Invalid Default Notices

[Lord_Alcohol]

So you think that section 89 refers to remedying that as well as the breach of contract, it does not.

A creditor is entitled to enter information about your repayment record on your CRA, it is they who decide in line with ICO guidelines what constitutes a default nothing to do with the CCA,

They try to use the same criteria to all agreements even those that are not covered by the CA (Utilities phones etc)

They may send a notice of intent to issue a default on your file at the same time as a section87 notice

but they don’t have to, the two things a completely unrelated. If the breach under section 87 is cured it does not mean that the creditor has to remove anything from anywhere the payment history would not have changed, the ICO would say that it was the lenders obligation to give an accurate report of that fact that is all.

I know of many occasions where it was the case that the lender defaulted the credit file long before issuing a section 87 why shouldn’t they as long as they give notice before entering the record there is nothing to stop them.

Peter

 

Peter, this is not correct.

 

If the lender states an intent to record the default on the debtor's credit file within his defective DN (that cannot be complied with due to its defects), then the lender breaches the 1998 DPA because the accuracy of his data recording is wrong. He places the debtor in a situation he cannot get out of, and wrongly records the false outcome of his actions.

 

Also, the ICO's own guidelines (at para 35) state;

 

If a borrower fully meets the terms set out in a notice of intention to file a default, it follows that the lender should not file the default.

 

(see http://www.ico.gov.uk/upload/documents/library/data_protection/detailed_specialist_guides/default_tgn_version_v3%20%20doc.pdf)

 

You are wrong when you say that ICO guidelines have nothing to do with CCA. CCA, at ss 147(2), 157, 158, 159 and 160, all cover CRAs. The ICO regulates CRAs by enforcing the DPA. To say that DPA and CCA are separate is just twaddle.

 

Lastly, the DPA principle of fairness and accuracy should prevent a lender from recording a default before the debtor remedies. Lenders must comply with DPA as they must with CCA.

 

LA

 

 

[frettful38]

That was MAGNIFICENT LA!!!!!!!!!!!

[Lord_Alcohol]

That was MAGNIFICENT LA!!!!!!!!!!!

 

Haha, thank you Frett, how I wish you were a high court judge!! Whether this washes in court I don't know so let's keep the posts coming and I hope that Peter will continue to present his views too which I think are valuable.

 

LA

[tinkerbell20]

HI

I think I have just twigged the misconception that you have on here about entries on the credit file of a CRA.

There is talk of damages due because of ineffective DN I couldn’t really see what was meant.

I get it know, I think lot of you are under the false impression that the issuance of a default notice is something to do with a notice of default being put on your credit record

So you think that section 89 refers to remedying that as well as the breach of contract, it does not.

A creditor is entitled to enter information about your repayment record on your CRA, it is they who decide in line with ICO guidelines what constitutes a default nothing to do with the CCA,

They try to use the same criteria to all agreements even those that are not covered by the CA (Utilities phones etc)

They may send a notice of intent to issue a default on your file at the same time as a section87 notice

but they don’t have to, the two things a completely unrelated. If the breach under section 87 is cured it does not mean that the creditor has to remove anything from anywhere the payment history would not have changed, the ICO would say that it was the lenders obligation to give an accurate report of that fact that is all.

I know of many occasions where it was the case that the lender defaulted the credit file long before issuing a section 87 why shouldn’t they as long as they give notice before entering the record there is nothing to stop them.

Peter

 

 

But if you remedied the Default Notice you are not in default of the agreement are you? The lender should only show missed payments in those circumstances .

[basa48]

At last a clear concise and accurate non ambiguous observation my congratulations PB

G

 

Pity so much of it is smoke and mirrors Gallahad.

[welshperson3]

92. Recovery of possession of goods or land

(1) Except under an order of the court, the creditor or owner shall not be entitled to enter any premises to take possession of goods subject to a regulated hire-purchase agreement, regulated conditional sale agreement or regulated consumer hire agreement.

(2) At any time when the debtor is in breach of a regulated conditional sale agreement relating to land, the creditor is entitled to recover possession of the land from the debtor, or any person claiming under him, on an order of the court only.

(3) An entry in contravention of subsection (1) or (2) is actionable as a breach of statutory duty.

 

 

hp agrements when they take the car = is actionable as a breach of statutory duty.

[Dotty50]

Hi

 

Do yourself a favour and contact the creditor and arrange a payment schdule. If you follow the advice on here you will end up with a trashed credit file, a CCJ and a huge bill for cosyts as others have, this advice is totally incorrect.

 

Peter

 

But Peter, this is what some people have tried to do on here and in some cases, been paying via a DMP and they STILL trash their credit files and get taken to court and end up with a CCJ!

 

If the CCC's dealt fairly with people struggling and accepted genuine offers of reduced payments or settlement, then they would not have the problems they are now experiencing with people not paying.

 

They also played dirty and greedily by increasing many peoples interest rates, even when in a lot of cases, their credit files were A1 and never missed any payments at all in years!

[The Mould]

Re account XXXXXXXXXX Unlawful termination

 

I refer to your unlawful termination (remove the word unlawful) of the above agreement occasioned by passing the alleged (remove the word alleged) debt to Allied Credit International who have demanded for me to pay the full outstanding balance of the account thereby unlawfully terminating the agreement.

 

You were not allowed under the CCA to demand any of the benefits of s87 without first having issued an effective default notice giving me an opportunity to remedy the alleged( the breach you relied upon) breach and pay any arrears claimed.

 

I formally accept the(your repudiation) repudiation and, for the avoidance of doubt, I confirm that as I have elected to accept the (your repudiation) rescission of the contract I am therefore discharged from any ongoing liability under the former agreement. Your (fundamental) breach of contract (goes to the root of the contract) and gives rise to a claim for damages and Ilook forward to receiving your proposals and I refer you to the common law of contracts, it will be noted that as I, the non-breaching party, do so have available to me three alternative remedies that I am at liberty to chose from as a direct result of your serious violation of the said agreement.

 

 

Yours faithfully

 

Just made a couple of amendments, use them if you wish to.

Kind Regards

The Mould (in red tonight)

[pumpytums]

Hi

 

Do yourself a favour and contact the creditor and arrange a payment schdule. If you follow the advice on here you will end up with a trashed credit file, a CCJ and a huge bill for cosyts as others have, this advice is totally incorrect.

 

Peter

 

 

Lets be honest Peter if you are on this site you probably have a trashed credit file anyway. A CCJ maybe maybe not. Huge bill for costs depends if it's above £5k.

 

Very oddly, speaking from actual experience my CRF actually shows my defaults and all the defaulted accounts have default notices. So it would seem that certainly in my case a D on my CRF matches a DN in my hand. The validity of said DN's is another issue. So maybe I'm mistaken to.

 

 

Pumpytums

[pumpytums]

One more thing Peter as you flit from board to board, site to site spreading your words of wisdom, what is your interest with this site?

 

Have you ever tried to arrange a payment plan with a debt buying DCA they aren't interested, I know I have tried. The only time such a company will come to an arrangement is if it's unenforceable then it's like Christmas for them.

 

Have you tried to arrange payment plans with OC's some are interested some aren't?

 

Have I got a trashed credit file yes I have, am I an evil person no I don't think I am. Have I been treated like a piece of **** when my financial position changed yes I have, have I been lied to verbally abused, had letters through the door that frightened me yes I have. Have I been threatened with home visits yes I have. Have I been forced to attend court when a company had no actual legal case yes I have did I tell the prior yes I did. Is it my fault I got into the mess I'm in yes it is. Did any of the companies I had happily paid interest to over a period of 15 years actually try and help no they didn't. Did any of the crappy PPI actually help in anyway not at all. Did companies increase interest on loans from 6% to 17%, Credit cards from 12% to 40% did this help me in anyway what do you think.

 

 

What's your story Peter where does your advice come from? Before I get told off this is not a personal attack I want to know where you are coming from with your advice. You seem to take great delight in shooting people down but when it comes down to it your arguments are to be honest just vapour.

 

Pumpytums

[rebel11]

Guys, take a few minutes to calm down, it's a bit chilly outside, don't want the same here8-)

[Peterbard]

HI

I think that the position taken on this thread in encouraging people to take this course of action is indefensible.

I think it reflects badly not only on the misguided individuals who directly advocate it, but also puts the forums independence from regulation at risk.

I fail to understand why no one steps in and puts an end to this . This is not a difference of opinion it is a basic misunderstanding of the legislation, every time without exception this comes up in court it is thrown out.

There are people on here who are just as knowledgeable, quite a few even more so than me , they must know that this is all rubbish yet again I find no support, you have to ask why?

I post on many other forums than this some specialist, some similar to this although smaller some not in the public domain, in none of these are these ideas even given a second thought, with the exception of LB and really that is just overspill from here.

Do the powers that be on here consider the number of hits this forum receives to be more important than the damage being done by allowing these dangerous forms of action being advised by its accredited members , I can draw no other conclusion.

peter

[Peterbard]

One more thing Peter as you flit from board to board, site to site spreading your words of wisdom, what is your interest with this site?

 

Have you ever tried to arrange a payment plan with a debt buying DCA they aren't interested, I know I have tried. The only time such a company will come to an arrangement is if it's unenforceable then it's like Christmas for them.

 

Have you tried to arrange payment plans with OC's some are interested some aren't?

 

Have I got a trashed credit file yes I have, am I an evil person no I don't think I am. Have I been treated like a piece of **** when my financial position changed yes I have, have I been lied to verbally abused, had letters through the door that frightened me yes I have. Have I been threatened with home visits yes I have. Have I been forced to attend court when a company had no actual legal case yes I have did I tell the prior yes I did. Is it my fault I got into the mess I'm in yes it is. Did any of the companies I had happily paid interest to over a period of 15 years actually try and help no they didn't. Did any of the crappy PPI actually help in anyway not at all. Did companies increase interest on loans from 6% to 17%, Credit cards from 12% to 40% did this help me in anyway what do you think.

 

 

What's your story Peter where does your advice come from? Before I get told off this is not a personal attack I want to know where you are coming from with your advice. You seem to take great delight in shooting people down but when it comes down to it your arguments are to be honest just vapour.

 

Pumpytums

 

 

THis is all irrelavant the point is that this argument will not work if you use it you will be worse off than if you just tried to contact the creditor and make an arrangement.

 

As for my arguments being vapour i think the judiciary have a differnt opinion, perhaps they dont know what they are talking about either.

Peter

[rebel11]

Hi peter

 

Unfortunately, it does sound like your an authority on matters and every one else here is stupid and ill informed, everyone should listen to you. 'Empty vessels make the most noise'.

[Peterbard]

But if you remedied the Default Notice you are not in default of the agreement are you? The lender should only show missed payments in those circumstances .

 

The information shown on your credit file reflects the breackcown of your relationship with the lender. Tnis is nothing to do with the breach of the agreement.

 

The deffinition of a default is given in the guidlines issued to the CRAs by the ICO and has nothing to do with the CCA it cannot because the CRA must provide equivalent information for agrements that are of all differnt types both regulated and unregulated.

 

A contray report on yuor credit file is normally precede by a history of missed payments thes do not go away because a default notice under section 87 of the act is incorrectly prepared.

 

again this is not conjecture it is fact the information is all there if you wnat to find it.

 

have a read at this .

 

http://www.experian.co.uk/assets/res...version_v3.pdf

 

Peter

[Lord_Alcohol]

HI

I think that the position taken on this thread in encouraging people to take this course of action is indefensible.

I think it reflects badly not only on the misguided individuals who directly advocate it, but also puts the forums independence from regulation at risk.

I fail to understand why no one steps in and puts an end to this . This is not a difference of opinion it is a basic misunderstanding of the legislation, every time without exception this comes up in court it is thrown out.

There are people on here who are just as knowledgeable, quite a few even more so than me , they must know that this is all rubbish yet again I find no support, you have to ask why?

I post on many other forums than this some specialist, some similar to this although smaller some not in the public domain, in none of these are these ideas even given a second thought, with the exception of LB and really that is just overspill from here.

Do the powers that be on here consider the number of hits this forum receives to be more important than the damage being done by allowing these dangerous forms of action being advised by its accredited members , I can draw no other conclusion.

peter

 

Peter

 

The course of action being mooted here is to require that lenders comply fully with the Act, in the same way that they require their customers to. You have seen many examples of lenders refusing to adhere, and of courts condoning that action, to the detriment of the debtor.

 

I am mystified why you deem this discussion and the search for solutions to be so seditious that CAG risks regulation!

 

The bottom line here is that many, myself included, have hit problems and received DNs that cannot possibly be complied with because they do not offer the prescribed timescale or demand sums that are too high to fix the problem. The lender is informed, but refuses to act reasonably. The borrower then loses his entitlements under the Act and faces court, CCJ and all the rest.

 

So I do not understand why this is so unreasonable for you. The basic argument is a mixture of law and reason; that some judges get it wrong and interpret things differently doesn't make it right.

 

I certainly hope you will continue to post as I find your arguments helpful in clarifying the alternative view.

 

LA

[pumpytums]

Thank you Peter for your reply.

 

I agree that you should attempt to come to a payment arrangement with creditors, but if they reject your attempts or have no interest in a payment plan what do you do then? Some debt buying DCA's not only claim the full debt that they have bought for peanuts they claim s69 interest etc.. They don't even want the court to give payment CCJ they want a charging order. In the face of such aggressive behaviour what are we supposed to do?

 

If you cannot pay a debt in full they don't accept or even want payments, arguing it in court seems like the only option lets be honest if it's under £5k what do you have to lose? You come out of court with a CCJ which you would have had anyway if you hadn't.

 

With regards to this thread the CCA is manly to project consumers it seems that a creditor can behave like a loan shark of years gone by and get away with it. The overriding issue in my opinion is the creditors behaviour if they want to behave in such a manner that's their problem. If they want to throw the terms of the agreement and statutes out the window again that's their lookout. If and when I again get my day in court I will argue the point that the creditor has behaved in a most unfair manner (s140) and breached the terms of the agreement we both signed. The CCA just gives me a little more protection.

 

 

Thanks

 

Pumpytums

[dadofholly]

Quick question on DN's - can a DN only be issued by the original creditor?

[Peterbard]

Hi peter

 

Unfortunately, it does sound like your an authority on matters and every one else here is stupid and ill informed, everyone should listen to you. 'Empty vessels make the most noise'.

 

No not stupid just caught up in an ill advised course of action and not taking the time to step back and look at the logical argument. Difficult when it is so conveniant to accept something that so easily solves your financial problems.

 

Empty vessels, yes nice one

 

Peter

[the_shadow]

THis is all irrelavant the point is that this argument will not work if you use it you will be worse off than if you just tried to contact the creditor and make an arrangement.

 

...and that just shows where you are coming from Peter... most of us have tried this and yet the OC doesnt wish to make an arrangement, they done care about customers.... its pure bottom line to them. As to making an arrangement with a DCA, if they only pay 4-5% for the debt why should they be entitled to claim 100%+ interest, its immoral and should be classed as an unfair relationship due to the profit amount they are claiming, and yes I know thats not how business works.

 

[Oh and dont bother responding to me as like you I only recognise my side of the argument and will ignore anything in response ]

 

 

 

S.

[dadofholly]

Quick question on DN's - can a DN only be issued by the original creditor?

 

Anyone?

[Peterbard]

Thank you Peter for your reply.

 

I agree that you should attempt to come to a payment arrangement with creditors, but if they reject your attempts or have no interest in a payment plan what do you do then? Some debt buying DCA's not only claim the full debt that they have bought for peanuts they claim s69 interest etc.. They don't even want the court to give payment CCJ they want a charging order. In the face of such aggressive behaviour what are we supposed to do?

 

If you cannot pay a debt in full they don't accept or even want payments, arguing it in court seems like the only option lets be honest if it's under £5k what do you have to lose? You come out of court with a CCJ which you would have had anyway if you hadn't.

 

With regards to this thread the CCA is manly to project consumers it seems that a creditor can behave like a loan shark of years gone by and get away with it. The overriding issue in my opinion is the creditors behaviour if they want to behave in such a manner that's their problem. If they want to throw the terms of the agreement and statutes out the window again that's their lookout. If and when I again get my day in court I will argue the point that the creditor has behaved in a most unfair manner (s140) and breached the terms of the agreement we both signed. The CCA just gives me a little more protection.

 

 

Thanks

 

Pumpytums

 

I agree with everything you say here. BUt this is not the way to redress the ballance, sure you can delay the inevitable by offering these micky mouse defences but at the end of the day you just end up worse off. If you are going to fight in court you need a credible deffence if not you are better just making a deal.

 

Lets be honest the creditor making a mistake on a default notice is not a terrible crime is it . I have spent a major part of the last 10 years fighting money lenders and loan sharks who lend £50 to single mothers who are still pahying £10 a week years later with compund interest topping 2000% thes are the cases that the CCA protect and protect it does.

 

Petr

[oilyrag]

Why has it taken 5255 posts to reach the point that a DN issued s87(1) is a useless piece of paper? Why is such defiance of the statute acceptable please? On the basis of the logic now applied here can a murderer or a rapist use these priniciples about DNA evidence? Surely a coloured chart only interpretable by self styled experts is also open to abuse?

 

We have always been told professionally to ignore the DN/TN issues raised here and not "accept" in writing. When this was stated by me I was berated by many of the experts, yet here we are the defective DN is a useless argument in a court despite Statute Law. Most of us just want a clear guideline to formulate our thinking, not several contradictions along the way depending on which way the wind is blowing for some of the prolific posters here and elsewhere!!!!

 

regards

oilyrag.

[Peterbard]

...and that just shows where you are coming from Peter... most of us have tried this and yet the OC doesnt wish to make an arrangement, they done care about customers.... its pure bottom line to them. As to making an arrangement with a DCA, if they only pay 4-5% for the debt why should they be entitled to claim 100%+ interest, its immoral and should be classed as an unfair relationship due to the profit amount they are claiming, and yes I know thats not how business works.

 

[Oh and dont bother responding to me as like you I only recognise my side of the argument and will ignore anything in response ]

 

 

 

S.

 

The DCA may say why should the debtor get away with not paying what he owes.

DCAs will alway demand as much as they can get for a debt they have bought this is just business, they have to make up for the accounts that they will not be able to collect on, and they do this by preying on the most vulnerable.

 

No one is saying this is right and a strength of forums like this is that it gives these vulnerable people support, but giving incorrect information is not help.

 

Peter

[DeBilde]

Thanks for the amendment Mould, (ducks back out quickly).