Default Notice arrives after 12 + 30 days - what then?

[veryannoyed]

Hi all

 

What would happen if a creditor was able to produce a copy of a default notice they sent to a debtor AFTER the creditor had been served with a S. 77/78 CCA 1974 request and after the 12 working days + 1 month had elapsed.

 

I understand that in these circumstances the creditor has to get a court order to enforce the actual debt and make the account 'live' again in order to continue collection proceedures. Does the same apply to the legality of the default notice being posted on a CRA?

 

I'm wondering because I've started the ball rolling getting some defaults removed as my CCA requests have produced no documents at all from the creditors and we're now at 12+40 days, so well over time limit.

 

I've written to both the CRAs and the Creditors requesting that the adverse information is removed as it cannot be substantiated (along with my S.10 notice, of course)

 

But I'm worried that as the Banks seem soooooo vigerous at defending their little default notices and soooooo desperate to do anything other than remove them, a default notice or two might suddenly be 'found' lurking round the back of the filing cabinet, honest guv, nudge nudge, wink wink etc. ;-)

 

If a default notice does suddenly materialise, anytime in the future (six years?) I suppose is the question, can the default on my credit file be re-instated immeadiately?

 

Once a default has been removed due to the Bank not following correct legal proceedure, and indeed committing a criminal offence in so doing, is that the end of the matter for ever? If they did put it back on the CRA, I imagine a judge might view the situation very dimly?

 

Thoughts anyone??

[kateandpete]

OK. The agreement is dead. The debt is still there. You and they need to either make a new agreement (maybe on better terms to yourself) or let a judge do so.

 

The CCA doesn't require lenders produce default notices. But if you were to challenge it under sections 87, 88 and 89 (read these in the library) they would need to prove they had followed correct procedures.

 

I have a thread in the legalities forum where you can read my learning experiences in this area.

http://www.consumeractiongroup.co.uk/forum/legalities/24736-default-removal-katenandpete-hsbc.html

 

If a judge told them to take it off, they couldn't put it back. Full stop.

[veryannoyed]

I've had a letter (email) from Equifax stating they have contacted the companies who have registered defaults and will report back to me within 28 days (nice of them since I gave them 21 days to do so!)

[file_wizzard]

Hi hope I can shed some light on these for you

 

Hi all

 

What would happen if a creditor was able to produce a copy of a default notice they sent to a debtor AFTER the creditor had been served with a S. 77/78 CCA 1974 request and after the 12 working days + 1 month had elapsed.

 

Not quite sure what you are getting at here, there is no requirment under S.77 / S.78 to provide a default notice?

 

I understand that in these circumstances the creditor has to get a court order to enforce the actual debt and make the account 'live' again in order to continue collection proceedures. Does the same apply to the legality of the default notice being posted on a CRA?.

The creditor being in "default" of their requirement to provide account data to enforce the debt will only be valid for as long as the non provision continues, if they can validate the debt after the initial period then the enforcement is lawful, no court action would be required.

 

I'm wondering because I've started the ball rolling getting some defaults removed as my CCA requests have produced no documents at all from the creditors and we're now at 12+40 days, so well over time limit.?.

the 12 days relates to the requiment to provide a balance, and a statement of account under the CCA, the 40 days relates to the Data Protection Act S.7 request.

 

But I'm worried that as the Banks seem soooooo vigerous at defending their little default notices and soooooo desperate to do anything other than remove them, a default notice or two might suddenly be 'found' lurking round the back of the filing cabinet, honest guv, nudge nudge, wink wink etc. ;-)

 

If a default notice does suddenly materialise, anytime in the future (six years?) I suppose is the question, can the default on my credit file be re-instated immeadiately?.

 

Technically they would not have to produce the orginal notice, they could quite feasably just provide a witness statement to the court stating that one was sent, whether they would actualy do this or not is another matter though.

 

Finaly if a "Default notice" was located they could indeed reinstate it, howevere it could only be registed as served on the orginal date, and would expire 6 years from the orginal date