Invalid Default Notices

[stunned_monkey]

those that have- as i have said- gone along with the agreement for years and then are not satisfied with taking advantage of the creditors misfortunes and getting the debt ruled unenforceable (which lets face it- even though the debt still exists- is- to all intents and purposes a "let off"- if the debtor then decides to stick two fingers up to the creditor)- and instead get on some moral "high horse" about data protection issues- when they know perfectly well that they would have given that permission at the outset , not only do themselves a disservice but will turn the judiciary against LIP's in general as they(the judges) then seek to get around the abuse by finding other ways to uphold the claimants position.

 

I echo the comments above - great post! I'm not seekimg to argue with you at all, but I do think that this whole situation has come about because of the creditors being careless, not "us" for slapping them in the face with their own rules. That us lot are kicking up such a fuss is simply representative of the amount of money personally at stake, and this has led to the realisation that the DAP is regularly breached. No matter which way you look at it, the only way they can excuse it is to say "well it doesn't apply in this case because we can prove you did at some point give permission.... " well actually, no, there's at least one agreement doing the rounds on here that did NOT have that as part of it, and the only way to know for sure is to get a copy of your original agreement....

 

I guess my main beef with this is threefold

 

1) The DPA is a solid foundation that should not be undermined as it's a cornerstone of our freedom in this country. There should be NO special cases, NO examples where it can be argued. It should be an absolute.

 

2) The multi-billion pound credit industry is being held to account by us tiny small fry over what to us are large sums of money, and to them is barely pocket change simply because they've been careless and haven't stuck to the rules written govern how they operate. They're trying to weasel their way around them as a result, undermining the DPA in the process.

 

3) The whole system of recording data with the CRAs is too automated, too open to abuse where someone with a GENUINE problem finds that getting redress is like trying to punch fog.

[Gallahad]

Thanks,Lexis. Bit off topic, I know, but would advise anyone wishing to have representation to secure the services of a direct access barrister and not a so called 'no win, no fee' solicitor - all they are interested in is screwing you for their own costs.

UD I am so sorry to hear your result. I have sent you a PM

G

[Undercover-Elsa]

UD, sorry to hear that too

I don't know the details of your case, but they are using Carey to scare people off even when it doesn't necessarily apply.

Do you have a thread for this?

If they're basing their claim on a recon agreement then you have to go over it with a nit comb to find any anomaly that demonstrates it is not representative. Also, according to Carey afaik, if the agreement has been unilaterally varied since inception, don't they still have to stump up the original signed agreement?

On the other end of the spectrum we have DCA's throwing in the towel at the first hurdle. One recently said (re a debt they had bought) that as they couldn't supply the agreement they were closing the account and the OP didn't owe them anything!!! (Their words).

It's all shifting sands at the moment. Thank goodness for this forum so we can swap experiences and at least try and keep one step ahead.

Elsa x

[underdog13]

Thanks Elsa, you're right of course.

 

I don't have a thread for this as it was with lawyers so I had to keep it o the QT - basically they had no right to modify the agreement in the original terms but they have modified it. To my mind that is game over, whatever happened on the modified account should be null and void as it should not have existed in the first place.

 

Barrister is very pessimisstic, saying that it was modiifed after April 07 so I have no protection. However the original agreement was years before this date!

 

I just can't get my head around how they can get away with modifying the agreement when they never had the right to under the original terms.

 

Apologies for wandering off topic again.

[Undercover-Elsa]

If it's a pre April 07 agreement he's talking out of his wig I think

[underdog13]

That was my thoughts, too, Elsa

 

I am inclined to fight on and risk the CCJ.

[Lord_Alcohol]

If there is doubt about consent on an application form or contract, I would suggest that the OC is asked when and how consent was given. If you state that you do not believe that any such consent was given, he will have a duty to demonstrate that it was.

 

 

with respect LA this statement misses the point!

 

the fact of the matter is that the creditor WILL mark your files and far from him having a "duty to demonstrate" that it was- it will be up to you- as the claimant- to prove your claim

 

firstly you will need to establish what your court claim would be-- i can see no other basis for a court claim other than defamation(of your creditworthiness) - it will then be for YOU firstly to show what losses have resulted from the alleged defamation and then to prove YOUR case- not the defendant!!

 

all i am saying is that folk should not undertake this excercise lightly as it is going to prove ultra expensive!!

 

Not necessarily...

 

The easiest option is to counterclaim for damages when the OC makes his claim.

 

Alternatively, a claim from a debtor may be taken seriously by a court where it is clear that;

 

1. The debtor has incurred damages costs.

 

2. The OC was wrong (or probably wrong) to record the default (no consent given, consent not proved, a DN that could not be complied with due to defects or even no agreement at all).

 

DPA s13 provides entitlement for the data subject to seek compensation.

 

Durkin showed that damages costs can be awarded where credit history is compromised.

 

LJ Evans in Kpohraror stated;

 

The credit rating of individuals is as important for their personal transactions, including mortgages and hire purchase as well as banking facilities, as it is for those who are engaged in trade, and it is notorious that central registers are now kept. I would have no hesitation in holding that what is in effect a presumption of some damage arises in every case in so far as this is a presumption of fact

 

I therefore see nothing at all wrong in a citizen starting an action against an OC that has abused its position as data controller and which has caused damages to be incurred. I see no issues at all in working out what the damages are and then submitting a claim on that basis. The OC's defence would then have to set out where and when consent was given and why the defective DN allowed him to record adverse data (assuming the DN stated that the default would only be recorded if the breach not remedied).

 

If the claim is less that £5K, then small claims incurs no costs from the other side if you lose.

 

LA

[the_shadow]

If it's a pre April 07 agreement he's talking out of his wig I think

 

Underdog,

 

Agree with the comment above... we need to see the specific application of Carey that your solicitor is claiming kills your case.

 

S.

[underdog13]

Underdog,

 

Agree with the comment above... we need to see the specific application of Carey that your solicitor is claiming kills your case.

 

S.

 

Thanks, Shadow. Barrister alludes to Carey and the right to reconstitute agreements - thinks this will allow them to get round their previous failures.

[Lord_Alcohol]

there is not one man jack on this forum (IMO) who - having applied for a loan or credit card- that would have then declined the loan or credit- on a moral stance of not allowing their data to be shared with a CRA.

 

The issue for me and possibly others is that the defective DN (after all, this is the invalid default notices thread) can state that the default will only be recorded where the breach is not remedied, but if the DN cannot be complied with due to its inherent defect then the OC records the default unfairly. The debtor may have been able to avoid the default being recorded had the OC issued a defect-free DN (for example, by providing the full period to remedy or by demanding the arrears and not additional amounts).

 

I think you're absolutely right about folk making a fuss over adverse data where they have already consented to allow that data processing, but it's really situations where the data has been very unfairly recorded that is the issue for me and especially where no consent was ever provided.

 

This is an additionally troubling problem for many as the CRAs were established to provide payment histories to other lenders but their services have been expanded over recent years to provide services to organisations that have nothing to do with provision of credit. This makes the problem of adverse data far more serious.

 

LA

[Undercover-Elsa]

Whoa!

Does the barrister think that Carey means they can rewrite the agreement with different terms to the original, to suit themselves and to produce in court in support of a claim?

....As opposed to being allowed to produce a reconstituted version, accurate in content, in response to a CCA 77-79 request.

Edited August 17, 2010 by Undercover-Elsa
my p's keep disaPPearing LOL

[the_shadow]

Whoa!

Does the barrister think that Carey means they can rewrite the agreement with different terms to the original, to suit themselves and to roduce in court in suort of a claim?

....As opposed to being allowed to produce a reconstituted version, accurate in content, in response to a CCA 77-79 request.

 

hehe once again agreeing with you UE

 

Waksman even made sure he pointed out that carey vs hsbc wasnt dealing with enforcement actions but rather soley for complying with s77/s78. I would worry if a barrister hasnt read the whole ruling

 

S.

[means2anend]

I have never signed an agreement. End of story. They have produced a copy of an 'agreement' with no details and no signature. Every time I asked them where was my signed agreement they failed to produce one, moreover, I do not remember signing an agreement, nor ever seeing one before recently. They have simply 'mucked it up' big time in my case. I could say they have no signed agreement, it makes no difference. The thing is, they have a printout with someone's name (not exactly mine) on it, and no signature. I am not saying they lost the agreement, they simply never had it.

 

 

 

'The thing is, they have a printout with someone's name (not exactly mine) on it, and no signature. I am not saying they lost the agreement, they simply never had it.

 

If you have this physically in your possession I think that this might be sufficient under CPR 31:16.2 and you COULD therefore be successful in obtaining a disclosure of the original signed agreement as CLAIMANT..and if they failed to produce..well then

 

But to simply deny an agreement ever exisited or that you never signed one (and that therefore the agreement exists but is irreedeemably unenforcable under s61) would be foolish as a CLAIMANT in light of the recent decisions.Best tosit back and deny deny deny and let them prove it in these circumstances.

 

m2ae

[underdog13]

hehe once again agreeing with you UE

 

Waksman even made sure he pointed out that carey vs hsbc wasnt dealing with enforcement actions but rather soley for complying with s77/s78. I would worry if a barrister hasnt read the whole ruling

 

S.

 

Thanks Elsa and Shadow.

 

Hmmm, I am getting very worried about that barrister now,especially as he is saying the court will be more sympathetic to me if I represent myself at trial. Yeah right! I'll get slaughtered - I don't even have a copy of my paperwork and the trial is in a few days!

[Undercover-Elsa]

Let's all pray the guy never gets to be a judge

[underdog13]

Amen to that, Elsa

[middenmess]

Underdog13

 

Start a thread and put a link to it on here and you should get some good advice---probably better than you've had from your legal team so far.

 

People on here often have more knowledge of the 1974 CCA than some solicitors [and sometimes barristers if they are not well versed in the CCA]

Edited August 17, 2010 by middenmess
missing words

[underdog13]

Underdog13

 

Start a thread and put a link to it on here and you should get some good advice---probably better than you've had from your legal team so far.

 

People on here often have more knowledge of the 1974 CCA than some solicitors [and sometimes barristers if they are not well versed in the CCA]

Hi Middenmess- have tried to post a new thread on legal threads but the page won't load!

 

Wondering what the hell I can do if legal team abandon me completely with no paperwork to present to the court - which it looks as if they are going to do. Never, never, never put your trust in solicitors, people.

[means2anend]

Thanks, Shadow. Barrister alludes to Carey and the right to reconstitute agreements - thinks this will allow them to get round their previous failures.

 

It is true that Carey allowes the reconstruction of agreements.

 

It is also true that Carey allows the reconstruction of agreements NOT directly from the EXECUTED agreement ITSELF.

 

But the reconstruction of these agreements MUST be HONEST and ACCURATE TRUE and can be constructed from 'other sources' that EXISTED AT THE TIME OF THE EXECUTED AGREEMENT.

 

The veracity of these 'other sources' I believe is what should be questioned!!!

 

m2ae

[Undercover-Elsa]

I think the server's under stress with the upgrade..keeps hanging for me when I try to post.

 

LOL Shadow..that's cool cos I usually find you've said it first and I invariably agree with you ;-)

[Undercover-Elsa]

Keep trying UD, the problem's intermittant

[underdog13]

Wilco Thanks, Elsa

[Lord_Alcohol]

'The thing is, they have a printout with someone's name (not exactly mine) on it, and no signature. I am not saying they lost the agreement, they simply never had it.

 

If you have this physically in your possession I think that this might be sufficient under CPR 31:16.2 and you COULD therefore be successful in obtaining a disclosure of the original signed agreement as CLAIMANT..and if they failed to produce..well then

 

But to simply deny an agreement ever exisited or that you never signed one (and that therefore the agreement exists but is irreedeemably unenforcable under s61) would be foolish as a CLAIMANT in light of the recent decisions.Best tosit back and deny deny deny and let them prove it in these circumstances.

 

m2ae

 

Hmmm...

 

How about this...

 

Like AHole, I took the view with one OC that no agreement was ever signed and insisted on that point for over a year. The OC provided me with a reconstruction and insisted it was a true copy of the lawfully executed ag.

 

Last week, the OC's sols have sent me what they think is a photocopy of the actual agreement. But it isn't. It's an application form.

 

Being a bit sad, I kept the original paper docs that the credit card was sent with (it goes back to 1997). These docs match the date on the application form. I therefore signed the application form, sent it off, and a couple of weeks later received the card with the paper docs that told me how to use it ().

 

There is no agreement. Yet the OC has produced one and it can only be a forgery.

 

Should I continue to argue that there is no agreement, or accept that the OC has introduced an agreement through his forgery?

 

LA

[dx100uk]

why do you think its a forgery?

thats what everyone signed.

the application form.

if that will stand up in court [which pers i think it would with all the other evidence of your account activity]

then your arguement is futile.

 

i really do think that all of the members that try and pull the wool have a to seriously look at their membership of CAG.

 

CAG is about protecting and upholding consumer rights......

 

NOT about assisting people in methods of debt avoidance through paperwork technicalities.

 

dx

[Gallahad]

why do you think its a forgery?

thats what everyone signed.

the application form.

if that will stand up in court [which pers i think it would with all the other evidence of your account activity]

then your arguement is futile.

 

i really do think that all of the members that try and pull the wool have a to seriously look at their membership of CAG.

 

CAG is about protecting and upholding consumer rights......

 

NOT about assisting people in methods of debt avoidance through paperwork technicalities.

 

dx

Its not about encouraging banks who completely neglect their statutory duties and believe they are above the laws of the land either

unless I am mistaken.

G