Invalid Default Notices

[lexis200]

Really?

 

Well perhaps it could be changed to Feck Off instead. Does that work better do you think?

[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:(

[lexis200]

Hi all

 

Asked this somewhere else but I've forgotten where now so I need to ask again:oops:

 

If you actually pay up and settle a debt completely can you demand the CRA (or creditor I suppose) removes all info regarding the account as there is no longer an account to give details about? Once the contract is kaput (in the standard fashion rather than any legal problems they've encountered), I am assuming that your consent for them to process your data is removed?

[lexis200]

If there is a DN entry on a CRA all that will happen if you clear the debt are the words 'satisfied' that will eventually appear. The DN will however remain on the CRA file till it 'falls off' after 6 years. This is always the 'downer' to people who slipped up, had a DN issued and entered, then payed it off. Not really a thanks for paying it off as any potential finance provider will see the words DN and normally ignore anything extra.

 

Michael

 

But surely once there is no longer an agreement there is no longer any consent for them to process your data, so them marking it satisfied is fine if that's what you want, but if you don't want their info up there I don't see how they can argue the point as they no longer have any sort of contract with you?

 

Not meaning this to sound like I'm arguing with you, I'm just trying to sound it out for myself:)

[lexis200]

I have a DN from the co-op dated 11/02/09 giving me until the 25/02/09 to rectify also a letter dated 11/02/09 terminating the account.I have had the account with a solicitor since july 09 regarding the cca as all I had was a screen print of the front of the doc.The co-op have now sent the solicitor a copy of the terms and conditions that they say are on the back of the doc the solicitor has now dropped the case as he says they dont have to produce the original in court. a copy will do, so it will be enforceable.I am now left with the DN and dont know what to do next I have a DCA keep phoning me and up to now I have told them to deal with my solicitor.Anybody any idea what I should do next regarding the DN as it seems its the only leg I have left to stand on should I write to the DCA or co-op.Anybody.Thanks

 

Spookily similar to my co-op debacle.

 

If I ignore the fact they terminated the account without a DN a couple of years ago, more recently they sent a DN, gave exactly 14 days from the date on the letter (if you don't count the fact it was payable before the stated date), then terminated. After that they sent another DN along with a termination dated the same day, then if memory serves they sent another termination which would have been fine if it wasn't for the 2nd DN being a pile of toot.

 

Going on personal experience, you will get absolutely nowhere with them when you argue this. I have sent them proof of the original termination. They say it has not happened as it's not in the notes. I HAVE THE LETTER IN MY FILES!!!! I have sent them proof of the 2 cocked up DN's and subsequent terminations, but apparently I am mistaken and they comply fully. They will not be budged on it regardless of evidence showing they are utterly and completely screwed.

 

Do attempt it with them, but unless you manage to get your letter to the desk of someone with a brain (I've written to the CEO twice - apparently he's 'too busy' to bother reading the letters of his customers though) be prepared to get hugely annoyed with their evasive and downright false replies.

[lexis200]

... unless they have a clause in the T&Cs that allows them to terminate at any time. Egg have done this most famously, with people whose accounts were being run perfectly well. However, they are usually obliged to give notice of termination, all the same. But technically you CAN have termination without a DN - what matters is whether the issues surrounding the termination were related to non-payment or arrears, and there was correspondence regarding this.

 

Complicated, ain't it? I need a drink...

 

No, they can't. They can write it in their t's and c's, but afaik a company's terms do not yet overrule the Consumer Credit Act (although they might like to think they do) which most definitely requires a creditor to give notice!

[lexis200]

The right to terminate is standard - banks can withdraw the card with notice, and the customer can hand it back if they pay off the balance. Without a right to termination, nothing would ever happen! The CCA does not deny those rights - it just clarifies how they should be used, as stated, ie. by giving notice.

 

Wish I'd never given up drugs.

 

Yes, so if they withdraw those rights without giving notice then they are ignoring the CCA and giving more importance to their own t's and c's. A creditor can write whatever they wish to in their terms, but if they don't abide by the CCA then they are not legal terms when it comes to the crunch.

 

If it's an agreement regulated by the CCA then it's an agreement regulated by the CCA and that requires a valid DN and termination before a court can enforce payment. There's no provision in the Act for lenders to opt out of that even if the debtor was to agree to it.

 

(My understanding, anyway, but I could have misunderstood somewhere!)

 

That's how I understand it too. They can't just up and decide they've had enough and are going to end the agreement and call in the debt unless they've gone through the correct routes. They could stop you using the facilities on the card without sending a DN, but they could not end the agreement and demand payment of the balance not yet owing.

[lexis200]

You do make me chuckle DD:)

[lexis200]

From memory, doesn't the court assume post is 2nd Class if there is nothing to prove otherwise?

[lexis200]

I'm very glad about that, Lexis, but seriously, how do you choose a forum for a thread?

 

Sorry DD, I didn't realise you needed a leg-up, so to speak:)

 

I do the same as Dotty - find the relevant forum, click on it then click the new thread button at the top left.

[lexis200]

I was only giving a thought on the keeping the envelope query rather than anything to do with the validity or otherwise of the DN, but I take your point. Of course if they did state that it was sent 1st class I'd be asking for proof showing that all their DN's/correspondence are sent in a similar manner.

 

Drederick - even if you don't have that envelope, make sure you keep any others from them. I'd guess they are sending everything 2nd class? If so, if they then did make a witness statement saying they sent it 1st class you could throw doubt on that by querying why every other item you receive is sent 2nd class. Being able to show a postage history is a useful thing:)

[lexis200]

as colin has said- if they swear an affidavit that they posted first class then you would need to have an envelope showing second class or private carrier to defeat that statement (as a rule)

 

also you have admitted (on a public forum) that it was first class and it would not be the best idea in the world to now deny that fact.

 

rest assured the dn is invalid

 

technically you could take the DN itself as an unlawful termination I'd personally only agree with that if they use the word 'will' rather than 'may' before their list of actions though...but much better to wait for a demand for the full amount or termination- dont worry however because writing to accept is simply a "belt and braces" exercise- your conduct following the unlawful repudiation is sufficient to show you have accepted it (and for which reason you should not pay or offer to pay them anything - and better still- stay totally silent and respond to no letters until the terminate/demand the outstanding balance/issue proceedings

 

btw - why did the question arise when it was invalid even when sent 1st class?

[lexis200]

Yep it is - especially given that I've just been having a battle of wills with my little one about what he may or may not do. He's winning:rolleyes:

 

I'd still prefer personally to assume it's terminated only once they put it in black and white, either by the use of 'will', or by letter -or of course as you say by claiming the full balance. But then I do realise you're not saying it does definitely mean xy and z, you're only giving examples, so I'm not going to get into a big 'ol debate about it;) I've had enough of that already with my son:D

[lexis200]

I think it's a big pile of poo personally. It's a legal document and they either get it right or wrong. If they get it right then we're stuffed, if they get it wrong they are.

 

They can't (well they can but they're not really allowed to) issue proceedings if they cock up the DN so they appear to have a rather severe case of the verbals going on here.

[lexis200]

As I said, big pile of poo:D

 

Personally I'd go with my response, but you know, if you want to use DD's longer and slightly more detailed one that's fine;)

[lexis200]

I was only joking DD, yours is a tad more eloquent:)

[lexis200]

Not sure about the CPR question Jessie girl, but this is taken directly from the UK Mail site

 

UK Deliveries

 

Your mail is collected and transported through our system before it's passed over to your local postman for the last mile delivery.

 

You can choose to sort your mail into Local Delivery Office postcode areas before it's collected, or let us take the headache away from you and we will sort your mail by using our state of the art sorting machines.

 

Opt for our Business Class service if you would like two day definite delivery, or for less time sensitive mail try our Economy Class, three day definite option.

 

So according to their own website the quickest delivery they offer is two day - and this is presumably after it has reached them so unless it's delivered to them same day you can reasonably add another day.

 

This is clearly not first class, nor is it at any point offering next day delivery. I think your judge may need an update on postal methods nowadays - it's not all Royal Mail 1st Class!

[lexis200]

Don't forget if you are just not confident with putting forward an argument...I'd be happy to do the research etc but if I had to stand up in front of a judge and argue my points, especially in the knowledge the other side had a barrister (or whatever) on their side I'd end up making no sense.

 

I can explain all this stuff clearly and concisely to my OH when he wants to know what's going on. I wouldn't have a hope in hell doing the same in a court room, however informal.

 

In situations like that a LIP could really do with a court buddy as I think I'd do myself no favours if I got up and spoke!

[lexis200]

That's awful cosalt, and aside from the fact he should have been giving you a bit of leeway as an LIP, purely from a human side he must have realised it was daunting for you and not made you feel awkward about speaking up.

[lexis200]

Wow, you really did like that post didn't you DD:D

[lexis200]

The DN isn't great at all, asking you to pay sums before a specified date means what exactly? It should give you a clear date to provide payment by, not before.

 

As for the Christmas period such holidays only effect actual postal service time, not the time you have to act. So, if it was sent on the 8th a Saturday you say, then it will be deemed served Tuesday 11th 1st class or Thursday 13th second class.

 

Dates wise then it is actually fine as 14 days has been exceeded, it's the wording and format that you need to attack as confusing and not to prescripted requirements.

 

However, the fact they've claimed you received it on the same day it was dated is clearly nonsense and I'd attack that also.

 

I'm not entirely sure the highlighted part is correct. I've always understood the correct form for them is 'before'. The prescribed terms for the content of the DN are below, so whatever way you look at it it is expected that payment reaches them before x date.

 

Not having looked at the DN in question I can't comment on that itself, but I'm pretty sure the use 'before' is ok - it does normally go in our favour though as the banks seem incapable of realising this and don't give enough time for remedy:)

 

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH

 

"IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]"

[lexis200]

They submitted to the Court that I received this on the 8 Dec 2007.

 

As has been said before this seems very dodgy, however if they are pulled up on it I would guess they'll say it's a typo and should have said it was sent on the 8th...not sure if they'd get away with it but you can bet they'd try.

 

If, as it sounds from the other posts, this does not affect the remedy time (ie you still had enough), then it may not be an issue to them/help for you aside from the fact they've stated it incorrectly to the court (not sure how seriously something like that would be taken?)

[lexis200]

Yes, that's correct, but I thought this DN gave something like 23 days to comply?

 

I think if we're talking generally rather in relation to the posters DN, then instead of them them not using before - which is clearly in the prescribed terms of a DN - they should use a bit of common sense and give more than the bare minimum of days. As I said though, fortunately for us they frequently neglect to do this;)

Edited June 15, 2010 by lexis200

[lexis200]

I am just about to try and see off Capquest/HL Legal threatening court action on a Capital One account.

 

Could someone advise if a 28 day DN from Cap One (no date specified) followed by termination would be considered enough ammunition to claim unlawful rescission? I suppose we're back to the same old argument regarding a specified date, opinions differ. Would appreciate comments in any event.

 

Many thanks,

R

 

Spot on:)

 

Personally, while it's technically against the absolute letter of the regs (yes, I do know they specify 'date' more than once before I get half a dozen irate responses;)), I would think you'd have a hard time getting a judge to accept that it's no good.

 

Trouble is, whatever way you look at it the judge is going to see that they have given plenty more than 14 days. You may get one who sticks to the letter of the law, but my guess would be that they'd think all was fair and it was a minor problem.

 

I'd love it if it was cut and dried as a chuck-out type of thing as I have my own Cap1 28 day default, but I don't think I'd rely on it if that's the only problem.

[lexis200]

I know that it may not pass as an excuse that the OP was not aware that he was issued with a faulty DN therefore he continued with the agreement in good faith.......but the lender [creditor] should take blame for issuing in my eyes one of the worst DN's in history.

 

Hopefully diddy will be able to give us a better view and any arguments that can be built around this, I personally would put in an argument against the faulty DN, but then again I always jump in at the deep end first and ask for help when I'm over my head in water ,

 

So the OP is in time with the 14 day limit, and the only downfall is the continuing of payments after the faulty DN and termination. I did read something on this thread about another situation similar to this and will try and see what advice was given,

 

I don't see why not!

 

We are not meant to be experts on contract law. We are not meant to know whether or not a DN is faulty when it arrives. If we are sent a legal document by a bank, and are then told by the bank to do xy and z we can only assume we have to comply.

 

We should not have to know the ins and outs of legal issues as they should be doing their jobs correctly in the first place and there should be no massive errors on their part - they have teams of lawyers to ensure this, so why would a standard person on the street be expected to run through their legal document in case of error?

 

Whilst I don't see a big issue in accepting defaults etc as has been suggested over the last few months, I also don't think it is a huge issue if this is not done - the fact is no-one bothered to (or rather even knew they technically should!) before and still it seems managed to argue their points successfully.

 

Also, where does it say anywhere that there is a time limit to realising that a DN is unlawful? 'I'm sorry it took me 4 years m'lud, but unfortunately I assumed the bank was behaving lawfully until a friend pointed out the DN was rather rubbish only last week' If, as has been said, a contract is voidable at the hands of the debtor, then what's to say it can't be voidable later down the line? Unless, after issuing the faulty DN and then terminating, the bank then sent out a letter saying, 'thanks for continuing to pay, your account is now unterminated'. Would you as a lay person assume the account was running or closed if you were not in receipt of such a letter? More's to the point, would they be able to say the account was still live if they had not sent a formal 'un-termination' letter following their formal termination? Especially if the account was on a payment plan, as it's highly unusual for a bank to enter a long-term plan and leave the account active.

 

Just imho of course.