Invalid Default Notices

[vint1954]

For overdrafts, they do not need to follow the same route as a credit agreement. The overdraft is repayable on demand, hence the use of s76 and s98 and not s87.

 

It is probably compliant if it came first class post.

 

Strange that they use s98, which is for terminating an agreement in non default cases.

[DeBilde]

Yep, sorry did not notice it was a OD.

[annabella7]

However if it was a credit card how can they turn it into an overdraft legally.

the default notice was served under Section 87(1) of the consumer credit act 1974.

I havnt any record of them using s98 anywhere on my paperwork

[mxr808]

So i'm screwed?

[mxr808]

Why did they charge me £30 for a default notice if they didn't serve me with one?

[DeBilde]

It is a DN but for a OD. Did you keep the envelope it came in?

[vint1954]

However if it was a credit card how can they turn it into an overdraft legally.

the default notice was served under Section 87(1) of the consumer credit act 1974.

I havnt any record of them using s98 anywhere on my paperwork

 

 

 

 

The responses were to mxr's post above

[vint1954]

I have also noticed that this is a student account. The regs surrounding these can differ.

 

You are best starting a thread in the legal section to get better advice.

[InformedSearcher]

Thanks. Although the problem is I haven't had a default served on me. My credit report simply shows 3 "Late Payments" so I assume this is standard. I'm not sure whether they backdated the letter since the charges letter came in the same envelope yet is dated the 8th not the 7th.

 

Once it gets past 4 (or even more) then the DN will kick in. Banks tend to run 6/8 weeks behind with their CRA entries. Their letter tells you it's there intention to rather they have done it. The 'Default Sums' are not a refernce to a default notice but what they are called these days to replace things like non payment/unauthorised overdraft charges etc. Why some bright spark decided to call them that I do not know.

 

Michael

[mxr808]

InformedSearcher, it's just that the "reason for charge" states "Default Notice Fee" which I assumed to mean fee for a default notice. What is this fee actually for? Termination notice?

 

In response to DeBilde, I did not keep the envelope it came in. Would this have been wise? I remember reading that unless proof of postage method can be done then a court would assume it was 2nd class.

[Dotty50]

In response to DeBilde, I did not keep the envelope it came in. Would this have been wise? I remember reading that unless proof of postage method can be done then a court would assume it was 2nd class.

 

But if they fib and tell the court it was sent 1st class, you would have the proof otherwise!

 

I keep every envelope, only trouble is my files fill up much too quickly!

[InformedSearcher]

InformedSearcher, it's just that the "reason for charge" states "Default Notice Fee" which I assumed to mean fee for a default notice. What is this fee actually for? Termination notice?

 

In response to DeBilde, I did not keep the envelope it came in. Would this have been wise? I remember reading that unless proof of postage method can be done then a court would assume it was 2nd class.

 

I apologise - however all fees are called 'Default Sums'. I smiled on reading it again because I've never heard of a bank charging a fee for a Default. I somehow do not think that's in their T&C's (but I could be wrong). In the end they are after you paying them back - to me charging fees on top is rather pointless. By putting the Default on your CRA they've not exactly held out a carrot for you to pay them anything.

 

Michael

[mxr808]

InformedSearcher, yet according to everyone this letter is NOT a default notice so I have no idea what this fee is for. My credit report states "3 Late Payments" but no official default apparently. Am I able to dispute the amount owed due to this fee? How would I go about doing that?

[InformedSearcher]

InformedSearcher, yet according to everyone this letter is NOT a default notice so I have no idea what this fee is for. My credit report states "3 Late Payments" but no official default apparently. Am I able to dispute the amount owed due to this fee? How would I go about doing that?

 

Yes I agree very confusing. Maybe you could call them (or better still) write to them and enquire. They say they 'intend' and in reality that should not be a fee. They cannot charge you for entries onto CRA's BUT you really need to check what entries are made and that means do a subscription or send £2 a month to each one. The problem is that there are 2/3 year intervals before those (NON default) entries fall off. They update CRA entries monthly and as I said before are normally 6/8 weeks behind. They will eventually enter Defauls if you make no payments or do not agree a solution. One thing is important here is that if you correspond with them you MUST get assurances if you agree anything that a DN will not be issued - this is in fact unlikely as it's more procedual than anything else and timescaled. I'm guessing from what I see that you have not paid anything into the account meaning NW are convinced (unless you discuss it with them) that it's being allowing to lapse - Current accounts are not the best to allow this to happen to, unless you totally dispute what is owed.

 

The problem here is that you had an overdraft and they can call for full payment on demand which they are doing here. I am still rather concerned that they have charged you £30 attributed to a Default that is not formally actioned yet. I have to ask what contact you have had with them and have you discussed or come to any agreement. I however afetr all this see not reason for you not to be refunded the £30 as you can ask them how they warrant this charge (forget the blurb they'll tell you about T&C's).

 

Michael

[letsgetitsorted]

Hi All

Sorry to jump in, but i have 2 DN here

defaultedited.jpg picture by letsgetitsorted - Photobucket

was wondering if someone could take a look for me please, to see if they are valid and if not why not.

 

many thanks in advance

[mxr808]

Yes I agree very confusing. Maybe you could call them (or better still) write to them and enquire. They say they 'intend' and in reality that should not be a fee. They cannot charge you for entries onto CRA's BUT you really need to check what entries are made and that means do a subscription or send £2 a month to each one. The problem is that there are 2/3 year intervals before those (NON default) entries fall off. They update CRA entries monthly and as I said before are normally 6/8 weeks behind. They will eventually enter Defauls if you make no payments or do not agree a solution. One thing is important here is that if you correspond with them you MUST get assurances if you agree anything that a DN will not be issued - this is in fact unlikely as it's more procedual than anything else and timescaled. I'm guessing from what I see that you have not paid anything into the account meaning NW are convinced (unless you discuss it with them) that it's being allowing to lapse - Current accounts are not the best to allow this to happen to, unless you totally dispute what is owed.

 

The problem here is that you had an overdraft and they can call for full payment on demand which they are doing here. I am still rather concerned that they have charged you £30 attributed to a Default that is not formally actioned yet. I have to ask what contact you have had with them and have you discussed or come to any agreement. I however afetr all this see not reason for you not to be refunded the £30 as you can ask them how they warrant this charge (forget the blurb they'll tell you about T&C's).

 

Michael

 

Thank you for your help. The reason for the overdraft going over it's limit and being recalled was due to a direct debit which was not cancelled after I was told over the phone by one of the customer service operators that I had no direct debit going out and since it was at it's limit, the direct debit was rejected and I received a £30 charge (The direct debit was less than that. Might as well have just let it through). I talked to a woman on the phone yesterday at Triton Credit and said I would not go through the security checks as I want everything in writing. She told me I could not have anything in writing and that I would have to discuss the account with her today. I said no and she said she would have to pass the debt on. I said fine and hung up.

 

I would obviously like to stop this account being processed and am sending off a SAR. Will this stop the debt being passed on until they have sent me the relevant documents?

[emandcole]

Hi All

Sorry to jump in, but i have 2 DN here

defaultedited.jpg picture by letsgetitsorted - Photobucket

was wondering if someone could take a look for me please, to see if they are valid and if not why not.

 

many thanks in advance

 

Hi, has this default notice not got a date on it? It only has the date they want you to remedy by? Have you covered the date it was sent or was there no date on the notice?

[DonkeyB]

Quite right, emandcole - the covering letter is NOT part of the DN, so if it is not dated, they have made a bit of a cock-up.

[emandcole]

Quite right, emandcole - the covering letter is NOT part of the DN, so if it is not dated, they have made a bit of a cock-up.

 

 

Be a shame wouldn't it

[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.

[middenmess]

Hi All

Sorry to jump in, but i have 2 DN here

defaultedited.jpg picture by letsgetitsorted - Photobucket

was wondering if someone could take a look for me please, to see if they are valid and if not why not.

 

many thanks in advance

 

If posted 2nd class then 14days is 5th May

 

you need to read up on the prescribed format for a default notice as I think that this one misses the mark on a couple of points.

[DonkeyB]

That said, this is not a situation I have ever come across before. It is an unusual way to create and deliver a default notice.

[DonkeyB]

Spot on pinky, but isn't termination is necessary before you write the letter suggested? Is it better to wait until they have written to demand the whole lot which would equate to termination?

[Bigdebtor]

Great to see Vanquis get a bloody nose in thsi case! They deserve everything we can throw at them. Despite my credit rating being totally trashed and evidence of previous enormous problems in trying to keep up with repayments - followed by evidence of adhering to CCCS-assisted payment plans and negotiating numerous short settlements, Vanquis have just written to me saying I have been "pre-approved" for a new card with a £1k limit and an apr of 39.9%!

 

A few years ago I would have succumbed to this tempation as I tried to keep all the plates spinning and prevent my OH realisng just what a mess I had got into after taking seriously ill and seeing a lot of my business customers desert me. I know we are all supposed to be "responsible" adults but I think putting such temptation in front of vulnerable debt-laden people is totally underhand and despicable.

 

It's time such tactics were made illegal - but with the toothless FOS, FSA and OFT there's no chance of that.

 

BD

[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.