Invalid Default Notices

[Pinky69]

Today's Update -the influence of the CRAs seems to be kicking in. I've had a response from the bank whose only reply to me has been to resend a copy of the application form (there is no agreement). They say they will look into my complaint about the default and get back to me in the next 28 days. At least I now have a contact person and a ref now. The bank which removed the defaults and initially offered £100 have also written and the question of compensation is being looked at. They will also reply in 28 days. Seems they all need at least 4 weeks to do anything! That leaves the bank that won't speak to me but I am happy to leave them to the CRAs -for now.

[300]

Nice thread subbing

[cerberusalert]

That leaves the bank that won't speak to me but I am happy to leave them to the CRAs -for now.

Will that be 'the listening bank' then?

[johno23]

subbing with interest!

[angel_1]

thank you pinky for your quiet determination and allowing us to follow your journeys - its fab

 

keep up the good work, hope you enjoyed the icecream

 

we have horrible weather today

 

laters angel x

[lexis200]

thank you pinky for your quiet determination and allowing us to follow your journeys - its fab

 

keep up the good work, hope you enjoyed the icecream

 

we have horrible weather today

 

laters angel x

Thanks for the update angel - it's grey here with the prospect of brightening up:D

[300]

Pinky I am at the same point considering FOS, OFT and trading standards rather than the courts. My thinking being that if I can stop the endless stream of contact that is me happy. I will use your approach as not one of my agreements exists it seems and all default notices are invalid. From what I have picked up on this site OFT should be able to act against them for trying to collect a debt.

'We note your concerns that in the absence of a copy of the original agreement someone's liability for a debt can only lead to further query. However in circumstances like this we would view it is as unfair practice under section 25(2) (d) of the Act and relevant to licence fitness if a trader failed to investigate and/or provide details as appropriate when a debt is queried or disputed.'

Anyway it will be interesting to see what comes back from the 3 organisations.

Edited June 6, 2009 by 300
Crossing out the t's

[Pinky69]

The FOS is no use to me. They do not decide on points of law and an invalid DN is a legal matter. I've been through the FOS about unenforceable agreements and it was a total waste of time. In addition they took 14 months to make a final decision. I will report these banks to the OFT once things are finanlised but this is way above anything TS would deal with. I may need a direct order to the two banks to remove the default entries.

[smouk]

The FOS is no use to me. They do not decide on points of law and an invalid DN is a legal matter. I've been through the FOS about unenforceable agreements and it was a total waste of time. In addition they took 14 months to make a final decision. I will report these banks to the OFT once things are finanlised but this is way above anything TS would deal with. I may need a direct order to the two banks to remove the default entries.

Got a hunch that's the way I'm headed!

[hannahbtw]

Pinky,

Are you doing this all yourself or are you using a solicitor?

I'm in the same boat regarding Defaults placed on my file even though both DNs are totally invalid, and with the telephone harassment by the Bank at fever pitch (up to 15 calls per day) I dont know if I can start legal action by myself..I just dont know enough about it.

Cant seem to find a solicitor that will help me take the Bank on though, as I am eligible for Legal Aid, they just wont touch it. Soooo frustrating, as I'm sure on the telephone harassment alone I have a case

Have appointment to see an adviser at the CAB on wednesday but I'm not really sure they will be able to help either. I just feel like giving up, changing my number and letting them take me to court, get CCJs and pay them at £1.00 per month for the rest of my life

Any help or advice much appreciated..as TS/OFT/FOS just seem totally useless in this situation.

 

Han x

[300]

Trouble with the courts is the judges in my experience. They can at any point decide to allow full charges against you even when you thought you had a small claim, they do not even need a reason, just don't like the look of you seems to be enough. I managed to avoid the costs but others might not be so lucky. Going to try the FOS just because they will charge the banks £500 a shot regardless of the outcome and one of the public school barristers I met recently thought it was a disgrace, worth doing for that reason alone;¬). I will also try the new harassment laws on the OFT and trading standards also, it might make them stop sending letters. change your phone number and go ex directory after carefully recording a few weeks calls. My thinking is make them do the work if the agreement is not enforceable they will not go to court, if it is all the interest and fees added will come to nothing as they have not provided a true copy.

Edited June 6, 2009 by 300
Doing the right thing

[Pinky69]

I'm not being harrassed - none of these banks are pursuing me for these debts and haven't for quite some time(they know that I know they have no enforceable agreements). My sole interest in this is to get them to remove the defaults. They sent invalid DN's, terminated the accounts and thus caused unlawful rescission. The entered defaults AFTER the accounts had been rescinded so they had no right to process my personal data at the time they did.

 

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 a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but gives rise to a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

I have not consulted a solicitor and am doing this on my own. I expect it to be some time yet before I need to take them to court.

[300]

Cool Pinky, well one letter every 3 weeks is not so bad I suppose, accounts not been in dispute as long as you. Watching with interest your counter claim. I did my recent PPI claim on my own stick to your guns, the judge was in league with the barrister he gave an over blown you have no chance go and talk with the barrister afterwards to avoid huge costs or else. Then after I did the deal he found in the judgment I did have a case...he had carefully covered himself by saying ever so quietly you should of course see a solicitor. Still their requirement that I agree not to go to the FOS was against the rules so it is with them now - I know it takes 12 months but for PPI there is an 80% success rate and my case is bomb proof as they previously made an out of court settlement.

[Pinky69]

I have had a response to my SAR from the bank who won't talk to me. There is not much in it. I have today written to the man who won't speak to me's boss asking for copies of the DN's and Termination Notices for both the accounts. I have one DN and the dates of both terminations - God knows where I put the other DN. I know the date on it and the date of the termination so there's no problem is he isn't speaking too! They will have to produce them in court.

 

I am now aiming off for the end of July for proceedings. I have decided on Small Claims because it is easier. I am not going to take the risk of paying legal fees if I were unsuccessful at Summary or Ordinary Cause (Scotland), neither of which I could do without a solicitor. So including the CRAs it will be a total of 12 claims. Ha! the Sheriff is going to love me!

[GamekeeperToPoacher]

Hi Pinky,

 

Are you looking for an invite to the staff Christmas Party as you will be spending so much time there?

 

 

 

GK

[beachcomber60]

Subscribing to gain more knowledge in order to annoy capital one even more over their dodgy DN, especially ER, who has decided that she doesn't want to talk to me anymore - thats the case we cant resolve my dispute!

 

Beachy

[Pinky69]

My the shoe really is on the other foot - banks being put under so much pressure they won't talk to us! :grin:

[Pinky69]

I've had a PM from someone asking for copies of my letters as they want to raise the same case as me with their creditor. First of all, I don't give info in PMs. Anything I have that might be of benefit to all will be posted on here so everyone who wants to can read it. Secondly, I do not know for now whether my letters have had any effect on my case and I won't be copying them on here until that is know for sure. So far everyhting is up in the air whilst the banks decide what they are going to do. Thirdly, I don't know who might be Pming me - there are always quite a few guests about.

 

I promise if I am successful I will copy my letters on here for all to see.

[diddydicky]

WTWT,

 

Surely they have to wait as they have given you 14 days in order to remedy the breach. If there are no 14 days because they have terminated the agreement you cannot remedy in time and AIUI they then lose the right to obtain early repayment and it is an unlawful rescission of contract.

 

They have only had 30 odd years to get it right.

 

How much would people have saved in the past had CAG existed in say 1981?

 

GK

 

Hi GTP how are you?

 

generally speaking it is not a good idea to challenge a defective DN - since although a second DN cannot rectify it after termination it CAN rectify it before the time limit is up- always best to stay quiet!

 

clearly the termination should not take place before the time given to rectify but some lenders do and rejoice if they do because this is the BEST outcome with a DN (faulty or not)

 

technically you do not have to wait for the termination notice- once the time they gave you to comply is up you have the right to believe that what they threatened to do has actually happened- although having said that it does not hurt to just sit and do nothing - there is no hurry if you know the DN is defective

 

you should ALWAYS keep ALL envelopes that DN's are sent in and staple them to the letter.

 

hope this helps

[lexis200]

Hi GTP how are you?

 

generally speaking it is not a good idea to challenge a defective DN - since although a second DN cannot rectify it after termination it CAN rectify it before the time limit is up- always best to stay quiet!

 

clearly the termination should not take place before the time given to rectify but some lenders do and rejoice if they do because this is the BEST outcome with a DN (faulty or not)

 

technically you do not have to wait for the termination notice- once the time they gave you to comply is up you have the right to believe that what they threatened to do has actually happened- although having said that it does not hurt to just sit and do nothing - there is no hurry if you know the DN is defective

 

I'm not sure I'd trust them to follow on from what they say will happen in a DN if you are intending on relying on it with any argument you may make in the future.

 

The things they quote that can happen on a notice (default, early repayment, termination etc) are all options to them, not a given. If you just trust that they have terminated simply because it's one of the things stated you may come up a cropper. Lloyds defaulted me about 2 years ago, but to date have not recorded this on my credit file (they have terminated though - woohoo, best of both worlds:D)

 

I'd go with your second option and do nothing until they request full balance or set in writing that termination has taken effect.

 

you should ALWAYS keep ALL envelopes that DN's are sent in and staple them to the letter. Absolutely! Has anyone managed to work out the orange barcodes yet? Do they give posting date info?

 

hope this helps

 

[smouk]

A termination/cancellation notice just makes it easier.

[beachcomber60]

Mornin Lexis,

 

I & OH have these iffy DN's for the arrears & followed on by account terminations, where does this leave us

 

Beachy

[lexis200]

Hey Beachy:)

 

Pretty much as GKTP and diddydicky were saying - they've lost all rights to the balance and can only claim the arrears shown on the DN (assuming the arrears did not contain charges, otherwise they're stuffed on them too).

 

As long as the DN is properly ineffective (ie not enough remedy time, arrears reasonably wrong, no breach shown, that sort of thing) and not just dodgy due to the form, then they've not got a leg to stand on. If it is just set out incorrectly, although this would technically invalidate it AFAIK, I doubt it would be a deal-breaker if you got to court with it.

 

That however is as far as I go, and then I get a bit stumped. BRW suggests waiting until they issue proceedings, then bring up the DN/termination combo in court to bring things to a swift close. This is no good for us as I need things done more quickly, and am a complete wuss so would like to avoid court at all costs:)

 

Personally my tack is likely to be to use it as a bargaining tool for a f+f offer, or in some cases a write off if I can. Either way I will be going for removal of markers on both our credit files in with my offers:)

[beachcomber60]

Thanks Lexis,

 

You've made my day (well til the postman arrives)

 

Mine was DN followed termination for arrears of £310, of which £285 is unfair/unlawfull charges. :grin:

 

OH account roughly the same :grin:

 

Beachy

[mak71]

Is it clear cut and case law that a defective dn cant be over ruled after termination by a sympathetic creditor friendly judge,?

 

Ie if not enough days to remedy, could a judge over rule that or could the creditor worm his way out of it on a technicality if all the other docs are valid and correct, or is it pretty clear cut dodgy dn = only arrears on the DN recovarable ,?

Could the creditor argue it was a typo error re dates etc and get a judge to show sympathy to them and still rule in their favour?

 

Weve all seen judges go in favour of claimants even when defective cca"s

are defective DN"s atill prone to the ignorant judges or are they easier to defend than a dodgy cca?