Invalid Default Notices

[DebtDissolver]

Morning caggers! It's been suggested to me by Lexis (thank you!) to ask on this thread about Xperian (I know it's spelt wrong I just hate the links it brings up lol!) using incorrect info on my report?

 

Basically I got my report and noticed lots of issues, eg a default registered 2 years after the incident (which I'll take up with the creditor); addresses I have never been financially linked with and at least 10 addresses repeated 4 times EACH! I wrote to them once and got a reply that I am wrong, which I know I'm not, because I know where I'd be linked to, and I know repeated addresses when I see them! They occur on the same day, from the same company, with the same addresses on! Grr they are very annoying!

Anywho, I've replied but am not sure they'll listen. I'm guessing my next step in a complaint to the ICO if no joy from the CRA? Has anyone got any advice/experience for me please?

Many thanks!

[Lord_Alcohol]

i would suggest that as the creditor is likely to argue that he HAS complied with s87 (they always do) then "repeated" breaches would not be possible since the creditor is entitled to pursue the debt ( he is allowed to pursue the debt whether he has not taken legal action and he is allowed to pursue the debt even if he takes and loses a legal action!!

 

i would say therefore IMO that a court order to stop him would be both costly and unproductive since the court is bound to take the view that the as yet uncontested debt is a valid debt- until such time as it is deemed invalid and that the creditor has a right to pursue it

 

Yes, I agree with your first para. The OC will always take a contrary view, hence the need for a court to decide. But CCA is very clear - the OC may not pursue a debt where s88 is not complied with.

 

I know that an OC is allowed to pursue a debt where an agreement is irredeemably unenforceable, but this is different. In the DN issue, CCA actually states that the OC is not able to pursue the debt!

 

However, if the agreement is now 'outside' CCA (and I'm not sure if it is), then is that (ie, contract law) the means by which the OC pursues?

 

LA

[lexis200]

sorry lexis- didnt see your post:)

 

That's because I'm wearing my lime hat of invisibility:D

[diddydicky]

Yes, I agree with your first para. The OC will always take a contrary view, hence the need for a court to decide. But CCA is very clear - the OC may not pursue a debt where s88 is not complied with.

 

I know that an OC is allowed to pursue a debt where an agreement is irredeemably unenforceable, but this is different. In the DN issue, CCA actually states that the OC is not able to pursue the debt!

 

However, if the agreement is now 'outside' CCA (and I'm not sure if it is), then is that (ie, contract law) the means by which the OC pursues?

 

LA

 

 

not quite,

 

the OC may not ENFORCE a debt whilst in default of s87

 

it has already been ruled that demanding payment (even commencing court proceedings) does not constitute enforcement!

[lexis200]

not quite,

 

the OC may not ENFORCE a debt whilst in default of s87

 

it has already been ruled that demanding payment (even commencing court proceedings) does not constitute enforcement!

 

What would I wonder? Kneecapping perhaps?

 

Seriously, does anyone have a case they can give that states what they consider enforcement to be? I know demanding payment etc isn't deemed to be enforcement, but if starting legal action isn't either, really what is left?

[Mozz1]

The OFC's Debt Collection Guidelines July 2003 (Updated 2006) state that those contacting debtors must not be deceitful by misrepresenting their authority and/or the correct legal position.

 

Examples of this are unfair practices which include falsely implying or stating that action can or will be taken when it legally cannot.

 

Its odd a creditor can commnence legal action which they cannot enforce. s this where applications for staying proceedings then come in?

Would it not though be deemed an unfair practice /pressure to commence proceedings knowing that the account is in dispute? I mean, the cdurt won't be interested until the stay is applied for but surely the OFT can become involved?

[Lord_Alcohol]

not quite,

 

the OC may not ENFORCE a debt whilst in default of s87

 

it has already been ruled that demanding payment (even commencing court proceedings) does not constitute enforcement!

 

Er...either my "brain" has gone a bit wonky or I've forgotten how to read English, but the wording of s87(1)(b) is...

 

To demand earlier payment of any sum

 

So the OC may not demand payment where s88 not complied with. CCA doesn't say "To enforce earlier payment". It would seem to me that the mere act of writing to ask for the balance is a breach of s87!

 

Therefore, repeated demands must represent repeated breaches (well, that's perhaps what logic indicates).

 

Sure, the OC insists that his DN is perfectly valid and compliant. The debtor can then ask the OC to demonstrate how it is valid and compliant, at which point the OC will clam up and pass the buck to his DCAs for a lengthy bout of financial ping-pong. I have a letter from BoS that insists that their DN is perfectly valid, yet it cannot be (7 days for remedy, clearly marked on the notice).

 

Then we go through the repudiation process but the OC continues to refer to his DN and s87. Time goes on, the debtor remains stuffed through a ruined CRF, and the OC refuses to issue a claim that would allow the debtor to defend and counterclaim. The debtor may be completely "innocent" - he may have received a DN that gave no time at all to remedy or that asked for an inappropriate amount.

 

It therefore seems his only redress is to wait for the OC's claim, which may take years to arrive (or may never arrive).

 

Which is why, in fairness, I see no reason (yet!) why the debtor should not be entitled to claim against the OC, even if it is not a money claim and is limited to ending recovery action and clearing adverse data. The OC's breach of CCA and the contract are far more serious than the debtor's initial breach that triggered the DN - surely there is a route open to him?

 

Moreover, CCA remains clear even if the case comes to court - the debtor merely states that s87(1)(b) is lost to the OC because of failure to comply with s88. Whether a debt exists or not is irrelevant; the OC may not "demand" it, which would presumably include "enforcement".

 

How about exploring what such a claim might be and what the risks in fact are?

 

LA

[diddydicky]

What would I wonder? Kneecapping perhaps?

 

Seriously, does anyone have a case they can give that states what they consider enforcement to be? I know demanding payment etc isn't deemed to be enforcement, but if starting legal action isn't either, really what is left?

 

yes, you need to refer to mcguffick and carey - it has left the ridiculous situation that the creditor can start proceedings but not obtain judgement!!

[diddydicky]

Er...either my "brain" has gone a bit wonky or I've forgotten how to read English, but the wording of s87(1)(b) is...

 

To demand earlier payment of any sum

 

So the OC may not demand payment where s88 not complied with. CCA doesn't say "To enforce earlier payment". It would seem to me that the mere act of writing to ask for the balance is a breach of s87!

 

Therefore, repeated demands must represent repeated breaches (well, that's perhaps what logic indicates).

 

Sure, the OC insists that his DN is perfectly valid and compliant. The debtor can then ask the OC to demonstrate how it is valid and compliant, at which point the OC will clam up and pass the buck to his DCAs for a lengthy bout of financial ping-pong. I have a letter from BoS that insists that their DN is perfectly valid, yet it cannot be (7 days for remedy, clearly marked on the notice).

 

Then we go through the repudiation process but the OC continues to refer to his DN and s87. Time goes on, the debtor remains stuffed through a ruined CRF, and the OC refuses to issue a claim that would allow the debtor to defend and counterclaim. The debtor may be completely "innocent" - he may have received a DN that gave no time at all to remedy or that asked for an inappropriate amount.

 

It therefore seems his only redress is to wait for the OC's claim, which may take years to arrive (or may never arrive).

 

Which is why, in fairness, I see no reason (yet!) why the debtor should not be entitled to claim against the OC, even if it is not a money claim and is limited to ending recovery action and clearing adverse data. The OC's breach of CCA and the contract are far more serious than the debtor's initial breach that triggered the DN - surely there is a route open to him?

 

Moreover, CCA remains clear even if the case comes to court - the debtor merely states that s87(1)(b) is lost to the OC because of failure to comply with s88. Whether a debt exists or not is irrelevant; the OC may not "demand" it, which would presumably include "enforcement".

 

How about exploring what such a claim might be and what the risks in fact are?

 

LA

 

 

to demand "earlier payment of any sum" is not the same as demanding those payments that had already fallen due and not been paid

 

demand earlier payment of any sum refers to them "calling in" the part of the loan that is not yet due for payment- and which they cannot do until the comply with the DN requirement

 

there is nothing to stop them chasing you for payments that you were previously due to pay (arrears) and which you have not paid

[Lord_Alcohol]

Its odd a creditor can commnence legal action which they cannot enforce. s this where applications for staying proceedings then come in?

Would it not though be deemed an unfair practice /pressure to commence proceedings knowing that the account is in dispute? I mean, the cdurt won't be interested until the stay is applied for but surely the OFT can become involved?

 

I completely agree Mozz - I have yet to see an argument that suggests that this is fair. I doubt the OFT would get involved - they seem more interested in large-scale issues rather than individual cases.

 

I wonder if an option is to start an action based on breach of contract with a claim for damages incurred (which would be based on the effects of adverse data). The basic points being that the OC repudiated, the debtor accepted (of necessity), the OC automatically loses protection of s87 so the debt is effectively out of his reach. The action for BoC seeks redress in the form of cessation of recovery (otherwise a continued breach of s87) and removal of adverse data from CRF.

 

Erm, well, it sounds a bit too easy - please tear this to shreds everyone so we can find the arguments against!!

 

LA

[Lord_Alcohol]

to demand "earlier payment of any sum" is not the same as demanding those payments that had already fallen due and not been paid

 

demand earlier payment of any sum refers to them "calling in" the part of the loan that is not yet due for payment- and which they cannot do until the comply with the DN requirement

 

there is nothing to stop them chasing you for payments that you were previously due to pay (arrears) and which you have not paid

 

Yes, quite agree - have always assumed the arrears is payable but not the rest.

 

The problem is that they do not just chase you for the arrears - they chase you for the whole blooming lot! Anyway, I have always been happy to pay the arrears - yet have always been prevented from doing so!

 

LA

[diddydicky]

yes we agree there then.

.

The original point was as to whether an action can be started because of the harrassment of continually being pursued by the creditor

 

the problem is that before a judge- the judge will take the view that although they chased you for the full amount and were not allowed to- the fact is that they would still have been chasing you (legitimately) for the arrears therefore there is no prejudice to you merely because the amount they are chasing you for is in dispute.

 

In other words- you would have to prove to the court that you were more harrassed or prejudiced by constant demands for £XXX than you would have been for £YYY- which i think might be a tad difficult

 

 

As to the ruling that commencing court proceedings is not enforcement but obtaining judgement is-- well we all know its barmy- but until someone feels the urge to contest it- that is what we have to work with

Edited July 15, 2010 by diddydicky

[Lord_Alcohol]

yes we agree there then.

.

The original point was as to whether an action can be started because of the harrassment of continually being pursued by the creditor

 

the problem is that before a judge- the judge will take the view that although they chased you for the full amount and were not allowed to- the fact is that they would still have been chasing you (legitimately) for the arrears therefore there is no prejudice to you merely because the amount they are chasing you for is in dispute.

 

In other words- you would have to prove to the court that you were more harrassed or prejudiced by constant demands for £XXX than you would have been for £YYY- which i think might be a tad difficult

 

 

As to the ruling that commencing court proceedings is not enforcement but obtaining judgement is-- well we all know its barmy- but until someone feels the urge to contest it- that is what we have to work with

 

Ah - yes, see what you mean.

 

A couple of options;

 

1. The debtor pays the arrears at termination before he starts his action (or pays those specified arrears in the DN). If he has paid more than that since, then he claims the balance in his action ().

 

or...

 

2. The debtor offers to pay the arrears within his action for breach of contract, to show the court he is acting reasonably and in perfect accordance with CCA.

 

I think a court will be able to see a world of difference between being hounded for, say, £10,000 as opposed to the arrears, which may be a few hundred quid.

 

Bottom line is that the debtor has breached the agreement (for sure, hence the DN), but the OC's breaches are far more serious as they include a breach of CCA in addition to the agreement, and have occured when the OC should bloody well have known better...

 

LA

[diddydicky]

Ah - yes, see what you mean.

 

A couple of options;

 

1. The debtor pays the arrears at termination before he starts his action (or pays those specified arrears in the DN). If he has paid more than that since, then he claims the balance in his action ().

 

or...

 

2. The debtor offers to pay the arrears within his action for breach of contract, to show the court he is acting reasonably and in perfect accordance with CCA.

 

I think a court will be able to see a world of difference between being hounded for, say, £10,000 as opposed to the arrears, which may be a few hundred quid.

 

Bottom line is that the debtor has breached the agreement (for sure, hence the DN), but the OC's breaches are far more serious as they include a breach of CCA in addition to the agreement, and have occured when the OC should bloody well have known better...

 

LA

 

 

in theory i agree

 

in practice i would say that unless one had deep pockets ( and lets face it- most caggers are already in the sh*t) it would IMO be a foolish venture to commence an action of this type

 

IMO the crap of being pestered- goes with the terriitory

 

you cant make an omlette without breaking a few eggs

 

a truecall and a shredder are all that is needed for a quiet life:grin:

[Mozz1]

This isn't about invalid default notices but failure of DCA to forward CCA request, which would tell me if I have a valid default notice!

 

I have today received this snotty email from Trading Standards about CapQuest:

 

"Dear Mr XX,

 

"Consumer Direct have forwarded your email concerning CapQuest Debt Recovery to us together with your copy correspondence.

 

"I note your comments regarding the response you have received from CapQuest however I would advise that the duty to give information under S77-S79 of the Consumer Credit Act has been under debate for some time and this is currently the subject of consultation by the OFT for clarification. A copy of their consultation document can be found at Guidance on unenforceable agreements - The Office of Fair Trading

 

"I note that you have already been making voluntary payments and you wish to deal with this matter [er, no that's why I involved you!! doh!]

 

"As the OFT have not yet published their final guidance and clarification on the legislation it would be advisable to contact Egg directly (if you have not already done so) for a copy of your executed agreement using the information provided by CapQuest in their letter to enable this matter to be resolved."

[Dotty50]

This isn't about invalid default notices but failure of DCA to forward CCA request, which would tell me if I have a valid default notice!

 

 

How would receipt of your CCA tell you whether you had a valid DN?

 

Do you mean Subject Access Request?

[Mozz1]

This isn't about invalid default notices but failure of DCA to forward CCA request, which would tell me if I have a valid default notice!

 

 

How would receipt of your CCA tell you whether you had a valid DN?

 

Do you mean Subject Access Request?

 

thats what I love about this site, the occasional smart a*rse. I really don't know very much about CCAs, SARs, DNs, OCs, DCAs, DMCs, the FOS, OFT, YMCA and ...and it shows...but I'm learning 'cos like you I have a load of this stuff to battle on thru.

 

It is a CCA request I put in and also a separate SAR but CapQuest have declined to forward my CCA request to Egg. I thought that was in breach of s.175 CCA but Trading Standards have said not.

 

Probably on the wrong thread.

[Dotty50]

Well thanks Mozz!

 

Actually Mosquito's are my no.1 enemy!

[means2anend]

Dedirk Tantrums Letter says Notice of default...should it not say Default Notice???

 

m2ae

[Dotty50]

Dedirk Tantrums Letter says Notice of default...should it not say Default Notice???

 

m2ae

 

I have questioned this before because Cap1's state exactly the same

[Mozz1]

Well thanks Mozz!

 

Actually Mosquito's are my no.1 enemy!

 

They get a bad press. The males feed on plants and fruit juices

 

Dotty, please accept my apologies for causing any offence. I am sorry. I am under a loada pressure from creditors and their ilk at the moment. I'm sure (I hope) you will understand.

[Dotty50]

Ah so you are blaming the females species now! lol

 

No offence taken Mozz (well only for a millisecond).

 

Yes I understand the pressure, of course but with CAG we will help each other along the way.

[beyondhope]

If an OC issues a seriously defective DN (eg, insufficient time to remedy or amount stated to remedy far too high) under s87(1) then repudiates the contract (which is accepted by the debtor), he is therefore not entitled to demand earlier payment of any sum (s87(1)(b)) or recover possession of any goods (s87(1)©).

 

At least, that is what CCA states.

 

If he continues to seek earlier payment or possession of goods but does not issue a county court claim, can an order be sought in the courts that prevents the OC from any further action?

 

I know we went over this a while back and I've spent the time since going over the implications - yet it seems clear to me that, by continuing to try to recover money/goods, the OC is repeatedly in breach of CCA. He breaches s87(1) because he has not complied with s88.

 

Every time he sends a demand/threat he breaches the Act, AFAICS.

 

I think that the only way to stop his continued breaches is a court order of some description - anyone have any more thoughts on this?

 

Apologies to resurrect an old chestnut...but I'm dealing with an OC (BoS) who has been doing this for almost 2 years

 

LA

 

Hi LA I have a claim against Welcome Finance for these reasons and despite everyone here that has looked agreeing it is a defective DN they insist its compliant if anyone would like to see the points out of their defence relating to DN ill happily type them up

[Lord_Alcohol]

Hi LA I have a claim against Welcome Finance for these reasons and despite everyone here that has looked agreeing it is a defective DN they insist its compliant if anyone would like to see the points out of their defence relating to DN ill happily type them up

 

Yes please beyondhope!! That would be excellent, thanks.

 

LA

[Lord_Alcohol]

Ah so you are blaming the females species now! lol

 

No offence taken Mozz (well only for a millisecond).

 

Yes I understand the pressure, of course but with CAG we will help each other along the way.

 

Oh, mozzquito!!

 

I was thinking of mozzarella...I am such a twit at times (trying to imagine male and female mozzarella)

 

I think I'd better go and lie down...

 

LA