Invalid Default Notices

[Pinky69]

We seem to be getting a bit confused here. It is 14 straight days from the date of service for the breach on a DN to be remedied.

[Pinky69]

Hello. Hope you guys don't mind me using my own thread. By the way, the new thread button is at the top of the forum on the left-hand side.

 

Bank 1 has settled out of court - the entry has gone and I have received a cheque from them. This was the bank that made the default entries after the account had been settled.

 

Bank 2 (2 accounts) was approached again by Equifax on 1 July (I have been putting pressure on the DCAs at the same time as raising the court proceedings - a two-pronged attack ). Do I detect a bit of hesitation here? They said they would refer it to one of their departments and get back to Equifax - I expect they meant their legal department. No reply to Equifax since 1 July so Equifax requested further information on 6 August. So 6 weeks now since Equifax asked for confirmation that the defaults are legitimate and no reply. Do I detect a bit of a wobbly?? The only info they sent me in reply to my SAR requests on both accounts were application forms (no permission given on either to pass my data to CRAs) and illegible T&Cs for both. I expect they have destroyed everything else - but I haven't. They didn't send copies of the faulty DNs or termination letters and I have asked for them no less than 3 times.

 

Bank 3 - won't budge but I am not bothered. I will see them in court.

 

Equifax are now nervous! They have even put a dispute notice on an entry that is about to fall off on 16 September.

 

There is progress and I will keep you informed.

[Pinky69]

They do - but most of the comments on the threads relate to CCAs and accounts in dispute and you wouldn't have all of them lumped together would you? A new thread for each problem leads to clarity and the best advice.

[Pinky69]

Still soldiering on. In view of Bank 2 not replying to Equifax - it is now 7 weeks since Equifax asked the bank for info and haven't heard a peep out of them since - I have asked Equifax how long they give them to reply. I have also written to Experian and Callcredit telling them about the bank not replying to Equifax and suggestion that in view of this they too would want to seek clarification about the entries. Putting on more pressure. Eventually the bank have to take their corporate head out of the sand and stop behaving like ostriches.

[Pinky69]

I certainly am Vint, leaning hard on the DCAs and going ahead with the legal stuff. I am going on holiday at the beginning of October for 2 weeks and I expect the real action to begin when I return. However, this is the first time that Bank 2 have shut up so there are the green shoots of a breakthrough there. That's why I am turning the pressure up on the CRAs. Until now Bank 2 have bluffed their way through but with the invalid defaults they must know their bluff has been called. I have the evidence - I think they destroyed their copies or did it on templates and don't have copies. It is going to stick in their throats to remove the defaults but they have no excuse not to. In Scots law you have to get them to remove the defaults first then claim damages in a separate action so that allows me to step the level of action against them up a notch when claiming for damages. Also, in a complaint I made to the FOS about them harrassing me for payment (nothing to do with the defaults) the Ombudsman replied to me that he had seen statements from both accounts. I didn't get any statements when I SAR'd them so either they have breached the DPA not giving me copies or they have lied to the FOS. I have written to tell the FOS this and their Review team is going to get in touch with me. If they have lied to the FOS they are in trouble there; if they have lied to me they are in trouble with the ICO. Either way it is a lose-lose situation for them. So onwards and upwards and the evidence on all fronts is building up nicely.

[Pinky69]

Yes, yes, yes, yes, yes, yes, YES!

 

Equifax emailed me today that in view of Bank 2's non-response to their enquiries, they have removed their entries from my credit reports. I have written to Experian and Callcredit telling them to get them off - if you get my drift!

 

A breakthrough, although they could still reply to Equifax and put them back on again. Somehow I doubt it. Rather than admit defeat, they simply didn't reply. Hooray!:grin:

[Pinky69]

Thank you everyone. I'll keep you all informed. It's a long, slow process and a question of keeping the pressure on. I wrote umpteen letters at the end of last week and the phone wires must be going but so far no replies. Once it is all over I'll do a chronological sequence of events for everyone to read.

[Pinky69]

Hello Fellow CAGERS.

 

Well, progress and I have had to delay court action to allow that progress to filter through. The court expects you to do that and it will be in my favour that I have.

 

In April, my credit reports read 14 accounts and 6 defaults.

 

Today it reads: CRA 1 - 8 Accounts and 1 default

CRA 2 - 10 accounts and 3 defaults

CRA 3 - 10 accounts and 3 defaults

 

Bank 2 as you will recall has 2 defaults. CRA 2 has not replied to my letter informing them that CRA 1 has removed the entries and CRA 3 says that CRA 1 has probably only hidden them from the archive. Not so - they have been deleted. So more ammunition for me in court - why did Bank 2 not reply to CRA 1 when they asked them for confirmation of the defaults?

 

Bank 3 will not remove them - it's the 1 default left on my reports with CRA1.

 

So, I have had to re- tweak the court cases yet again! The new court lodgement date will be on 19 October as I am going on holiday before then and I want a clear run at it when I return - should fill up my Winter nights!

 

So, court cases are now:

 

Bank 2 - 2 defaults - 2 cases for default removal and damages

Bank 3 - 1 default - 1 case for default removal and damages

DCA - 1 case for damages (default removed)

Bank that passed debt to DCA - 1 case for repayment of money.

 

The cases are all prepared - again! - and I will keep you all posted.

[Pinky69]

Oh dear - Experian has the jitters again! A letter from the Director's Office to say that Bank 2 told them their 2 entries on my reports were correct. Now, that strikes me as very odd. They told Experian one thing on 30 June and told Equifax the exact opposite the very next day. Mmmm. Bank 2 clearly don't know their ar*e from their elbow, poor souls. I wonder what the court will make of that?? :grin: Choices. I can either go easy on Experian and the other CRAs and not spoil the beginning of next week for them - or I can do a bit of screw turning. The rack is out as we speak!!

[Pinky69]

Saturday counts as a postal day so in my view you got exactly 14 days. The other advice is spot on. If there are charges in the arrears amount then the DN is invalid.

[Pinky69]

That is why I am taking them to court - to get the defaults removed and a claim for damages to my reputation and general creditworthiness.

[Pinky69]

I wouldn't rely on the argument for date of receipt in court in this case but that is just my personal point of view.

[Pinky69]

They might if they know they can claim the arrears but as I said most don't know. I think they would be unlikely to raise court action when they have unlawfully rescinded the alleged account because you could then make a counter claim against them for damages.

[Pinky69]

Once an account has been terminated (confirmed by termination letter) following on from an unlawful DN, they cannot issue another DN as there is no account to issue one on - it has been rescinded. Going to court is irrelevant.

I've let the firms I am about to sue know they have caused unlawful rescission and that is a legal fact that cannot be changed. I did so for pre-court negotiations, which a court expects you to do before lodging proceedings.

[Pinky69]

That's good to now and very helpful Gazza.

[Pinky69]

Hello Fellow Cagers,

 

Long time no post but I am just back from 2 glorious weeks in the Algarve -sea, sun, and sangria. Back to 2 degrees - oh well!

 

Bank 1 court cases were ready before I went on holiday - I am lodging them next week. I cannot serve them myself under Scots Law so I will have to get a solicitor to serve them and since they will be served in England I don't know how long that will take with the postal strike.

 

Bank 2 have responded in a different vein. They are shifting their intransigent position of "we have an agreement" and "our DN is lawful." I have told them that no only do they have no agreement but their application form breaches The Companies Act 1985 in 2 respects and those are criminal offences. I added that they must have sent out thousands of these application forms and thus committed these criminal offences thousands of times. Nowhere on this unlawful application form did I give them my permission to pass my personal data to credit reference agencies. Oh, and by the way, you could drive a bus through the unlawful gaps in the DN. I added that I hoped they wouldn't cut off their nose to spite their corporate face.

 

Their response: Thank you for writing to us......

 

We will do everything we can to to send you a detailed

response in 4 weeks.......

 

Thank you for being patient whilst we collect information

....................

 

I suddenly feel sick. From the Head of Executive Response Centre, no less. He is probably in charge of corporate toilet cleaning.

 

Bank 3 - case ready - took money unlawfully off CCCS and passed it unlawfully to the DCA they sold the account to. Pure theft. No agreement of any kind - no DN.

 

Case against DCA also ready.

 

Will continue to keep you informed.

[Pinky69]

They have breached the Companies Act by not giving their company registered address and not showing the fact that they are a limited company, which must be on all stationary, including application forms. They haven't given an address of any kind on the application form so that is another nail on the head of their claim that it is an agreement.

[Pinky69]

Sorry AA99 - not giving identifying details until the courts cases are over. There are often guests on here who would love to just know who is taking court action against them and some of the details. I have said I will give a full account once court action is over. At the moment with Bank 2 I am having to give them time to respond to my claim against them prior to court action as that is what a court expects. Only Bank1 cases can go forward at this time. Bank 3 and the DCA cases rae ready but LBAs only recently sent.

 

Vint - the legal sites I have read on company law with regard to stationary have not said companies must give their Reg No.

[Pinky69]

It's part of the Companies Act 1985.

[Pinky69]

Under the Companies Act 1985 your company must state its name (as it appears in its memorandum of association) in certain places and on its business stationery. Your company must also give certain information on all its business letters and order forms.

1. Where must the company name be displayed?

Every company must paint or affix its name on the outside of every office or place in which its business is carried on - even if it is a director's home. The name must be kept painted or affixed and it must be both conspicuous and legible.

2. On which documents must the company name be shown?

The company must state its name, in legible lettering, on the following:

 

all the company's business letters;

 

all its notices and other official publications;

 

all bills of exchange, promissory notes, endorsements, cheques and orders for money or goods purporting to besigned by, or on behalf of, the company;

 

all its bills of parcels, invoices, receipts and letters of credit.

 

3. Must the company show any other details?

Yes. On all its business letters and order forms the company must show in legible lettering:

 

Its place of registration and its registered number. The place of registration must be one of the following, as appropriate:

For companies registered in England and Wales:

 

Registered in Cardiff

Registered in England and Wales

Registered in England

Registered in London

Registered in Wales

 

For companies registered in Scotland:

Registered in Scotland

Registered in Edinburgh

 

The address of the registered office. If a business letter or order form mentions more than one address, it is recommended that you state which is the registered office address.

4. Must directors' names be shown?

A company does not have to state the directors' names on its business letters but, if it chooses to do so it must state the names of all its directors. In other words a company cannot be selective about which directors' names it shows - it must show all of them or none of them.

5. Must anything else be shown?

Certain categories of company must also state the following additional information on their business letters and order forms:

 

For an investment company (as defined by section 266 of the Companies Act 1985), that it is such a company.

 

For a company exempt from using the word 'limited' in its name, the fact that it is a limited company.

 

For a company with share capital, it is not necessary to state the share capital on stationery but, if the company chooses to do so, it must state its paid-up share capital, not its authorised capital.

6. Are there special rules for charitable companies?

Under section 68 of the Charities Act 1993, a charitable company whose name does not include the word 'charity' or 'charitable' must state the fact that it is a charity on all the documents listed under question 2, in all bills it sends and on any conveyances it executes.

Section 68 does not require a charitable company to include the word 'charity' or 'charitable' in its name.

The Charities Act 1993 does not apply to charitable companies registered in Scotland but the same rule applies to Scottish companies under section 112(6) of the Companies Act 1989.

7. Do the rules apply to overseas companies?

A company incorporated outside Great Britain which opens a branch or place of business in Great Britain must be registered and must give similar details to those stated in this chapter. Full details are listed in the Companies House booklet, 'Overseas Companies

[Pinky69]

And the update from the Companies Act 2006:

 

Changes to business stationery rules

As from 1st January 2007 the following applies to –

 

Business Stationery

 

Whether in hard copy, electronic or any other form:

A company must state its name, in legible lettering, on the following -

 

• all the company's business letters, order forms;
  
• all its notices and other official publications;
  
• all bills of exchange, promissory notes, endorsements, cheques and orders for money or goods purporting to be signed by, or on behalf of, the company;
  
• all its bills of parcels, invoices, receipts and letters of credit
  
• on all its websites
  

On all of its business letters, order forms or any of the company’s web sites, the company must show in legible lettering –

 

• its place of registration
  
• registered number
  
• its registered office address
  
• and if it is being wound up, that fact,
  

Whenever an email is used where its paper equivalent would be caught by the stationery requirements then that email is also subject to the requirements. The above also applies to Limited Liability Partnerships.

[Pinky69]

Well, playmates, I have been tweaking again at the preparation for the cases against Bank 4 (no agreement, unlawful DN and rescission), Bank 5 (continued to take money from CCCS after selling the agreement to DCA - theft pure and simple) and the DCA (no agreement or paperwork of any kind, bought the rescinded agreement then entered defaults). I was spurred today to get the final tweaking done as the DCA wrote a load of sheep's purlies in reply to my final letter to them and they have now had their chips. B cheek of them! They threatened to countersue when they have nothing to countersue with! - they stated long ago the alleged debt is unenforceable. A copy has gone to the OFT and the ICO. Not only that but under the Scots Law Prescription and Limitation Act 1973 the account no longer exists - the equivalent of being Statute Barred in England. In Scotland after 5 years the account is completely wiped out.

 

It's hard work doing the legal bit for each case - I have literally been at it for 8 hours and am now enjoying a much needed cup of tea. I am disabled so it isn't easy for me.

 

All done apart from photocopying letters to attach.

 

The local Sheriff, an extremely nice man, will shortly be sick of the sight of me!

 

I know you are all dying to hear the outcomes and details. Well, I will know the return dates for Bank's 2 and 3 cases on Thursday. My holiday got in the way but everything is now ready to go on those two. I promise you a blow by blow account of everything as it happens.

[Pinky69]

Finally got to the court today to lodge Case 1. Pitched it at Summary Cause level -I can handle that and no solicitor's fees. The Clerk of Court looked at it and told me I would have to put my reason why I wanted it heard in the local Sheriff Court in the Description of Claim (Scottish Court, Bank's HQ in England) - no problems there. Minor adjustment.

 

She also said the Sheriff would have to have a look at it to decide if it could be heard under Summary Cause or would have to go to Ordinary Cause. Mmmm. My thoughts on that are that in Ordinary Cause you must be represented by a solicitor. The compensation limitation in Summary Cause is £5000 whereas in ordinary Cause there is no limit. So, if I am forced to go to Ordinary Cause, which I hope to avoid, I will be going for the jugular in compensation.

 

I will have more news for you on this next week. All comments appreciated.

[Pinky69]

Required addendum made! Power to the CAGGERS!

 

 

 

1)The pursuer avers that the proceedings in this cause come under the jurisdiction of this court as per the terms of the Civil Jurisdiction & Judgements Order 2001: “Any proceedings which by virtue of the Article 16(1) (consumer contracts) are brought in the United Kingdom by a consumer on the ground that he is himself domiciled there shall be brought in the courts of the part of the United Kingdom in which he is domiciled.”

[Pinky69]

Well, well, well - it has been an interesting day. I got statements today that I requested from the FOS because Bank 2 didn't send me any in response to my SAR.

 

The bank statements show that on the day they entered the defaults on the two accounts in dispute, they wrote the accounts off and both had zero balances. No wonder they refused to correspond with me or Equifax. In addition the FOS came to their usual conclusion that I probably owed the money when he had evidence that both accounts had been zero balances. In addition to that, the bank sent the statements of someone else interspersed with mine and neither the Adjudicator, the Ombudsman or the representative from the review team who sent me the statements noticed this. So that is the FOS and their findings rubbished completely. I will enjoy writing to the OFT and ICO.

 

Back to the drawing board - thank goodness I left a minor part of the summons out and the Clerk of Court handed it back to me to insert. I have already written to all 3 credit reference agencies to tell them to remove the default entries immediately.

 

Now to go for the jugular. Back to the drawing board.