Invalid Default Notices

[Pinky69]

I have 3 defaults on my credit reference reports. There are 2 companies involved, the Co-op Bank and CrapOne. Neither had credit agreements and both issued invalid Default Notices. What is the best way to get these defaults removed? It is not a priority, I am not going to apply for credit, but I wonder what would be the best approach to have these defaults removed.

[hannahbtw]

Subbing for future reference!

Hope someone will be along soon to advise you on this Pinky

 

Hannah x

[Pinky69]

Hi Hannah

- no one has posted and I think this is quite complicated but after surfing around the site I think I now have my approach clear in my mind.

 

They failed to provide me with copies of my credit agreements in breach of Sections 77/78 of the CCA 1974.

The alleged accounts then went into dispute and that meant that under S77/78 (4) they could not take any enforcement action including but not limited to asking for payment, applying charges or interest, and communicating with any third party regarding the account, including Credit Reference Agencies.

 

Without legal Notices of Assignment delivered in the prescribed manner the Co-op assigned the accounts to a third party, namely Frederickson, issued Default Notices and recorded defaults with the CRAs, contrary to the CCA 1974 and the Data Protection Act 1998.

 

The CRAs are also in breach of the Data Protection Act 1998 for recording information in the public domain to my detriment whilst an account is in dispute with the recording bank.

 

It is not enough for them to say "we didn't know" - they should check that all information given to them is in accordance with the Act before they record it.

 

Ignoring the dispute, the Co-op compounded their breaches of law by issuing unlawful Default Notices and terminated the accounts in dispute, which is unlawful rescinding.

 

The Default Notices were unlawful in that they were issued whilst the accounts were in dispute and were technically flawed in that they did not give sufficient time for the alleged breaches to mended. Thereafter the CO-op continued to process my data and passed it on to a DCA and the the CRAs, in breach of the CCA 1974 and the Data Protection Act 1998.

 

Ditto CrapOne and they continue to breach the laws by updating the information they unlawfully recorded with the CRAs.

 

They are getting 7 days to remove the entries on my credit reference reports or I will take legal action against them and the CRAs.

 

Copies of these letters will go to the Data Controllers of the companies, their CEOs, the OFT, the Information Commissioner, the Credit Reference Agencies and the FOS (a complaint about the CO-op is now with the Ombudsman and this will just add to it nicely!)

 

I actually don't give a damn about my credit reports but I am damned if I will let banks do what they like with my information! I think I have a pretty good chance of having them removed. Is this helpful to you Hannah?

[postggj]

Thats It In One

Like Your Style

 

Just Wait For The Bovine Excrament Letters Saying No Way

 

I Was The Same With Hbos

Took 12 Months And Writers Cramp, But Got There In The End

 

Just Dont Take No For An Answer

 

An Online Dispute With The Cra Would Be A Good Idea

 

They Have To Remove Entry After 28 Days If No Reply

[Undercover-Elsa]

Hi Pinky69,

Nice one..go get em!

You probably already know, but from my own research on here it also seems that (even if they'd come up with enforceable CCA's) if the accounts were terminated on the strength of the faulty DN's then all they have a right to demand is the amount on the DN's required to remedy the breach, as opposed to the full balance. If that's correct would that be even more ammunition for your complaint?

Elsa x

[Pinky69]

Thanks Nurse- Elsa. Yes I am aware of that and under that scenario they would have got nothing from me because with both the Co-op and CrapOne the accounts were frozen whilst I was under a debt management plan and went straight from that to being unenforceable. The disputed accounts are all original capital. Shame.

[hannahbtw]

Pinky, yes thank you! Your post is very helpful. Im just squirreling info away at the moment to use if Barclays decide to play hardball over my 2 defective DNs

 

Good luck with everything. Go get em!!!

 

Hannah x

[GhostDebt]

Just a quick query about default notices.

 

It has been mentioned that if the DN is invalid after the account has been closed, then they can only pursue the amount on the DN. Is this based on the CPUTR or is it based on different legislation?

 

Also can a default notice be issued for the full balance of the account? as I have seen some like this which would mean if its invalid they could still pursue the full balance.

Or does this breach any regulations? I know it's not as per the OFT debt collection guidelines.

 

Many thanks

[GamekeeperToPoacher]

Pinky,

 

I am subbing as I see that this will be a very useful thread.

 

GK

[Pinky69]

Default Notices are covered by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.

 

They must take a precise form as laid down by these regulations.

A DN which doesn't is invalid.

 

Where a DN is invalid then the account terminated, the creditor loses the legal right to the capital sum as they terminated the account without giving the debtor an opportunity to mend the breach that led to the default in the first place.

 

All they can claim is any arrears that arose whilst the agreement was current.

 

Where a DN is valid ie drawn up properly in accordance with the Regulations, then the creditor can claim the whole balance of the account if the breach that caused the default was not remedied by the given date on the DN.

[Desperate Daniella]

Pinky,

 

Thank you so much for starting this thread. I have been waiting for a number of "proper" CCAs to arrive, but have never quite understood the faulty DN situation at all. I've seen various posts but hadn't quite got it that if you get a faulty DN followed by the Termination notice they can only expect the arrears - say £300 - rather that the total outstanding balance - say £5000. I think I've got that right now?

[Stressed150]

Love this thread... subbing, but as someone previosuly questioned, is a creditor allowed to claim the full balance of an account in a DN, as opposed to just the arrears outstanding?

[cashins]

Good luck.

 

It's a long haul from what I have seen.

 

David

[postggj]

Love this thread... subbing, but as someone previosuly questioned, is a creditor allowed to claim the full balance of an account in a DN, as opposed to just the arrears outstanding?

 

A DEFAULT NOTICE IS FOR THE ARREARS, IF NOT PAID WITH IN 14 DAYS THE ACCOUNT IS THEN TERMINATED AS THE ACCOUNT IS LISTED IN DEFAULT,

PROB THEN SOLD TO A **** BAG DCA

 

A DEFAULT NOTICE IS JUST FOR THE ARREARS

NOT FOR THE BALANCE OUTSTANDING

[joemay]

Subbing:)

[Stressed150]

A DEFAULT NOTICE IS FOR THE ARREARS, IF NOT PAID WITH IN 14 DAYS THE ACCOUNT IS THEN TERMINATED AS THE ACCOUNT IS LISTED IN DEFAULT,

PROB THEN SOLD TO A **** BAG DCA

 

A DEFAULT NOTICE IS JUST FOR THE ARREARS

NOT FOR THE BALANCE OUTSTANDING

 

Therefore, if an OC included the full balance as part of the sum of the DN, this renders the DN unenforceable? Sorry for highjacking this thread....

[Pinky69]

Well this is it folks- the letter I will be sending them off on Tuesday. Hope it is helpful.

 

 

 

 

The Data Controller

(Bank)

 

 

Dear Sir/Madam,

 

Your ref:

 

 

I write in connection with a credit card account referenced above which is in dispute. I do not acknowledge any debt to the (Bank) or to any company affiliated with the (Bank).

 

 

In December 2007 I requested a copy of the credit card agreement for the account referenced above in accordance with Section 78 of the Consumer Credit Act 1974. I received a reply dated 7 January 2008 in which the respondent (Name), Customer Relations Adviser, wrote that what was enclosed was a copy of the loan application. Later the Bank admitted they did not have a “full agreement” for the disputed account. There is no such thing as a partial agreement and what I was sent doesn’t resemble an agreement in any sense.

 

This application form does not fulfil the requirements for a copy of an executed agreement under the terms of the Act and is unenforceable in law. It is a purely an application form and does not conform to the requirements of the Consumer Credit (Agreements) Regulations 1983. A credit card agreement must have the prescribed terms (credit limit, interest rate, and repayment schedule) within the same 4 corners of the agreement as the signature box. This application form has no prescribed terms and no Terms and Conditions whatsoever.

 

 

This is an unenforceable application form and the (Bank) do not have any documentation containing my express written permission to process my personal data in connection with this disputed account, in clear breach of the Data Protection Act 1998. The Bank have already breached the Act in passing my personal data to third parties, namely (DCA) and the credit reference agencies.

 

Furthermore, in 2007 the (Bank) sent me an invalid Default Notice in connection with this disputed account. The date by which to remedy the breach of the alleged agreement is given on the Notice as 14 days from the date on the Notice when in fact under the Consumer Credit Act 1974( as ammended in 2006) the time that must be given to remedy a breach of agreement is 14 days after the date of service. The date of service in law is deemed to be 2 days after the date on the Notice if it was if sent by 1st Class post and 4 days after the date on the Notice if it was sent by 2nd class post. There then must be 14 clear days after the date of service allowed to remedy the breach. All the Bank did was set a date 14 days from the date on the Notice, rendering the Notice unlawful as it did not allow sufficient time for the alleged breach to be remedied. The Bank then terminated the alleged agreement, unlawfully rescinding the disputed account. The Bank then entered an unlawful default on my credit reports as they did not serve me with a valid Default Notice before terminating the disputed account. The Information Commisioner is clear that all entries to credit reference reports must be made in accordance with a recognised industry standard. The Bank's actions have in my case not only fallen well short of the recognised standard but have been in clear breach of the consumer credit and data protection laws.

 

 

Unless the Bank can provide me with documentation in which I gave the Bank my express written permission to process my personal data, I require them to cease all use of my personal data with immediate effect and remove all entries from my credit reference reports. It will not be good enough to assert that I must have signed it – I require clear documentary proof of written permission.

 

The Bank has 21 days to reply and action as necessary. Failure to do so will result in further action from me, including but not limited to, formal complaints to the Information Commissioner and the Office of Fair Trading Consumer Credit Licence Fitness Department re gross misuse of my personal data and blatant breaches of the consumer credit laws.

 

 

I look forward to hearing from you. If there is anything about this letter you do not understand I advise you to consult a solicitor.

 

 

Yours faithfully,

 

Cc The Chief Executive of the (Bank)

 

Cc Experian

Cc Equifax

Cc Call Credit

 

Note to the credit reference agencies : You are jointly responsible for entering an unlawful default entry into my credit report in connection with this disputed account and your actions will form part of my complaint to the regulatory bodies if such action is required.

[vint1954]

Hi Pinky,

 

Have you had a response to your letter yet?

 

Vint

[Pinky69]

No I haven't heard anything - they have gone completely stum. I gave the letter a few tweakS before I sent it - I felt was missing a bit of sting. So, at the moment I have made court enquiries (Scotland) to see what level I want to pitch this at legally. I will also be taking legal advice. I've got SAR's and final demands going off this week. I will keep you posted.

[angel_1]

hiya pinky

 

im subbing if i may,,, im learning from this thread for one of my other creditors so thanks

 

good luck and no doubt will ask a question a two in the future when im possibly at where you are now

 

have a fun day laters angel x

[hannahbtw]

Pinky,

 

That letter is class

Funny how quiet they have gone, lol!

Any chance of posting up your "tweaks"?

I am biding my time with Barclays, waiting to see if they produce a valid CCA...after getting 2 defective DNs and then they set their scummy in-house DCA onto me (in effect terminating my alleged agreements by asking for full balances) I thought I'd better see if they have got something valid to produce in court before I take them there, lol!

They are still phoning on average 2-3 times per day..so my telephone harassment log is looking very beefy...all fuel for the fire hey

 

Best of luck hun...and keep us posted!

 

Hannah x

[GhostDebt]

Sorry for banging on about this, but could you please clarify the following and which legislation it relies upon...

 

1. DN is issued stating must pay arrears of x by date.

If the figure x is the balance of the account has the agreement been terminated and is the DN invalid because they have asked for the full balance and not the actual arrears, even though they state arrears on the notice.

 

2. Where a DN is invalid which legislation states they can only claim the arrears after termination. Is it the CPUTR?

 

Sorry if i seem confused, but I need this clarification for some on going cases where the DN is for the full balance (except they state arrears on the letter) and seems valid in all other aspects

 

Many thanks

[cerberusalert]

Have a read of this - reproduced courtesy of The Shadow

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for

 

serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default

 

Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

6. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which

 

states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor

 

or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice.

 

The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

[GhostDebt]

Thanks for that Cerberus. Clarifies a lot of outstanding queries.

[Dipply75]

Subbing too, there is a walth of info on this thread and am just at the start of this process with RBS.

 

Good luck and thanks