Inside a DCA!

[onthebrink]

hi onthebrink

started new thread today about a statute barred debt from 1998

the dca will not get the message about this and still churns out threatograms

 

what is the policy of dca and statute barred debts

 

also i take it a dca cant default you if you have allready been defaulted and has dropped of f of your credit file

 

Lets take each point seperately:

 

Statute barred.

If the debt was not subject to a CCJ then they cannot pursue you for it. But it will take a few letters for them to get the message. Keep sending them. The letters will continue due to the process. Let it run it's course but ensure you have notified the DCA that you dispute the debt.

 

Default Notice.

It is correct that the DCA can only issue a 'default notice' if you have, funny enough, defaulted on the repayments. What would have happen was back in the 1990s when you stopped paying a default notice was put on your credit file because you stopped payments. Because you didn't agree a new payment plan the original notice remained on file then was deleted after 6 years.

A DCA can issue a new default notice if you have agreed a revised or new payment plan and defaulted on that. But in your case that is not the case so they shouldn't have issued a default notice. If they have write to the CRAs to have it removed.

[Movingon]

I understand your position.

 

Put the DCAs to one side for the moment (unless the debt has been sold on by the original creditor).

 

I agree with your strategy and forcing the original creditor to 'put up or shut up'. But to be honest, I think you will be caught in the DCA merry go round, with no one making the decision to go to court.

 

Thankfully I know that this one's over; GE Capital have absolutely no records. Howard Cohen similar. Aktiv Kapital were chasing payment of a CCJ which now no longer exists. This file was purchased from Howard Cohen by Aktiv Kapital so there is nowhere to return the file to, and it contains no evidence to be able to go to court. There is no realistic chance of them ever getting paid because we don't owe the money LOL. One more letter from Aktiv and we go to Trading Standards (who are already aware of the case) and the Police for harrassment; we will also raise a civil action if the Police will not act.

 

I think that they have accepted that they will never get paid and have written it off.

[onthebrink]

there has to be a way to break the vicious circle if one DCA can't stump up the requisite,then it's tantamount to harrassment to have to go through the mill again and again

 

I would agree. But I have taken it for granted you have already complained to Trading Standards and FOS on the grounds of Harassment.

[tifo]

The cycle you refer to could go on forever to be honest.

 

Not really, only until the default/CCJ runs off after 6 years.

 

Then they can shout all they like ....

[onthebrink]

Not really, only until the default/CCJ runs off after 6 years.

 

Then they can shout all they like ....

 

Agreed.

 

But 6 years is a bloooody long time

[tifo]

If they have a valid CCA then a reduction for an immediate Full & Final would be close to 40% off or 40p in the £

 

If they DON'T have a valid CCA then a reduction for an immediate Full & Final would be close to 60-65% off or 60-65p in the £.

 

I think you mean 40% if no valid CCA and 60% if they have one.

 

But, i have been offered a reduction of 75% with only 25% to pay but without a valid CCA i am not going to pay. Shows to me they don't have one.

[tifo]

So - the way to end it is to get rid of the CCJ if possible, and if there isn't one, make it impossible for the DCA to chase you by making it impossible for them to defend their position.

 

But they carry on maintaining a default which is as bad as a CCJ anyway, even knowing they can't take you to court.

 

There seems to be no law to use againt defaults while no valid CCA and the DPA does not seem to help.

[Movingon]

I think you mean 40% if no valid CCA and 60% if they have one.

 

But, i have been offered a reduction of 75% with only 25% to pay but without a valid CCA i am not going to pay. Shows to me they don't have one.

 

No, I think he meant what he said. If they have no valid CCA but someone's willing to pay SOMETHING they will take it. If they have a valid CCA then they are entitled to enforce any debt under that agreement; so they will not be willing to offer as much discount. Personally I would not offer to pay a damn thing unless they can prove that the amount is "reasonable" and they are entitled to enforce it.

[Movingon]

But they carry on maintaining a default which is as bad as a CCJ anyway, even knowing they can't take you to court.

 

There seems to be no law to use againt defaults while no valid CCA and the Data Protection Act does not seem to help.

 

There is a route to have a default removed from your file if it is genuinely incorrect. As it turns out, ours was removed by the Court when they dismissed the claim against us.

[tifo]

What would have happen was back in the 1990s when you stopped paying a default notice was put on your credit file because you stopped payments. Because you didn't agree a new payment plan the original notice remained on file then was deleted after 6 years.

A DCA can issue a new default notice if you have agreed a revised or new payment plan and defaulted on that. But in your case that is not the case so they shouldn't have issued a default notice. If they have write to the CRAs to have it removed.

 

No, you can only get a default once for any account, after it has run its term for 6 years the DCA cannot issue another one. Even hardened criminals get less time!

[Michael Browne]

There seems to be no law to use againt defaults while no valid CCA and the Data Protection Act does not seem to help.

 

An unenforceable debt does not make it non-existent, in other words when you stop paying they can default you. If there is subsequently no valid CCA, then it merely becomes uneforceable, but that doesn't affect the validity of the original default.

[lickthewallfatboy]

I would agree. But I have taken it for granted you have already complained to Trading Standards and FOS on the grounds of Harassment.

 

I'm really only at the kick off where CCA's are concerned.....I think I need to up the ante!

[Movingon]

There is a route to have a default removed from your file if it is genuinely incorrect. As it turns out, ours was removed by the Court when they dismissed the claim against us.

 

Sorry - forgot to specify what that route was!

 

First; find evidence to support that the Default is invalid; read the Consumer Credit Act and find ANY WAY that they did not follow the process EXACTLY. Even down to the required format and wording of their Default Notice letter, or that it was not served on your correct address.

 

Second, find evidence that you do not in fact owe them money.

 

Write to the CRA under the Data Protection Act with your evicdence as above, insisting that they remove the default as they are processing your Data unlawfully. Make a formal complaint also to the Information Comissioner.

 

If the default is not removed within your specified timescales, start a Claim in the Small Claims Court for your out-of-pocket expenses (incurred in chasing this matter) and secondarily, the removal of the default. Assuming that your legal is good enough and your evidence gathering has been effective, the default will come off, and the CRA will have a heft bill as well.

[tifo]

An unenforceable debt does not make it non-existent, in other words when you stop paying they can default you. If there is subsequently no valid CCA, then it merely becomes uneforceable, but that doesn't affect the validity of the original default.

 

I think no valid CCA normally means no legality to maintain a default, as a default is a form of enforcement.

 

Unenforceable Credit Agreements and Credit Reference File Default Entries

The opinion of LACORS is that where a creditor accepts that an agreement is unenforceable against a consumer they should not be permitted to 'punish' the consumer by placing a record of the 'default' on their credit reference file. To do so would be unfair and unreasonable. It would also lessen the impact of the provisions of the Consumer Credit Act which make it clear that a creditor should not be allowed to enforce a credit agreement where the agreement is improperly executed.

[Movingon]

An unenforceable debt does not make it non-existent, in other words when you stop paying they can default you. If there is subsequently no valid CCA, then it merely becomes uneforceable, but that doesn't affect the validity of the original default.

 

A credit-based debt between an individual ("the debtor") and an organisation ("the creditor") can only exist where it stands against an agreement regulated by the consumer credit act. Agreements which do not mention the act but are nonetheless credit agreements, ARE COVERED by the Act and must conform to it.

 

A "Default Notice" is a formal procedure specified and defined within the Consumer Credit Act. If a Default Notice is issued against a credit-based debt where no formal agreement exists between a debtor and a creditor, the debt is not only unenforceable, IT DOES NOT EXIST - and any default notice thereby issued means nothing.

 

If there is no CCA there is no debt and any Default Notice is not valid.

[tifo]

Write to the CRA under the Data Protection Act with your evicdence as above, insisting that they remove the default as they are processing your Data unlawfully. Make a formal complaint also to the Information Comissioner.

 

If the default is not removed within your specified timescales, start a Claim in the Small Claims Court for your out-of-pocket expenses (incurred in chasing this matter) and secondarily, the removal of the default. Assuming that your legal is good enough and your evidence gathering has been effective, the default will come off, and the CRA will have a heft bill as well.

 

write to CRA or the creditor maintaining the default, or both?

 

also, i think, thirdly should be compensation for defamation/libel (a word CRA's hate).

[onthebrink]

No, you can only get a default once for any account, after it has run its term for 6 years the DCA cannot issue another one. Even hardened criminals get less time!

 

Your half correct.

 

A default notice is registered against the account with the CRAs on one occassion, but the DCA can issue as many default notice letters as it wants, and normal procedure for a DCA is to issue a default letter after a payment plan is broken.

 

The point I was making in that post was if he had received a new default notice (in order to re-ignite the account that had dropped of his record) then he should have it removed from the CRA records.

[Movingon]

write to CRA or the creditor maintaining the default, or both?

 

also, i think, thirdly should be compensation for defamation/libel (a word CRA's hate).

 

The CRA is publishing the information; it is them who is processing your data for consumption by others. It can't hurt to write to the "creditor" - but your case is against the CRA.

 

Your extra idea of persuing a case of defamation has merit but the laws around that area are extremely complex to interpret and before taking such a course I would be very careful to take specialist legal advice. Also, my post was aimed at getting the default removed; NOT at getting extra cash out of them.

[tifo]

Your half correct.

 

A default notice is registered against the account with the CRAs on one occassion, but the DCA can issue as many default notice letters as it wants, and normal procedure for a DCA is to issue a default letter after a payment plan is broken.

 

The point I was making in that post was if he had received a new default notice (in order to re-ignite the account that had dropped of his record) then he should have it removed from the CRA records.

 

You are also correct then.

 

I meant the default itself, not the actual notice.

 

Normally a notice is a precursor to a default which they cannot issue again, so in this case would seem to be an empty threat.

[tifo]

The CRA is publishing the information; it is them who is processing your data for consumption by others. It can't hurt to write to the "creditor" - but your case is against the CRA.

 

This has been discused in detail in this forum and elsewhere.

 

The CRA would simply pass the buck to the creditor, stating they are processing what is being sent to them. In a dispute about a default, they simply put a notice on your file, ask the creditor if the info is correct, they always say 'yes' and the CRA tells you to bugger off.

[tifo]

Your extra idea of persuing a case of defamation has merit but the laws around that area are extremely complex to interpret and before taking such a course I would be very careful to take specialist legal advice. Also, my post was aimed at getting the default removed; NOT at getting extra cash out of them.

 

This has been looked at on this forum and elsewhere.

 

You do not need extra proof for a defamation/libel case, only provide the written evidence in print, which is the credit report.

 

As for extra cash, case law exists for the court to award £1,000 + value of the default which in a case against the CRA would be a huge amount, but not if done on a per default basis.

 

Defamation - What the claimant must prove

 

In order to bring a defamation claim the person bringing the claim ("the claimant") must prove that the person against whom the claim is brought ("the defendant") has published defamatory material about him or her.

 

Defamatory allegation

A defamatory allegation is one that tends to make right-thinking people think the worse of the claimant. In addition, allegations that would lead people to avoid the claimant or expose the claimant to ridicule may be defamatory even if they involve no moral blame.

 

Publication

Publication means communicating the allegation to another person or persons. It could be one person, as in the case of a letter, or millions, as in the case of a national newspaper. There is no restriction on the medium in which the allegation is published. It could be published in writing, electronically (e.g. the internet) or, in one instance, by putting a waxwork of the claimant in the Chamber of Horrors.

 

Reference to the claimant

Generally the claimant will be named and the issue will not arise, but an unnamed claimant who can be identified by other means as the target of a defamatory allegation will be able to sue. So too might a person who shares the same name as the intended target of the publication.

 

The difference between libel and slander

Defamation is the generic term for libel and slander. Where the defamation is in writing or in some other permanent form it is a libel. Where it is spoken or in some other temporary form it is a slander. In certain slander claims it is necessary for the claimant to prove financial loss.

 

A claimant who proves these matters will win the case, unless the defendant can establish one or more of the following defences.

 

Defences

 

The three most common defences are as follows:

 

Justification

This really means "truth". The defendant must show that the allegation complained of is factual as opposed to comment (see below) and is true or substantially true. Immaterial errors will not therefore prevent the defence from succeeding. Whether an error is material or immaterial is often a very subjective issue for the jury to decide, which involves balancing the seriousness of what has been proved against the seriousness of what has not been proved.

 

Fair comment

This defence protects statements of comments or opinion as opposed to statements of fact. The word "fair" is inappropriate, because the comment or opinion could be exaggerated or prejudiced provided it is honestly held. The opinion however, must be based on facts that are true or sufficiently true and relate to a matter of public interest.

 

Privilege

In certain circumstances, the law regards freedom of speech to be more important than the protection of reputation and allegations that may be false and defamatory will nevertheless be protected by the defence of privilege. The most widely known examples are proceedings of the courts and Parliament. However the defence is flexible and covers any situation where it is felt to be of overriding importance that people should be free to speak their mind, e.g. certain business communications and public meetings.

 

There are two types of privilege. Absolute privilege is an unassailable defence that only applies in certain limited cases. In contrast, the defence of qualified privilege will be lost where the defendant has been malicious (see below). The most common form of qualified privilege is where the defendant has a "legal, moral or social duty or interest" in making the publication and the recipients have a corresponding duty or interest in reading or hearing them. A common example would be an employment reference. More recently the courts have expanded the concepts of duty and interest to protect the media when they publish material on a matter of public interest which they reasonably believe to be true, but which turns out to be false. The ambit of this category of qualified privilege is, at present, uncertain. The second type of qualified privilege is in respect of the publication of reports of various documents and proceedings. These are set out in Schedule 1 of the Defamation Act 1996.

[Movingon]

This has been discused in detail in this forum and elsewhere.

 

The CRA would simply pass the buck to the creditor, stating they are processing what is being sent to them. In a dispute about a default, they simply put a notice on your file, ask the creditor if the info is correct, they always say 'yes' and the CRA tells you to bugger off.

 

Which is where the court case comes in. They should be taking "reasonable care" that the data they publish is accurate; and simply asking the source "is it accurate" is insufficient IMO and I doubt it would satisfy a Court.

[Michael Browne]

The CRA would simply pass the buck to the creditor, stating they are processing what is being sent to them. In a dispute about a default, they simply put a notice on your file, ask the creditor if the info is correct, they always say 'yes' and the CRA tells you to bugger off.

Somewhere I've seen posted a copy of the form the CRA faxes to the creditor with just tick boxes that the info is correct/incorrect, which the creditor ticks and faxes back. That's the extent of the CRA's investigation

[tifo]

Somewhere I've seen posted a copy of the form the CRA faxes to the creditor with just tick boxes that the info is correct/incorrect, which the creditor ticks and faxes back. That's the extent of the CRA's investigation

 

Yes, i've got a copy of that form. It was from the CCS forum.

[sequenci]

Interesting thread. Haven't read it all but so far so good!