b8byd v HFC Bank: default removal

[b8byd]

Hi all - i'm starting a new thread on this as its separate to reclaiming my charges and i've got a feeling it may take a while. I'm trying to get some defaults removed from my credit file placed on there by HFC Bank. See my previous thread if you want a bit of history on this http://www.consumeractiongroup.co.uk/forum/hfc-household/69914-hfc-bank-request-copies.html

 

So, in response to my initial request for them to substantiate adverse references they have placed on my credit file... this is what they have sent.

 

Dear b8byd

 

Thank you for your letter dated 27 March 2007, concening the above account numbers. Your letter has been forwarded to me, as a member of the customer relations department, to investigate and duly respond.

 

I would like to assure you that the provision of high quality customer service is a key priority for HFC Bank. It is evident from your comments that you feel we have failed to provide you with the level of service you quite correctly expected to receive.

 

Please find enclosed an 'example' copy of the Notice of Default letter that were sent on the following dates:

 

account no. date

account no. date

account no. date

 

May I take this opportunity to confirm the Notice of Default letter is an automated system generated letter and therefore HFC Bank are not obliged to retain a true copy of the actual lettes that were issued to you.

 

I note your comments concerning another entry that is indicated on your Credit File. I confirm account number x relates to a personal loan account which was acquired on x at your local Beneficial Branch in x. As you may recall due to a change in your personal circumstances you were unable to maintain the account as per your legal agreement. In x to help you maintain payments, our collections department arranged a new loan taht was tailor-made to your then payment ability, they closed account number x, and transferred the balance to account number y. The new account number y was set up to enable you to maintain monthly contractual payments and going forward to help restore your credit rating, as the arrears were added to the end of the outstanding balance.

 

I have also advised our correspondence department to send out your statements for the above account numbers, as you have requested. They will respond to your directly.

 

Should you have any further queries, please call our customer service department on bla bla.

 

Yours sincerely

 

Syeda Khatun

Central Complaints

 

[and they have enclosed a copy of an example default letter - nothing with any of my details on it.]

 

I definitely read a post somewhere that said a creditor has to substantiate a default they have placed on your file with a signed true copy of the original default notice - but this lady is saying that's not true. Does anyone know the correct position?

 

I really want to get these defaults removed as we are stuck in our current mortgage and house until I sort out my credit status. I'm almost certain I never received a single default notice and they have put 3 defaults on my file.

 

If anyone has any advice or suggestions as to what to reply, i'd be very grateful.

 

Thanks

b8byd

[b8byd]

The appendixed letter doesn't appear to even be an 'example' letter of what i've asked for (a signed true copy of the notice of default in respect of each default). Why has she sent me this?

 

Dear Customer

 

This letter is to advise you of our intention to file a notice that you have defaulted on your contractual obligations to make repayments under your credit agreement with us (a notice of default) with one or more Credit Reference Agencies within 60 days from the date of this letter. The filing of such notice of default can be avoided by the payment of at least 50% of your contractual payment of ... within 1 month from the date of this letter and regularly every month thereafter. Failure to make such payment, or any subsequent payments, will result in a notice of default being filed with one or more Credit Reference Agencies.

 

Please note that if you have an existing arrangement with HFC Bank Ltd to make lower or less frequent payments than that detailed above, we WILL file a notice of default as above.

 

However, if you are able to increase your payment to at least 50% of your contractual repayment, it is essential that you continue to make these higher payments on a monthly basis, to avoid a notice of default being filed in the future.

 

Credit Reference Agencies are organisations, licensed under the Consumer Credit Act 1974, which hold information about individuals, which is of relevance to and is used by lenders in making credit decisions. Having a notice of default registered at the Credit Reference Agencies may affect your ability to claim.

 

Should you require any further clarification plesae contact us.

 

Yours sincerely

 

This isn't a 'notice of default' is it?

[dx100uk]

there are obviously a number of threads on this subject

& i too am in the same situation with a catalogue Co.

 

as far as i believe, they only have to prove they sent you the default, & as such, on an automated system, this has to be verified by a responsible person acting for the defaulter.

 

so, as such, i think this stands as meeting the reqs.

 

i like you, would love this to be wrong!

but i have yet to find anything that proves otherwise.

if you can help me & you! do this, then great!

 

dx100uk:)

[b8byd]

Does anyone know if this is true? I never received any default notice from them so how can they just put these things on our credit files without our knowledge? I never stopped paying them, even though at one point I was only paying 5.00 per month on each as it was all I could afford.

[rory32]

They are required to supply you with a signed true and certified copy of the original default notice.

 

Default notices require to conform to the CCA1974 s88 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993. If they are not accurate or if you weren't served with one then they can not be enforced.

 

The following link may help Removal of Default & Termination Notices - Accurate Default Notices are vital

[b8byd]

Thank you, that's what I wanted to hear! I'll keep this thread updated if I make any progress.

 

b8byd

[rory32]

It's also worth noting that if they do not have a true copy of the original credit agreement they have no right to put a default on your record.

 

If they do not wish to remove the default then you will need to tell them that you will file a claim under section 10 of The Data Protection Act 1998 and for defamation. If they still are not willing to remove the default you should file the claim (you should include the CRA in your claim).

[b8byd]

They are required to supply you with a signed true and certified copy of the original default notice.

 

Rory (or anyone else in the know), what is your authority for saying that a 'signed true and certified' copy of the default notice must be provided? I've been studying the CCA and s.88 states:

 

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 [14] 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 [14] 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 [14] 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 [and any other prescribed matters relating to the agreement].

[(4A) The default notice must also include a copy of the current default information sheet under section 86A.]

(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.

 

HFC sent me a standard template letter showing me what their notice of default would have looked like (and this standard letter appears to comply with the requirements of s.88 above), but that certainly didn't prove that a default notice was sent to me. If they are required to send me a signed true and certified copy of the actual default notice to substantiate this default on my credit file then they haven't complied, but s.88 doesn't appear to require this.

 

Can anyone shed any light?

 

Thank you

b8byd

[rory32]

Section 88 of the 1974 Act provides for the sending of default notices and allows regulations to be made specifying the form and content of these notices. The Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 prescribe the form and content of these notices.

 

The default notice must contain all of the necessary information which includes

• a statement saying the notice is a default notice served under section 87(1) of the 1974 Act
  
• a description of the agreement
  
• the name and address of both the debtor and the creditor
  
• details of the breach (i.e. late payment) and, if the breach can be remedied, the date by which it must be remedied or, if the breach is not capable of remedy, the amount required to be paid after the expiry of the specified date;
  
• a statement saying: if the action required by this notice is taken before the date shown no further enforcement action will be taken in respect of that breach
  
• a statement saying: if you do not take the action required by this notice before the date shown then the further action set out below may be taken against you
  
• a clear and unambiguous statement saying that if the action is not taken by the date specified, what it will do (for example, if will it terminate the agreement)
  
• if the agreement is one of hire purchase or conditional sale, a statement saying: but if you have paid at least one third of the total amount payable under the agreement set out below (or any installation charge plus one third of the rest of the amount payable). The creditor may not take back the goods against your wishes unless he gets a court order. (In Scotland, he may need to get a court order at any time.) If he does take them back without your consent or a court order, you have the right to get back all of the money you have paid under the agreement set out below
  
• if an amount of money is required to be paid, the amount before deducting any rebate on early settlement
  
• statements saying:
  if you have difficulty in paying any sum owing under the agreement or taking any other action required by this notice, you can apply to the court which may make an order allowing you more time
  if you are not sure what to do, you should get help as soon as possible. For example you should contact a solicitor, your local trading standards department or your nearest citizens' advice bureau

Also as of 1st October 2006 the period of notice to remedy the breach was increased from 7 days to 14 days from the date of service of the default notice. The CCA quite clearly states that the creditor shall not take action such as mentioned in s87(1) before the date so specified or before those 14 days have elapsed.

 

 

Also if you look at s87(1) the wording is very clear. The default notice has to be served on the debtor before they can take any action. As you have never been served with the default notice supplying a copy template is not sufficient.

[b8byd]

This is excellent, thanks Rory. I'll draft another letter to them and post here before I send.

[b8byd]

Maybe i'm just tired, but i'm having real difficulty in drafting a coherant and persuasive letter to them. Here's my first attempt. Does anyone have any suggestions?

 

Dear Ms Morgan

Thank you for your letter dated 6 June 2007, although once again you have failed to respond to my request.

I have never been supplied with a default notice from HFC Bank, yet three ‘defaults’ appear on my credit reference file in the name of HFC Bank. I have asked you to substantiate using my data in this way, and you have simply responded with a template ‘default notice’ letter.

The Consumer Credit Act, s.88 provides the specific form which a default notice must take including the date of default, the breach and any available remedy to prevent the default being issued. I never received such warning. Furthermore, s.87 of the Act requires that the name and address of the debtor be specified and a clear unambiguous statement must set out what the consequences will be if no action is taken after a particular date. The ‘template’ letter you have sent me contains no such information.

s.87(1) is quite clear in that no action can be taken in respect of a default notice, until such default notice has been issued to a debtor. Therefore, I contend that you are in breach of the Consumer Credit Act. To remedy this situation, I ask that the defaults you have entered in my name be removed from my credit file immediately.

Yours faithfully

 

Any suggestions for improvement gratefully received.

 

Thanks

b8byd

[zander]

I'm subscribing to your thread as I've a similar situation with Cap One. My letter has been sent and I await their response.

[b8byd]

Zander, would you mind putting your letter on here so I can get some suggestions? Thank you!

[rory32]

s.87(1) is quite clear in that no action can be taken in respect of a default notice, until such default notice has been issued to a debtor. Therefore, I contend that you are in breach of the Consumer Credit Act. To remedy this situation, I ask that the defaults you have entered in my name be removed from my credit file immediately.

s87(1) is quite clear in that no action can be taken in respect to a default notice until the default notice has been served on the debtor. Please note no default notice has ever been served. I therefore require you to supply me with a signed true and certified copy of the original default notice(s) within 28 days of the date of this letter.

 

if you are unable to provide this data then I must insist that it is removed from my files as unsubstantiated.

[monopoly23]

I rory. I googled the act amendments (The Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 ) that you mentioned in post 9, but what I found isn't the same as what you've quoted.

Do you have the link for this info please?

 

(sorry for the hijack )

[rory32]

The original one which the 2004 regulations amended is the 1983 regulations. You possibly need to quote the 1983 regulations as 2004 was only an amendment.

[rory32]

Link for info monopoly Consumer Credit: Default Notices

[monopoly23]

Thankyou! I tried changing 04 to 83 but that didnt get me anywhere either

 

Hijack over

[Robertxc]

Have a look here for legislation of default notices etc: http://www.consumeractiongroup.co.uk/forum/statutes-library/72677-matters-arising-during-lifetime.html

 

Be warned, DPA actions ARE NOT as straight forward as bank charges claims, and they do not generally happen in small claims.

[b8byd]

Update: sent re-jigged letter today; will let you know if I get a response.

 

b8byd

[tezzah]

Not sure if this is any help but i served a Data Protection Act notice on HBOS and nowhere was there a copy of the default notice they had served on me (allegedly).

 

I argued this in writing and on the phone yesterday. They are now removing the default and i got £500 compensation back too. I stuck with the 'where is the original and what chance did you give me to settle/respond to the default argument'.

[zander]

Zander, would you mind putting your letter on here so I can get some suggestions? Thank you!

 

I'll have to type it in as I've not got a scanner! Alot of it is plagiarised from others on the forum! Use which you think are applicable to your case. I'll get on it though b8byd.

[b8byd]

They are now removing the default and i got £500 compensation back too.

 

Nice one!

 

And thank you Zander

[b8byd]

This is so frustrating. I have now received a third response from HFC bank... and once again I have just been told the same thing. They really are not budging on this. I will type the letter out...

 

Dear b8byd

 

I am writing further to your recent complaint, I am sorry to learn that you remain dissatisfied with your previous communication with Miss Morgan. The details of your complaint have now been escalated to me in accordance with HFC Bank's complaint handling procedure.

 

Having given careful consideration to all of the information available, I write to advise that I am unable to uphold your complaint and have summarised below the basis on which I have made this decision.

 

Our 'Notice to Default' letters were sent to you on the following dates:

 

1. bla bla

2. bla bla

3. bla bla

 

These letters fulfil our requirements under s.87 of the Consumer Credit Act. The contents of these letters instructed you to either maintain 50% of the contractual monthly payment or settle the balance in full. If you were unable to adhere to this instruction the account would automatically be served with a Default Notice, 60 days from the date of the letter. As the 'Notice of Default' letter is generated automatically, we are only obliged to provide an example of the letter, along with the date it was issued. This was provided in our letter dated 29 March 2007.

 

In view of this, I do not feel it is pertinent to detail the previous communications between yourself and HFC Bank. However, I have enclosed copies of our previous communications which I believe clarifies this matter in full.

 

I realise that this may not be the response you were hoping to receive but nevertheless it brings to an end the steps available to you through our internal complaint handling procedure, as this letter constitutes our final response.

 

In closing, I am required to add you have the right to refer your complaint to the Finance & Leasing Association at bla bla bla.

 

Yours sincerely

 

Operations Manager

 

So basically that's it, they've washed their hands with my complaint. Am I really trying to flog a dead donkey now? They say they sent Notice of Defaults to me - I say they didn't - they can't prove it!

 

Does anyone have any advice of how to take this further. Its really unfair that they've tarnished my credit history in this way. And I can't be the only one this has happened to?

[rory32]

It really depends how far you are willing to go. Are you prepared to file a court claim?