@barclaycard What does (or should) S89 mean?

[Lord_Alcohol]

Hi folks

 

If a valid, proper S87(1) default notice is satisfied by a defaulting debtor within the stipulated timescale, does anyone know what is supposed to happen afterwards?

 

For example, is the default really considered as not having occured (S89), and do creditors allow the agreement to continue as before, with the debtor given access to credit?

 

If the OC does not consider the breach as "not having occurred", or does not terminate the agreement properly or restrict credit by serving a notice under S98A, then does this amount to contractual or regulatory breach?

 

If so, are any sanctions available, such as rescinding the agreement?

 

This is the current situation on my BC and I'm trying to understand what options are available.

 

TIA

LA

[slick132]

Hi LA,

 

Have you remedied the matter, by paying any arrears on the account as per the DN, within 14 days or whatever date was set out in the DN.

 

If so, then the a/c should continue as if the arrears never happened.

 

More importantly, the DN should not be registered with the CRA's.

 

What stage are you at with this matter. In any event, you should settle the arrears before the DN remedy date if possible.

 

[Lord_Alcohol]

Hi Slick

 

The DN was satisfied within the given time, so the account was back to normal. However, that was 8 months ago. Since then, nothing has happened at all so I don't know what to do. I have written to BC but all letters are ignored, so need to understand the legalities so can figure out next step.

 

A default was recorded before the DN was served! This is a separate matter that has been passed to the ICO.

 

Cheers

LA

[slick132]

Hi LA,

 

Have they allowed the continued use of the credit card and provided statements.

 

Have you continued to service the a/c with minimum or higher payments.

 

You say letters to BC have been ignored. Were they about the premature registering of the DN, or something else.

 

May be best to wait until the ICO acts although this could be some time.

 

[Lord_Alcohol]

Hi Slick

 

That's the odd thing - I do not have use of the credit card (although the account is well within agreed credit limits) and have not received statements.

 

I wasn't able to make contractual payments because I needed the OC to tell me how much to pay, although admittedly I could have estimated the amount and paid that. However, it's not as simple as that because, as I am not receiving any feedback at all from the OC, there is a perceived risk of either losing some/all of the money (ie, it not being credited to my account for some reason) or of losing some 'rights' by making payments (eg, finding that there is no cause for complaint because I effectively continued with the contract as normal).

 

However, I have nevertheless put the money to one side, so can pay if I am asked.

 

A further worry I have is that the OC might suddenly record 8 months of missed payments on my credit file, which would be far worse than the default that is currently there.

 

The letters I have sent to the OC have been to ask for the default to be removed, the account to be reinstated and for a card to be issued. I have also asked for nominal compensation for the recording of the default marker (no amount specified), although this is not a requirement for reinstatement and am not really bothered if they compensate or not.

 

Cheers

LA

[slick132]

Hi LA,

 

If they have failed to respond at all, I'd escalate the complaint to the CEO's office and ask them to ensure that your original letters are answered.

 

You could remind them of the case of Kpohraror v Woolwich Building Society and say, if they continue to fail to properly address your complaint, you will take court action seeking appropriate compensation.

 

[Lord_Alcohol]

Thanks Slick

 

I have a real problem with this approach because BC could easily wake up and say "Oops, sorry, we'll sort it out but did you realise that you are 8 months in arrears and that we have recorded this fact with the CRAs?". That would be a disaster.

 

They could also, instead, serve another DN, as technically I am in arrears.

 

This is why I need to find a 'legal' defence, and claim that the contracted is repudiated by the OC (non-performance, breach of S89, etc) or something similar. I am sure that FOS would eventually agree with me were I to lodge a complaint, but they work so slowly it is hardly worth bothering and, in the meantime, BC could mangle my credit file further.

 

I was thinking of reverting to S102 and sending a notice claiming rescission (due to non-performance) - any thoughts?

 

Cheers

LA

[slick132]

Hi LA,

 

No, the way I see it, you should engage BC head-on about the DN being remedied in good time last summer..........

 

........ and the fact that they registered the DN, despite this. The case of Kpohraror should give you some leverage.

 

Seek an explanation of why they have not sent out statements.

 

If they served another DN now as you suggest, can't you settle any arrears before the remedy date and avoid the DN being registered.

 

When you wrote to them after this event, what did you say in the letters that they've ignored.

 

Have they made any attempt to terminate the credit agreement.

[Lord_Alcohol]

Hi Slick

 

Sadly I have tried (repeatedly) all these things - my letters to BC have been to have the agreement reinstated in full, but I have had no response at all. I know letters are being received as I send them recorded.

 

It is possible that BC will send another DN. However, it is equally possible that BC will record the 8 months 'missed' payments, and this is just as damaging as a default (more so, in fact). This is the problem. I would be able to satisfy any DN that BC served, but would be stuffed should they record the missed payments on my credit file.

 

I have written on numerous occasions regarding my satisfaction of the DN. It has made no difference. I have also spoken with BC customer services and I just get the usual 'we will look into it' type response. I have had a letter from BC to say that it is looking at my complaint, and that it would conclude by end October last year! I have since heard nothing.

 

I do not think I can settle any arrears now as, being a credit card account, I do not know precisely what the arrears are! I could, of course, guess. I am reluctant to do this in case I get the numbers wrong (they are complex) or lose some entitlement later on.

 

The agreement is effectively terminated although I have not received any notices or letters to that effect. I cannot use the card, for example.

 

So, if BC will not engage and will not restore the agreement, then what options are open? My view is that BC simply do not want to continue with the contract. If they did, then they would have done something by now (such as claim money that they are entitled to). Hence, to me, this looks like a repudiatory breach in that BC has restricted credit (without serving notice) and is not performing the contract, and so I should consider rescinding it.

 

Given BC's position I have no other idea of what to do.

 

 

Hi LA,

 

No, the way I see it, you should engage BC head-on about the DN being remedied in good time last summer..........

 

........ and the fact that they registered the DN, despite this. The case of Kpohraror should give you some leverage.

 

Seek an explanation of why they have not sent out statements.

 

If they served another DN now as you suggest, can't you settle any arrears before the remedy date and avoid the DN being registered.

 

When you wrote to them after this event, what did you say in the letters that they've ignored.

 

Have they made any attempt to terminate the credit agreement.

[slick132]

If you want this sorted, you have to take a proactive stance. Nothing will alter or improve if you are worried that taking any action make "rock the boat" and cause you more problems.

 

Have you checked your CRA file to see what adverse credit data is already showing about this a/c.

 

If the bank were in the wrong and filed a DN despite the fact that you settled the amount due within 14 days, you should take positive action to seek justice. They acted wrongly and you'll get nowhere unless you take them on. I really don't see what you have to lose.

 

If they continue to frustrate or ignore your attempts, you can :-

 

1. Complain to the FOS which may take forever.

 

2. You could take County Court action against the bank. See here - http://www.consumeractiongroup.co.uk/forum/content.php?834-Fair-Treatment-for-Credit-Card-Holders-and-Borrowers

 

3. Make a complaint to the CEO at Barclays London HQ and keep shouting until they respond.

 

If they were in the wrong originally, take them on and get this sorted !!

 

[Lord_Alcohol]

Thanks Slick

 

The COBS link is a goldmine, so cheers for that.

 

I think an action is the order of the day. I'll send a letter to that effect then start proceedings. I'll post any developments here.

 

Thanks again

LA

[slick132]

Your V welcome.

 

Keep us updated and please let us know if you need any assistance when you come to file a claim.