Invalid Default Notices

[lexis200]

I have a similar thing with Capone, its been passed to Fred for collection who I refuse to contact. I'm actually paying Capone back at a reasonable rate, they say they are unable to accept my payment proposal as I need to contact Fred. I actually wrote back to them asking if I did this would they then accept the sum I proposed.

 

I have managed to get all the £12 fees returned with account interest on this account too. Took about 3 letters but they caved in in the end.

 

The major sticking point I have is if I have a pay plan with Fred will all the money I pay go to the debt. To date they refuse to answer this question, so I keep paying Capone. In a way I think Capone are happy to accept the money if it goes through Fred I know they will have to pay a fee. Capone cannot accept my proposal as they will be doing Fred out of cash so it's a catch 22 for them.

 

The really funny thing was they said I should go to see the CAB to sort out a plan, if I had followed the CAB's advice I would have declared myself bankrupt. The CAB are well meaning but their advice can leave a lot to be desired.

 

 

Pumpytums

 

Couldn't agree more.

 

Aside from giving us duff financial advice (nothing but bankruptcy for you Lexis), when we were in a rental property a few years ago we had major issues with the landlord. One of the main things was the kitchen which was basically a death trap - the oven literally used to fall out when you opened the door. Not good when it's just the two of us, but I had toddlers running round. He ignored complaints and the agents were useless, then when we really started complaining he evicted us.

 

On calling the CAB we were advised to with-hold the last months rent to force him into a corner. We had no idea about it so did this, and then found out it was completely wrong. Evidently they told us this so that he would have to go through the courts to get us out which was not what we wanted. We ended up having a really hard time getting another property because we were now problem payers:mad:

 

Sorry, completely off topic but the CAB are not good for any large problems in my limited experience.

[lexis200]

Just a quick note and heads up ...

 

Are we all aware, for those solely relying on dodgy remedy dates in the DN as a defence, of the recent Brandon v Amex case ... where the DJ overruled the requirement of the 14 day remedy date under the DN, and also dismissed the Woodchester case ....

 

Albeit this is where the Debtor was the claimant, so had taken Amex down the litigation route, but worth bearing in mind in case this is the only defence you have (i.e compliant CCA, and nothing else wrong with the DN) ...

 

It came up for discussion in my own thead for a DN I've been looking at, and thought it a good idea just to mention it here too .. I've attached the PDF except of the case, I don't think the full transcript has been published up to now.

 

If this has already been brought up and discussed ... accept my apologies ... but I'd rather it be here twice than not at all if thats ok ...

 

How'd they manage to explain that then??? Or was this a court with the power to change legislation? If not, he needs to have been asked to set out his findings and why he was ignoring the legal requirements of the Act!

[lexis200]

Here's the link

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?272449-Ouch&highlight=

[lexis200]

Are you being delibrately ignorant or is this your usual trait?

 

The 14 days are statutory as they are contained within an Act, in this case the CCA 1974 (as amended).

 

And this-

 

89 Compliance with default notice

 

 

 

If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or © the breach shall be treated as not having occurred.

 

88 Contents and effect of default notice

 

(1) The default notice must be in the prescribed form and specify—

 

(a) the nature of the alleged breach;

 

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

 

 

Hence, which is why I have accurately described the remedy of a Default Notice 'within the 14 statutory days.'

 

Don't tell me I am wrong because I have been to court several times where the bones of a DN have been picked over and the 14 days have been referred to, by all legal reps and the judge, as 'the statutory 14 days.'

 

edited.

 

It is a statutory 14 days, but that must be 14 clear days left after they allow for postage and putting down the required 'before' element. If they give you a flat 14 days the DN will always be faulty as it technically only allows you 13 days to remedy as you have to pay before the given date. As you've just said, all your legal bods remarked on the statutory 14 days, not 13, 12 or otherwise. This is I suspect what DD was (correctly) talking about.

 

And just fyi, calling people ignorant and stupid is not exactly the best etiquette and really doesn't help you make your point.

Edited August 10, 2010 by IdaInFife
as original post was edited

[lexis200]

as 'within 14 days' (of the letter date) to remedy still gives 14 days to remedy as per Act.No it doesn't. See below.

 

How does 13 days come into it?

 

If I get a DN dated the 1st of the month, with a remedy date of the 14th, they have not given enough time, even if they hand deliver it, precisely because of the wording of the Act.

 

For a debtor to pay within the timescale given would mean they would have to pay on the 13th day as if they left it to the 14th day they would no longer be paying within 14 days.

 

From the CCA1974

 

(2) A date specified under subsection (1) must not be less than seven days after the date

of service of the default notice, and the creditor or owner shall not take action such as is

mentioned in section 87(1) before the date so specified or (if no requirement is made under

subsection (1)) before those seven days have elapsed.

 

Bearing in mind that this has now been changed to 14 days, I think it's fairly clear that they cannot give you less than 14 days, so if they are to be inside the letter of the law, in order for them not to breach the 'less than 14 days' bit they must allow service time and an extra day due to the wording of the DN, ie 'within'; hence my assertion that if they give you 14 days to comply and don't allow for service or the wording of the DN, they will only have given you 13 days or less.

 

Now I will leave it alone, as I 'suspect' you are not worth talking to.

[lexis200]

She said that as she was not legally trained she could not comment on their position but it did look as if they had broken the contract/agreement.

 

 

Pumpytums

 

Don't suppose you recorded that call did you? That's a lovely little soundbite to have if you did.

[lexis200]

Have emailed the ICO last week to ask for a categoric ruling on the right of a creditor to register an invalid default notice against you with the CRA's. I argued that there appears to be widespread lethargy to this matter, creditors neglecting to compose legal notices correctly and then refusing to remove or correct them from files.

 

I asked how can an invalid default notice comply with the data protection act when such act requires all data to be wholly accurate?

 

Also asked them to confirm that it is the ICO who set the 6 year period that the CRA's hold such data for. I rang a CRA a while ago and asked the advisor to tell me where it states they can record your personal details for that specific period.

 

Didn't get much of a response, she blurted that they are allowed to but couldn't direct me to any regulations or similar. She finally said the ICO gave that time period.

 

So, the ICO can confirm that for me then. We'll see what happens.

 

That's because there aren't any, it's purely an industry standard not a legal requirement.

 

They get the whole 6 year thing from CCJ's which are required by law to show for 6 years and they simply fudge the facts to make it look as though every marker on your file has to be there for that length of time.

 

Someone somewhere on the forums has put up the reply they eventually got from Experian regarding this, in which they state themselves that there is no law and it is just industry standard. If they wanted to make it a mandatory 1 day they could, or they could decide not to put markers up at all as there is no law telling them otherwise (except for the CCJ issue obviously, and bankruptcy - although I don't know how long that marker would have to stay on, or if it goes on at all???).

[lexis200]

I'd be inclined to agree that more than one default is most definitely an issue and does differently affect your credit worthiness.

 

It's funnily enough very relevant to me at the moment.

 

We are trying to get a mortgage, and OH has 5 defaults registered (none of which should be there btw as they all cocked up on DNs and most have no enforceable agreements). They range in date from over 3 years ago to 1 year ago, with the latest one being placed on the file days short of the 6 month guidelines on it being a fair timescale (ie DN sent in January, marker applied in July).

 

The mortgage broker found a mortgage for us and told us that all defaults over a year old would be ignored. The latest one (which incidentally was for an account with no prescribed terms on the in-parts illegible app and which then had a dodgy DN followed by unlawful TN, and which in any case has more charges on it than balance!) is causing us massive problems as Experian seem to be running a month behind. So this one default, placed after the first 4 which would not cause us a problem mortgage wise, is stopping the whole process. The fact that the bank waited a full 6 months to place it is icing on the cake - this should already be 18 months old, but instead is only a year old because they waiting so long to add it:mad:

 

So in our individual case, even though OH already had 4 defaults, the only one causing us an issue is the most recent one.

 

We are going to lose the house we were desperate for because of this, and will for the time being have to remain in a rented property that is too small for our needs (not good for my health as stress depletes what little immune system I have, and can and has sent me straight to hospital) and which we are paying over £400 more for for rent than we would be paying for a mortgage. The effects of this default therefore are detrimental to my health, our general happiness and our finances.

[lexis200]

Great example Lexis, just sorry to hear it is causing you both so much trouble!

 

I'll explore this mortgage issue more, I have one with my fiance and we both have defaults (again through bank charges etc whilst we were both studying full time in the past) but we could still get a mortgage, this was in 2005.

 

I have an invalid default the lender admits is invalid (In a round about way after lots of letters) but they won't remove it and the CRA's aren't interested. Other than litigating I have little choice but to roll with it, that's why I'm so interested in this 6 year period they hide behind.

 

Thanks emandcole.

 

It should be fine in about 2 weeks when Experian catches up from their month behind oddity, but unfortunately by this time the likelihood of the house we want still being there will be pretty much nil.

 

Hey ho, I'm sure something else will turn up:)

 

It's unbelievable that the CRA won't remove it even though you have been told by the lender that it's incorrect. They really do have their heads up their bums in that sector.

 

I wish I could remember the post where someone had had the response from Experian that said they did not have any legal right to hold defaults on for the 6 years - it might help you with your enquiries to them if you could show them that.

 

I suppose it may be on this thread actually from when Pinky was still writing on it - does anyone else remember seeing it here?

[lexis200]

They said that to my OH shadow, but his account was closed at the time I sent for it (and had been for a couple of years as they flogged it to 1st Credit), so we have no comeback on it:(

[lexis200]

Oh flippin heck, was I the only one that got a half decent MBNA DN??? It's possibly do-able on the date issue but they've never (to my knowledge) terminated the sodding thing:mad:

[lexis200]

have you thought about reclaiming the unlawful fees then getting the DN removed by that method? as if the DN is solely made of charges, then if the refund, they must also remove the DN.

 

dx

 

Is this right??? If it is it's fantastic as at least two of OH's accounts have more charges than balance so the DN's would have been made up entirely of charges!

 

Sadly not the case with mine as I have very few charges:rolleyes:

[lexis200]

Surely if there is no agreement, there is no consent to share/use info and therefore there is no legal way they can report. My personal information is my own business unless I specifically tell them they can use it. If they have not got my signature on a page which states this then that's not my problem. What is my problem is when they arbitrarily decide to report anyway with no consent from me.

 

Equally if you have an application (which they have stated is your agreement) where they have specified in the 'use of your info' bit that they will use your data in order to make checks as to your identity etc, but have absolutely nothing there about using it in any other way whatsover, then again they can't use it to do anything else. I have this particular one with the Co-op. Nothing at all to do with use of personal info for recording how you run your account, it's all to do with the application process.

 

How can that be justified?

[lexis200]

I'm not under any illusions that they can prove a debt DD, I haven't at any point said otherwise. In fact, I have often stated to people that it's pointless trying to say you didn't borrow money on the back of no/no enforceable agreement as any number of other factors can be bought into play to prove you had.

 

What I am saying is that with no signature to consent to them using my data (or in the case of the Co-op app I have, with no clause from them stating they will use my data to record how the account is run), they are not at liberty to put anything on a credit file. Yes they can prove I had money - so what? What they can't prove in any way is that I said they could mark my files to say so. If they can do this without consent then why exactly do we have to sign to say that they may use our information in this way, and more expressly why do we usually have to tick a box as well as sign to show that we have read and understood the specific paragraph/s explaining what they will do with our data?

 

These are two entirely separate arguments and simply because I borrowed some money does not give them an automatic right to put my information on a CRA file, unless I expressly tell them they can by signing to say so. The same goes for if there is no agreement, as has already been mentioned. If there is no agreement there is no data processing clause (and no signature!), therefore they can't say it is their right to report how you have run your account as they have never been given that right.

Edited August 15, 2010 by lexis200

[lexis200]

Well we may well get a judges opinion about this quite soon.

 

I am involved in a case where I am suing a creditor in just this situation.

 

The creditor has no agreement (not just an unenforceable one, no agreement at all). He has admitted as such in writing and has admitted he cannot enforce the debt.

 

I am suing (amongst other things) for damages for damage to my credit worthiness due to adverse recording and a DN against my credit file.

 

I am citing that they have no signature that I agreed to data processing, there is no agreement or agreed repayment schedule to be in default of (so I cannot be overdue repayments) so is inaccurate information, their own policy insists you must have entered a credit agreement for them to process. I never entered an agreement.

 

We have just returned AQs and are awaiting directions before trial.

 

Have you a thread for this basa?

[lexis200]

But proving the terms is an entirely different kettle of fish to showing that you agreed to them by way of a signature, which they do need in order to process information.

 

If they don't have your signature then they are they not ignoring the DPA if they still use your info...

[lexis200]

the court will NOT be interested in whether the agreement was properly executed under the consumer credit act- they will be interested only- having listened to and seen the physical evidence from both sides- as to whether on the balance of probabilities- an agreement (lawful or not) existed and that you understood what you had gotten into and what you obligations under it were.

 

And whether the creditor was entitled- as a result of that agreement- to report adverse activity on that account

 

 

DD, this is a question/comment so I hope it comes across as that and not as a belligerent reply- I'll get that in now just in case it comes across wrong (it's very difficult to write how you mean things to sound!)

 

How does the above gel with my app form from the Co-op? With that, I have what is definitely an application form (no pt's), but what they are calling an (enforceable) agreement. If they took that to court to show that I had agreed to the account and the ensuing markers should they be needed, they'd have a very hard time as there is nothing on that form relating to using my data after the application process.

 

I have to say I've not seen it on any of my other apps/agreements - if there's one thing they always seem to get right it's the consent to use your data bit - but on this one the form I have signed at no point anywhere says that they will use my data for anything other than establishing my address and identity.

 

If I then go by what you said in the bit highlighted above, I can clearly show that I did understand my obligations and that those obligations did not say anything about my info being used.

 

Obviously they can then show that I did have the money and I was, until I hit problems in my life, paying it back every month. What they can't show is 'whether the creditor was entitled- as a result of that agreement- to report adverse activity on that account'.

 

Personally I'm not likely to go for default removals so it's not something I would need to be arguing the toss about in court, but I'm still at a loss to see why it follows that they would be allowed to show on the balance of probabilities that money had been lent, which in turn means ergo markers can be placed. They are two different things:confused:

 

Maybe I've muddled myself up with the DPA and what it requires, but disregarding enforceability or creditors simply reporting how your account has been run, I was under the impression that in order for creditors to release person/financial data about you to a third party that they required your consent. Have I got this very wrong? If so, why are we on most apps/agreements specifically pointed to the 'use of info' bit - often as I mentioned before having to also tick to say we've read and understood that particular part?

 

edit - just to say I've not read any posts further than DD's yet (had to type whilst my mind was on it:D), so if I've covered ground that's been gone over already, sorry!

[lexis200]

Yes, exactly Lexis.

 

Consent to process data must be given to the data controller. It is a basic principle of DPA. Ah, that'll be the answer to my question in my last post then - thanks.

 

AFAIK, consent is given on the credit agreement/application form. You tick a box and/or sign, showing your consent. If this is missing, then consent has not been provided and the data controller would be quite wrong to process data. He would be in breach of Para 1 Schedule 2 of DPA. I believe that action can be taken by a data subject for any breach of DPA by a data controller.That was what I thought, which is why I was querying why simply proving that a debt had been accrued meant that they had automatic rights to assume you had consented to your data being used.

 

Without consent the OC has no legal entitlement to process data, adverse or not. Also, consent is not implied. It must be freely and unambiguously given.

 

If there is doubt about consent on an application form or contract, I would suggest that the OC is asked when and how consent was given. If you state that you do not believe that any such consent was given, he will have a duty to demonstrate that it was.

 

As for recording payment history, the OC is bound by the principles of accuracy, fairness and lawfulness. If the OC breaches the contract and the debtor withholds payments (ie, there is a dispute) and adverse data is recorded, this may send out the wrong signal to other organisations that use credit scoring. It may not mean that the individual is a high risk. Therefore it is not accurate to record adverse data during a dispute (in my opinion).

 

Additionally, where no agreement exists - the OC has cocked up and formed an agreement that does not comply with CCA - the issue of lawfulness applies.

 

I think that there is general reluctance to remove adverse data or not to process data within the credit industry due to the recent plethora of claims management capers and also the risk of losing an OFT credit licence if accused of irresponsible lending. I think OCs take the safe route, and record adverse data at the drop of a hat, irrespective of any other factor.It does also seem to be their weapon of choice if all other avenues have been closed to them - a case of if they can't collect money then regardless of if they have your permission or not they will simply ruin your rating. It may be a justified marker, but if they're not allowed to place it then that should be the end of it - tough luck banks.

 

Just my take on things.

 

LA

 

PS: anyone else loathe this new front-end?Yes:)

 

Lexis

[lexis200]

well firstly lets remember that i do not claim to be any sort of legal expert-

 

ok lets look at the law of defamation in general (as far as i know it)

 

anyone can say anything about anyone else without fear of litigation PROVIDED it is true

 

therefore i can put an ad in the times and say for instance that lexis 200 had an agreement with fred blogs credit to use their credit card and that she defaulted on 6 payments and then the defaulted on the account

 

I take the risk, in making the statement- that i could be proved WRONG and that you didn't miss 6 payments and then default.- but if i am right then the truth is sufficient to prevent lexis 200 from alleging that what i have said is defamatory.

 

Lexis 200 could say " the reason i missed 6 payments is because i was in dispute with the creditor who didnt have a legally enforceable agreement / i found out after 4 years of thinking that he had my permission to process data that in fact he did not /didnt like his make up/wet the bed every month/ etc............and it whilst it may be an EXPLANATION as to why the 6 payments were missed and the account defaulted- it does not make the statement any less true.

 

therefore, if you take me to court- what is it that you are going to base your claim upon? did my comments cause you loss? did they harm your reputation? - well if it did- you will need to prove that it was my statement about you caused that loss/harm your reputation- and that what i said was untrue

 

which means you are back to square one and will have to prove that what I said was untrue

 

defamation/libel cases do not attract any form of legal aid- they can be notoriously expensive and financially ruin the unwary

 

I am not "batting for the other side" - i just feel that such an action has the potential to financially ruin a LIP (even if they were to win) and that the risk is not worth running- creditors know this too which is why they WILL mark your files and tell you to put up or shut up

 

this leaves only complaints to the ICO - OFT and again- i am 100% sure that at the end of the day- unless- as has been stated elsewhere the debt referred to is genuinely not your debt- anyone who has been paying their credit card/loan agreement for a number of years and is only now throwing up the legality of the agreement after already getting into arrears and /or defaulting - is going to get short shrift from either the ICO or OFT and they will ultimately (and rightly in my view) take the view that irrespective of the fact that the agreement may be unenforceable and/or that your signature giving consent to information is missing or whatever- that the reports to the CRA files are (if indeed they are) an accurate statement of FACT and that no adverse consequences have befallen you as a result of the information being recorded at the CRA

 

 

i make it ABSOLUTELY clear that i am and have been talking here of borrowers who have been engaged in the arrangement for several years and only now are in arrears/dispute over the agreement and who, IMO are wrongly believing that because the creditor does not now have the signed agreement- that the adverse can be removed

 

If all else failed the judge would fall back on the fact that the creditor IS NOT OBLIGED to produce the signed original agreement-as is often wrongly thought by caggers-in order to win his case- and that all he needs to do is show- on the balance of probabilities is that an agreement "WAS" signed at some point in the past by the debtor . (which is what the CCA says)

 

( a court has already held that a creditor who lost many records in a fire could still enforce the now absent signed agreements- based on the fact that he could show- from other records that on the balance of probabilities- the individual debtors "DID" (past tense) sign an agreement- even if the creditor could not now produce it

 

i am sure that records of spending and repayments would have gone a long way towards that argument

 

The added weight of evidence to show that you used the facility over a number of years/paid the amounts notified to you on the monthly statements for years etc would all combine to leave the judge with no other conclusion to reach than that you knew perfectly well what you were doing and are being "speculative".

 

I think it better that i now say no more on the subject

 

my aim is to HELP caggers-= and in this respect that help was to hopefully pursuade them that litigation in such circumstances is, on balance more likely to be detrimental to them than otherwise

 

you can only lead a horse to water- it is up to the horse if he wants to drink

 

Ok, so am I right in reading this as you saying that despite processing data without consent being in contravention of the DPA, there is nothing that could be done other than a complaint to the ICO?

 

As I said, I'm not looking to do anything about this court-wise, but would they (the creditors) seriously not have to answer to someone for ignoring the DPA? This is what I can't get my head round - whether or not I knew what I was doing etc, are they legally allowed to get away with ignoring the Act?

 

I don't know why I shouldn't believe it tbh considering the other stuff they get away with, but this just seems like one more insult. Are there any rules and regulations that they do get in to difficulties for riding over completely???

[lexis200]

That's awful UD:(

[lexis200]

OH asked me a default question last night that foxed me...

 

What happens after the 6 years when a default has been placed on your file?

 

If you have an unenforceable agreement (so if all is correct they should not be able to take you to court), and your D has dropped off your file, what is left for a creditor to do?

 

They can't default you again on the same account, they can't take you to court; what happens to your credit file? Does it just go back to showing as x amount of missed payments??

[lexis200]

Hi All

 

Sorry to jump in - Can anyone have a quick look at a DN that i have uploaded to see if it is valid - and if not valid what makes it invalid.

 

This is part of a pending court case so all help will be greatly appreciated.

 

http://i638.photobucket.com/albums/uu110/dadofholly/DefaultPage1.jpg

 

http://i638.photobucket.com/albums/uu110/dadofholly/DefaultPage2.jpg

 

I'm pretty sure they can't state you need to pay '40%' of the balance????

 

It has to be an amount, and that amount has to be the arrears, not just some percentage that they've decided they'd like to have.

[lexis200]

After 6 years all information regarding this alleged debt should be removed from your credit file. Sometimes you have to point this out to the CRA's if they have not already removed it.

 

Thanks for that:) Only 4 years to go then...

[lexis200]

Thanks again for that.

 

Just to add a spanner into the works, some of the accounts are still being paid on a payment plan. Whilst I can see how the ones I'm not paying/acknowledging will be dropped, what would happen to the others?

 

I'm guessing they'll just keep showing as arrangements to pay?

[lexis200]

I think this was mentioned on Vints default thread some time ago.