Invalid Default Notices

[diddydicky]

The DN dated 9th December gives you until December 26 (boxing day) to comply.

 

Any right thinking person would know that whilst there may not be a legal obstacle to including these dates in a DN- in reality you could have no opportunity to remedy on either the 25 or 26 December and this is unreasonable at best

 

 

However if the DN was posted on the 9th first class (unlikely) then service would be deemed to be thursday 11th which would give you until and including dec 25th(christmas day) to comply

 

if posted first class next day then your compliance date would be 26th (boxing day) which would be correct

 

if posted 2nd class on 9th compliance would be by 29th december and if posted 2nd class on the following day then 30th. both of which are well short

 

it is HIGHLY likely that the DN is defective

 

 

the first golden rule on this site is not to speak to the other side on the phone

 

the second golden rule is to keep EVERY envelope and staple it to the back of the letter.

 

I assume that you did not keep the envelope?

 

in which case you need to fire off a SAR to the OC

 

the creditor would need to PROVE that he sent the DN first class- not just say he did

 

usually his computer records will trip him up so worth getting

[biscuits42]

creditors are not known for their charity and they did not "have to" issued DN's in order to offer you terms- they did so so that they could then terminate at some future date and demand the full balance

 

i would post them all up on different threads and let us have a butchers

 

 

Thanks... I will scan them in tomorrow and post them. I did read somewhere that if a company agreed to concessionary payments on a short term basis, and these payments were made on time, then they should not be issuing DNs unless the concessionary payments were arranged as part of a DMP, which at the time I assumed to be any arrangement made due to being unable to afford full min payments... after more reading I'm now under the impression that the DMP option involves a third party and so since Tesco accepted my offer and I never missed a payment there shouldn't have been any DN. At the time I thought nothing of the DN as they said it was a requirement to issue it, but the more I read the more I wonder... Thanks for the advice

[C2K]

The DN dated 9th December gives you until December 26 (boxing day) to comply.

 

Any right thinking person would know that whilst there may not be a legal obstacle to including these dates in a DN- in reality you could have no opportunity to remedy on either the 25 or 26 December and this is unreasonable at best

 

 

However if the DN was posted on the 9th first class (unlikely) then service would be deemed to be thursday 11th which would give you until and including dec 25th(christmas day) to comply

 

if posted first class next day then your compliance date would be 26th (boxing day) which would be correct

 

if posted 2nd class on 9th compliance would be by 29th december and if posted 2nd class on the following day then 30th. both of which are well short

 

it is HIGHLY likely that the DN is defective

 

 

the first golden rule on this site is not to speak to the other side on the phone

 

the second golden rule is to keep EVERY envelope and staple it to the back of the letter.

 

I assume that you did not keep the envelope?

 

in which case you need to fire off a SAR to the OC

 

the creditor would need to PROVE that he sent the DN first class- not just say he did

 

usually his computer records will trip him up so worth getting

 

Thanks for your advice DD.. so I take it the letter from Triton can not be seen as a TN in this case?

Edited January 2, 2010 by C2K

[Bill Shidding]

Hi C2K, just a thought -

 

You said -

 

I have a DN from the OC MINT

 

and -

 

and TN from a DCA Triton

 

As the OC issued a DN, and a DCA issued a TN, did you get a NOA from both of them before the TN?

Your agreement was with Mint, only Mint can legally terminate it, unless it has been assigned.

 

Bill

[C2K]

Hi C2K, just a thought -

 

You said -

 

 

 

and -

 

 

 

As the OC issued a DN, and a DCA issued a TN, did you get a NOA from both of them before the TN?

Your agreement was with Mint, only Mint can legally terminate it, unless it has been assigned.

 

Bill

 

Thanks BS...no, I did not receive any NoA, therefore I will SAR them Monday as DD suggested.

[C2K]

Thanks guys... I will start my own thread as this is Pinky's thread. Thanks.

[diddydicky]

Big thanks :D:D.

 

Stumbled across this before and have never found it since.

 

TY

 

M

 

my advice to you is to "answer" the question before the judge has chance to ask it!!

[diddydicky]

cant see the attachment anymore however i understood that triton were merely "acting" for the OC and they were mentioned as their principals in the letter so an assignment letter is not required

 

the letter does show a full balance but the wording is very ambiguous and i would prefer personally to do the sar but hold fire on any acceptance of an unlawful rescission until a more formal demand is made/or sar shows the account terminated

[MandM]

my advice to you is to "answer" the question before the judge has chance to ask it!!

True. That's why i'm learning the questions - not the answers :D:D.

 

M

[diddydicky]

True. That's why i'm learning the questions - not the answers :D:D.

 

M

 

thanks- it WAS though a serious comment

 

if you convey in your evidence that you do not dispute that an agreement was entered into with the other party, but that you dispute (give the reasons) that the creditor is able to legally enforce said agreement then you take the wind(question) out of the judges )or oppositions) sails

 

this, from x20 is useful to have in your armoury

 

 

The Defendant admits entering into an agreement with the Claimant and which was regulated by The Consumer Credit Act 1974 (The Act). No admissions are made as to the terms, conditions or other provisions of the agreement and the extent to which the Claimant may or may not have complied therewith and the extent to which the Defendant may or may not have complied therewith. Further and alternatively, it is denied that the agreement was properly executed and/or is now enforceable in whole or in part.

[MandM]

 

The Defendant admits entering into an agreement with the Claimant and which was regulated by The Consumer Credit Act 1974 (The Act). No admissions are made as to the terms, conditions or other provisions of the agreement and the extent to which the Claimant may or may not have complied therewith and the extent to which the Defendant may or may not have complied therewith. Further and alternatively, it is denied that the agreement was properly executed and/or is now enforceable in whole or in part.

 

Thanks DD. Will tuck this little gem away for future use.

[nks22]

If you're complying with an agreement made with them surely there can, by definition, be no default?

[C2K]

cant see the attachment anymore however i understood that triton were merely "acting" for the OC and they were mentioned as their principals in the letter so an assignment letter is not required

 

the letter does show a full balance but the wording is very ambiguous and i would prefer personally to do the sar but hold fire on any acceptance of an unlawful rescission until a more formal demand is made/or sar shows the account terminated

 

Thanks again DD... the attachments have been removed as I don't know who might be reading . Yep, I thought so, the account was probably not assigned/sold to Triton, I won't do anything just yet until I am 101% satisfied that the account was terminated. Cheers.

[avatari]

Hi, some of you may find my thread re SLC interesting, they have defaulted me FIVE times despite the original breach not being rectified. Not sure if original DN is valid (or if they have acted lawfully on backdating credit file while statute barred). Have read all this thread but could also do with some case-specific advice from the experts posting on this thread, please...

 

http://www.consumeractiongroup.co.uk/forum/students/239734-slc-student-loan-default.html

[littlefatbudha]

subbing

Edited January 5, 2010 by littlefatbudha

[diddydicky]

If you're complying with an agreement made with them surely there can, by definition, be no default?

 

i'm not sure i understand what you mean?

[biscuits42]

i'm not sure i understand what you mean?

 

May be referring to my comment that Tesco issued a DN despite agreeing to the concessionary short term payments, stating that they were required to issue this before they could accept the offer.

[nks22]

i'm not sure i understand what you mean?

 

Just that a default results from breaking an agreement. If you've negotiated a variation of an agreement then you haven't broken anything.

[diddydicky]

i think you will find in cases like these that a "variation" to the contract was not agreed.

 

the debtor got into difficulties and/or did not maintain the contractually agreed payments for whatever reason and was therefore already in breach of the agreement

 

the Arrangement subsequently agreed to repay could therefore not be held to be a mutually agreed variation to the agreement

[InformedSearcher]

There isn't one. You don't want to approach the creditor/DCA about unlawful DNs unless you are absolutely sure they have terminated the agreement. If you are then approaching them to tell them they have rescinded the account and you want defaults removed from your credit reference reports, that is tricky and you have to start by asking the creditor/DCA to remove them, pointing out why they breached the Data Protection Act ie why the DN is unlawful and the account was rescinded unlawfullly. They will ignore you, as will the credit reference agencies. Then can go through the ICO and if that doesn't work, take them to court.

 

 

100% agreed. This is the preveiling 'grey' area. It's the kind of 'we have issued and declared the DN both to the debtor and the CRA's and that bit of our job is done'.

The problem is that if you consider the DN invalid they 'ignore' you. In my case they've not terminated the agreement but have issued both a DN and Final Notice. I consider the DN to be probably invalid, the main reason being a stated date of the 4th and complete date (or else) by 14th.

The ICO can take months. The CRA run off their 'distanced' remarks of them being a 'Data hub' (now there's a novel one!) and they cannot go above their client. When I spoke to the CRA he came over as some know it all kind of person. I asked, after him telling me I could contact the ICO or CAB, 'Under what priciple of the DPA are you saying this will apply to?' after a good 10 second silence he replied 'I'm sorry but I don't think I can help you further. I really gave him a hard time.

Anyhow the options are that the DN entry is good enough often because it's as bad as a CCJ and unless you are going to a court case against it then the waiting starts. The 6 year clock has also begun.

 

Michael

[ltc1607]

Hi everyone just got off the phone to the ombudsman.I complained that a default notice issued by the co-op bank was wrong as it was dated the 11th of Feb and gave me until the 25th of Feb to pay they also terminated the account on the same day the 11th as far as I was aware you had to have 14 days plus 2 for service and you cant terminate untile the default expires am I correct? The ombudsmant told me as far as the 74 act is concerned it has to be 14 days so as far as they are concerned it is correct unless I can show them a legal doc.that states 14 plus service and as regard to the termination that is a legal matter and they dont get involved please someone tell me if I am write or wrong as I was sure I was right.If I am right what is the point of the ombudsman

[vint1954]

The act says 14 days from service.

 

CCA 1974 s88, "Not less than 14 days after the date of service"

[the_shadow]

Hi everyone just got off the phone to the ombudsman.I complained that a default notice issued by the co-op bank was wrong as it was dated the 11th of Feb and gave me until the 25th of Feb to pay they also terminated the account on the same day the 11th as far as I was aware you had to have 14 days plus 2 for service and you cant terminate untile the default expires am I correct? The ombudsmant told me as far as the 74 act is concerned it has to be 14 days so as far as they are concerned it is correct unless I can show them a legal doc.that states 14 plus service and as regard to the termination that is a legal matter and they dont get involved please someone tell me if I am write or wrong as I was sure I was right.If I am right what is the point of the ombudsman

 

That would be the ombudsman that is funded by who..... oh the banks....

 

They never get involved in legal issues unless its on the side of the bank and by rights they shouldnt.

 

A default notice has to give you 14 clear days to remedy, how can you get 14 clear days to remedy if its sat in postman pats bag for 2 or 4 days?

 

Read back through this thread and you'll get your answers plus the legal bits that are required. None of this is required or listened to by the FOS by the way, legal arguments are for court.

 

S.

[Pinky69]

The Ombudsman hasn't a clue about the law on Default Notices and the answer you received proves it. Even if you had written a full complaint to the Ombudsman, you would have received their stock reply that you "probably" owe the money and they cannot rule on matters of law. They are very good if your granny's direct debit wasn't paid on time or coffee was spilled on your statement but apart from trivia, forget the FOS. You need to tackle this yourself and you can get all the advice you need on here as you need it.

[ltc1607]

Thanks Pinky did send a full complaint will deal with it myself.cheers