Anatomy of a Default Notice

[cymruambyth]

Apologies accepted (as I wipe away a tear:D)

[fossilfinder]

Subbing to this thread as I have not received any responses really under CAP1 section and I really need some advice please.

 

I am seeking advice on Default Notices, this is my second in two days and whilst I have been reading and reading threads on Dn's I would appreciate some guidance and advice regarding this one from Cap1.

 

Brief history - sent CCA request, received letter back saying they can't action without a signature, I wrote back saying I'm not obliged to provide one please carry out CCA request as required, they wrote back to say it would take them sometime to deal with my enquiry and would be in touch if they hadn't managed to oblige within 4 weeks I wrote back after the 12 + 2 days from second CCA request with Account in Dispute Letter. They received this on 13 July, I have POD from RM.

 

Today I receive the following;

http://i892.photobucket.com/albums/a...ltlet001-1.jpg

 

I am in a dmp with payplan, early stages, but have not received any notification of a Long Term Payment Plan with CAP1, from either CAP1 or PP.

 

 

http://i892.photobucket.com/albums/a...tnotice003.jpg

 

My questions are;

1) Is there a letter template to reject a DN issued whilst account in Dispute?

2) Irrespective of whether the DN should have been issued does it meet the prescribed requirements?

3) Anyone else received this format from CAP1?

4) What should I do now:confused:

 

Thank you

 

FF

Edited July 21, 2010 by fossilfinder
wrong link to DN new one entered in post below.

[lord_tiger_putin]

Well, well that’s what they look like!. Crap One said they have send us similar one, which I doubt but they did enter Defaults on our credit files.

 

Expert advice is needed but there is some serious breeches here. They basically states that you shouldn’t go into a Debt Management Program!! Isn’t that against the law!!

 

It is any way invalid:

No date, it gives 28 days!

There is also not a date of issue on the DN itself!

 

The remedy: Cancel your DMP or we will ask the whole amount, sell it to a DCA, etc.!!

 

I think they are in some serious breeches here!!!

[lord_tiger_putin]

FF

 

You have to remove the barcode! They can read it and pull up your file!

[means2anend]

A date specified must be a specified date within the notice itself...not ''from 28 days from the date on the letter''...also a copy of the current default information must be supplied with the DN in accordance vwith s86A

Edited July 21, 2010 by means2anend

[lord_tiger_putin]

A date specified must be a specified date within the notice itself...not ''from 28 days from the date on the letter''

 

The DN is a document on its own and must state the date when issued, they cannot use the data on the accompany letter.

 

They do print these in bulk from templates and do not keep a copy, if you "loose" the first page, what is the date then anyway?

[means2anend]

FF here is the link that will explain the ''anatomy of a default notice''...

meanwhile I'll refresh my memory and go through it with you by applying it to crap1's actual frankenstein creation.

 

http://uk.wrs.yahoo.com/_ylt=A1f4cfkeA0dMGEwBldxLBQx.;_ylu=X3oDMTE0NGZvc29oBHNlYwNzcgRwb3MDMQRjb2xvA2lyZAR2dGlkA1VLQzAwMl8xMw--/SIG=15an6ft4u/EXP=1279808670/**http%3a//www.johnpughschambers.co.uk/Consumer%2520Credit%2520(Enforcement,%2520Default%2520and%2520Termination%2520Notices)%2520Regulations%25201983.pdf

 

rgds

m2ae

[means2anend]

READ THIS BEFORE YOU READ SCHEDULE 2...this is on Page 1 ...Section 2(2)

 

I put it here for convenience;

SECTION 2

(2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section 87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section 88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain--

(a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974;

(b) the information set out in paragraphs 1 to 3, 6 and 8 of Schedule 2 to these Regulations; and

© statements in the form specified in paragraphs 4, 5, 7[, 8A] and 9 to 11 of that Schedule.

 

 

In the link above look specifically to Page 4 and Schedule 2 paragraphs 1-3,6 and 8 of SCHEDULE 2...and check out statements in as mentioned in © in that same Schedule...

 

The required information in your Crap1 is dictated by that Schedule...

 

I think you should try reading it first then look at your DN...any questions THEN post we'll get back to you..in meantime it's a while since I read it so it'll give me time too to absorb refresh and answer any questions you may have...One interesting point to note is that they call your notice not a DEFAULT NOTICE but NOTICE OF DEFAULT...in law these 2 creatures are entirely different and have differing purposes....the reqwuirement above in (a) is that it shall be stated as a default notice

 

rgds

 

m2ae

Edited July 21, 2010 by means2anend

[means2anend]

In paragraph 3 to Schedule 2 it explicitly states

 

3 A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© 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; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and

the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid

 

rgds

 

m2ae

[fossilfinder]

Many thanks for your comments,

 

LPT I have now removed the barcode, will post DN back up in aminute, it keeps linking to the old version with barcode!!

 

Thank you for your comments.

 

m2ae - thank you also for your advise and links, I appreciate it. I will go and read through the schedule again, I have to admit to getting a little confused with the way these things are written, however there do seem to be a number of glaring errors with their 'Notice to Default' as you correctly pointed out!

 

I could always refer to section 16 of my Credit Agreement as this is what they say I have breached - Oh No Hang on - They haven't sent me a CA !

 

Thanks, I will wait and see what happens next.

 

LTP how are you getting on since they logged Defaults against you?

 

Regrds

 

FF

Edited July 21, 2010 by fossilfinder

[means2anend]

FF

 

It also appears as though this mandatory statement is missing at the appropriate place

 

This statement shall follow the specification under paragraph 3© or (d) of any action required to be taken.

 

''Consequences of failure to comply with default notice''

[means2anend]

delete for duplication

[fossilfinder]

Ok, have deleted duplicate file and replaced with new on

 

DN they sent me in case anyone else wanted to comment or see what one looks like, if like LPT, you have been told by CAP1 that they sent you one but it never materilaised;)

 

http://i892.photobucket.com/albums/ac128/fossilfinder/capdefaultnotice004.jpg

 

I am off to disect the information you sent m2ae,

 

FF

[means2anend]

Ok, have deleted duplicate file and replaced with new on

 

DN they sent me in case anyone else wanted to comment or see what one looks like, if like LPT, you have been told by CAP1 that they sent you one but it never materilaised;)

 

http://i892.photobucket.com/albums/ac128/fossilfinder/capdefaultnotice004.jpg

 

I am off to disect the information you sent m2ae,

 

FF

 

 

FF..no I meant that I HAVE deleted my post because i had duplicated it..I did not ask you to duplicate anything...getting a bit like benny hill:)

[fossilfinder]

Oh, silly me, it was because LPT had pointed out I had left the barcode on the DN and I couldn't get rid of it with a new file.......... DOH!!!

 

it's that time of day, need liquid refreshment

[lexis200]

Can I just point out that the date issue has been gone over time and again, and I think it's highly unlikely that a judge will not just ignore the fact that it says 28 days instead of giving a date.

 

I know the Act specifies 'date' etc, and I know that to the letter of the Act it should be invalid if there is not a date, but can you honestly see yourself trying to argue that 28 days is not enough time to remedy, date or no date? All a judge will see is that the notice gave 14 days and then some, as required. How are you going to argue that it did not give enough time when you have an extra two weeks?

 

Granted this is not right and it could be abused in all manner of ways, which is precisely why the Act states a date and not just a number of days. I would lay odds on this not being an issue to them though.

 

The fact there isn't a date on the notice is possibly a little more problematic for them as it's right that there should be one there on the notice itself. Again though I doubt this would on its own be enough to cause them consternation as they'd just get x employee to swear they are all sent with a covering letter bearing the date. In addition to that they will likely have records of when it was sent on their files, and as we all know it's deemed served after x days (depending on what class post was used) in the ordinary course of the post.

 

Cap1's notices are decidedly dodgy (I have one myself), but they are unfortunately not as clear cut as 'they haven't put a date so they're screwed'.

 

If there are other issues I've not seen them as the link just seems to go to Photobucket's front page.

[fossilfinder]

Hi Lexis200,

 

Thanks for your comments, I agree with you point about enough time, I'm just trying to wise up re DN. Even if they gave me a 100 days I wouldn't be able to remedy the situation! My inital question was Cap1 sent this after I issued the Account in Dispute letter as they hadn't complied with my CCA request.

 

Any pointers as what to do next?

[fossilfinder]

the link in #457 should work now.

[lexis200]

Hi Lexis200,

 

Thanks for your comments, I agree with you point about enough time, I'm just trying to wise up re DN. Even if they gave me a 100 days I wouldn't be able to remedy the situation!Snap:) My inital question was Cap1 sent this after I issued the Account in Dispute letter as they hadn't complied with my CCA request. Sounds about right:rolleyes: They don't pay a blind bit of notice to accounts being in dispute - they just claim they're not! They also won't agree that a DN amounts to enforcement so they nullify that argument very quickly (from their point of view anyway).

 

Any pointers as what to do next?

 

All I can say is that my own personal experience is that I have got precisely nowhere with the complaints I've sent about this exact matter. Have you tried the FOS, and the OFT (considering it's their guidelines that they are breaching)? It's a long(ish) shot but they may be helpful...

 

It's always but always worth plugging away, if for no other reason than to make yourself look utterly reasonable in your actions whilst they have been utter tools.

 

As I'm not willing to go to court (that's really not somewhere I want to be), I've just kind of ignored them for a while now. They sent Fredricksons after me in January this year and I wrote and told them to burger off. I got a reply yesterday regarding my 'recent' letter and asking me to contact them by phone. Silly billies:)

[lord_tiger_putin]

Many thanks for your comments,

 

LPT I have now removed the barcode, will post DN back up in aminute, it keeps linking to the old version with barcode!!

 

LTP how are you getting on since they logged Defaults against you?

 

Regrds

 

FF

 

The one with the bar code is gone.

 

We have 2 defaults, one on my name and the other in my wives name.

 

I did complain to them a while ago (before I learned something about it, it was actually that default that made me to search for defaults and I ended up here) about mine and will post their daft response tomorrow.

 

In my wives case I made a SAR and I must now decide whether to take Sven Lagerberg to court or to complain to the ICO because he didn't comply and the 40 days are over. He said he need a signature, I said it is not needed, then I send him the 7 days before action letter in the beginning of last week. He didn't respond to either.

 

I am glad to see the actual default notice because I didn't know what it contains. Now I know. My current strategy is to get the information regarding the SAR to see what I can do. I did send the Unlawful Rescission letter for closing the account without a valid default notice.

 

I want to attack them on this basis (the invalid DN is just a bonus, I believe it is clear that they SHOULD NOT file a Default under these conditions):

The important part here is also the ICO guidance regarding filing defaults with credit reference agencies:

17 Variations in payment schedules – Keeping the record up to date

Lenders should not file a default where there is a genuine and agreed variation in the payment schedule. (The only exception to this is where a debt management programme is put in place where the level is of payment represents only a token sum which is only accepted by the lender because the customer cannot afford to pay more. The reporting of debt management plans is discussed at paragraphs 22-26). …….

 

23 Moderate to high levels of repayment

If the payment set out in the DMP is at a level that a lender considers at least adequate, the agreement should be marked as included in a DMP. A lender may be willing to reschedule the agreement at a later stage at which point the record should be changed to reflect the agreed scheduling.

 

25 Where a customer does not make the repayment agreed under the DMP, a default can be recorded and the DMP marker should be removed when the total value of the arrears is equivalent to three monthly payments under the original terms.

 

It stated much more info and the message is clear, they should only file defaults when there are arrears and when these arrears are at least for 3 months.

[lord_tiger_putin]

Anyone that can find "holes" in this DN?

 

http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=20053&d=1279528572

[lord_tiger_putin]

Removed the DN - needs editing!

[lord_tiger_putin]

Here is the DN.

BH-DN.pdf

[lord_tiger_putin]

LTP how are you getting on since they logged Defaults against you?

 

This is a response I received back in 2009 - it is crap, even from crapone.

 

I will send them another letter quoting the guidelines from the ICO. I expect another crap letter which I will use to complain to the ICO.

 

I did receive complaint forms from the fos, which I never returned because they seems to say it is a legal isue and they can do nothing about it. I think I will return it just for the reason that it will cost CrapOne between £400 and £500 for the fos just to investigate it, no matter the outcome, that for a balance of £191.00 on the card!

 

They do have these rubbish in theit t&c's, which are against the guidelines of the ICO. The ICO states very clear that should you go into a DMP and you make reasonable payments, then they should report on your credit report that you are in debt management and they should change that should to the DMP comes to an end, either you settled the account or resume original payments - not to default you.

 

THIS IS A DIFFERENT ISSUE:

Their t&c's breaking ICO guidelines. They punish you for 6 years for going into debt management.

 

Other organisations (which I had dealings with) didn't issue defaults, they adhere to ICO guidelines, what make CrapOne think they are special?

 

Anyway, my ICO complaint for their data controller who failed my SAR is going off today!

CrapOne.pdf

[lexis200]

This is a response I received back in 2009 - it is crap, even from crapone.

 

I will send them another letter quoting the guidelines from the ICO. I expect another crap letter which I will use to complain to the ICO.

 

I did receive complaint forms from the fos, which I never returned because they seems to say it is a legal isue and they can do nothing about it. I think I will return it just for the reason that it will cost CrapOne between £400 and £500 for the fos just to investigate it, no matter the outcome, that for a balance of £191.00 on the card!

 

They do have these rubbish in theit t&c's, which are against the guidelines of the ICO. The ICO states very clear that should you go into a DMP and you make reasonable payments, then they should report on your credit report that you are in debt management and they should change that should to the DMP comes to an end, either you settled the account or resume original payments - not to default you.

 

THIS IS A DIFFERENT ISSUE:

Their t&c's breaking ICO guidelines. They punish you for 6 years for going into debt management.

 

Other organisations (which I had dealings with) didn't issue defaults, they adhere to ICO guidelines, what make CrapOne think they are special?

 

Anyway, my ICO complaint for their data controller who failed my SAR is going off today!

 

That is very interesting LTP...

 

When I had to go onto a payment plan I was told by a good proportion of my creditors that I needed to be served a DN before they would consider it, or as soon as I started it. Obviously the ones before were very dodgy as I'd kept payments up until I started plans (ie no missed payments, no arrears), but I though the ones after the plan was started would have been ok as I wasn't making the minimum contractual payments (ignoring for a minute the lack of agreements with most:)).

 

Any chance you could point me to where the ICO states this please so that I can have a look?

 

Thanks:)