenforceable+I live in Taiwan!

The pathways are there to be followed, it's if you can live with the path you take, simple as, IMO.

[debtisbad]

Re: CCA unenforceable+I live in Taiwan!

Just another thought, are you planning to come back to the UK at some point, if ever, and can you see yourself ever needing/wanting credit in UK? Because no doubt with all this going on your credit file will be shot to pieces, late markers, defaults etc. Which will stay there until satisfied or 6 years. So if you will be needing credit here at any pint, it will be worth getting it all sorted out.

PPI, bank charges, CCA, and CC charges should be tackled separately as different criteria apply to each one, and some are easier to get back than others. Credit card charges are the most straightforward, IMO, but if you go the CCA route then you can't get the charges back. You need to weigh up how much the charges are in relation to the total debt before you decide which way to play it.
Bank charges are covered by the OFTcase and waiver for the forseeable future.
PPI can be straightforward, and if you have evidence of a phone call which clearly made you an unsuitable candidate then that might be fairly easy too. But again I'm not sure if you could get the PPI back if you went down the CCA route.

Just by way of an update, i just got PPI charges back in full from Egg.

Also, I have claimed against Abbey National (subsequently MBNA) for unlawful credit card charges.

I claimed the full amount plus the statutory 8%.

First letter came back and they paid me about 230 quid, saying that they disagreed with the OFT decision and would not refund the 12 quid part.

I cashed the cheque and then wrote back to them saying that i wanted the full amount refunding.

I received a letter today, paying out a further 350 quid. So they refunded in full, plus 8%.

So if you claim, always write back and ask for a full refund.

[scottishlass]

Re: CCA unenforceable+I live in Taiwan!

Well done what a result

SLxx

[debtisbad]

Re: CCA unenforceable+I live in Taiwan!

Just to update you, CrapQuest, of course, said the CCA was enforceable. Well, they would say that wouldn't they?

So I explained to them that the "alleged debt" had previously been disputed by me and so i could not understand why Egg would pass it to a third party as that is against OFT regulations.

I got a letter today from Crapquest saying that they have closed the file.

Yippee!

Of course, they had to dish up some ***** to "punish" me, by saying that in their view the CCA was enforceable and that they would not refund the 1 pound fee for the CCA (I cheekily asked for that in my letter to them).

Many thanks to Amethyst for her "bemused" letter template which was instrumental in telling CrapQuest that there was a prior dispute with the OC, thereby precipitating the closing of the account.

Is it possible to send the "closed account" letter from Crapquest to the credit reference agencies and get the item struck off my file?

Also, can I invoice CrapQuest at, say, 20 pounds an hour for time wasted over the last year dealing with them?

[debtisbad]

Re: CCA unenforceable+I live in Taiwan!

Following on from my thread, I got a final letter from Lowell's today, showing the alleged debt for MBNA/Abbey credit card has been closed:

[Amethyst]

Re: CCA unenforceable+I live in Taiwan!

Nice letter.

Do you know if they have passed the account back to mbna or forward to anyone else? and have they applied any defaults etc to your credit file ?

[debtisbad]

Re: CCA unenforceable+I live in Taiwan!

Nice letter.

Do you know if they have passed the account back to mbna or forward to anyone else? and have they applied any defaults etc to your credit file ?

They have applied a default on my credit account. I don't think that they can pass the account back to MBNA/Abbey since according to their initial correspondence I think they said that they had bought the account. However, I never got a notice of assignment so I cannot be sure on this point.

What are the implications? Could I get payments that I made to Lowells? Or even MBNA/Abbey for that matter?
------------------------------- merged -------------------------------

Nice letter.

Do you know if they have passed the account back to mbna or forward to anyone else? and have they applied any defaults etc to your credit file ?

Actually, a similar situation exists with CapQuest over an Egg loan debt. They say that they "purchased" the debt but I never saw an assignment of transfer. The debt balloned from 2500 pounds to about 4900 pounds due to interest and charges and that is also registered on my credit reference under CapQuest.
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This is the letter from capQuest:


------------------------------- merged -------------------------------
Oh, I forgot to mention, the previous dispute was that Egg went to the county court about this debt when they knew I lived abroad. Therefore they won judgement by default.

When I received my 6 monthly batch of post from the UK and realized what had happened, I called Egg's in-house solicitors, who then had the judgement set aside (otherwise, I would have done it!).

Egg, then kindly sold the debt to the good people at CapQuest, who havve pursued me ever since. Because I was unaware of the law or my rights, I made payments to CapQuest.

[Amethyst]

Re: CCA unenforceable+I live in Taiwan!

I don't think many (any) have been successful outside of court receiving any refund of payments paid in these kind of cases. However there have been default removals. I think I would ask for both and then back down on the refund of payments in return for the default removal ? (just my opinion based on not a lot tho)

You'd want to be using the no legal assignment of the debt to capquest and lowells as the reason for them having no right to enter anything on your credit file. I'm sure Curly or Tomterm have made some posts in relation to this situation in the guides (debt assignment and the cca guide). Otherwise its just good to be free of them ?

[debtisbad]

Re: CCA unenforceable+I live in Taiwan!

I think it's a good time to be free and move on, so thanks for giving me the options. I live abroad and so my credit file is unimportant.

[Amethyst]

Re: CCA unenforceable+I live in Taiwan!

excellent, onwards and upwards and thank you for posting up the letters and about your case, it will help others a lot.

[debtisbad]

Re: CCA unenforceable+I live in Taiwan!

Thank you for this advice, also all the other people on this thread. As you will see above, Lowell's closed my account because the original CCA was not kept by Abbey (the OC). CapQuest closed the account because of a prior dispute.

Despite this, both have still retained an adverse listing on my CRA files.

I have some free time over the next few days and, being the organised person that I am, have kept and scanned all documentation from them (well, I did manage to write off nearly 20 000 pounds, so you COULD call me organised!) I am going to take one afternoon, poor myself a tall, cool beer, and write to the following people to try and get the entries removed, using the arguments kindly supplied to me in this thread:

The DCAs.
The OCs.
OFT.
Trading Standards.
MP.
Banking Ombudsman.

I will also be doing separate complaints about a staff member at CapQuest who continued to ask for money by email (thanks for putting it in writing) even when they put the account on hold and who also wrote accusing me of being on the UK when I live abroad, intimating fraud i.e. somebody else was signing my letters and cheques from the UK. Also Egg going to the County Court, when they knew I was abroad (I got the case set aside when I found out what they had done).

This will be a short and easy task for me to do, as all documentation is stored on my computer.

In the meantime, if anyone can give any further advice it would be much appreciated:

Any other places to write and complain to?
Any other ways to get my CRA file amended.

As usual many thanks to you all, I will report back with the outcomes as and when i get them.
------------------------------- merged -------------------------------

I don't think many (any) have been successful outside of court receiving any refund of payments paid in these kind of cases. However there have been default removals. I think I would ask for both and then back down on the refund of payments in return for the default removal ? (just my opinion based on not a lot tho)

You'd want to be using the no legal assignment of the debt to capquest and lowells as the reason for them having no right to enter anything on your credit file. I'm sure Curly or Tomterm have made some posts in relation to this situation in the guides (debt assignment and the cca guide). Otherwise its just good to be free of them ?

Thank you for this advice, also all the other people on this thread. As you will see above, Lowell's closed my account because the original CCA was not kept by Abbey (the OC). CapQuest closed the account because of a prior dispute.

Despite this, both have still retained an adverse listing on my CRA files.

I have some free time over the next few days and, being the organised person that I am, have kept and scanned all documentation from them (well, I did manage to write off nearly 20 000 pounds, so you COULD call me organised!) I am going to take one afternoon, poor myself a tall, cool beer, and write to the following people to try and get the entries removed, using the arguments kindly supplied to me in this thread:

The DCAs.
The OCs.
OFT.
Trading Standards.
MP.
Banking Ombudsman.

I will also be doing separate complaints about a staff member at CapQuest who continued to ask for money by email (thanks for putting it in writing) even when they put the account on hold and who also wrote accusing me of being on the UK when I live abroad, intimating fraud i.e. somebody else was signing my letters and cheques from the UK. Also Egg going to the County Court, when they knew I was abroad (I got the case set aside when I found out what they had done).

This will be a short and easy task for me to do, as all documentation is stored on my computer.

In the meantime, if anyone can give any further advice it would be much appreciated:

Any other places to write and complain to?
Any other ways to get my CRA file amended.

As usual many thanks to you all, I will report back with the outcomes as and when i get them.

[debtisbad]

Re: CCA unenforceable+I live in Taiwan!

Well thats a result then isn't it

Having reported this good news, I noted that Lowell's still have a default notice on my credit reference files., despite the facct they have written off 10 500 pounds due to the loss of the original CCA.

I reported the above to Experian, saying that Lowell's do not have the CCA i.e. no agreement, no proof for CRA entries.

Unfortunately, today, Experian wrote back as follows, remember this is the UK 2009 and this is what is apparently allowed to happen:

Further to our recent correspondence, I have been contacted by Lowell Portfolio I Ltd regarding entry C5 on your credit report. They have confirmed that the details we hold are accurate and have requested that we retain the information on our database. Unfortunately I am unable to amend this information without the authorisation of the company in question.

The 'Notice of Dispute' will remain on your report for 28 days. It will then be removed, unless I receive further notification from you:

"THE CONSUMER HAS DISPUTED THE ACCURACY OF THIS ENTRY AND WE HAVE THEREFORE ASKED THE PROVIDER TO INVESTIGATE IT. GIVEN THAT THIS DATA IS DISPUTED, PLEASE TAKE CARE IF MAKING AN ASSESSMENT OF ANY KIND THAT MAY INCLUDE THIS DATA."

If you have any further queries or wish to discuss this further, may I suggest you contact the company concerned direct at the following address:

Lowell Portfolio I Ltd
Lowell Financial Ltd
PO Box 172
Leeds
LS11 9WS

Tel: 0845 3009416

[debtisbad]

Re: CCA unenforceable+I live in Taiwan!

Having reported this good news, I noted that Lowell's still have a default notice on my credit reference files., despite the facct they have written off 10 500 pounds due to the loss of the original CCA.

I reported the above to Experian, saying that Lowell's do not have the CCA i.e. no agreement, no proof for CRA entries.

Unfortunately, today, Experian wrote back as follows, remember this is the UK 2009 and this is what is apparently allowed to happen:

Further to our recent correspondence, I have been contacted by Lowell Portfolio I Ltd regarding entry C5 on your credit report. They have confirmed that the details we hold are accurate and have requested that we retain the information on our database. Unfortunately I am unable to amend this information without the authorisation of the company in question.

The 'Notice of Dispute' will remain on your report for 28 days. It will then be removed, unless I receive further notification from you:

"THE CONSUMER HAS DISPUTED THE ACCURACY OF THIS ENTRY AND WE HAVE THEREFORE ASKED THE PROVIDER TO INVESTIGATE IT. GIVEN THAT THIS DATA IS DISPUTED, PLEASE TAKE CARE IF MAKING AN ASSESSMENT OF ANY KIND THAT MAY INCLUDE THIS DATA."

If you have any further queries or wish to discuss this further, may I suggest you contact the company concerned direct at the following address:

Lowell Portfolio I Ltd
Lowell Financial Ltd
PO Box 172
Leeds
LS11 9WS

Tel: 0845 3009416

I have written to Lowells, asking as follows' "Can you please supply me with a signed copy of my consent, given to you for the purposes of allowing you to process such data, given that you have confirmed in writing that you do not have
a copy of the original CCA, since Abbey do not keep records going back so far."

I also sent the following letter to Experian and copied lowell's:

Please find below a copy of an email that I recently sent to Experian (CustomerService@creditexpert.co.uk, concerning unlawful entries that you have made on my credit file:

Ami Toone
Client Queries Administrator
Client Queries
Thank you for your response.

I am surprised that I need to remind you that you have a duty of care to ensure that not only is the data that you post accurate, but that it is posted legally.

As there is no signed document allowing this, then your statement is, to say the least, unlawful.

Furthermore, in law, you cannot hide under the statement made by Lowell, as they are liable also, so I suggest that you quickly make sure that Lowells are able to legally process your data, as they will be aware of the penalties and costs of not doing so.

I will commence court proceedings to force you to comply unless you can demonstrate that you have posted accurately and legally.

I also refer you to the following sections of the Data Protection Act 1998 , especially shedule 2.1 and Shedule 3 (4)(a)(i)


SCHEDULE 2 Conditions relevant for purposes of the first principle: processing of any personal data

1 The data subject has given his consent to the processing.
2 The processing is necessary—
(a) for the performance of a contract to which the data subject is a party, or
(b) for the taking of steps at the request of the data subject with a view to entering into a contract.
3 The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.
4 The processing is necessary in order to protect the vital interests of the data subject.
5 The processing is necessary—
(a) for the administration of justice,
(b) for the exercise of any functions conferred on any person by or under any enactment,
(c) for the exercise of any functions of the Crown, a Minister of the Crown or a government department, or
(d) for the exercise of any other functions of a public nature exercised in the public interestby any person.
6 (1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.
(2) The Secretary of State may by order specify particular circumstances in which this condition is, or is not, to be taken to be satisfied.

Section 4(3).
SCHEDULE 3 Conditions relevant for purposes of the first principle: processing of sensitive personal data

1 The data subject has given his explicit consent to the processing of the personal data.
2 (1) The processing is necessary for the purposes of exercising or performing any right or obligation which is conferred or imposed by law on the data controller in connection with employment.
(2) The Secretary of State may by order—
(a) exclude the application of sub-paragraph (1) in such cases as may be specified, or
(b) provide that, in such cases as may be specified, the condition in sub-paragraph (1) is not to be regarded as satisfied unless such further conditions as may be specified in the order are also satisfied.
3 The processing is necessary—
(a) in order to protect the vital interests of the data subject or another person, in a case where—
(i) consent cannot be given by or on behalf of the data subject, or
(ii) the data controller cannot reasonably be expected to obtain the consent of the data subject, or
(b) in order to protect the vital interests of another person, in a case where consent by or on behalf of the data subject has been unreasonably withheld.
4 The processing—
(a) is carried out in the course of its legitimate activities by any body or association which—
(i) is not established or conducted for profit, and
(ii) exists for political, philosophical, religious or trade-union purposes,
(b) is carried out with appropriate safeguards for the rights and freedoms of data subjects,
(c) relates only to individuals who either are members of the body or association or have regular contact with it in connection with its purposes, and
(d) does not involve disclosure of the personal data to a third party without the consent of the data subject.
5 The information contained in the personal data has been made public as a result of steps deliberately taken by the data subject.
6 The processing—
(a) is necessary for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings),
(b) is necessary for the purpose of obtaining legal advice, or
(c) is otherwise necessary for the purposes of establishing, exercising or defending legal rights.
7 (1) The processing is necessary—
(a) for the administration of justice,
(b) for the exercise of any functions conferred on any person by or under an enactment, or
(c) for the exercise of any functions of the Crown, a Minister of the Crown or a government department.
(2) The Secretary of State may by order—
(a) exclude the application of sub-paragraph (1) in such cases as may be specified, or
(b) provide that, in such cases as may be specified, the condition in sub-paragraph (1) is not to be regarded as satisfied unless such further conditions as may be specified in the order are also satisfied.
8 (1) The processing is necessary for medical purposes and is undertaken by—
(a) a health professional, or
(b) a person who in the circumstances owes a duty of confidentiality which is equivalent to that which would arise if that person were a health professional.
(2) In this paragraph “medical purposes” includes the purposes of preventative medicine, medical diagnosis, medical research, the provision of care and treatment and the management of healthcare services.
9 (1) The processing—
(a) is of sensitive personal data consisting of information as to racial or ethnic origin,
(b) is necessary for the purpose of identifying or keeping under review the existence or absence of equality of opportunity or treatment between persons of different racial or ethnic origins, with a view to enabling such equality to be promoted or maintained, and
(c) is carried out with appropriate safeguards for the rights and freedoms of data subjects.
(2) The Secretary of State may by order specify circumstances in which processing falling within sub-paragraph (1)(a) and (b) is, or is not, to be taken for the purposes of sub-paragraph (1)(c) to be carried out with appropriate safeguards for the rights and freedoms of data subjects.
10 The personal data are processed in circumstances specified in an order made by the Secretary of State for the purposes of this paragraph.

Also, to remind you of a very recent court case: Mr Durkin got £8k plus costs from HFC, for besmirching his credit reference.

This can be found at the following site:


RICHARD DURKIN v. DGS RETAIL LIMITED+HFC BANK PLC, 26 March 2008, Sheriff J K Tierney"
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Experian replied as follows:

hank you for your e-mail received 13 October 2009, which has been brought to my attention in the Directors' Office.

Lowell do not require a signed document to process information about you and neither do the credit reference agencies. As you may be aware the first data protection principle states that:

Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless:
* at least one of the conditions in Schedule 2 is met; and
* in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.

One of the conditions for processing in Schedule 2 is that the individual has given his consent to the processing. It is the view of the Information Commissioner that consent is not easy to achieve and that organisations should consider other conditions for processing before looking at consent.

In the context of applying for credit, consent to share information with the credit reference agencies cannot be freely given. This is because if you do not agree to your data being shared then your application will simply be rejected. In other words you have no choice if you want the credit on offer.

The Information Commissioner has notified us that the condition for processing below covers the sharing of account data with the credit reference agencies for the duration of a contract and six years beyond.

"The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case because of prejudice to the rights and freedoms or legitimate interests of the data subject."

We have been informed that the Information Commissioner takes a wide view of the legitimate interests and considers that it is in the interests of other creditors to make informed lending decisions.

In the instance of defaulted account data, this is also qualified under the Tournier principles. (Tournier v National Provincial and Union Bank of England (1924) 1 KB 461, CA).

I also note your reference to Schedule 3 of the Data Protection Act 1998. I would draw your attention to Part 1, Section 2 of the Data Protection Act 1998, which sets out the interpretation of 'Sensitive personal data':

In this Act "sensitive personal data" means personal data consisting of information as to-

(a) the racial or ethnic origin of the data subject,
(b) his political opinions,
(c) his religious beliefs or other beliefs of a similar nature,
(d) whether he is a member of a trade union (within the meaning of the [1992 c. 52.] Trade Union and Labour Relations (Consolidation) Act 1992),
(e) his physical or mental health or condition,
(f) his sexual life,
(g) the commission or alleged commission by him of any offence, or
(h) any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings.

As we do not hold information relating to any of the above we are not required to consider Schedule 3 of the Act when processing information relating to you.

I note that you are considering taking legal action including Experian and I would strongly recommend that you seek independent legal advice before doing so, rather than relying solely on the comments of individuals on various consumer forums.

If you genuinely believe the information to be inaccurate then please clarify the reasons why so that we can be of further assistance.

If you have any further queries, please feel free to contact me directly either by e-mail at lee.hancock@uk.experian.com, by telephone on 0115 8286485 or by writing to me at the following address:

Directors' Office, Experian, PO Box 8000, Nottingham, NG80 7WF

Yours sincerely




Mr L J Hancock
Consumer Compliance Executive
Directors' Office

[debtisbad]

Re: CCA unenforceable+I live in Taiwan!

To which I replied:

Dear Mr. Hancock

Thank you for your point of view.

Initially, before we I can take this forward, I have a question relating to your response.

I quote you as follows:

The Information Commissioner has notified us that the condition for processing below covers the sharing of account data with the credit reference agencies for the duration of a contract and six years beyond.

Please could you explain to me, in the context of my own particular case, which contract you are referring to?

Many thanks."

Obviously, since the original contract has not been retained, what can they be referring to?

It is quite obvious that Experian are in bed with the banks.

The system is corrupt and stinks.