Help! Removal of Default - "Postal Rule"

[robert_harvey07]

I have a default registered against myself at my current address. The default is registered as Aktiv Kapital, who are dealing with my Burtons account.

 

I sent a letter requesting:

 

1. You must supply me with a true copy of the alleged agreement you refer to. This is my right under your obligation to supply a copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit). Your obligation also extends to providing a statement of account.

 

2. You must supply me with a signed true and certified copy of the original default notice

 

3. Any deed of assignment if the debt was sold on I would request that this data is provided to myself within the next 14 days, if you are unable to provide this data then I must insist that it is removed from my files as unsubstantiated

 

I received a copy of the signed agreement. It was signed by me, although at the entry where there should be a date - I had accidentally put my initials instead - this was not corrected.

 

I wrote back saying that they hadn't provided me with a copy of the default notice. I received a reply today from Aktiv Kapital saying:

 

"With regards to your points raised GE Capital have advised that teh default was issued to you on 27th September 2006. Under the Consumer Credit Act 1974 there is no legal requirement for either GE Capital or ourselves to provide you with a copy of that notice."

 

"Under section 176 (service of documents) of the Consumer Credit Act 1974 the postal rule would apply. As GE Capital originally issued the default notice to you, all they would have to do is prove that they had posted the default and on the balance of probabilities it would be deemed to have been served."

 

Please help - i'm not a bit lost. Firstly on my credit report from Experian the default is listed under Aktiv Kapital - although they are saying that GE Capital recorded the default?! How should I proceed with this? Is it true what they are saying - that they don't have to provide me with a copy of the default notice?! Also, how do I pursue the whole postal rule thing - i.e. how do they prove they sent it?

 

Thanks in advance!

Robert

[tomterm8]

I am no longer welcome on CAG

[robert_harvey07]

Thanks for your help.

 

Am I right in thinking that they need to be able to prove that they actually posted it to me, i.e. by registered post? Or could they just provide a copy and say that they had sent it?

[powelll]

They don't have to prove that it was posted

[robert_harvey07]

Thanks for your reply Powell...although now i'm even more confused! :S

 

Aktiv Kapital say there is no legal requirement for them to provide a copy of the default notice...and if they also don't have to prove they posted it, then how do I proceed?

 

Thanks

[blazing-badger]

If, accoprding to Experian, the default was registered by AK, then they must be mistaken in believing that GE sent it to them originally. As they have helpfully pointed out, they do need to prove that they sent it to you. So I would point out that the legal duty falls upon them and not on GE. I would guess that they actually have no record of actually having sent it to you, which is why they have tried to pass the buck onto GE.

 

In the meantime you need to SAR the original creditor and AK so that you have the full picture. I would also query the default with Experian, at the very least have a Notice of Dispute added.

[robert_harvey07]

Thanks for your help!

 

I will do a SAR on GE and Aktiv Kapital. In the meantime do you think I should send the following letter to Aktiv Kapital?

 

 

Dear Sir or Madam,

 

Thank you for your response to my previous letter. I am extremely disappointed to note that you have not complied with my requests. On two separate occasions I have requested that you:

 

“You must supply me with a signed true and certified copy of the original default notice.”

 

This is now my 3rd request. I therefore once again ask that:

You must supply me with a signed true and certified copy of the original default notice.

 

Non-compliance with my request is a criminal offence under S189 of the CCA 1974 and will result in a report being submitted to the relevant statutory authorities.

 

Thanks

[blazing-badger]

I think I would include the following:

 

I have been informed by Experian that the default was registered by yourselves and not by GE Capital. Consequently, the duty to supply the notice is yours alone. As you have previously pointed out, proof of postage must also be supplied.

[robert_harvey07]

Thanks for your help Blazing Badger!

[Laiste]

Hi Robert,

 

The Default Notice does not have to be certified, but it does have to be a true copy.

 

The onus is on the creditor to prove that the Default Notice (DN) was sent to you and served on you.This does not of course accord with the postal rules which essentially operate in "normal" contracts, which of course consumer credit agreements are not. The point I am making is that given the serious consequences for a debtor who does not comply with a DN, which will include the contract being terminated, a Default being placed on your credit file and your rating being shot to pieces, it is insufficient for the creditor to simply say the DN was sent. The CCA 1974, holds creditors to a high standard of accountability and whilst there are no provisions in the Act for the DN to be sent by recorded/guaranteed delivery, I believe that The Unfair Terms in Consumer Contracts Regulations 1999, will support the debtor's position that it is simply unconscionable to allow a DN to stand, just because the creditor states it was sent, without any proof. Creditors have a funny relationship with the truth as many people here know, so there has to be more than just their word for it that a DN was sent. In the absence of proof their words alone are meaningless!

 

In their next reply you may get classic comment that the letter wasn't returned to them by the Post Office. I would tersely point out if they say that, that many pieces of mail go missing every single day and Royal Mail have been fined because of this, so that is entirely a spurious argument. Who's to say that the envelope was corectly addressed? Grill them, give them no peace and don't believe a word they say, make them prove absolutely everything!

 

I hope this helps.

 

Regards,

 

Laiste.

[robert_harvey07]

Thanks for your reply Laiste!

 

I shall get typing another letter to Aktiv Kapital and demand that they provide me with a copy of the default notice! I will try and push for them to prove that I received a copy of it also. Thanks once again

 

Robert

[asbo11]

Hi Robert,

 

I have a new default from Aktiv AKapital after they recently started chasing me for a n old debt. Please come back with any more news!!