Didn't get my cash back from 3, got a Default!

[Guest Alison82]

Hi all, this is a bit of an old problem but since going through all of this with the bank charges I have decided to fight anything and everything!

 

In July 2004 I took out a mobile phone contract with 3 mobile as they offered 500 peak time minutes for £12.50, but unfortunately I brought my contact from a company that did not stick to its promises (Mobile Madness) and therefore lost out on £120 cash back owed to me. I wrote to them stating that they were in breach of the 'Supply of Goods and Services Act' which Consumer Direct advised me to do and had no response by telephone, Trading Standards and the ASA could not do anything about it either.

 

I wrote to 3 mobile saying that since they recommended this company on their website as a reputable company and they had not stuck to their end of the agreement that I would not pay until the situation was resolved, they said I had to continue paying. I did not pay and did not hear from 3 mobile, eventually my details were passed onto another company by 3 mobile and they were asking for the outstanding amount, I explained the situation and was told my account would be put on hold whilst they looked into it, eventually they wrote to me and told me account had gone back to 3 mobile and a few weeks later (July 2005) 3 mobile wrote to me and told me my account had been closed and gave me the opportunity of returning in the future if I wished, I assumed this due to the contract ending, I phoned 3 mobile to double check if this was correct and if their was any outstanding payment due and was told their wasn’t and the account was closed. I thought this was the end of it and they had written off the outstanding amount as it roughly cancelled out the amount of the cash back for £165.

 

In November 2005, I decided to get my credit file and found that the account with 3 mobile was shown as being ‘Defaulted‘, I called Credit Expert and was advised to write to 3 mobile and see if this could be changed or removed as this account is drastically effecting my credit rating.

 

 

I wrote to 3 mobile and spoke to them countless times but they refused to accept any responsibility. I went to my local C.A.B and spent ages with one of their representatives, she even got on the phone to then for me but they still said no.

 

Since then I have received a letter from Mobile Madness’s local Trading Standards and a letter from the owner of M.M (standard letter, no name or address; could have been meant for anyone) saying that the their suppliers let then down which meant their business went under (or something like that - need to find the letter), but I should receive my cash back asap, this was in February.

 

 

I decided to leave it at that, but now I feel I should take it further as 3 were the ones who recommended this company on their website. At the time I was a full time student, I couldn’t afford to loose out on £120; this money would have been used to pay 3 mobile for the remaining 4 months. The default of £165 is still outstanding; is their any other legal angle I could challenge it with?

 

Any advice would be appreciated! Sorry it is so long!

[Neo]

Well first of all who actually applied the default.. was it Three or the billing cmpany/phone company you spoke about?

 

I would write to them asking them to remove the default as it was not actually a default because they breached their contract, etc. Give them 14 days.

 

If they refuse, send them an LBA...

 

14 days later take the to court...

 

Modify the template letters in this section. Wait for other comments to confirm this is the best way of proceeding?

[Guest Alison82]

I origanly had the contract with 3 mobile (eg all the bills came from them) but the other company (Mobile Madness) was who I brought the phone and contract from and was supposed to give me my cashback. I would like to send them a L.B.A but I can't send it if I have no legal reasoning to back it up with.

[Neo]

I think the question is who breached the contract?

 

Was it the retailer or was it three. I agree from what you have written that they certainly should not of defaulted you. Did you even get a warning letter saying you would be defaulted ff you didn't pay?

[jonni2bad]

I believe 3 had the right to ask for the money outstanding, since your contract for airtime was with them.

 

Mobile Madness going bust is effectively hard luck. It is one of the pitfalls in taking out a cashback deal with a small supplier. I have two of these contracts, both with larger organisations (CarPhoneWarehouse and The Link) but there is still an element of risk even with those.

 

However, if you did not receive a notice of default then you certainly have something to fight. I am presuming this would have been issued by 3, since you never actually pay the supplier (MM in this case) - they only act as a go-between for the original deal.

 

You have clearly tried your best in the past to obtain the correct information from the 'help' agencies - but did you make them aware that you had never actually received a notice of default?

 

If not, call the CCCS on 0800 138 1111 to gain clarification of your rights regarding this specific matter.

 

Last, but not least, good luck!

[Guest Alison82]

No, I didn't receive a default notice I just came across it by chance. I called them to ask why; 3 told me that they did not have to send me one as I breached the contract first by not paying, but I believe that MM breached the contract first. If there was not going to be any cashback I wouldn't of taken out the contract - these tarifs were/are advertised on a promotional offers to get the customer in; how can they then not honour their end of the agreement.

 

Yes I did try my best queued up outside the CAB in the mid of December!

 

I'll try that number but I want to make sure I have the right to make a claim before I issue a summons.

[jonni2bad]

I'm still of the opinion, unfortunately, that you have no right not to pay 3 just because MM went bust.

 

There have been many discussions on this matter over at MoneySavingExpert, and I know it's not what you want to hear, but you are always contracted to pay the full line rental amount to the service provider (3). Cashback is never paid by the service provider. It is essentially part of the kick-back which MM would have gained in selling you the deal. In my case, for example, I pay £35 per month to 3 irrespective of my cashbacks, but then hopefully get 3 lots of £97.50 in installments from The Link, which would mean my line rental is only £3.50 per month (there were other incentives too).

 

If The Link went bust, I would join a long list of people who would, after the Inland Revenue etc, become very disappointed.

 

It's a risk, and one that has clearly backfired on you. I take no comfort in that, this response is in no way meant to offend.

 

There is still the point of the default notice however...

 

Default notice

A default notice is a formal letter a lender sends you when you are so far behind in your payments that they have decided your relationship with them has broken down. This varies from lender to lender but generally happens when you are between three and six months in arrears. If you receive a default notice it might mean that the lender is planning to take legal action to recover the money, but you must be notified separately of this. A default notice will almost certainly mean that the account will be shown as defaulted on your credit report, which will make it difficult for you to get credit. This information is kept on your report for six years but the balance should be updated as you make repayments and after six years it is removed, whether or not you're fully paid up.

 

 

Because of this, the removal of the default against your credit files is the most important thing for you. If they did not notify you, then I don't see how it can stand. For 3 to tell you that they don't need to let you know is rediculous. The default notice gives a timetable for making the payment needed in order for it not to be recorded!

 

It sounds as though you certainly have something to fight here... but not the line rental..!

[Guest Alison82]

That’s all I was worried about, I know it was a silly thing me not paying (but I was really annoyed at the time and broke) but if they gave me the opportunity to pay by a certain date then I would have done so.

 

Does anyone know where I can view or print the consumer credit act I tryed to google it but can't seem to find the whole doucument. I think I need section 86.

[Guest Alison82]

Found it, jonni2bad; do you think this is relavent?

 

 

76 Duty to give notice before taking certain action

(1) The creditor or owner is not entitled to enforce a term of a regulated agreement by—

(a) demanding earlier payment of any sum, or

(b) recovering possession of any goods or land, or

© treating any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred,

 

except by or after giving the debtor or hirer not less than seven days’ notice of intention to do so.

 

 

Part VII

Default and Termination

Default notices

 

87 Need for default notice

 

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

 

(a) to terminate the agreement, or

 

 

(2) Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective.

 

 

88 Contents and effect of default notice

 

(1) The default notice must be in the prescribed form and specify—

 

(a) the nature of the alleged breach;

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

© if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

 

(2) A date specified under subsection (1) must not be less than seven days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those seven days have elapsed.

 

(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the seven days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

 

(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply with it.

 

(5) A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

[jonni2bad]

Well it's all written there, isn't it!!

 

I think your best bet would therefor be to write to "Three" and inform them that they did not satisfy the terms of the consumer credit act, namely because they did not supply a default notice to you.

 

If they fail to withdraw the notice from your credit file, then you will persue the matter through the courts. Give them 14 days to reply.

 

Lets see where that takes us, and then post back here so that as many knowledgable people as possible can help you.

[Guest Alison82]

Thanks, sometimes I just need it spelling out for me! :o)

[MrMatteh]

Are you sure that 3 (Three) are covered by the CCA? I have an extremely similar issue with Orange and it seems according to the Consumer Direct hotline mobile phone contracts are just rolling accounts and not credit agreements persay and therfor arent covered under the CCA.

 

I still think that this is a bit of a grey area as they are reporting to Credit Agencies surely they should be regulated by the CCA - surely thats common sense? If you know otherwise, please please please tell me.

 

Matt.

[Chickencow]

I received the following email back today:

 

Dear Mr Chickencow,

 

With regards to your recent correspondence regarding your Notice of Dispute

query, our investigation is now complete and the outcome is outlined below.

 

02

We have received no response from the Client in relation to the information

under

dispute on your Credit File. We have therefore, temporarily removed this

information from your Credit File, you will be notified if we receive an

update from

the Client.

 

 

Please note that the Notice of Dispute previously loaded to your Credit

File has been

removed.

 

 

For further information on all aspects of your Credit File, please visit

our website at.

 

 

 

 

I'm quite happy with this result, and as O2 have not responded to either my email or letter to them, I don't expect them to contest this at any time soon!

 

If anyone else is in the same boat, then I'd definitely suggest trying this - after all, what do you have to lose?

[mjones2006]

I had the same problem got exact same reply as you 3 did not reply to the credit company.

[Richard_K]

Lightweight additional information; purely to help the OP feel better (ish):

 

Three are astoundingly incompetent. If you're lucky enough to get through to Glasgow instead of India, you might get somewhere, but I took out a contract with them just after they launched, still have the NEC E808 somehwere.

 

When BoS changed to Halifax, they cancelled all my Direct Debits. Three didn't reinstate it, nor did they cancel my contract; just carried on sporadically sending bills and the like. Eventually, the bills stopped, owing £600. Attempts to sort it out got boring, so I ignored it, but phoned them a couple of months back and cleared it off (paid it). Don't know about the default, but I definitely didn't get a default notice from them.

 

With any luck, Three will fold; they have proven to be both incompetent and unsatisfactory in terms of package provided (no data for years! Have they even got data now?!).

[Guest Alison82]

I received the following email back today:

 

Dear Mr Chickencow,

 

With regards to your recent correspondence regarding your Notice of Dispute

query, our investigation is now complete and the outcome is outlined below.

 

02

We have received no response from the Client in relation to the information

under

dispute on your Credit File. We have therefore, temporarily removed this

information from your Credit File, you will be notified if we receive an

update from

the Client.

 

 

Please note that the Notice of Dispute previously loaded to your Credit

File has been

removed.

 

 

For further information on all aspects of your Credit File, please visit

our website at.

 

 

 

 

I'm quite happy with this result, and as O2 have not responded to either my email or letter to them, I don't expect them to contest this at any time soon!

 

If anyone else is in the same boat, then I'd definitely suggest trying this - after all, what do you have to lose?

 

 

I tried this, I didn't work, wrote to Experian, they told Experian it was correct!! Now I'm going to send the subject access request, does anyone have a template that I can ammend?

 

I AM SO ANNOYED WITH 3, THEY FEEL THEY CAN JUST PUT WANT THEY LIKE AND NOTHING GETS DONE ABOUT IT!!

[MrMatteh]

I sent mine to Orange on Friday..

 

If you message me your email, I'll email you a .doc of what I sent!

[Guest Alison82]

Thanks Matt will do, this has been going on for so long, just want it off now

[Guest Alison82]

Hi, I am just filling out my N1 form now and was wondering, the fact that they have put this default on my file has meant that I can't get normal credit, which was why I had to use alternatives such as cheque cashing (which lead to a whole other lot of trouble) I have worked out that they have cost me about £1,800 may be a bit more, now can I write to them and inform them that they have not complied to s.10 and let them know about the compensation I want to seek, give them another 14 days to stop processing my data and pay me back this money before I take them to court.

 

Is this fair/ correct? Will the courts say that I only told them about the money at the last minute?

 

I don't see why I should lose out on nearly £2,000 because they can't be bothered to send me a bloody letter!!!

[buzby]

I don't see that working as that would be a consequential loss and would muddy the waters for an otherwise straighforward claim. If you keep it reasonable to actual (and provable) rather than imagined losses, a judge is more likely to rule in your favour.

[Guest Alison82]

It is actual, I can proved the dayed the amounts that credit check was made and declined, I am only guessing as I don't have to paper work infront of me but i do have some at home and what I don't have i can request.

[buzby]

I don't doubt it - but then it was your choice to go to those firms, and 3 might argue they couldn't be held liable for inadvised actions by the debtor - as I noted earlier, this would be a consequence of the original action and whilst it is not impossible for this to be added to the calcluation, you need to ensure the judge has your sympathy when it calls to court. If they think you're trying it on, the claim for loss might be struck out entirely, leaving just the principla sum in the dispute.

[Enough's Enough]

Hi Alison82

 

Have you read these post??? They may be able to help???

 

Lenders haven't sent me my Default Notice - what now?( 1 2)

 

VICTORY (AT LAST) AGAINST THE CRA's!!! Oh, how sweet it tastes! ( 1 2)

 

Default hell!!(1 2 3 4 5 6 7 8 9 10 ... Last Page)

 

Good Luck.....

[Guest Alison82]

Thanks for this, just one question? can I will go down either one of these routes whilst the amount of £165 is outstanding? or is it better to pay it off.

 

Note, the account is defaulted and has been closed fot over 1 year.

[Guest]

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