Invalid Default Notices

[enslaved]

Sorry for being pedantic (or dense)

 

The DN posted 16 May 2006 was a Tuesday.

 

So, If posted 2nd Class (4 days) turns up saturday and demands response by 23 May, also a Tuesday and I myself allowing two days for first class return post, leaves Sunday to reply.

 

Saturday and Sunday are not working days and do not count?

 

This leaves Zero days to comply, and is impossible to perform?

 

If sent first class I would have 2 days to comply, is this correct?

 

Many Thanks all

[vint1954]

Correct, so the DN is faulty. The problem is that you need to accept an unlawful rescission at the time, or the judge may say that the agreement endured.

[enslaved]

Thanks Vint

 

Anyway round this as the Judge Is already looking 'unfavorable'?

 

Many Thanks

[diddydicky]

Sorry for being pedantic (or dense)

 

The DN posted 16 May 2006 was a Tuesday.

 

So, If posted 2nd Class (4 days) turns up saturday and demands response by 23 May, also a Tuesday and I myself allowing two days for first class return post, leaves Sunday to reply.

 

Saturday and Sunday are not working days and do not count?

 

This leaves Zero days to comply, and is impossible to perform?

 

If sent first class I would have 2 days to comply, is this correct?

 

 

Many Thanks all

 

they will claim they sent it first class therefore it is best to work on the basis that first class is two days short as the recipient did not keep the envelope and the judge will, in that case undoubtedly believe the creditor

 

in any event if it was second class the day of service would not be saturday- but the following Monday

 

at that rate it will have arrived two days before it was sent!!

[diddydicky]

(dont try and work that out- it was a joke!)

[diddydicky]

oops

[enslaved]

I feel like that most of the time

[lifeafterdebt]

Having read through a lot of the ICO guidelines for creditors am I correct in my reasoning that once an alleged account is terminated the creditor loses the right to continue reporting to the CRA's?

 

In my case they placed a default on my file more that 6 months after termination. I have told them they were wrong to do this and told them to stop reporting but not surprisingly they just carry on!

 

my thread is here if anyone is interested in commenting

 

cheers:)

Edited March 8, 2010 by lifeafterdebt

[lookinforinfo]

I cannot imagine the FOS would go that far out on a limb.

Consider a situation where the creditor has terminated an account and then takes the debtor to Court to recover the money. Before the trial, the debtor is able to clear the whole amount. As the debtor would expect the creditor to inform the CRA that the debt was now satisfied, it would seem unfair to the FOS that the creditor could not make entries in other cases that were not of such good news for the debtor.

[lifeafterdebt]

I cannot imagine the FOS would go that far out on a limb.

Consider a situation where the creditor has terminated an account and then takes the debtor to Court to recover the money. Before the trial, the debtor is able to clear the whole amount. As the debtor would expect the creditor to inform the CRA that the debt was now satisfied, it would seem unfair to the FOS that the creditor could not make entries in other cases that were not of such good news for the debtor.

 

I see your point but in the above scenario one would be giving their permission to report the payment and would expect their file to be updated. I have told them to stop reporting now that the alleged agreement no longer exists.

 

I would think the FOS would let the creditor do whatever they wanted but the ICO's guidlines in relation to filing defaults states 'Any default record should be accurate. We normally expect a lender to keep records that are necessary to show an agreement exists and to support filing a default.'

 

So I think their reporting should cease once an alleged agreement no longer exists. After all, no agreement, no right to report.

Edited March 8, 2010 by lifeafterdebt

[lookinforinfo]

Let me put it this way then LAD: in this instance you would have been pretty upset if they hadn't amended your record pretty quickly, with or without your permission.

Edited March 5, 2010 by lookinforinfo

[lifeafterdebt]

Hi lookinforinfo,

 

Don't want to argue about this but are you are saying that a creditor has a right to report on a credit file even where no legal agreement exists? Surely, just because they do it, it doesn't make it right! After all, there is a lot of things they do that are wrong but they still do them because they think they can get away with it.

 

I have just had a quick read through this thread and came across this post from Pinky69 who started this thread. It reads.

'A DN is not necessary to make an entry on a credit report -a default indicates that the relationship between the creditor and debtor has broken down. You should read the Information Commissioners Office's Technical Guidance on filing defaults - you will get it on their website. What creditors cannot do is issue a DN which is unlawful for some reason then terminate the account then make a default entry because that action rescinds the agreement and any clauses in the agreement giving permission for the creditor to process your personal data are rescinded with the agreement. A creditor can issue a second DN as long as they haven't terminated the account. If you apply to set aside CCJs on the basis of an unlawful DN and termination then you are going to have to explain to the judge why you didn't raise it at the time of the case. If it has been a while since the the CCJs were handed, it may be very difficult to get them overturned.'

 

Hope this helps with what I am trying to say.

[lookinforinfo]

Hi Lifeafterdebt

I have answered your question on your own thread-which I should have done when you first raised your query. My apologies to Pinky69 for highjacking your thread.

http://www.consumeractiongroup.co.uk/forum/cooperative-bank/236805-lad-coop.html

[diddydicky]

Hi lookinforinfo,

 

Don't want to argue about this but are you are saying that a creditor has a right to report on a credit file even where no legal agreement exists? Surely, just because they do it, it doesn't make it right! After all, there is a lot of things they do that are wrong but they still do them because they think they can get away with it.

 

I have just had a quick read through this thread and came across this post from Pinky69 who started this thread. It reads.

'A DN is not necessary to make an entry on a credit report -a default indicates that the relationship between the creditor and debtor has broken down. You should read the Information Commissioners Office's Technical Guidance on filing defaults - you will get it on their website. What creditors cannot do is issue a DN which is unlawful for some reason then terminate the account then make a default entry because that action rescinds the agreement and any clauses in the agreement giving permission for the creditor to process your personal data are rescinded with the agreement. A creditor can issue a second DN as long as they haven't terminated the account. If you apply to set aside CCJs on the basis of an unlawful DN and termination then you are going to have to explain to the judge why you didn't raise it at the time of the case. If it has been a while since the the CCJs were handed, it may be very difficult to get them overturned.'

 

Hope this helps with what I am trying to say.

 

there is a big difference between a legal agreement existing and a legally enforceable agreement

 

proving that the debt is not legally enforceable \(usually due to a missing or defective agreement and/or DN) does NOT prove the a debt does not exist.

 

the fact of an agreement not being in existence does not prove that you did not enter into an agreement with the creditor

[basa48]

there is a big difference between a legal agreement existing and a legally enforceable agreement

 

I don't follow. If an agreement is legal, why would it not be enforceable, or are you just intimating that the creditor cannot prove legality if he can't find the agreement?

 

proving that the debt is not legally enforceable \(usually due to a missing or defective agreement and/or DN) does NOT prove the a debt does not exist.

 

Quite, and a GREAT many people think they can get debts 'written off' (thanks mainly to the disingenuous cmcs)

 

the fact of an agreement not being in existence does not prove that you did not enter into an agreement with the creditor

 

Again agreed and this is why people should not instigate claims against lenders who claim not to be able to locate agreement.

[diddydicky]

3 answers 1!!

[AA99]

[parkerboy]

apologies if anyone has posted anything similar before but I can't find owt...

 

as I understand it, a DCA can only claim the arrears at the time of default when an account has been terminated after issue of a flawed DN.

what (if anything) can the DCA claim if:

 

a) MBNA 'closed' the account (comms log and statements show '28/02/09 CHARGE OFF ADJUSTMENT £XXXX Cr and balance as zero

 

b) MBNA subsequently issue a default notice dated 6th March 09 with remedy date of 23rd March and served via 2nd class

 

c) the alleged debt is assigned to CLueless Finance on 20th March 09 (yes before remedy date on DN)

 

Opinions welcome please

[brooooooooooce]

The postman's just called with a DN from Mercers obo Barclaycard. Dated the 3rd March 2010 gives me until 20 March 2010 to rectify. Any comments greatly appreciated.

[diddydicky]

apologies if anyone has posted anything similar before but I can't find owt...

 

as I understand it, a DCA can only claim the arrears at the time of default when an account has been terminated after issue of a flawed DN.

what (if anything) can the DCA claim if:

 

a) MBNA 'closed' the account (comms log and statements show '28/02/09 CHARGE OFF ADJUSTMENT £XXXX Cr and balance as zero

 

b) MBNA subsequently issue a default notice dated 6th March 09 with remedy date of 23rd March and served via 2nd class

 

c) the alleged debt is assigned to CLueless Finance on 20th March 09 (yes before remedy date on DN)

 

Opinions welcome please

 

the charge off in MBNA's records are not a write off of the debt- they are an internal accounting procedure

 

the rest of it is clearly unlawful

[vint1954]

The postman's just called with a DN from Mercers obo Barclaycard. Dated the 3rd March 2010 gives me until 20 March 2010 to rectify. Any comments greatly appreciated.

Obviously sent 2nd class, so defective for dates. Keep the envelope and wait for termination.

[tedney]

Hi B.

Keep the envelope! Was is sent recorded? Not sure of precise timings, perhaps someone more knowledgable could help?

[emandcole]

The postman's just called with a DN from Mercers obo Barclaycard. Dated the 3rd March 2010 gives me until 20 March 2010 to rectify. Any comments greatly appreciated.

 

Hi, can you scan as might be more to it than just a dates issue. Also, does the envelope confirm second class post was used? 5 days to get to you suggests it was, assuming they sent it as soon as it had been printed...unlikely.

[brooooooooooce]

Hi. Cheers for replies. Just checked envelope says 1st but only arrived today.???

[emandcole]

Hi. Cheers for replies. Just checked envelope says 1st but only arrived today.???

 

How about postmarks on the envelope? Any of those?