Defaults - Court Action

[Curlyben]

Bear in mind that this thread is a work in progress.

 

Now you have defaults on your account that you want removing as they have been resolved or are incorrect.

Your first course of action is simply to ask the CRA's and creditors to remove them.

Here's a long thread that covers that issue: How To Get Your Default Removed

 

Now this thread is concerned with the next course of action if the letters fail.

 

Now I have been thinking about this for a while and have been informed that there is indeed legal precedent for removal of defaults due to incorrect amounts on the notice. This is Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255 states that the Default notice must be accurate if its not its unlawful.

 

Also coupled with this would be the creditors LACK of an executed agreement, through a CCA request.

Part of the agreement is your permission to share data with the CRA's, so no agreement would be a breach of DPA.

 

So I open the floor t others.

Feel free to add anything that may be valid and we'll work on a POC, etc for court action in this regard.

[pt2537]

We must remember that there will not be a one size fits all resolution that will work for everyone

 

it will depend upon the circumstances surrounding your own case as much as anything

 

We must also remember that the Consumer Credit Act 1974 is enacted for consumer protection and not to disadvantage us, however judges especially District Judges will not be thinking along those line so we will need to state the obvious in some cases

 

Woodchester Lease Management Services Ltd v Swain

and Co - [2001] GCCR 2255 sets out that a invalid Default is not lawful.

 

in my opinion,if a creditor has been asked to supply a copy of the credit agreement which is part of the contract between parties. where they fail the CCA 1974 states they are not entitled to enforce the debt, i believe that this extends to adding charges. The Creditors will likely argue their rights to add charges comes from their terms and conditions however, if you have not signed an agreement how can you be bound to terms and conditions?

 

a creditor who is not entitled to add charges to an account but continues anyway and then defaults you would in my humble opinion fall foul of LJ kennedy's judgment in the above case

 

my view is that no cca or enforcable cca, no rights to add charges, no rights to issue a default notice unders 87

 

 

Regards

paul

[sequenci]

A few things to consider when a creditor either fails to serve the notice OR that the notice is defective.

 

• Where the debtor has been evicted from land or premises, damages can be awarded for trespass and possession can be regained peaceably by direct action or by action via the courts
  
• Where goods have been wrongfully seized the debtor can sue for conversion and/or the return of goods. The goods can also be peaceably recovered
  
• Where the creditor issues a claim, unless it is only suing for arrears, the debtor has a complete defence to the action. The creditor can, however, rectify the situation by serving the correct notice and issuing a new claim.

The requirement is for a default notice to be 'served' This does not mean that it has to be 'received' by the debtor.

 

My interpretation is that if a default notice has the incorrect balance due to penalty charges etc then it can be defended totally.

[pt2537]

lets not also forget that if your credit file says [8] such as mine on Experian, experian say [8] refers to the fact that "you have defaulted. you failed to keep to your credit agreement"

 

well thats wrong as no credit agreement exsists so i believe that the data is wrong asa result and therefore under the dpa it must be corrected or removed

 

any thoughts?

[SURFBOY]

That is my interpretation of the [8] default on our CRA files and as such i am continuing to battle with littlewoods and others to remove these incorrect entries.

In my opinion this is where the actual battle is. Getting the incorrect "defaults" removed is not an easy task !

[sequenci]

lets not also forget that if your credit file says [8] such as mine on Experian, experian say [8] refers to the fact that "you have defaulted. you failed to keep to your credit agreement"

 

well thats wrong as no credit agreement exsists so i believe that the data is wrong asa result and therefore under the Data Protection Act it must be corrected or removed

 

any thoughts?

 

Excellent point. How can one fail to keep to something which is not in existance?

[pt2537]

well im working on a case against Kays catalogues at the mo. im happy to be the crash test dummy so to speak.

 

im hoping that in the next week or so i will be able to finish my first draft of the POCs .

 

i do believe they will try to argue that while there is no regulated agreement there is still a contract so i need to make sure my arguement in the pocs covers all angles

 

anyway as far as i am aware, the regulated agreement forms part of the contract so they are up the proverbial creek without a paddle

[SURFBOY]

pt2537, i will be watching what happens with your case as i fully intend to follow the same path with reguards to my littlewoods default removal.

[postggj]

hi

i to will be following ref hbos credit card

[jysmystry]

pt2537, i will be watching what happens with your case as i fully intend to follow the same path with reguards to my littlewoods default removal.

 

yay me too, this would be really interesting as i know i'll be going down this road in the future.

[Paintball]

A few things to consider when a creditor either fails to serve the notice OR that the notice is defective.

• Where the debtor has been evicted from land or premises, damages can be awarded for trespass and possession can be regained peaceably by direct action or by action via the courts
  
• Where goods have been wrongfully seized the debtor can sue for conversion and/or the return of goods. The goods can also be peaceably recovered
  
• Where the creditor issues a claim, unless it is only suing for arrears, the debtor has a complete defence to the action. The creditor can, however, rectify the situation by serving the correct notice and issuing a new claim.

The requirement is for a default notice to be 'served' This does not mean that it has to be 'received' by the debtor.

 

My interpretation is that if a default notice has the incorrect balance due to penalty charges etc then it can be defended totally.

 

This part is very useful, but I'm wondering what the precedent is or appropriate case law (pardon me if I've missed it!)

[pt2537]

Woodchester lease management and Swain would give you the authority for this.

 

its a Court of Appeal ruling and binding upon county courts

 

Regards

paul

[pt2537]

Woodchester Lease Management Services Ltd v Swain

and Co - [2001] GCCR 2255

Principle: A default notice requiring payment by the hirer in order to remedy the breach is ineffective if it specifies a sum

exceeding that actually necessary to do so.

Facts: The plaintiffs hired a photocopier to the defendant firm of solicitors under a rental agreement providing for quarterly payments. The agreement provided, among other things, that on default the plaintiffs might terminate the hiring by written notice. After some two years, the defendants ceased payments. The plaintiffs sent a default notice which complied with the statutory requirements in form. The notice, however, when it specified the amount required to be paid to remedy the

default, specified an amount exceeding that strictly required to do so. The assistant recorder held that the notice was

nevertheless effective, on the basis that if the defendant paid the amount required it would have done more than needed to

remedy the breach. The defendant appealed.

Held: Allowing the appeal, that the Consumer Credit Act 1974, s 88, required the owner to specify not only the nature of

the breach but the action required to remedy it. It was part of a statute plainly enacted to protect consumers. Since many

regulated agreements would be complex, most hirers would be individuals, and the owner would be in a far better position to

provide precise information about that remedial action, the section should be construed as requiring an accurate statement not

only of the nature of the breach but of the action required to remedy it (subject, it might be, to a de minimis dispensation).

Accordingly, the default notice did not satisfy s 88 and was not effective.

 

 

 

text from the said case, i hope it helps

 

Regards

paul

[rory32]

well thats wrong as no credit agreement exsists so i believe that the data is wrong asa result and therefore under the Data Protection Act it must be corrected or removed

 

Just to play devil's advocate, just because no credit agreement currently exists does not mean that one never existed and the judge may on balance decide that at some point there must have been an agreement. Therefore there is nothing unlawful in the creditor applying a default.

 

However, if the default is inaccurate e.g. the sum stated as outstanding or the action to remedy the breach is not clear then you can use Lord Justice Kennedy's ruling in Woodchester Lease Management Services Ltd v Swain and Co where he ruled that the form and content of the default notice has to be accurate.

[Paintball]

Thanks Paul. Yes, the case was mentioned in post #1

[pt2537]

Just to play devil's advocate, just because no credit agreement currently exists does not mean that one never existed and the judge may on balance decide that at some point there must have been an agreement. Therefore there is nothing unlawful in the creditor applying a default.

 

However, if the default is inaccurate e.g. the sum stated as outstanding or the action to remedy the breach is not clear then you can use Lord Justice Kennedy's ruling in Woodchester Lease Management Services Ltd v Swain and Co where he ruled that the form and content of the default notice has to be accurate.

 

Hi Rory

 

a very true point.

 

my comment was truely relating to my circumstances where, no credit agreement has ever been signed

 

now if an agreement had been signed and lost then IMHO a judge cannot rule as Fact that it did exsist unless it can be presented before the court. if it cant be presented it must be considered as not exsisting otherwise the judge would be able to enforce it would they not?

 

 

also the consent to process data would be contained within a credit agreement, now its my contention that where the creditor cannot prove that there was a agreement signed they should not be adding adverse data to a credit file. now if there is a signed agreement and that agreement is unenforcable then this would be different as although the agreement is unenforcable it would still stand as consent to process data

 

 

regards

paul

[rory32]

Personally I think it's a grey area as there is no case law on it (that I can find anyway). Remember we are not stating that the debt does not exist so the judge may see the default as a true reflection of the current state of the account. I feel you would be on far firmer ground contesting that the default is quite simply wrong in its details as a great many are.

[pt2537]

oh yes it totally agree with your point, it is a truely grey area.

 

it is a pain in the bottom with defaults and i would feel far happier in taking on a default if it was incorrect as i would use the Case law which is already in place

 

the thing is unlike bank charges, these issues really need to look at the individuals own circumstances surrounding how the default came about

 

its difficult to have a one size fits all response in these matters

 

Kind Regards

paul

[rory32]

the thing is unlike bank charges, these issues really need to look at the individuals own circumstances surrounding how the default came about

 

Completely agree Paul which is why doing a POC is quite difficult and it's probably better to give examples of the types of things that can be used to challenge a default and how to go about it rather provide something off the rack so to speak.