Invalid Default Notices

[Pinky69]

Update. I have now done everything I need to do before formally raising court action. The cases of Bank 2 are now being reviewed again by the credit reference agencies but I am not going to wait forever for their responses - this has dragged on long enough. If I don't get positive responses from them by the end of the month, I am going forward with the prepared cases at court. I've also written to Bank 3 that they have had long enough to reply and a summons will now be lodged at court. The theft case is with their lawyers and I am not waiting forever for them either. I can go ahead too with the DCA. So the last final wait for any responses and I start lodging the cases with a few days between each at court.

[Pinky69]

I will, Godmother. The delays are because I need to give them adequate opportunity to settle out of court and just when i think I have done that, I get another bit of info that needs to be dealt with before I can go ahead. But I will be going ahead, you can be sure of that. It's been a lot of hard work but hopefully worth it.

[Pinky69]

Thanks Lisa - I am doing my best - Ha! The ICO have awoken - much to my surprise - and want everything Bank 2 sent me, so I am going to be busy again. More delays but at least they are going to be working on it.

[Pinky69]

Have been busy copying all the stuff the ICO. I can let you see the covering letter and it will give you some idea of the case:

 

Thank you for your letter of 16 November 2009.

 

I did not know defaults had been entered by the (bank) on my credit reference reports until 14 April 2009 when I checked the reports.

 

In reply, I enclose the following, adding notes as appropriate:

 

1)A copy of my final statement from the CCCS dated 5 November 2007 showing that one alleged (bank) agreement had a zero balance on 20/05/2003. I do not recognise either of the reference numbers. There is no trace of any other (bank) account on the statement.

 

2)A letter dated 7 January 2008 from (bank worker) indicating they had sent application forms. I did not ask for application forms – I asked for copies of the agreements under Sections 77/78 of the Consumer Credit Act 1974.

 

3)Copies of the application forms and alleged Terms and Conditions, which are illegible

 

4)Copy of Default Notice and termination letter for the alleged credit card agreement. The Default Notice is unlawful because it does not give sufficient time for the alleged breach of agreement to be remedied. It is 14 days from the date of SERVICE, deemed in law to be 2 days after the date the Notice was sent if sent by 1st Class Mail and 4 days after the Notice was sent if sent by 2nd Class Mail (Queen’s Bench 1985). All the bank did was add 14 days to the date on the Notice. There are other breaches of the Consumer Credit (Enforcement, Default and Termination Notices) regulations 1983 in the Notice. The termination letter was not sent until 24th January 2008. Terminating an agreement after issuing an unlawful Default Notice is unlawful rescission and with the rescission of the agreement all clauses in the agreement are rescinded, including all clauses pertaining to data processing. After 24 January the bank had no lawful right to process my data and doing so incurs damages. Entering defaults on my credit reference reports on 6 May 2008 gave rise to a claim for damages and I will be taking legal action in due course.

 

Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but gives rise to a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

 

The defaults were not entered on my credit reference reports until 4 months after the rescission and on the date of entry the rescinded accounts had zero balances. It must be unique to enter defaults on rescinded accounts with no agreements which had zero balances on the date of entry?? I don’t think that conforms to the required industry standard somehow!!

 

5)Copy of the termination Notice pertaining to the alleged loan agreement. No Default Notice was issued prior to this termination Notice and the alleged agreement was therefore rescinded on 16 January 2008. The defaults were not entered on my credit reference reports until almost 5 months after the rescission.

 

6)A Copy of the notepad pertaining to my SAR requests for all the information the bank held on me with regard to both accounts and a copy of a reply from them dated the 4 June 2009 and copy of postal order I sent them. I received copies of the alleged credit agreements and Terms and Conditions and that was all. I asked for more information and received the letter dated 4 June 2009 returning the £10 I had sent for information on the loan agreement.

 

7)Copy of letter from (bank worker) dated 1 June 2009 in which he states they believe they gave sufficient time to remedy the alleged breaches of agreement. They did not and they are either ignorant of the law or were bluffing. He writes that they will continue to pursue the outstanding amounts. I did not know at this time that the alleged accounts had been recscinded – I only learned of the law pertaining to rescission later. I also did not know that by this time the alleged agreements had been charged off and had zero balances because the bank never told me. He also states in his letter that the bank would not reply to any further correspondence and would simply file anything I wrote to them.

 

 

8)Copies of the demands from Moorcroft and Frederickson in relation to the alleged credit card and loan and a copy of a demand from Lewis in relation to the alleged loan. The rescinded agreements were assigned without Notices of Assignment in breach of the Law of Property Act 1925 S136. I included complaints about this as an addendum to the FOS complaint I had made in relation to other matters. The Lewis demand came after the bank told me they would not respond to my correspondence. It wouldn’t have mattered what I had written to them – they weren’t listening to me anyway, at any time.

 

9)Statements showing the charged off alleged accounts. The bank did not send me statements at any time, nor did they send me statements in reply to my SAR requests and I didn’t know that statements even existed until the FOS told me they had seen statements. I asked the FOS for copies of what they had seen when I was preparing the court case. I received the statements from the FOS on the 7 November 2009 and this was the first time I had seen them. I now had the information I needed to make a full complaint to the ICO.

 

10)A letter of complaint to Michael Barnes, the Independent Assessor of the FOS.

I have received an acknowledgement and my complaint will be investigated.

 

I wrote to the CEO (of the bank) in one last attempt to get this settled out of court, as the court will expect me to have done. I have not received an acknowledgement and don’t expect one or a reply.

 

If there is any further information you require, please let me know.

Edited November 20, 2009 by Pinky69

[Pinky69]

Letter from the CEO's Office of Bank 2 today - it is amazing what a bit of pressure can do! It has taken them 7 months but mention of the compensation I intend to claim and a direct approach to the CEO has resulted - at last - in a full investigation. They are really in very deep trouble and all I can do now is sit and wait fro the outcome.

[Pinky69]

A DN must have the creditor's name and address on it -Consumer Agreements(Enforcement, Default and Termination) Regulations 1983. If it doesn't and it is terminated, the agreement is unlawfully rescinded.

[Pinky69]

Moorcroft send notices of intended litigation as a matter course - that's a standard template. It doesn't mean they will. Ask them outright whether they have bought the debt. They cannot ask for the full balance without prior issue of a lawful DN but before I played my trump card I would want to know who now owns the alleged debt and you can tell them if you didn't receive a Notice of Assignment that you have no proof whether they have been lawfully assigned the alleged debt.

[Pinky69]

A DN is not necessary to make an entry on a credit report -a default indicates that the relationship between the creditor and debtor has broken down. You should read the ICO's Technical Guidance on filing defaults - you will get it on their website. What creditors cannot do is issue a DN which is unlawful for some reason then terminate the account then make a default entry because that action rescinds the agreement and any clauses in the agreement giving permission for the creditor to process your personal data are rescinded with the agreement. A creditor can issue a second DN as long as they haven't terminated the account. If you apply to set aside CCJs on the basis of an unlawful DN and termination then you are going to have to explain to the judge why you didn't raise it at the time of the case. If it has been a while since the the CCJs were handed, it may be very difficult to get them overturned.

[Pinky69]

Did you give the bank instructuins to stop all DDs and SOs in writing? If not there will be no evidence that you did so.

[Pinky69]

Banks do not keep copies of DNs but what they should have is a note of transaction detailing if/when one was sent. The way to get that information is to send the original creditor a Subject Access Request and emphasise that in addition to everything else you want proof that a DN was sent and a copy of the Termination Notice.

[Pinky69]

My view is that there is no provision in the Acts for the date for remedy of the breach to be set by reference to a muber of days. Both the CCA 1974 and the COnsumer Agreements Regulations state it must be set by date, no less than 5 times between the two Acts. As someone said on another thread, you wouldn't send a wedding invitation to someone and say " Jane Brown will be getting married to John Smith in 92 days." My argument in court will be that for the avoidance of all doubt, the date must be set as it is laid down in the Acts.

[Pinky69]

Kpoharor v Woolwich Building Society; Court of Appeal (Lord Justice Evans, Lord Justice Waite and Sir John May); 30 November 1995

 

Durkin Vs DGS et Al 2008

[Pinky69]

Updates on original post.

 

My case against Bank 2 to get defaults removed is now with the ICO and is finally being investigated by the bank itself after an approach to the CEO (they originally said they wouldn't reply to my correspondence). Two court cases are ready if none of that works. I had to delay court procedure because the court expects you to have gone through all the channels before you finally go to them.

 

Got a really cheeky email from Experian this morning about Bank 2 in response to the copies of statements I sent them showing Bank 2 entered defaults when the balances were zero (they charged off the accounts without telling me). The witch who wrote it said they couldn't check every piece of information and I should keep a regular check on my credit reports. I asked her who she thought she was with her high handed and condescending manner!! I told her they had to check entries when new information querying these entries was sent to them and I had already had an email from another "adviser" telling me the entries were being rechecked with Bank 2. It just shows you what they think of themselves and what they think of us - she got her answer! Obviously the right hand doesn't know what the left hand is doing.

 

The FOS is being investigated by the Independent Assessor at the FOS because the Ombudsman made a decision in Bank 2's favour on a matter separate from the defaults without looking at evidence. The bank sent him statements he never even looked at and I discovered this because when I asked for copies from the FOS (I had never seen these statements) it showed the accounts were charged off, which neither the bank nor the FOS told me about - and there was someone else's statement right in the middle of them! They passed from the bank to the Adjudicator to the Ombudsman to the Service Review Team at the FOS and not one person in that chain looked at them. My MP is involved and has written to the IA saying he is "alarmed" that the Ombudsman made an incorrect decision based on inaccurate evidence. Report expected in a couple of months. I expect a whitewash.

 

Bank 3 - a laugh a minute. Sent me a letter today saying they wouldn't remove the entries and enclosed yet another set of T&Cs - the third. So a formal complaint has now gone off to the ICO. A court case is also prepared. Having breached criminal law by failing to put their Company registration details on the application form, they have gone and done so again on the fabricated T&Cs I received today!! They couldn't run a cludgy! More power to their unlawful DN. Which set of T&Cs is supposed to be the right one? None of them are of course - but the default breach is stated on the DN as a Clause of the T&Cs. There is no such clause on this set of T&Cs. I'll be going to court with 3 different sets of T&Cs. Thank you Bank 3 - your sheer incompetence and stupidity has just made my day!

 

Will keep you informed playmates.

[Pinky69]

It's worth going down that route if no DN was sent and you won't know that unless you SAR the creditor. I kept copies of the DN Notices and SAR'd the creditor to prove where one wasn't sent. As a result I am ready for court if that is necessary to remove the defaults - I am also ready for court to claim damages for unlawful rescission.

[Pinky69]

You need to ask them for proof of postage as what matters in determining whether a DN gave sufficient time to remedy the alleged breach of agreement is the date of receipt and that can only be worked out from the date on which it was posted. Don't ask them for anything special until you get a response to your SAR then pursue the DN separately. You need to do this with kid gloves if there is no DN and you want to prove rescission. Be absolutely sure the agreement was terminated.

[Pinky69]

Entering defaults on credit reports is not related to termination. Termination is either by letter or by the creditor demanding the full balance/selling the debt on.

[Pinky69]

That's what this post is all about - it was me who started the thread. I have court cases prepared to take 2 banks to court to have the defaults removed from my credit reports. I have had to delay because the courts expect you to have tried everything else first. I have had a default removed by a bank so they were Bank 1. Bank 2 entered 2 defaults and at the moment the bank's CEO department are reviewing my claim to have the default removed and the ICO are also investigating. Bank 3 have refused to remove their default so it is now with the ICO. I am making a 2 pronged attack in both cases - nowhere on the application forms did I give either bank permission to process my data and there are no Terms and Conditions for either so they never had my permission to process my data at any time. Secondly, rescission, and in Bank 2 's case they entered the defaults after the accounts had been written off and had zero balances. Bank 3 breached the Companies Act in their application form and had no address on it so it isn't even a lawful application form. I am also going to sue a DCA for a default (now fallen off) for an alleged debt without a scrap of paperwork and a bank for taking money from CCCS after they sold that non-debt to the DCA. Those cases I am going to lodge in the New Year. The CRAs are currently trying to get information from Bank 2 in the light of my telling them recently that on the day they were entered the alleged accounts had zero balances. They have all written to say if Bank 2 doesn't reply they will suppress the defaults after 28 days and they will stay suppressed until Bank 2 replies (Equifax have already suppressed one) - the 28 days will be up just before Christmas. However, if the bank doesn't take the defaults off I will have to go to court to get them removed permanently.

[Pinky69]

Thanks DD.

 

Yes, it is a lengthy process and the choice is yours whether you take it on or not. Silly them for thinking they have the better of you - they will think twice when they get a summons. I've prepared all my own paperwork for court and it will cost me £65 per case, which I will reclaim as part of the case.

[Pinky69]

I answered you in Post 546.

[Pinky69]

Banks don't keep copies of Default Notices. They do them on templates but don't store the information. What they should have is a note on your history sheet on their file that they sent one and when they terminated the account. The way to find that out is to send the original creditor a SAR and get all the information they have on you on file. If there is nothing on the file that indicates either was sent then you can argue that they didn't send either.

[Pinky69]

UPdate.

 

Well, that's it - Bank 2 have had their chips. I received an email from Experian today to say that Bank 2 have confirmed to them that the default entries should remain so I am faffing about with this no longer. I think they think because I followed court expectations and gave them every opportunity to remove the defaults and settle damages out of court that I won't take action. Think again. I have spent this afternoon tweaking the cases to bring in all the up-to-date information and they are now ready to go.

 

So 5 cases as soon as the court opens after the New Year, 3 for default removal and damages, 1 for damages for an entry now expired (not a scrap of paperwork whatsoever) and 1 for theft. Good luck to me!!

[Pinky69]

Thank you for your support. As usual I will keep you up-to-date with developments.

[Pinky69]

Update.

 

Bank 2 have written that they have investigated and their Credit Reference Liaison Officer - probably the tea lady - confirms the default entries are correct. Some investigation! Eejits.

 

Equifax have emailed me that they have removed the entries (Bank 2 didn't respond to their enquiries). That is twice now Equifax have removed them.

Experian have emailed me to say they had confirmation from Bank 2 the entries should remain then go on to state at length why they have to keep them there. It is obvious that Experian are concerned they will get caught up in a court claim against them - I've had several longish emails from them justifying retaining the entries and in this one they say they continue to monitor these entries on my records. I've given them enough information for removal. I will keep the pressure on them.

[Pinky69]

It's up to yourself - I didn't. Whether you accept it or not, the agreement is rescinded in law. What I did was when they started pursuing again I wrote - Sorry, you rescinded the agreement - now go away.

[Pinky69]

Account No 2 with the bank was taken off by Equifax in September and hasn't been put back on, which surprises me. The ICOs technical guidance says that complaints to the CRAs giving information supporting that the defaults should be removed must be investigated by them. The ICO also says they are joint data controllers and their defence of only obeying orders doesn't stand if they don't investigate complaints. Experian's various emails tell me they are not happy about the defaults being there but don't feel they can go against the bank - I have threatened them with legal action. The ICO has asked for lots of extra information and I think an investigation has gone ahead there because I haven't heard anything since. They specifically asked me when I first knew about the defaults and that is good because under the Banking Code the banks are supposed to give you 28 days notice of their intent to register the default and they didn't. The amounts are wrong, they haven't been updated - the bank hasn't a clue. Also one of the questons the ICO asks is why they haven't taken the consumer to court if they feel they have a legitimate claim against the debtor and Bank 2's only answer can be they don't have an agreement. After the FOS dealt with complaints not related to the defaults, the bank destroyed all the records!! - they told me that in response to an SAR!! All they have on file are illegible application forms and illegible Terms and Conditions so they are also now in breach of the Money Laundering Regulations. They are stupid belief.