Cap1 & CCA return

[car2403]

Hi

 

This is the only page there is.

 

Also I dont know if you have noticed that they have wrote at the top

 

IMPORTANT PLEASE READ THIS CAREFULLY.

 

In the default regs 1983 it states the wording that it should be:

 

IMPORTANT YOU SHOULD READ THIS CAREFULLY.

 

Section 2(6) of the same regs states "The wording in any such statement should be reproduced in this notice without any alterations or alterations

 

Yes, but a daft Judge would probably not notice - and if you point it out, you would have to show prejudice because of the incorrect wording!

 

(This is all despite the Act/Regs being clear as to form/content of agreements and Default Notices, BTW!)

[Having_A_Knightmare]

Hi Car

 

The regs are clear what have to be in and the wording.

 

If you point this out to the judge and show him the regs is it true that he would have to deam it void

 

HAK

[Acerfan]

Hi,

I've been away from the site for a very long time, but I have some issues I'd like to clear up & I hope someone can help.

 

I'm currently having problems with a company that I sent off a CCA request to over a year ago. They finally sent the correct copy of the agreement, (after the prescribed time) but no cancellation rights. I can't remember if the agreement was signed in branch or not, but the cancellation rights are mentioned on the agreement & I never received them or a copy of the agreement at the time or shortly after. I know that in some cases you have no right to cancel, but if your rights are mentioned on the agreement with a statement that you will receive them within X days, then surely they must supply them as this is what is agreed when the ageement is signed.

 

This company has continued to chase me for payment, ignoring all my many letters stating they're in breach of the law & have issued a default notice. However, the default notice states that the agreement is with another bank. I know this bank is part of the same group, but if it is not the same bank that they claim I owe money to as per the alleged agreement, then surely the default notice is incorrect & they can't act on it?

 

The reason I'm asking is I'm preparing a complaint against them with the Financial Ombudsman Service & also the Information Commissioner (as they've also failed to satisfy my S.A.R - (Subject Access Request)) & I would like to know I have my facts 100% correct.

 

Many thanks in advance for any reassurance anyone can give & I can't believe how many pages I've got to catch up on!!!!

[car2403]

Hi Car

 

The regs are clear what have to be in and the wording.

 

If you point this out to the judge and show him the regs is it true that he would have to deam it void

 

HAK

 

In theory, yes. In practise, he might not. It would give a reason for appeal though, as the Law is clear. Just be prepared to argue your case.

[car2403]

Hi,

I've been away from the site for a very long time, but I have some issues I'd like to clear up & I hope someone can help.

 

I'm currently having problems with a company that I sent off a CCA request to over a year ago. They finally sent the correct copy of the agreement, (after the prescribed time) but no cancellation rights. I can't remember if the agreement was signed in branch or not, but the cancellation rights are mentioned on the agreement & I never received them or a copy of the agreement at the time or shortly after. I know that in some cases you have no right to cancel, but if your rights are mentioned on the agreement with a statement that you will receive them within X days, then surely they must supply them as this is what is agreed when the ageement is signed.

 

This company has continued to chase me for payment, ignoring all my many letters stating they're in breach of the law & have issued a default notice. However, the default notice states that the agreement is with another bank. I know this bank is part of the same group, but if it is not the same bank that they claim I owe money to as per the alleged agreement, then surely the default notice is incorrect & they can't act on it?

 

The reason I'm asking is I'm preparing a complaint against them with the Financial Ombudsman Service & also the Information Commissioner (as they've also failed to satisfy my S.A.R - (Subject Access Request)) & I would like to know I have my facts 100% correct.

 

Many thanks in advance for any reassurance anyone can give & I can't believe how many pages I've got to catch up on!!!!

 

Cancellation rights only apply to cancellable agreements. If the agreement isn't cancellable, there is no right of cancellation.

 

Regardless, if you argue it is cancellable (and can give reasons for it being so) it's the creditor that bears the burden of evidence to prove it isn't.

 

If a Default Notice has the wrong creditor details (the original creditor under the agreement) it can be argued that it is void as the parties aren't mentioned.

 

The FOS and the ICO probably won't be able to help you - see here;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/111211-defaults-background-removal-methods.html

 

If you start your own thread (or already have one) stick a link up here and we can provide detailed advice in your thread.

[Peterbard]

Hi

An agreement that mentions cancellation rights as in "cancellation details wiill be sent" etc,should according to the OFT be treated in exactly the same way as an ordinarry cancellable agreement and is subject to the same criterea for incluson of the cancellation details in all copy documents.

 

I must admit i agree with HAKs orriginal thought on the default issue.

If the orriginal default issued is defective in that it does not comply with the regs then it cannot precced any further court action.

 

I cannot see any reason why the creditor would not be allowed to send a corrected default notice if this was the case this would not be a duplicate default as the first was void.

As regards the entry of defaults on the crsa register although the ICO recomends that the default issued under the CCA be sent together with a warning that a default wil be registered on your file the two actions are not related.

A default on the account can occur without a notice being sent under section 87 and still be registerred as such on your credit file. Consider accounts that are not covered but the cca mobile phones gas / electicity etc none of these are under any obligalion to send a section 87 but if defaulted they can still record the fact.

 

Best regards

Peter

[car2403]

Hi

I must admit i agree with HAKs orriginal thought on the default issue.

If the orriginal default issued is defective in that it does not comply with the regs then it cannot precced any further court action.

 

I agree, but if a Judge (in his unique form of wisdom) doesn't accept that you should be prepared to argue against further enforcement.

 

I cannot see any reason why the creditor would not be allowed to send a corrected default notice if this was the case this would not be a duplicate default as the first was void.

 

But there is the issue of recission of contract, which means they can't then Default again if the original is void. A void Default is a Default nonetheless.

 

Failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Defendant a counter claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

I also think they can send a second Default Notice, but the Court can't enforce it if they seek to rely on it to enforce via a Court.

[ncf355]

Hi,

I've been away from the site for a very long time, but I have some issues I'd like to clear up & I hope someone can help.

 

I'm currently having problems with a company that I sent off a CCA request to over a year ago. They finally sent the correct copy of the agreement, (after the prescribed time) but no cancellation rights. I can't remember if the agreement was signed in branch or not, but the cancellation rights are mentioned on the agreement & I never received them or a copy of the agreement at the time or shortly after. I know that in some cases you have no right to cancel, but if your rights are mentioned on the agreement with a statement that you will receive them within X days, then surely they must supply them as this is what is agreed when the ageement is signed.

 

This company has continued to chase me for payment, ignoring all my many letters stating they're in breach of the law & have issued a default notice. However, the default notice states that the agreement is with another bank. I know this bank is part of the same group, but if it is not the same bank that they claim I owe money to as per the alleged agreement, then surely the default notice is incorrect & they can't act on it?

 

The reason I'm asking is I'm preparing a complaint against them with the Financial Ombudsman Service & also the Information Commissioner (as they've also failed to satisfy my S.A.R - (Subject Access Request)) & I would like to know I have my facts 100% correct.

 

Many thanks in advance for any reassurance anyone can give & I can't believe how many pages I've got to catch up on!!!!

 

 

 

 

 

Acer,

 

as mentioned above it would be good if you could start your own thread for this and point us to it

 

Anyway, one thing you havent considered (correct me if I'm wrong!) is whilst they have been default of your request they have not been entitled to enforce the agreement and one of the "big flashing sign, in neon" issues of this is adding interest

 

So, chances are your balance will include a fair chunck of unlawful interest and the amount they record at the CRA's will also include this

 

So, assuming for a second the agreeement is up to scratch (LOL!) they need to at least remove any interest charged during their default of your S78 request and probably owe you damages for harassment plus defamation via the inaccurate data

 

[Peterbard]

Hi

I think i see what you are saying but really all i can see is that a default notice that is defective invalidates any further action under the act.

 

I still cant see how this would prevent the creditor from recitfying by issuing a correctly formated notice.

 

THe issue in the case you mentioned about counter claim for damages would imply that you have cause to claim that you have been damaged by the falsity of the orriginal notice i do not see how this would apply.

 

"A void default is a default nonetheless"

Sorry don't unerstand with respect we must have different interpretations of the word void

 

Best regards

Peter

[ncf355]

Hi Peter,

 

in one of my cases the particular creditor has issued a default notice that quotes the balance on my wifes card, not mine

 

The two differ by some £6,000 plus (e.g: her balance is much higher than mine)

 

So when they record this I would see it being an argument to say they have caused damage to my credit reputation as the amount is far in excess of the amount it should be

[car2403]

Hi

I think i see what you are saying but really all i can see is that a default notice that is defective invalidates any further action under the act.

 

I still cant see how this would prevent the creditor from recitfying by issuing a correctly formated notice.

 

THe issue in the case you mentioned about counter claim for damages would imply that you have cause to claim that you have been damaged by the falsity of the orriginal notice i do not see how this would apply.

 

"A void default is a default nonetheless"

Sorry don't unerstand with respect we must have different interpretations of the word void

 

Best regards

Peter

 

I think this is down to interpretion of Woodchester Lease Management Services Ltd v Swain & Co and how Kpohraror v Woolwich Building Society [1996] 4 All ER 119 then applies;

 

Held: Allowing the appeal, that the Consumer Credit Act 1974, s 88, required the owner to specify not only the nature of the breach but the action required to remedy it. It was part of a statute plainly enacted to protect consumers. Since many regulated agreements would be complex, most hirers would be individuals, and the owner would be in a far better position to provide precise information about that remedial action, the section should be construed as requiring an accurate statement not

only of the nature of the breach but of the action required to remedy it (subject, it might be, to a de minimis dispensation).

Accordingly, the default notice did not satisfy s 88 and was not effective.

 

This case is about the Default amount being incorrect - it wouldn't be binding precedant in this case, but it would be pursasive argument that the Court would have to consider. (An inaccurate Notice due to the wrong figure in the Default amount being akin to an inaccurate Notice for any other reason)

 

If the original Notice was wrong, (false as you mentioned) which resulted in a Default on your credit file, that would be sufficient damage (again pursasive, not binding argument) from Kpohraror v Woolwich Building Society

I know what you mean that a void Default can be rectified by the issue of a corrected Default Notice, but the damage is done at that point and Kpohraror v Woolwich Building Society would prevent enforcement of the debt in the future, also applying the Woodchester Lease Management Services Ltd v Swain & Co decision.

[Having_A_Knightmare]

has any one got Kpohraror v Woolwich Building Society

[pt2537]

yep i have, turn your skype on and i will transfer it to you

[Having_A_Knightmare]

Hi Paul

 

I am at work at mo

 

Will turn it on when I get home

 

Cheers

[pt2537]

ok forget that then

 

i will email it to you,

 

i thought you wanted it now

 

regards

paul

[Having_A_Knightmare]

Cheers Paul

 

Im busy at work ad you can see

[Acerfan]

Thanks for your help everyone. I guess I've got a bit of reading to do. I am of the opinion that as they're expecting me to follow the alleged agreement to the letter, then so should they have done in sending the cancellation rights at the time they said they would & again when I made the CCA request. Thanks for the heads up on the default notice. I hadn't thought of a claim for defamation. I will be sure to do some extra reading when I get a spare minute (time's very, very short at the moment). I have just updated my thread which is here Suspect I have no loan agrrement If anyone has any additional advice it would be much appreciated.

Many thanks again for all your assistance

[Having_A_Knightmare]

Not sure if I have mentioned this on this thread.

 

Its regarding the LV default. I called them up and they said if I pay £10 now they would hold back on the default notice as long as I send in a new budget sheet.

 

Lets see if they do just that.

 

Cheers

 

HAK

[davefirewalker]

Not sure if I have mentioned this on this thread.

 

Its regarding the LV default. I called them up and they said if I pay £10 now they would hold back on the default notice as long as I send in a new budget sheet.

 

 

 

hmmmmmm........Why would they do that ???

 

it looks very suspicious, but that could be just me.....

 

I dont trust anything these people say or do.......they only have their own interests at heart (obviously)

 

be wary

 

Dave

[Having_A_Knightmare]

i could not believe how nice the lady was on the phone.

 

Time will tell

 

Bottom line is they have a default notice that is void. Let the fun begin:D

[patrickq1]

if peter could look at the two agreements and are they valid and legal docs i have on the thread posted here i would appreciate it

patrickq1

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/123193-patrickq1-hfo-morgan-stanley.html?highlight=hfo

[Peterbard]

I think this is down to interpretion of Woodchester Lease Management Services Ltd v Swain & Co and how Kpohraror v Woolwich Building Society [1996] 4 All ER 119 then applies;

 

 

 

This case is about the Default amount being incorrect - it wouldn't be binding precedant in this case, but it would be pursasive argument that the Court would have to consider. (An inaccurate Notice due to the wrong figure in the Default amount being akin to an inaccurate Notice for any other reason)

 

If the original Notice was wrong, (false as you mentioned) which resulted in a Default on your credit file, that would be sufficient damage (again pursasive, not binding argument) from Kpohraror v Woolwich Building Society

 

I know what you mean that a void Default can be rectified by the issue of a corrected Default Notice, but the damage is done at that point and Kpohraror v Woolwich Building Society would prevent enforcement of the debt in the future, also applying the Woodchester Lease Management Services Ltd v Swain & Co decision.

 

HI

 

Sorry i cant handle the quotes on here as well as you do.

anyway

THe issuance ao a default under section 87 of the act really has nothing to do with the recording of a default on your credit report,i know it sounds a bit strange but if you default your account by not paying they are free to register that default without sending a section 87 default notice.

So the damage caused by issuing a falselay drafted default under section 87 only has the effect that it stops any further action being taken through the courts as you say. This is mearly because the debtor has not been given the correct time or information as prescribed by the act, in orcer to remedy the breach before court proceedings take place

The damages usually claimed in cases like this are because the agreement was unjustly terminated but if the debtor himself was reponsible for that termination then there would be no damage cause by the creditor and therfore no cause for complaintr.

 

You could pursue an incorrect default on your credit file but you would have to do so under section 159 or via the ICO.

[car2403]

HI

 

Sorry i cant handle the quotes on here as well as you do.

anyway

THe issuance ao a default under section 87 of the act really has nothing to do with the recording of a default on your credit report,i know it sounds a bit strange but if you default your account by not paying they are free to register that default without sending a section 87 default notice.

So the damage caused by issuing a falselay drafted default under section 87 only has the effect that it stops any further action being taken through the courts as you say. This is mearly because the debtor has not been given the correct time or information as prescribed by the act, in orcer to remedy the breach before court proceedings take place

The damages usually claimed in cases like this are because the agreement was unjustly terminated but if the debtor himself was reponsible for that termination then there would be no damage cause by the creditor and therfore no cause for complaintr.

 

You could pursue an incorrect default on your credit file but you would have to do so under section 159 or via the Information Commissioners Office.

 

Agreed. But...

 

Where the original agreement was improperly executed, they shouldn't be defaulting the account, (or Defaulting) as they can't say for certain what the "agreement" to repay was, such agreement being unenforceable.

 

In this instance, any adverse info on a credit file is unlawful as its inaccurate to show arrears on the agreement.

 

Also, I've followed s.159/I.C.O. complaints with no success - these organisations just aren't fit for the role bestowed on them, IMHO.

 

I also think that the Wilson case applies here - especially if you look at the I.C.O. opinion and the actual Judgment in that case. I'm paraphrasing a PM I got from Josie8 here; (hope you don't mind Josie8!)

 

Extract from letter sent to Information Commissioners which you nmay wish to use liberally in yopur MCOL. THe information Commissioners have now written back saying they have forwarded this for legal opinion.......

You state that "it may be helpful to explain that the failure of a creditor to produce a copy of the signed credit agreement is not, on its own, evidence that your debt does not exist and should therefore not appear on your credit file. If the credit grantor can supply some other evidence of the agreement and you have no evidence to contradict this then it is likely to be proper for the debt to continue to be recorded on your credit reference file." .

 

I refer you to the House of Lords case Wilson v First County Trust Ltd [2003] UKHL 40. I have attached a full transcript for your information but refer specifically to the following paragraphs: .

 

Para 49 . "The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan"

 

Para 121 "But the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement under which FCT provided the loan to Mrs Wilson............... was unenforceable. The statutory bar on its enforcement extended to FCT's right to recover the total sum payable on redemption, which included the principal as well as interest."

 

Para 123. "section 127(3) of the 1974 Act too, like sections 6 and 13(1) of the 1927 Act, was designed to protect unsophisticated borrowers. There is no doubt that they would be exposed to the risk of harassment by unscrupulous creditors if creditors could override the statute by appealing to the common law. I would prefer to say that it would be inconsistent with the statute to provide FCT with a common law remedy to redress the enrichment which Mrs Wilson has received at its expense"

 

Para 173 "Parliament's intention in enacting section 127(3) of the 1974 Act was to make a loan, made under a regulated agreement, unenforceable in certain events. The courts cannot defeat that intention by allowing some alternative means of recovery."

 

I contend that the Wilson case ruling is intended to have the effect that creditors who do not have enforceable consumer credit agreements are not to be allowed to intimidate, harrass and effectively blackmail debtors into paying monies that they do not have to pay by, for example, threatening to blacklist the credit records of debtors. The financial penalty for a lender not complying with the legislation is that they lose the right to any monies not already paid. The law lords considered the issue of unjust enrichment but decided that it was aappropriate for the creditor to be financially penalised in this way.

 

As the Wilson case is a House of Lords precedent and binding on all courts and within the judgement considered any potential breach of a creditors human rights, I find it strange that the Information Commissioners Office consider a creditors behaviour in processing data harming a debtors credit rating in circumstances where they have no enforceable consumer credit agreement acceptable. Please advise me of the relevant statute or case law that allows you to take this stance and ignore the Wison ruling.

 

This is the argument I'm using in my claims against Default removal - unenforceable agreement should mean they can't process information on CRA files about the debt. (Note, I'm not saying the debt doesn't exist or refusing to pay it)

 

I think Wilson is a better authority for claiming rescission of contract on a Default being unlawful. (Good thing I've included it in my POC)

 

I don't think it's unreasonable to argue that an account was defaulted/Defaulted due to penalty charges being applied which increased the indebtedness and resulted in an inaccurate Default amount appearing on the Default Notice.

[Peterbard]

Agreed. But...

 

Where the original agreement was improperly executed, they shouldn't be defaulting the account, (or Defaulting) as they can't say for certain what the "agreement" to repay was, such agreement being unenforceable.

 

In this instance, any adverse info on a credit file is unlawful as its inaccurate to show arrears on the agreement.

 

Also, I've followed s.159/I.C.O. complaints with no success - these organisations just aren't fit for the role bestowed on them, IMHO.

 

I also think that the Wilson case applies here - especially if you look at the I.C.O. opinion and the actual Judgment in that case. I'm paraphrasing a PM I got from Josie8 here; (hope you don't mind Josie8!)

 

 

 

This is the argument I'm using in my claims against Default removal - unenforceable agreement should mean they can't process information on CRA files about the debt. (Note, I'm not saying the debt doesn't exist or refusing to pay it)

 

I think Wilson is a better authority for claiming rescission of contract on a Default being unlawful. (Good thing I've included it in my POC)

 

I don't think it's unreasonable to argue that an account was defaulted/Defaulted due to penalty charges being applied which increased the indebtedness and resulted in an inaccurate Default amount appearing on the Default Notice.

 

HI

I thought we had agreed that HAKs agreement was properly executed?

 

Wasn't the question whether the issuance of a default notice damaged the debtor because it was then recorded on the credit file which it is not the two acts are unrelated.

 

If the court agreed that the agreement was incorrectly executed then you could say that the registration was incorrect because the interest which gave cause to the breach was not due.

 

It must be rememberred that the outcome of the Wilson case mentioned particulrily the refund of amounts paid and the return of security was not due to section 127(3).

 

This only made the agreement unenforceable the sections concerned were 106/7 and 113 which were to do with the securities on the loan being inafective.(Notice the ruling says on redemption of securities)

 

In an unsecured loan or running credit agreement no such sanctions are available and no such ruling would be given by the court just because an agreement was unenforceable.

 

What could be said, in the case of an improperly executed agreement is that no interest or charges were due on it, because all the criterea laid down in the act to protect the debtors rights were not followed, this would be quantified by the judge as being the amount of prejudice caused and the judgement would relect this.

 

There is also some missunderstanding about interest being added to acconts that were unenforceable under section 77/79 default.

 

Whilst it is true that the agreement cannot be enforced against the debtor when he has not been provided with the required information there is nothing within the act that says that the creditor cannot add interest to the account during this period and that that interest can be applied when the default is remedied.

You can try arguing injust enrichment if you like and i have tried but i assure you it will make no difference once the request is remedied the total interest on the account will be due.

 

Best regards

Peter

[paulwlton]

Although a default can be registered with a CRA without the creditor issuing a sec 87 default notice due to missing a couple of payments, however, if the default is registered after an invalid notice has been forwarded then the default is incorrect and that this would give the debtor a claim for compensation imo.