Invalid Default Notices

[lexis200]

I don't think the integrity of the information given to the CRAs can be taken as a given when someone has questioned the integrity of that information and pointed out that their processing it is in breach of the DPA 1978. I can see how the CRAs would base initial entries on someone's report on the integrity of the information given but it behoves them to question and clarify the integrity of that information once they have been told it is unlawful. The CRAs are also subject to the DPA 1998 and if they breach it they too can be held accountable for it. They are not exempt from the law. I asked them to remove the default and gave them the reasons why and so far they haven't done it. If I am successful in my court claims I intend to take them to court too for processing my information unlawfully after they had been informed they were doing so.

 

I couldn't agree more. If they are simply going to accept the banks/DCA's word for it that markers should be there, then why would they not give equal measure to our word?

 

If then you add in the fact that you, and many many others are able to prove that these markers should categorically not be there, or have ever been there, then it seems they are knowingly allowing incorrect financial information to stay, simply because the banks are saying they are whiter than white.

 

You are right, they should be under an obligation to check that these markers (that have the ability to stop people getting mortgages etc!) are correct.

[diddydicky]

the trouble with the old fashioned franking machines ( we used to use them) is that it is easy to alter the date on the franking machine to what you like and you bung a few hundred in the post and no one would ever check them at the P O

 

I don't know how easy it is to fiddle with barcode machines as i have never seen let alone used one

[banker_rhymes_with]

Hello DD!

 

I don't know how easy it is to fiddle with barcode machines as i have never seen let alone used one

Anything can be forged, but the neat thing about the Orange Barcodes is these are all added by Royal Mail when the letters are in their system and being routed, so it's not something added by the sender.

 

The Orange Barcodes are complex, because they have to generate unique codes to help Royal Mail route millions and millions of them to their destinations, and track exactly when the envelope went through a known location at a known time (down to a 30 minute interval).

 

It is therefore independent confirmation of when the envelope concerned was in transit, and thus pretty positive proof that the letter contained within it was not at the destination at that time, so the contents of the envelope could not have been Served at that time.

 

The good news is many Caggers have been saving envelopes for quite a while now, and we now know that all those with Orange Barcodes have data contained within those Barcodes that can prove when the envelopes were in mid-flight.

 

If a case was pivotal upon the Date of Service of, say, a Default Notice, then this evidence could, potentially, blow many Claims out of the water, both past, current and ones in the future until such time as the banks realise they cannot get away with using the fog of the postal system to blur the Date of Service issue.

 

The fog is about to clear on all envelopes printed with Orange Barcodes!

 

Cheers,

BRW

[diddydicky]

that sounds good

 

and would it be within the bounds of possibility for a litigant disputing the postage date of a DN to subpeona the other party to provide a person ( PO?) to court to explain the barcode?

[tinkerbell20]

Can a lender discontinue a claim because of defective default notice then just reissue a new default notice and issue court proceedings again? Halifax have just done that.................

[banker_rhymes_with]

Hello DD!

 

...and would it be within the bounds of possibility for a litigant disputing the postage date of a DN to subpeona the other party to provide a person ( PO?) to court to explain the barcode?

 

No idea, but the Barcode contains key data. How to get that out is what I'm working on now.

 

Ideally, I will try to get Royal Mail's help, having already explained to them why this data is so important, and to so many.

 

The best way is to get their help, as forcing them is an option, but then they would probably dig their heels in and that would make things harder.

 

Softly, softly at the moment! Many are working on this behind the scenes, so bear with me...this has taken a while, but the end is in sight.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Tink!

 

Can a lender discontinue a claim because of defective default notice then just reissue a new default notice and issue court proceedings again? Halifax have just done that.................:con fused:

 

Halifax can try that, but if they Terminated the Agreement, which they clearly had when they first issued proceedings, then they are trying it on.

 

Read the following excellent Thread by Surfaceagentx20:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html#post1837307

 

Indeed, I think the main points may also be covered by this Thread!

 

This quote should also help:

 

By when proceedings have commenced the Claimant will have terminated the agreement. The language of a default notice is framed on the basis there is a current agreement. That language is prescribed. If the Claimant terminated the agreement, to deliver an effective default notice will involve the fiction the agreement is current and never terminated. It would also involve the Claimant reinstating unilaterally. The debtor would be unlikely to agree to reinstatement if to do so would cure the Claimant's difficulties.

 

x20

 

Hope that helps to explain the key issues.

 

Cheers,

BRW

[diddydicky]

Can a lender discontinue a claim because of defective default notice then just reissue a new default notice and issue court proceedings again? Halifax have just done that.................

 

IMO if the lender rectifies a defective DN be issuing a new DN BEFORE the time limit stated in the original DN for compliance has expired then yes

 

if the time limit given in the original DN for rectification of the default ex expired NO

[diddydicky]

Can a lender discontinue a claim because of defective default notice then just reissue a new default notice and issue court proceedings again? Halifax have just done that.................

 

the fact that they have issued court proceedings would indicate that the agreement has already been terminated- did they demand the full amount of the account?

 

if so the agreement no longer exists and would be in breach of the first DN if defective

 

in order to issue a new DN they would have to re instate the account or create a new one as as things stand there would now be no account for you to default on

 

to do that they would have to have your agreement to re instate or open a new account ( silly question but i'll ask it) i take it you have not agreed to re instate the old account or open a new one?

[lexis200]

By when proceedings have commenced the Claimant will have terminated the agreement. The language of a default notice is framed on the basis there is a current agreement. That language is prescribed. If the Claimant terminated the agreement, to deliver an effective default notice will involve the fiction the agreement is current and never terminated. It would also involve the Claimant reinstating unilaterally. The debtor would be unlikely to agree to reinstatement if to do so would cure the Claimant's difficulties.

 

x20

 

Without wanting to start off another discussion on it (as we obviously both have strong views and are unlikely to agree:D), and bearing in mind I do actually agree with your reasoning dd, (that if they say they're going to terminate you may act in a different manner which may be detrimental to you), the way I read this quote still says unless the account is terminated they can still re-issue.

 

To me it seems it is still all based on the termination coming into effect, as opposed to the assumption that the termination will occur. This still leads me to believe that unless they terminate in some way shape or form they can still issue a 2nd Default Notice up until that point.

 

As I said, I'm aware we don't all share the same view, but seeing as we are only proffering an opinion on our interpretations of DN's, I think it's fair enough to consider both.

 

Lexis:)

[cashins]

To me it seems it is still all based on the termination coming into effect, as opposed to the assumption that the termination will occur. This still leads me to believe that unless they terminate in some way shape or form they can still issue a 2nd Default Notice up until that point.

 

Think you may be correct in that.

 

However, in the case of Halifax, (post 130), If they originally issued a POC for the full amount, they will have in effect breached their own agreement, (if still current) so terminating it, whether they have issued formal notice or no.

 

David

[lexis200]

Absolutely - if they issue a demand in some way for the full balance I think it's fair to say we all agree this is the same as them terminating the account.

 

Unfortunately for the banks it seems quite a few of them do this without remembering they really ought to get round to sending a DN out first:rolleyes:

 

We need to hope none of us decide to go and work for the banks you know - that would be the end of all of this rubbish, and everything would be done as it should be!

[Undercover-Elsa]

Confirmation of termination seems crucial.

To quote from one of my own threads:

 

I'm keeping quiet about the DN but I'm not confident enough that the demand for full payment definitely signifies termination yet, particularly as in the loan terms and conditions it states

"If you fail to pay the monthly payment each month, depend on on any legal notice we are required to give you you must pay us the total amount owing IMMEDIATELY" Nothing about terminating.

 

which makes me wonder if that's a get out, allowing them to legally demand full payment on default, without terminating?

Or is the phrase "depending on any legal notice we are required to give you" the key?

Certainly they're demanding full payment, but otherwise behaving as if the account is still active. Confused!

Elsa x

[lexis200]

Hey Elsa:)

 

I think the 'depending on any legal notice we are required' part acknowledges that they have to follow certain protocols before demanding the full balance, so I reckon you're ok:)

[Undercover-Elsa]

Hey Lexis,

hope so..it's getting a bit crowded on the faulty DN settee

[lexis200]

And they've run out of biccies:D

[smouk]

Hey Lexis,

hope so..it's getting a bit crowded on the faulty DN settee

Budge up!

[cashins]

Absolutely - if they issue a demand in some way for the full balance I think it's fair to say we all agree this is the same as them terminating the account.

 

 

Yes, I think we all more or less feel that is the case but has anyone got the chapter and verse on it, (that you would need to use in court)

 

Seem to remember PT posted on it once but no idea where that is now.

 

David

[Pinky69]

OK - news update. The default entries removed two weeks ago have reappeared on the reports of 2 CRAs, not the 3rd. Have written a letter to the bank saying get them removed and this time keep them removed!(Account closed 2005 - default entered 2006). Some clown at the bank not only updated them but everything about them is wrong - even my date of birth. Copies of letter to the 2 offending CRAS. All adds to the claims for damages because it all adds to my claim that the entry wasn't only not only unlawful but also vexatious. The timing of it even makes it look as if the bank assumed I had the month-free offer with the CRAs then put the entries back on again when they thought I had gone!

 

First sign of the CRAs getting rattled. Had a letter from the Director of one of the CRAs today - it's getting too hot for the foot soldiers. He basically says 1) we don't need your permission to process your data (oh yes you do when an alleged account in dispute with no agreement is rescinded unlawfully), that I should consult the IOC for an unbiased opinion (sorry - the IOC is not unbiased in my view and this is a legal matter - the IOC are not lawyers) and he says I should consult a solicitor and gives me his biased view of case law. I have replied:

 

I am in receipt of your letter of (Date) and note all you say. The IOC give an opinion based on what would be acceptable to them in proof of permission to process personal data but that view is not necessarily the view of the courts. My permission to process my personal data is assumed by credit reference agencies when companies pass information to them. That assumption is based on the belief that permission was given by me to the company concerned at the time of application. If my permission was not given to the company concerned, then the credit reference agency has made a wrongful assumption in processing my personal data. In these circumstances the IOC view that a credit reference agency does not need my permission to process my personal data is wrong.

 

In the circumstance where an alleged agreement has an invalid Default Notice and that agreement is terminated unlawfully, then the agreement comes to an end being unlawfully rescinded and with it all assumed permission to process my personal data. Entering defaults on credit reference reports thereafter is processing personal data without permission and again in this circumstance the IOC is wrong when it states that a credit reference agency does not need my permission to process my data. The entries by (Bank) and ( Bank) were made after the alleged agreements had been rescinded.

 

 

Firstly, (Bank)' I enclose a copy of my recent reply to them. There is no agreement for this account, only an application form. The application form’s reference to the processing of data cannot be verified nor could it be produced as evidence as there are no Terms and Conditions pertaining to the account, only current Terms and Conditions. The Bank's assumed permission is based on a reference to a term in the Terms and Conditions that cannot be verified. The CCA 1974 makes it perfectly clear that part of the agreement is all the documents mentioned therein and current Terms and Conditions cannot be mentioned therein as they were not in existence at the time. It cannot be proved that clauses in current Terms and Conditions correspond in any sense to clauses in the Terms and Conditions extant at the time of the application. No agreement was ever issued by (Bank). Going wrongfully on the premise that there was an agreement, they rescinded any assumed permission to process my data when they unlawfully rescinded the alleged agreement. The default entry was made after the rescission. In that circumstance the CRA processed my information without my permission. That they would accept the entry from the company initially is understandable. That they would continue to process the information when they had been informed that doing so was in breach of the Data Protection Act renders the CRA equally culpable in law for damage to my creditworthiness. It is also not true that credit reference agencies cannot remove entries without the originator’s permission. That is not correct. Credit Reference Agencies are voluntary commercial bodies and can remove information without a company’s permission if they want to – there is no law that says what they must enter and must remove. If the CRA uses the argument that there is an industry standard they abound by, that is not the same as saying they are bound by law. Nor is there any law that says a credit entry on a credit report must remain there for 6 years – it can be removed at any time if it proves to be unlawful, as the Bank's entry is. The CRA cannot argue that the Bank's entry conforms to industry standards – it certainly does not and indeed falls far short of them.

 

I also enclose my recent correspondence to the (other Bank). The same pertains – no agreements (they wrote to me that they do not have “full agreements” – there is no such thing as a partial agreement and nowhere on what they sent me is there any permission to process my personal data) invalid default notices, termination resulting in consequential rescission, long before default entries were made, meaning neither the Bank nor the CRA had any lawful right to process my information when the defaults were entered on my credit report.

 

In my view the CRA and the other credit reference agencies are so accustomed to accepting information from companies and arguing with customers that there was an application so they can process the information passed to them that when a different case is presented to them they react in the usual manner – you gave permission to the company so we have a right to process your personal data. Then where is clear evidence that would stand up in a court of law that neither the company nor the credit reference agency had any legal right to process my personal information at the time the default was made, they are at a total loss as to how to respond. That indecision may well be very costly for them indeed.

 

I do not need to consult the IOC – they are not lawyers and I don’t share the view that they are unbiased. Time is running out for Banks 1 and 2 the and the credit reference agencies to remove the unlawful entries on my report – they are not above the law.

 

 

Did he really think I would cave in with all his drivel? I'm a CAGER born and bred!

[banker_rhymes_with]

Hello Pinky69!

 

Did he really think I would cave in with all his drivel? I'm a CAGER born and bred!

 

Well done, let's see what their next dull move is.

 

Cheers,

BRW

[Colsthe1]

I found this excellent site some time ago, this is my first posting. So if I waffle on a bit...

About 15 months ago, I got into a serious dispute with Barclays Pinching & Fiddles, Glasgow. It concerns an Account that was Settled & Closed in 2007. I went to the FOS at Xmas 2008.

Just been informed by them, they are starting enquiry in 3 weeks time.

Mercers (BPF) have at the same time, slapped a Default Notice on me.

Although I have read everything going in here, my counting I have to do

on my fingers. I haven't got enough, and anyway, they are crossed in the

hope someone on here can advise me.

Notice is dated 30th May (a Saturday). It was on my doormat when I got

home afternoon of Friday 5th June. It came with that UK mail post (no I

didn't know about keeping envelopes then) It is standard format as shown

in these Posts. The Time Limit is given as Friday 19th June.

[lexis200]

I found this excellent site some time ago, this is my first posting. So if I waffle on a bit...

About 15 months ago, I got into a serious dispute with Barclays Pinching & Fiddles, Glasgow. It concerns an Account that was Settled & Closed in 2007. I went to the FOS at Xmas 2008.

Just been informed by them, they are starting enquiry in 3 weeks time.

Mercers (BPF) have at the same time, slapped a Default Notice on me.

Although I have read everything going in here, my counting I have to do

on my fingers. I haven't got enough, and anyway, they are crossed in the

hope someone on here can advise me.

Notice is dated 30th May (a Saturday). It was on my doormat when I got

home afternoon of Friday 5th June. It came with that UK mail post (no I

didn't know about keeping envelopes then) It is standard format as shown

in these Posts. The Time Limit is given as Friday 19th June.

 

Are you saying the account was closed in '07 but they have recently sent you a DN? They can't do this???? The account is no longer active, that's their first issue, but in addition if you've settled then surely there is no balance owing, therefore no remedy available for you to offer??

[Pipster2797]

Thing with banks is they think they can do whatever they want. I had 3 accounts that have all been terminated with HSBC. Sent off a SAR and got a box full of papers today and not 1 DN or Term Letter in the whole pile.

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/204565-pipster-hsbc.html

 

Thing is the overdraft went so overdrawn because of charges they kept adding as they were taking the Direct Debit payments from my current account to pay my HSBC loan and credit card. They wouldn't allow me to cancel the DD's either.

 

I was hoping that the DN's were going to be there as they are made of charges.

[Colsthe1]

Lexis200. Boy that was quick !!! Thanks.

Its very convoluted. Here is the short (?) version.

2006. Buy into holiday scheme. Agreement XXX with Clydesdale.

2007. Company say we can upgrade, we agree. Company says we can

consolidate into one Agreement to make life easier. Get settlement figure

for XXX from Clydse. XXX is put into new Account YYY, and new Agreement ZZZ drawn up.

Month later, part XXX paid for. Settlement figure for remainder of ZZZ

requested, this is YYY. My Bank, loan is cheaper than (now) Barclays PF.

Month later, YYY paid off. BPF send settled letter for Agreement ZZZ showing Closing £0 balance.

2008. Realised DDs not stopped, BPF claimed three payments. I stopped DDs, and contacted BPF for return of money.

BPF then said that XXX was still live.They then said they had reopened

Agreement ZZZ, and transferred funds into XXX. So therefore, the funds

were still owing on YYY.

This is where all the aggro started, and has gone on and on................

See, I did say it was a bit weird.

[lexis200]

Whoah Nelly, that's a lot of jiggery pokery going on there from Barclays!

 

My initial reaction would be to get a Subject Access Request out to them to see exactly what has gone on. You can get details of how to do this and a template letter in the 'template letters' forum.

 

With regards to the rest, it looks like you have letters confirming everything that has gone on. It also looks like both the original loan and the bit that was added on when consolidated have been paid. If that's the case, I think you could also do with getting a letter out to BC with references to the correspondence you've had, asking them what the hell is going on (or words to that effect;))

 

I think you could really do with some more specific help here, and the best way to do that is to start your own thread (probably in the Barclays forum) which'll get you more people who actually know what they're on about:)

 

Not sure if that helps too much, but as I say, that's probably how I'd deal with your situation as it stands.

 

Lexis:)