Invalid Default Notices

[emandcole]

Hi Michael, I get your point 100% as have also experienced the kind of 'hardball' the banks use and yes, the CRA's can makes things less than easy. However, I have experienced the CRA's removing entires after an online complaint to Experian resulted in the originator of the entry faiing to respond to them.

 

I was informed that as the originator had failed to provide the information requested (and failed to respond completely in this particular case) that Experian had decided to uphold my complaint and the offending entry was removed.

 

It can work but you need to go in hard and not adopt the 'would you mind looking at this for me, it might not be right' approach but go in and state 'this is wrong, if you don't remove it I will commence litigation to have it removed and claim appropriate damages for injury to credit'. They can be awkward but ultimately they are liable and they can be found guilty of holding damaging data, which you would be entitled to claim damages for.

 

Regarding that I'm litigating right now against a DCA for this, currently their defence is rather lame and everything is proceeding very nicely. Their defence currently revolves around:

 

1) I have no right to take 'them' to court

 

2) this entry is nothing to do with them as it all happened before they bought the debt/account. The fact this invalid default has their name on it after assignment seems to be a fact they are choosing to ignore.

 

3)The account wasn't unlawfully terminated (they've previously produced the default notice to the court that they reckon was fine only to have it rejected as invalid - that was priceless).

 

If more people grabbed their rights and more people started getting heavy in response to such entries (that are truly inaccurate) then those who place them there without a care in the world would be forced to actually consider their standing before choosing to register such data.

 

I strongly believe we are only collectively in this situation as we as a society have allowed them to do this. Fortunately people are starting to fight back, starting to ask questions and are attempting to re-claim their rights. This can only be a good thing but ultimately we must take action ourselves where we can as failure to do so will only result in the sort of widespread abuse of the creditor/consumer relationship we generally see today .

[lexis200]

I think informed searcher's points are very well made and pretty accurately reflect the vast majority of people's experiences on CAG - as this thread itself shows (if anyone's read from the beginning you'll know it's not a general thread but is in fact Pinky69's journey trying to get several banks to remove their incorrect defaults from her file).

 

That said, emandcole you do seem to be having excellent luck (I don't mean that to put anything you've achieved in the shadows as I can see you've obviously worked very hard to get to where you are!) with your report and I hope it works as well in the future as it has been for you up until now. Unfortunately though I think you are very very much in the minority of people who have managed to win a battle or two with CRA's, as for the most part it seems to be just as hard as ever:(

[welshperson3]

Of course you still have to get this through to the judge, I am in court tommorrow despite a totally invalid DN, they have even changed the details on the DN they have put with the witness statement despite me having the original which is completly different.

 

I have spelled it out in a witness statement of my own in the hope it would get thrown out or they would back down, less than 24hrs to go and nothing yet !

 

Cosalt

 

 

any news ?

[London000]

Bump!!

[InformedSearcher]

Hi Michael, I get your point 100% as have also experienced the kind of 'hardball' the banks use and yes, the CRA's can makes things less than easy. However, I have experienced the CRA's removing entires after an online complaint to Experian resulted in the originator of the entry faiing to respond to them.

Yes, I believe I mentioned that they would after 10 days. It's unusual for a client of theirs to not respond within that time. However their client can merely reinstall the entry and when they do the 6 year clock will begin again. Then that returns you to the start all over again.

 

I was informed that as the originator had failed to provide the information requested (and failed to respond completely in this particular case) that Experian had decided to uphold my complaint and the offending entry was removed.

Ahem, they do NOT uphold complaints but merely comply with their own agreements. The fact their client did not respond is not in their eyes upholding a complaint but the actions of their said 'benefactor'.

 

It can work but you need to go in hard and not adopt the 'would you mind looking at this for me, it might not be right' approach but go in and state 'this is wrong, if you don't remove it I will commence litigation to have it removed and claim appropriate damages for injury to credit'. They can be awkward but ultimately they are liable and they can be found guilty of holding damaging data, which you would be entitled to claim damages for.

Ahhh, in reality they mean they are 'aloof' to their clients actions. Their clients and I emphasize this are the people who have a portal to enter data. The normal CRA belief is that they are merely a central database of records and not directly involved with those entries. This is a point I always want to challenge BUT their agent training is good. LOL

 

Regarding that I'm litigating right now against a DCA for this, currently their defence is rather lame and everything is proceeding very nicely. Their defence currently revolves around:

 

1) I have no right to take 'them' to court

 

2) this entry is nothing to do with them as it all happened before they bought the debt/account. The fact this invalid default has their name on it after assignment seems to be a fact they are choosing to ignore.

 

3)The account wasn't unlawfully terminated (they've previously produced the default notice to the court that they reckon was fine only to have it rejected as invalid - that was priceless).

 

Well I never thought a DCA could enter a DN on a CRA record - please correct me on this? A financial institution gives a DCA a basic call of an account. A DCA does not ever receive the whole list of data so are left with an amount to collect. Your 'call' regarding default notices and terminations' is always regarding the originator of the data, i.e. the bank (or whoever) but never the DCA. I always view a DCA as an entity given an amount to 'collect' rather that a company with the whole records. Example: A certain Financial company messed up 'BIG TIME' and stated on their DN and Final Notice that I owed £15, yes 15 quid! I paid this initially. I have endured a few DCA's trying to give me a hrad time and listened to implausible comment from them. The actual o/s debt was circa £1600 BUT I was never asked for this - ever - untill the DCA's started! One man told me that with my attitude he could no longer help me and I replied that I did not want nor expect his help so simply send it back to his originator telling them he could not collect. An amusing story in itself and if they ever entered a DN on a CRA I WOULD go to court about!

 

If more people grabbed their rights and more people started getting heavy in response to such entries (that are truly inaccurate) then those who place them there without a care in the world would be forced to actually consider their standing before choosing to register such data.

I agree with you entirely BUT again it's the listenng to the calls and the letters. Very intimidating to say the least and the average person (including my wife) gets scared of such items!

 

I strongly believe we are only collectively in this situation as we as a society have allowed them to do this. Fortunately people are starting to fight back, starting to ask questions and are attempting to re-claim their rights. This can only be a good thing but ultimately we must take action ourselves where we can as failure to do so will only result in the sort of widespread abuse of the creditor/consumer relationship we generally see today .

Well not quite. DCA's evolved by people simply not paying for unpteen reasons. A tip for everyone is that be very wary of taking a financial institution to court. Let them take you to court (which these days they seldom do) and then fight! As for DCA's you merely need to square up to them (as the poster suggests) but be brave and when they realise you are not easy prey or a pushover they go down desparete levels then leave you alone![/quote]

 

I, by the way am not a person to just try to evade paying back things I owe. What I believe is that some fairness shoud prevail when you are honest with a creditor!

 

Michael

[cupcake68]

Please may I ask a question?

 

I am fairly new to this and taking things a step at a time but I was under the impression that once a debt was 6 years old (ie six years from the last time you made a payment) you could get it statute barred. Which I thinks means it can be witten off of your credit file.

 

If that is correct are you saying that the DNs issued on that debt will still show?

 

Thanks

 

Cupcake

[silverfox1961]

Please may I ask a question?

 

I am fairly new to this and taking things a step at a time but I was under the impression that once a debt was 6 years old (ie six years from the last time you made a payment) you could get it statute barred. Which I thinks means it can be witten off of your credit file.

 

If that is correct are you saying that the DNs issued on that debt will still show?

 

Thanks

 

Cupcake

 

As the SB period starts from your last payment, the DN starts from between 3 and 6 months after the first missed payment so even though the creditor cannot get a penny from you, the DN will stay.

Check your credit file to see when it was placed. It will fall off your (visible) file after 6 years

[cupcake68]

Thanks Silverfox

 

So am I right in saying they may choose to put another DN on my file in 5 years time and that will last for another 6 years?

 

Cupcake

[DonkeyB]

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.

[cupcake68]

Thanks DB

 

That is what I was worried about!

 

I have no problem complaining(used to it now!!).

 

Does the same apply if they have already issed a DN on the account? Can they only issue one or can they keep issuing them at different times?

 

I Have been on this site for more than a year now and I spend so much time reading but I still have so much to learn!!

 

Thanks to everyone who makes this site what it is!

 

Cupcake

[DonkeyB]

If they issue a DN and you remedy the breach, they can then issue another if there is a further default. What they can't do is keep on issuing them willy nilly till they get it right (though plenty try).

 

The key is whether the account is terminated - an account terminated on the back of a faulty DN, or terminated before the time stated for the breach to be rectified, has been unlawfully rescinded. You are then only liable for the arrears, but the unlawful rescission would give you grounds for a counterclaim.

[Desperate Daniella]

Can someone help me here. I am trying to help someone who is in court tomorrow for an appeal and I am just reading the transcript now.

 

Sorry everyone I just haven't got time to read the whole of this thread. I haven't even got to the end of the transcript or the judge's summing up but am trying to deal with things as I go along.

 

The judge accepted the lawyer's argument that a Default Notice did not have to be served by Amex because Default Notices are really more to do with fixed credit agreements, rather than running credit agreements, and because Amex say they can terminate the agreement at any time as a default notice is just a formality and they could really have just written a letter.

 

The lawyer was quoting from Sections 98 and 87 and I haven't got time to look those up.

 

Would really appreciate your help here.

 

DD

[vint1954]

Can someone help me here. I am trying to help someone who is in court tomorrow for an appeal and I am just reading the transcript now.

 

Sorry everyone I just haven't got time to read the whole of this thread. I haven't even got to the end of the transcript or the judge's summing up but am trying to deal with things as I go along.

 

The judge accepted the lawyer's argument that a Default Notice did not have to be served by Amex because Default Notices are really more to do with fixed credit agreements, rather than running credit agreements, and because Amex say they can terminate the agreement at any time as a default notice is just a formality and they could really have just written a letter.

 

The lawyer was quoting from Sections 98 and 87 and I haven't got time to look those up.

 

Would really appreciate your help here.

 

DD

Then that Judge was wrong and this should be appealed. Were they mad.

 

s87 applies to all agreements regulated by the CCA 1974 and applies to Default situations. If the borrower defaults the creditor can only use s87, to emable him to then go on and enforce. It has nothing to do with fixed term or running account agreements. It covers them all.

 

s98 refers to non default termination, which the creditor is at liberty to do. If there is no default, the creditor can use s98 to terminate the agreement, but cannot demand his ball back. The repayent terms continue.

 

s 98 is a ploy that they are trying, as they are coming unstuck with their DN's.

[DonkeyB]

There's a habit of creditors' counsel trying to bluff their way past judges by suggesting that default notices are a minor matter, a de minimis issue.

 

They are not.

 

If they want the benefits of S87, they must stick to it.

[vint1954]

DEFAULT AND TERMINATION

Default Notices

87.—(1) Service of a notice on the debtor or hirer in accordance with section 88 (a "

default notice ") is necessary before the creditor or owner can become entitled, by

reason of any breach by the debtor or hirer of a regulated agreement,—

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as

terminated, restricted or deferred, or

(e) to enforce any security.

(2) Subsection (1) does not prevent the creditor from treating the right to draw

upon any credit as restricted or deferred, and taking such steps as may be necessary to

make the restriction or deferment effective.

(3) The doing of an act by which a floating charge becomes fixed is not

enforcement of a security.

(4) Regulations may provide that subsection (1) is not to apply to agreements

described by the regulations.

88.—(1) The default notice must be in the prescribed form

and specify—

(a) the nature of the alleged breach;

 

(b) if the breach is capable of remedy, what action is required to remedy it

and the date before which that action is to be taken;

© if the breach is not capable of remedy, the sum (if any) required to be

paid as compensation for the breach, and the date before which it is to be paid.

(2) A date specified under subsection (1) must not be less than seven days after the

date of service of the default notice, and the creditor or owner shall not take action

such as is mentioned in section 87(1) before the date so specified or (if no requirement

is made under subsection ( 1)) before those seven days have elapsed.

(3) The default notice must not treat as a breach failure to comply with a provision of

the agreement which becomes Operative only on breach of some other provision, but

i£ the breach of that other provision is not duly remedied or compensation demanded

under subsection (I) is not duly paid, or (where no requirement is made under

subsection ~1)) if the seven days mentioned in subsection (2) have elapsed, the

creditor or owner may treat the failure as a breach and section 87(1) shall not apply to

it.

(4) The default notice must contain information in the prescribed terms about the

consequences of failure to comply with it.

(5) A default notice making a requirement under subsection (1) may include a

provision for the taking of action such as is mentioned in section 87(1) at any time

after the restriction imposed by subsection (2) will cease, together with a statement

that the provision will be ineffective if the breach is duly remedied or the

compensation duly paid.

 

Termination of agreements ( Non Default situations)

98.—(1) The creditor or owner is not entitled to terminate a regulated agreement

except by or after giving the debtor or hirer not less than seven days' notice of the

termination.

(2) Subsection (1) applies only where—

55

(a) a period for the duration of the agreement is specified in the agreement, and

(b) that period has not ended when the creditor or owner does an act mentioned in

subsection (1), but so applies notwithstanding that, under the agreement, any

party is entitled to terminate it before the end of the period so specified. (3) A

notice under subsection (1) is ineffective if not in the prescribed form. (4)

Subsection (1) does not prevent a creditor from treating the right to draw on any

credit as restricted or deferred and taking such steps as may be necessary to

make the restriction or deferment effective. (5) Regulations may provide that

subsection (1) is not to apply to agreements described by the regulations. (6)

Subsection (1) does not apply to the termination of a regulated agreement by

reason of any breach by the debtor or hirer of the agreement.

[vint1954]

There's a habit of creditors' counsel trying to bluff their way past judges by suggesting that default notices are a minor matter, a de minimis issue.

 

They are not.

 

If they want the benefits of S87, they must stick to it.

It beggers beleif that Judges let them get away with it. If not telling porkies it is definitely trying to deceive.

[vint1954]

And from the 2006 ammendments.

6.8 Under section 98 of the 1974 Act, the creditor is not entitled to

terminate a regulated agreement (in non-default cases) unless he

provides the debtor with a notice of his intention to terminate at least

seven days before taking such action.

[summerbreeze]

This is section 98 from the CCA 1974 . It clearly says non default cases so if there was a default in payments by the debtor Section 98 cannot apply.

98 Duty to give notice of termination (non-default cases)

(1) The creditor or owner is not entitled to terminate a regulated agreement except by or after giving the debtor or hirer not less than seven days’ notice of the termination.

(2) Subsection (1) applies only where—

(a) a period for the duration of the agreement is specified in the agreement, and

(b) that period has not ended when the creditor or owner does an act mentioned in subsection (1),

but so applies notwithstanding that, under the agreement, any party is entitled to terminate it before the end of the period so specified.

(3) A notice under subsection (1) is ineffective if not in the prescribed form.

(4) Subsection (1) does not prevent a creditor from treating the right to draw on any credit as restricted or deferred and taking such steps as may be necessary to make the restriction or deferment effective.

(5) Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.

(6) Subsection (1) does not apply to the termination of a regulated agreement by reason of any breach by the debtor or hirer of the agreement

[cosalt]

Well I was in court on friday for a repo hearing that I had defended on the fact that the DN said '14 days from the above date'

 

In their POC they had stated that the dn gave 12 days from date of service, then in their witness statement the dn had changed to 18 days despite me having the original that states 14 days.

 

The judge was very one sided and said he assumed the POC was a typo error.

 

He was not interested in seeing my original DN that was different to the one they had submitted in their witness statement.

 

The case has been adjourned so he can check the relevant legislation, and will be a 1 hour hearing next time. Not holding much hope as his parting words to the claimants solicitor was - 'I assume you will want to claim costs from the defendant'

 

We can all preach on about the law but at the end of the day its down to the judge and yes, I did submit my own witness statement etc and copies of the differing DN etc.

 

Cosalt

[brooooooooooce]

Well I was in court on friday for a repo hearing that I had defended on the fact that the DN said '14 days from the above date'

 

In their POC they had stated that the dn gave 12 days from date of service, then in their witness statement the dn had changed to 18 days despite me having the original that states 14 days.

 

The judge was very one sided and said he assumed the POC was a typo error.

 

He was not interested in seeing my original DN that was different to the one they had submitted in their witness statement.

 

The case has been adjourned so he can check the relevant legislation, and will be a 1 hour hearing next time. Not holding much hope as his parting words to the claimants solicitor was - 'I assume you will want to claim costs from the defendant'

 

We can all preach on about the law but at the end of the day its down to the judge and yes, I did submit my own witness statement etc and copies of the differing DN etc.

 

Cosalt

 

Bad luck mate but surely not the end. Maybe the Judge needs the adjournment to check the regs.

[summerbreeze]

Well I was in court on friday for a repo hearing that I had defended on the fact that the DN said '14 days from the above date'

 

In their POC they had stated that the dn gave 12 days from date of service, then in their witness statement the dn had changed to 18 days despite me having the original that states 14 days.

 

The judge was very one sided and said he assumed the POC was a typo error.

 

He was not interested in seeing my original DN that was different to the one they had submitted in their witness statement.

 

The case has been adjourned so he can check the relevant legislation, and will be a 1 hour hearing next time. Not holding much hope as his parting words to the claimants solicitor was - 'I assume you will want to claim costs from the defendant'

 

We can all preach on about the law but at the end of the day its down to the judge and yes, I did submit my own witness statement etc and copies of the differing DN etc.

 

Cosalt

 

Hi Cosalt I am so sorry to read this . I know how stressful it is at a hearing especially with a Judge who is clearly against you.

 

At the next hearing perhaps you might get the chance to steer the Judge to the relevent section 87 and 88 of the CCA 1974

 

Did you get chance to question the person who wrote the WS ? To ask how come your DN said 14 days and their WS said 18 days ?

 

You could say to the Judge that you have some questions about their WS and if they try to fob you off and say the person who signed it is not there to answer your questions then you should ask their representative to explain the difference in the two DNs

 

You have to try to make a big fuss about it so that the Judge has to take notice.

[banker_rhymes_with]

Hello Cosalt!

 

Your strategy for the next Hearing should be to make it clear from the outset that you are going to Appeal, and ask the Judge to speak nice and clearly, for the benefit of the Tape, why he is so determined to misdirect himself.

 

Cheers,

BRW

[Guest dvdriley]

Hello Cosalt!

 

Your strategy for the next Hearing should be to make it clear from the outset that you are going to Appeal, and ask the Judge to speak nice and clearly, for the benefit of the Tape, why he is so determined to misdirect himself.

Cheers,

BRW

 

Isnt that a bit cheeky to say to a judge

[cosalt]

Thanks everyone, lets remember I havn't lost yet ! I just hope I can steer the judge in the right direction.

 

He did say he wanted to check into what the law states about DN's so maybe there is hope !

 

TBH I really did feel out of my depth, I am quite an outgoing person used to dealing with customers in my business world. I just felt that the claimants solicitor was trying to take over ( and the judge ) which left me trying to get a word in edgeways.

 

I am going to send to the court and the claimant a copy of the dn's, witiness statements, relevant sections of the cca and a stern letter stating the facts.

 

Fingers crossed !

[brooooooooooce]

Thanks everyone, lets remember I havn't lost yet ! I just hope I can steer the judge in the right direction.

 

He did say he wanted to check into what the law states about DN's so maybe there is hope !

 

TBH I really did feel out of my depth, I am quite an outgoing person used to dealing with customers in my business world. I just felt that the claimants solicitor was trying to take over ( and the judge ) which left me trying to get a word in edgeways.

 

I am going to send to the court and the claimant a copy of the dn's, witiness statements, relevant sections of the cca and a stern letter stating the facts.

 

Fingers crossed !

 

Thats the spirit!