Invalid Default Notices

[Pinky69]

They cannot consolidate without your agreement. Did you agree to this? What did they consolidate and what kind of credit did they use to consolidate it with?

[Pinky69]

Your case was clear cut Dotty. What Ladida needs to find out is exactly what happened after she received the unlawful DN so she knows the grounds for accepting the repudiation of contract. If it was consolidated with other credit without her agreement then that is the grounds for her repudiation.

[Pinky69]

We need to careful here. When you say it was "merged" with the bank account, do you mean the balance on the card was put into a dormant bank account giving you an overdraft or was there new credit from somewhere that cleared the balance of the card and exactly what kind of credit was that? I am not saying the credit card account wasn't rescinded but before you write about repudiation you need to be absolutely clear on the reasons for repudiation or you will blow your argument. It needs to be 100% legally watertight.

[Pinky69]

So where does the old bank account come in? You need to know exactly what happened after they closed it. Did they sell it on, demand the full balance or what?

[Pinky69]

We are going round in circles here and I cannot offer you any more advice unless you can tell me how the old bank account came into the picture, what it was used for in relation to the closure of the credit card and what exactly was consolidated.

[Pinky69]

letsgetitsorted - Vanquis - unlawful.

 

The first line states"It is hereby alleged...." (and they spell "alleged"wrongly).

They cannot "allege" anything. The Consumer Credit(Enforcement, Default and Termination Notices) Regulations 1983 regulations state that everything must be "clear and easily understood." This isn't clear. Are you in breach of the agreement or not? They don't say - they only allege that you are.

 

There is no date on the Notice. A date must be on the Notice itself, not a covering letter. So you do not know whether they have given you sufficient time to remedy the breach.

 

Sit on it and don't do a thing until after 4 May then write and accept their repudiation of account.

 

 

I'll be back shortly about the Capital One DN.

[Pinky69]

Capital One - unlawful.

 

The Default Notice is unlawful for the following reasons:

 

The Default Notice must contain all of the necessary information under the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983

2 (1)© if the breach is capable of remedy, what action is required to remedy it and the date being a date [not less than

fourteen days] after the date of service of the notice, before which that action is to be taken;

 

 

A specific date for the alleged breach to be remedied must be given – it is not sufficient to say “ within 28 days of the date of this letter”. There is no provision in the Act for an unspecified date to be set with reference to a number of days after the date on any “letter.”

 

 

(2) (2)The prescribed term of the alleged arrears must be specified in the section dealing with what must be paid to remedy the alleged breach. It is not sufficient to refer to a sum of money situated above the Notice heading. The amount required to remedy the alleged breach must be stated specifically in this section as being required to remedy the alleged breach.

 

 

Where any statement is required to be in a form specified in a Schedule to these Regulations and is reproduced in the notice, then apart from any heading to the notice, trade names or names of parties to the agreement--

 

(a) the lettering in the statement shall be afforded more prominence (whether by capital letters, underlining, large or bold print or otherwise) than any other lettering in the notice; and

 

(b) where words are both shown in capital letters and underlined in any statement specified in a Schedule to these Regulations, they shall be afforded yet more prominence.

 

The Notice fails to give more prominence to the words underlined. This is the correct format below (note the correct use of bold type):

 

"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]"

 

 

By putting everything in bold capitals, Capital One failed to give more prominence to the words underlined. This is not a De Minimus matter as the Regulations require the words underlined to have yet more prominence than the rest. There is no leeway in this – it must be exactly as laid down in the Regulations.

In the section which states “You must pay the whole balance immediately”, the whole balance which would require to be paid under the alleged agreement must be stated specifically. You could not be expected just to guess what this was. Everything in the Notice must be specified so that it is easily understood.

 

"We may claim “reasonable” costs" ..... for recovering the alleged amount owed.

 

 

Everything on the Notice must be clear and easily understood. This is misleading as it suggests they have a right to add costs. Capital One cannot add anything to the sum claimed without a court order and any allowable costs would have to be specified on the Notice.

 

 

"We may place OR sell the account (to a debt collection agency....."

 

 

Not specified. Will they or won't they place or sell and which is it to be - "place" or "sell"? This is not clear or easily understood.

 

 

They then speculate on what a debt collection agency might do. They cannot know what a debt collection agency might do. This is not clear.

 

 

I sent this to Capital One and stopped them dead in their tracks. It is now with the ICO to get their default removed.

[Pinky69]

Yes, sorry Donkey and thanks for that - a senior moment there!! letsgetitsorted - sit on it and don't breath a word until they TERMINATE the account!!

[Pinky69]

Thank you,D.

[Pinky69]

The Regulations state that everything on a DN must be clear and easily understood. By its very nature an either-or situation is neither clear nor easily understood. They must state precisely what is going to happen.

 

Nothing can be added to the sums on a DN. If there are any costs involved they must be claimed separately and only a court can order costs to be paid.

[Pinky69]

Hello - the original poster popping in again with an update.

 

Firstly, a bank who took money from CCCS after they sold the debt to a DCA and the DCA receiving the money from the bank and colluding to defraud. I knew nothing about this until 2009 and it had been going on for 5 years. I now have all the information I need to go to court on this, nearly all of it given to me by the DCA in a letter last month - twits! I have in the last few months learned the salient points for court so I am going to redraw the case and take my time getting it right. It will be Scots Law, Summary Cause.

 

Bank 1 and Bank 2 - there is a backlog at the ICO of about 9 months. Defaults must be both lawful and accurate. What I have learned is that the CRAs aren't interested in no agreements and unlawful rescission- that is for court - but I haven't let up on them and I have been working on putting them into a position as joint data controllers where they have no get out by saying we cannot remove the entries without the creditor's permission. Luckily the statements are all a load of bollox so I am sending copies to the Managing Directors of the CRAs emphasising the obvious inaccuracies in the statements, pointing out that they cannot be verified and are unauthenticated computer generated manure and are full of accounting mistakes. They were, of course, fabricated. I have said now you cannot state that the entries are accurate and since they aren't you should remove them under S41 and S43 of the DPA. That takes away the we can do nothing argument - they cannot deny the inaccuracies. Those letters with copies of the statements go off tomorrow morning.

 

Information about credit report searches. DCA 2 assigned an account they had bought to DCA 3. DCA 3 searched my credit reports. The account had been in dispute for 2 years. I complained to the ICO and the ICO upheld my complaint and ordered DCA 3 to remove the searches. The reasons were 1) DCA 3 was not the data controller 2) after 2 years in dispute any reason to search my reports was diminished. The ICO asked DCA 2 why they had asked DCA 3 to search my report after so long and not satisfied with DCA 2's answer, the search was removed.

 

Keep smiling fellow CAGERS. There is a long way to go yet but we ARE winning the battle.:grin:

[Pinky69]

Banks don't keep copies of DNs - they do them on templates - but what should be in your file is a note on the history sheet if one was sent.