Invalid Default Notices

[Desperate Daniella]

Thank you, summerbreeze. It is a default case.

 

Thank you, Vint. I've already given the link to your excellent one post thread on this too.

 

Cosalt,

 

I'm so sorry. Hopefully you may get some more help here before you go back to court.

 

DD

[DonkeyB]

Cheeky, BRW!

 

Better to phrase its as something like... I politely request that the reasons for rejecting my evidence of an invalid default notice under S87 are clearly identified in your judgment.

 

That will make him think, and will set you up for any appeal - should he not understand the law by the next hearing.

[banker_rhymes_with]

Hello Cosalt!

 

Don't forget that your s87(1) Default Notice is Evidence.

 

Their copy of the Notice is Hearsay Evidence.

 

If their copy does not match yours, theirs loses every time, because you have the original, hard copy, all singing, all dancing...the real thing!

 

If yours shows that the Notice was defective, and theirs says something else, theirs is wrong, and their evidence and credibility should be undermined.

 

If the Judge is determined to misdirect himself, then all you can do is plan every step, and keep it all nice and structured. Summarise the issues, and run through the key points for the benefit of both the Tape and the Judge, then invite him to comment on your Summary, before asking him for permission to Appeal.

 

If you spell it out for him, and he still elects to misdirect himself, then at least it should make the Transcript nice and clear for the Appeal Judge.

 

But, all joking aside, re-plan your Case, and make damned sure you win this next time out. One way to bring all of this into perspective is to plan your Appeal now.

 

Pretend you have lost, and start going through the issues. Research your Grounds for Appeal, download an N161 Appellants Notice, read up on, say, Shakespeare62's Thread, and see what steps he has gone through to prepare his Appeal.

 

Then, when you walk into Court next time, you will be thinking one step ahead, and will know the key Appeal points before the opposition opens his/her trap.

 

You will be then be poised, like a coiled spring, ready to jump on any of the key points that you know you can Appeal on, and will know why they are strong Appeal points.

 

If you don't know why, then you are already on a hiding to nothing next time out. If you see my point. Do not be resigned that there is a Judge Lottery, instead work out how you will nail them this time around, so an Appeal is not then necessary.

 

But, I bet if you go in ready to Appeal, having considered all of the issues, and having split out what is just background noise from what really matters, you may well turn this around next time out.

 

I do hope this helps.

 

Cheers,

BRW

[cosalt]

I think TBH the claimant thought this was an easy case, just attend the repo hearing and reclaim the goods, I don't think they banked on it being ajourned.

 

My aim now is to make them understand I mean business ( and know what I am talking about ) so they withdraw before we get to the next hearing !

 

Cosalt

[Desperate Daniella]

Hi everyone again,

 

Now have a letter from Amex which says, "The Default Notice does not need to comply with Schedule 2, para 8 of the CCA (Enforcement, Default and Termination Notices) Regulations as it does not require an earlier payment of a sum in order to remedy the breach."

 

I've googled this but can't find what it means about para 8.

 

DD

[nks22]

I can only think they mean this (from the Consumer Credit (Enforcement, Default and Termination Notices) Regulations

1983):

Requiring earlier payment of any sum

 

8

 

Where a sum of money is required to be paid under the notice,

(a) the amount of the sum before deducting the amount of any rebate on early settlement;

(b) where any rebate on early settlement is allowable under the agreement or by virtue of section 95 of the Act--

(i) the amount of the rebate allowable calculated on the assumption that early settlement takes place on the date

specified in the notice for earlier payment of the sum; and

(ii) the total amount to be paid after taking into account the amount of any rebate on early settlement, namely the

difference between the amount shown in paragraph (a) above and the amount shown in sub-paragraph (i).

But if they're not requiring you to pay any sum of money what are they pursuing you about?

[Desperate Daniella]

Thank you. I didn't find that anywhere.

 

It's not actually for me, but I'll pass it on. I don't think they offered any early settlement. Even more

[InformedSearcher]

A default should be placed on a credit file within a reasonable period of the actual default occurring, though the registering of a default with the CRAs, and the issuing of a default notice are not the same thing. The timing of when a debt becomes SB is also unrelated.

 

I know this causes Caggers an awful lot of confusion.

 

However, banks or other financial institutions cannot abuse the process of recording defaults with the CRAs - it has to be done fairly, and contemporaneously. For example, if a credit card company waited three years after an account was terminated to record a default for the first time, it would be grossly unfair to a debtor to have that default run for a further six years. This would now come under the guise of 'treating customers fairly'.

 

If they could get away with that, they would all do it - they could permanently trash your credit rating and use this as a form of financial blackmail. You simply have to be prepared to complain long and loud, and to go through the labyrinthine process of having such defaults removed.

 

NatWest a few years ago did exactly that! They began their CRA entry 2 years 'after' the DN was issued to me. Easier said than done to get it removed I can assure you!

 

Michael

[InformedSearcher]

One should be aware that that 6 years begins from the DN entry BUT (always a 'but') you must not do any communicating about the said debt during after that time. If you do then the 6 years begins again irrelevant of the issue date of the DN. The motto here is that 6 years begins when communications about the said debt terminates which will mormally be a few months after the initial entry. A bank can keep spodradic communications open for years and you will never see the DN dissapear although it will (in theory) from the CRA files after the 6 years. A bit of a grey area on that issue.

 

Whilst on CRA's - and a bit off-topic - I think the new series of Credit Expert TV adverts are questionable under the ASA requirements?

 

Michael

 

Michael

[DonkeyB]

One should be aware that that 6 years begins from the DN entry BUT (always a 'but') you must not do any communicating about the said debt during after that time. If you do then the 6 years begins again irrelevant of the issue date of the DN. The motto here is that 6 years begins when communications about the said debt terminates which will mormally be a few months after the initial entry. A bank can keep spodradic communications open for years and you will never see the DN dissapear although it will (in theory) from the CRA files after the 6 years. A bit of a grey area on that issue.

 

Not quite. They can't do this. Once a default is entered - providing it isn't satisfied and another added - that's it.

 

Don't confuse the six years here with statute barred and non-acknowledgement. The six years for SB relates to the last time you either paid or acknowledged the debt in writing, and is not related to the issuing of a default notice or the registering of a default with the CRAs.

[lexis200]

Hi all

 

Asked this somewhere else but I've forgotten where now so I need to ask again:oops:

 

If you actually pay up and settle a debt completely can you demand the CRA (or creditor I suppose) removes all info regarding the account as there is no longer an account to give details about? Once the contract is kaput (in the standard fashion rather than any legal problems they've encountered), I am assuming that your consent for them to process your data is removed?

[diddydicky]

s98 does NOT apply to credit cards in any event- it applies ONLY to fixed term agreements

[beachcomber60]

After capone 'sold off' the OH account to a DCA, following terminatation on the back of their 'invalid' DN (Thanks Pinky), which OH accepted their unlawful rescinding of the account, a complaint was made to the DCA concerned due to their threats & ignoring OH letters.

 

Just received this response from capone, if anyone has any inputs I would be most greatful :-

 

 

 

 

 

 

 

 

Beachy

[DonkeyB]

They haven't actually addressed the issues you've raised - such as faulty DN and therefore unlawful rescission - they have simply stated they sent a DN and their legal department has 'scrutinised' the documents. They have said they will defend any claim that is does not comply - they have not dared to state that they think it DOES comply.

 

But then they just wash their hands of it cos they've sold it. Worra mess of a reply.

 

Me thinks they up poo river with no rowing stick.

[DonkeyB]

That last para is interesting, and is not true. Their ability to sell the account is completely unrelated to terms in the T&Cs allowing them to pass the debt to a DCA. They can sell the account at any time, providing there is no dispute.

 

This letter has been concocted by a legally-challenged idiot-savant. Without the 'legally' and 'savant' bits.

[beachcomber60]

They haven't actually addressed the issues you've raised - such as faulty DN and therefore unlawful rescission - they have simply stated they sent a DN and their legal department has 'scrutinised' the documents. They have said they will defend any claim that is does not comply - they have not dared to state that they think it DOES comply.

 

But then they just wash their hands of it cos they've sold it. Worra mess of a reply.

 

Me thinks they up poo river with no rowing stick.

 

Thanks DonkeyB,

 

Reassuring to have additional input - time to plug in True Call again after the DCA gets their copy

 

Capone gave me a hard time last year, but so far my file is in the back of capones filing cabinet, after capquest dropped it like a hot potato.

[The GodMother]

Where they state they think they have a fully enforcable contract does that not also state they think it does comply?

[emandcole]

Is that it? All those questions you put to them and that's all they send? To me it reads as if they've gone defensive and have buried their heads in the sand. They know you're probaby correct but also assume you won't take action in the courts as very few people do. You're probably facing the classic creditor/debtor stand-off now.

 

Creditor sells to DCA who hopefully realise litigation is futile.

 

Debtor fed up but not prepared to litigate as burden of proof sometimes tricky.

 

Result. DCA hassles you for ages. Creditor sells cheaply and claims it all back, maintaining the invalid default out of spite.

 

You...stuck in the middle with a trashed credit file and nowhere to go .

[beachcomber60]

Roll on 5 years - not bothered too much about CRA file, trashed anyway.

 

Biggest laugh with the letter was the leaflet enclosed with it, first line :-

 

Nobody's perfect

But we at Capital One want to be.

 

Still smilin' at that

[dasby]

Creditor sells cheaply and claims it all back, maintaining the invalid default out of spite.

 

How does the creditor claim it all back?

[DonkeyB]

By offsetting against tax. So to them, it disappears and the loss is set against taxable profits, but the debt purchaser can chase you for the full amount. Something distinctly wrong there...

[vint1954]

Hi everyone again,

 

Now have a letter from Amex which says, "The Default Notice does not need to comply with Schedule 2, para 8 of the CCA (Enforcement, Default and Termination Notices) Regulations as it does not require an earlier payment of a sum in order to remedy the breach."

 

I've googled this but can't find what it means about para 8.

 

DD

That could be the case if they were only suing for the arrears and not the full amount.

 

But if they are suing for the full amount, they need their Ducks in a row, valid DN followed by valid TN.

[InformedSearcher]

Hi all

 

Asked this somewhere else but I've forgotten where now so I need to ask again:oops:

 

If you actually pay up and settle a debt completely can you demand the CRA (or creditor I suppose) removes all info regarding the account as there is no longer an account to give details about? Once the contract is kaput (in the standard fashion rather than any legal problems they've encountered), I am assuming that your consent for them to process your data is removed?

 

If there is a DN entry on a CRA all that will happen if you clear the debt are the words 'satisfied' that will eventually appear. The DN will however remain on the CRA file till it 'falls off' after 6 years. This is always the 'downer' to people who slipped up, had a DN issued and entered, then payed it off. Not really a thanks for paying it off as any potential finance provider will see the words DN and normally ignore anything extra.

 

Michael

[banker_rhymes_with]

Hello DDY!

 

Just to say...

 

s98 does NOT apply to credit cards in any event- it applies ONLY to fixed term agreements

 

I fully agree.

 

Cheers,

BRW

[dizzyblonde1966]

This is an interesting one

A few weeks ago a dca sent me the usual threatogram re an alledged debt on a credit card, and they will take further if i dont pay blah blah blah,

 

So i took the opportunity to cpr them,and to ask them to disclose the docs they would rely on

 

Well just had a bundle through the post,

 

But the interesting document is a template DN, the heading reads

This is a default notice served under section 54(2) of the consumer credit act 1995,

 

Then the usual DN text, but obviously as a template no dates or figures

 

This alledged credit card account is from 2001 and the application form copy clearly says regulated under the 1974 consumer credit act,

 

so why is the DN template saying seved under ,section 54(2) of the 1995 consumer credit act,? and where does that leave them now?

Edited April 19, 2010 by dizzyblonde1966