Invalid Default Notices

[Pinky69]

I find the loss of a court case strange because there was no differentiation for reasons for not paying - there could be many reasons in law why you have not paid an alleged debt. The lack of an agreement or initial dispute was the first reason and the rescission was another reason, additional to and not an alternative to the initial reason. Termination without a lawful Default Notice is unlawful rescission and there is High Court precedence for it. Since the creditor loses all future rights under the agreement, that's a reason on its own why no further payment needs to be made apart from any arrears. I did say I informed them they had rescinded the agreement when they continued to pursue me for payment. I think that poster may have lost the case because he wasn't quick enough on his feet.

[Pinky69]

It's your choice to pay the debt even if there are issues that make it unenforceable in court. It won't go against you and if you do lose it is simply a case of telling the judge you are paying all you can afford and he/she will accept that. If you win you then have the choice of whether you continue to pay or what rate you want to pay them at.

[Pinky69]

The poster said the account had been terminated - she/he didn't say the DN was unlawful, just that there were a few issues of dispute. Of course if the poster has continued to pay following unlawful rescission that won't auger well for disputing the agreement in court.

[Pinky69]

No - you just have to inform them you accept the termination. The time to raise the unlawfulness of it is when you want to use the fact the termination caused rescission of the agreement eg to cease payment, to defend or make a claim in court.

[Pinky69]

Update.

 

Have just had word from Callcredit that they have suppressed Bank 2's entries today. So they are off the files of both Equifax and Experian, although not deleted. Still, it's a good step in the right direction and will be handy in court that they did so. This is the second time that Equifax have suppressed the information and the loan entry never went back on. Experian state they have had the information substantiated by the bank but I have snt them an email today with enough information to prove the bank cannot substantiate the information so we will see what happens there in due course.

 

So a step in the right direction but still some way to go. I'm still going to sue the bank for damages even if the entries are deleted out of court.

[Pinky69]

Ha! M. You are quite safe. It is only to DCAs and CRAs I send an exocet missile up their exhaust pipes! Your comment reminds me of when I finally got rid of all my debts and a poster asked me to never let him lend me a fiver!

[Pinky69]

There are two schools of thought on this. One is that you should write and say you accept the termination of agreement and the other is that by challenging the existence of the agreement after it has been rescinded you have obviously accepted it. I didn't write after termination but I did write when they the DCA pursued payment and told them they couldn't as the agreement had been rescinded at the point of sale. It's fairly obvious from that I accepted it had been terminated. I think if you wrote to the OC that you accepted termination of the agreement, they would wonder what you were talking about as they no longer have any interest in it.

[Pinky69]

Rescission means that future payments caanot be claimed but arrears on an account can. It literally means that that the creditor has lost the rights to payments that would have become due in the future. Your claims would therefore not be because of the rescission but because of what happened before the rescission. You would claim unfair charges and mis-sold PPI in the usual way from the OC.

[Pinky69]

I don't see why it would be too late - there are no time limits on these things. What is important is whether or not they terminated on the back of an unlawful Default Notice or no DN at all.

[Pinky69]

Termination is termination whether the DN is unlawful or not.

[Pinky69]

Patience - we will eventually get there! You cannot be defaulted for the same debt twice and 1st Credit should not have made their entry in addition to the creditor. Get copies of your credit reports and check them (Equifax,Experian and Callcredit) then ask the CRAs to remove 1st credit's entry as it is a duplicate of Citi's.

 

The ICO guidance on filing defaults states that when a debt is sold on, the DCA which bought it and the original creditor have to decide which of them is going to register and update a default. What you have to do is check the dates and amounts that Robbers Way have entered.

 

Satisfy yourself that agreements and DNs on all of these are lawful.

[Pinky69]

The 1974 Act was amended by the 2006 Act and the period to remedy the breach for all agreements is 14 after the date of service, which is the date you received it not the date it was sent.

[Pinky69]

For a DN issued in 2005, only 7 days was required to remedy the breach. The legislation to increase this to 14 days didn't come in until 2006 and it wasn't retrospective but applied to all pre and post 2006 agreements thereafter. As for whether a date on a letter sufficed as the date the DN was sent, that would be a matter for a court to accept or reject, it would depend on the contents of the letter. It is the date of receipt that matters, not the date it was sent, and it would depend on whether the court believes there is sufficient evidence to regard it as reasonable that you received it on a certain day in keeping with the Queen's Bench Practice Direction on postage.

 

The relevant legisaltion is the CCA 1974, the 2006 amendments and the Consumer Credit(Enforcement, Default and Termination Notices) Regulations 1983.

[Pinky69]

Thank you, John - I am working on it! I am waiting for the ICO to complete their investigation on Bank 2 then I go to court with that. They haven't even acknowledged my complaint with Bank 3 yet. The cases against the DCA and the bank connected to it I can lodge when the court opens again next week.

[Pinky69]

There isn't one. You don't want to approach the creditor/DCA about unlawful DNs unless you are absolutely sure they have terminated the agreement. If you are then approaching them to tell them they have rescinded the account and you want defaults removed from your credit reference reports, that is tricky and you have to start by asking the creditor/DCA to remove them, pointing out why they breached the Data Protection Act ie why the DN is unlawful and the account was rescinded unlawfullly. They will ignore you, as will the credit reference agencies. Then can go through the ICO and if that doesn't work, take them to court.

[Pinky69]

The Ombudsman hasn't a clue about the law on Default Notices and the answer you received proves it. Even if you had written a full complaint to the Ombudsman, you would have received their stock reply that you "probably" owe the money and they cannot rule on matters of law. They are very good if your granny's direct debit wasn't paid on time or coffee was spilled on your statement but apart from trivia, forget the FOS. You need to tackle this yourself and you can get all the advice you need on here as you need it.

[Pinky69]

You start counting the date from 2 working days after the date on the DN if it was posted 1st Class and 4 working days from the date on the DN if it was posted 2nd class -weekends and Bank Holidays do not count. If there is no proof it wasn't sent 1st Class, then you can assume it was sent 2nd class. The 14 days after the date of receipt is straight days, not working days.

[Pinky69]

The DN is not effective as far as dates are concerned - far from it. If posted on 19 May second class, it would be deemed to have been received by you on 26th May as there is a weekend and Bank Holiday in between. Then is is 14 clear days to remedy the breach, which takes you to 9 June.

[Pinky69]

Not unless it adds to whatever you have complained about. Unlawful rescission is of use if you want to argue that they can only claim any arrears on the terminated agreement or if you want to take get them to remove unlawful defaults made after the account was terminated.

[Pinky69]

If they haven't responded to your SAR request from over a year ago, then it is the Information Commissioner you need to complain to. Send a copy of the letter showing when you made the request to the ICO and you will get their complaint form on their website - complaints have be made on that form.

[Pinky69]

You can stick it out for a few more months - just keep asking them for information. Not that CAG advocates debt avoidance.

[Pinky69]

My mistake if you have been paying it up to last year.

[Pinky69]

Arrived 15th then 14 clear days is the 29th - they have given you sufficient time to remedy the breach. It would be for you to argue that it was sent 2nd class post and you didn't receive it until the 19th ie 4days after posting and the weekend doesn't count -but they may have gauranteed deliveries if they use a mail system separate from Royal Mail. It is not something I would argue in court and I don't advocate perjury in any circumstance. As for the amount required to remedy the breach, it would be for you to argue with them that the figure is incorrect if the charges levied are not specified in the agreement.

[Pinky69]

I know it is up to the creditor to probe it was sent 1st class. The point I was making was I wouldn't argue it was sent second class without proof. A 2 day delivery on an unmarked envelope seems to be to be another mail service with the Royal Mail delivering the last stage.

[Pinky69]

Update from the original poster.

 

Bank 2s investigation by the ICO has been going on since 19 October(2009) so no idea how long it is going to take.

 

The ICO has now asked for all the correspondence with Bank 3. It was a mammoth task because of different replies from different people. Reading through it I realise not one of the points I raised with them was ever answered - it was all templates and electronic signatures. The application form breaches criminal law because it breaches the Companies Act so that default entry will come off either through the ICO or court. The icing on the cake is the unlawful rescission. Keep smiling!