Defaults - background, removal methods, challenges and taking a claim to Court

[Vulture_Bank]

car2403

 

see

 

http://www.consumeractiongroup.co.uk/forum/general-debt/123771-validity-debt-assignment-re.html

[car2403]

There now seems to have been a shift in the Information Commissioners Office's opinion on how the CCA applies to inaccurate Defaults - see here for the info;

 

http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=1924&d=1201857472

 

and then this letter from a CAG member (flash) in response to a ICO complaint submitted;

 

http://www.consumeractiongroup.co.uk/forum/general-debt/125119-ccas-post-april-2007-a-post1360850.html#post1360850

 

(I've reordered the pages here so the letter reads correctly)

 

Here is the complete letter from the Information Commissioners Office:

 

 

 

 

They seem to be backing up faster than a Securicor Van going "beep... beep... beep"!

 

Interesting - definately one to watch. (I may have to revise the first post on this thread in light of this if it represents the ICO's view now!)

[gaz2006]

Looking at my credit histopry I have 2 defaults for same item one on 16 2 07 ie First Credit and one on 29 9 07 for barclaycard for same debt . As no properly executed agrement has been sent me only application form with not all prescribed format what do i do write to ioth to get removed surely I cant be defaulted by 2 seperate entities for same debt what do I do ? I should point out there are penalty charges I havent claimed for yet Regards Gaz

[gh2008]

Hi Chris, very interesting thread, subbing as I'm about to embark on this myself.

 

Have I read the letter from the ICO correctly if my understanding is that

1) If there is an "irredeemably unenforceable agreement" (prescribed terms missing??) under the CCA (or no agreement where there should be one presumably?) then the ICO's stance is that the default should be removed.

 

2) If there is an agreement which is enforceable either on it's own merit or likely to be enforced with an order from the Court ("improperly executed") then the ICO's stance is that, even if the amount is incorrect, a Default should be registered.

[car2403]

Looking at my credit histopry I have 2 defaults for same item one on 16 2 07 ie First Credit and one on 29 9 07 for barclaycard for same debt . As no properly executed agrement has been sent me only application form with not all prescribed format what do i do write to ioth to get removed surely I cant be defaulted by 2 seperate entities for same debt what do I do ? I should point out there are penalty charges I havent claimed for yet Regards Gaz

 

Best off starting a new thread, as your questions will get lost on here.

 

Basically, it depends what type of assignment took place for them to pass the debt on - there shouldn't be 2 entries for the same default, but who has the right one depends on the assignment that happened.

 

Penalty charges in any default balance will make the amount on the Default Notice unlawful and inaccurate, giving rise to a rescission of contract preventing the Court enforcing the debt.

 

Once you've got your thread up and running, come back here and post a link so we can offer help directly.

[car2403]

Hi Chris, very interesting thread, subbing as I'm about to embark on this myself.

 

Have I read the letter from the Information Commissioners Office correctly if my understanding is that

1) If there is an "irredeemably unenforceable agreement" (prescribed terms missing??) under the CCA (or no agreement where there should be one presumably?) then the Information Commissioners Office's stance is that the default should be removed.

 

2) If there is an agreement which is enforceable either on it's own merit or likely to be enforced with an order from the Court ("improperly executed") then the Information Commissioners Office's stance is that, even if the amount is incorrect, a Default should be registered.

 

My understanding of the letter is the same as yours - however I disagree with his view on inaccurate Default amount on a Default Notices, given the authorites in the first post on this thread. The ICO offers advice and opinions, but doesn't see himself being bound by caselaw precedant - just as well we still have the Court route to enforce our rights then, isn't it!

[tifo]

like the FOS, they pick and choose which case law they want to use when it suits their decision.

 

i've had decisions from the FOS citing the case law they took into account and i've had other decisions stating they don't use case law, only their own guidelines.

 

Same with the Information Commissioners Office i assume.

[ichbinstephen]

Hi guys......

I've been trying to get my defaults removed but have got stuck!

Can anyone help.....???

Here's where I'm up to:

LETTER 1

After recently obtaining a copy of my credit file from Experian, Equifax, and Callcredit, I was concerned to note that your company has placed a "Default" notice against an account in my name.

Further to this I have no recollection of ever receiving such a notice, and I therefore require you to substantiate this data at your earliest convenience.

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. I enclose a £1 cheque in payment of the statutory fee, PO Serial Number 1587 716732.

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

-------------------------------------------------------

REPLY 1

Your request for documents contains some misconceptions about your entitlement to information in a specified form and our obligations to supply that information.

As you are aware this account was fully repaid on the 27th August 2003, and therefore there is no active agreement between Natwest Creditcards and you with regards the above account.

The Customer Credit Act is for active agreements and therefore we are under no obligation to provide you with the requested documents as your obligations to us under the agreement has ended.

There is no legal requirement for us to provide you with a ‘signed true and certified copy of the original default notice.’

Notification of ‘default information’ on your card account to Credit Reference Agencies was carried out in accordance with long established procedures. We are satisfied that the default on your account was properly notified to the Credit Reference Agencies. A default notice is not the same as a Default Entry.

--------------------------------------------------

LETTER 2

Thank you very much for your letter dated 17 July 2007.

You however tell me information that I already know. I have seen my Credit Reference and the notice of 'Default' and then 'Satisfied' next to it.

It is the 'Default' notice that I am very concerned about because I have no recollection of ever receiving such a notice.

The three questions in the original letter dated 7 July 2007, specifically relate to this point and request you to substantiate this information. Could you therefore answer in full the questions contained in the letter of which I enclose a copy, I also enclose a cheque for £10.

It is your duty to comply with my requests under the law, and you are obliged to provide this information under the Data Protection Act.

 

 

----------------------------------------------------

 

 

REPLY 2

 

Thankyou for your letter. As advised previously we have responded correctly under the Consumer Credit Act.

I can however provide you with details as to why your account was registered with the Credit Reference Agencies as Default.

Prior to the registration of your account, you were advised that it is the practice of the Bank to register defaulters. Our systems show that the s87 CCA default notice was issued on 20 August 2002, reference864 with the subsequent demand for full payment on 6 September 2002 reference COL451.

The CCA makes express provision (section 176) that a notice if sent by post to your proper address is properly served. If, as you claim, the notices failed to be delivered to you, this does not invalidate our actions in dealing with your breaking the agreement by not making the required payments. These actions included notification to the Credit Reference Agencies. As you are aware, a default notice is not the same as a Default Entry.

Your account was passed to an external Debt Collection Agency, Triton Credit Services in May 2003, as you failed to make the required minimum payment, therefore failing to meet your contractual obligations.

In accordance with an agreement set up between the British Bankers Assosiation and the Data Protection Registrar, your details will remain registered for a period of 6 years from the original date of registration. This agreement carries full approval of the Office of Fair Trading.

I trust the above clarifies matters for you. I have returned your cheque for £10 as it is unclear from your letter what this cheque is intended for.

 

 

-------------------------------------------------

 

LETTER 3

 

Thank you very much for your letter concerning the default notice served on my account. It is now clear that your company’s record of this default notice bears little resemblance to the information that the credit reference agencies hold on my file.

Because of these obvious inconsistencies I must insist that the default notice is immediately removed from my file as unsubstantiated.

---------------------------------------------------------------

 

REPLY 3

 

As previously advised, a Default notice letter is not the same as a Default Entry, and therefore the details of the default notice letter would not resemble the registered Default Entry held with the Credit Reference Agencies (CRAs).

Prior to the registration of your account with the CRAs, you were issued with a default notice letter, followed by a termination letter advising you of the overdue position of your credit card account and failure to restore and maintain regular payments to the account would result in a Default Entry being registered with the CRAs.

I am satisfied that the information of your account was properly notified to the CRAs and the Default Entry has been registered correctly. If you disagree, you have the right to apply to the court to have inaccurate personal data rectified, blocked, erased, or destroyed.

I trust the above clarifies this matter for you.

 

 

--------------------------------------------

 

 

This has taken me since last summer to get this far….

 

WHAT DO I DO NEXT?

HAVE I A CASE FOR THE COUNTY COURT?

IS IT TIME TO GIVE UP?

 

 

 

All advise greatly appreciated.

 

Steve

[car2403]

Hi Steve,

 

Start a new thread and paste up all the details you have here, to make sure you get the right help;

 

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

It looks like you need to send a DPA SAR, rather than a CCA request, but they should still be able to provide the Default Notice to substantiate the entry on your Credit File.

[Having_A_Knightmare]

Great thread Car....

 

HAK

[gaz2006]

Best off starting a new thread, as your questions will get lost on here.

 

Basically, it depends what type of assignment took place for them to pass the debt on - there shouldn't be 2 entries for the same default, but who has the right one depends on the assignment that happened.

 

Penalty charges in any default balance will make the amount on the Default Notice unlawful and inaccurate, giving rise to a rescission of contract preventing the Court enforcing the debt.

 

Once you've got your thread up and running, come back here and post a link so we can offer help directly.

 

here we go car http://www.consumeractiongroup.co.uk/forum/general-debt/129617-defaults-help.html

[shieldblaster]

Most interesting thread as I am considering similar action to get a default removed from my mothers CR following non-compliance of a CCA request.

 

As it has stated it's a work in progress so I look forward to any further updates or additions

[car2403]

As it has stated it's a work in progress so I look forward to any further updates or additions

 

It is a work in progress, but that's because its a relatively new area of law that we're wading in to - or, its not "new", just a different approach bringing a few other areas together.

 

Don't be fooled in to thinking that this doesn't work though - take a looky here, for just a few examples;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/124065-default-removal-successes.html

[banker_rhymes_with]

Hello Chris!

 

Going back to the Information Commissioners Office's Letter in Post #27, and specifically to their Comments under the Title "Impact of the Consumer Credit Act 2006", they seem to be assuming this is retrospective. They are mentioning Case Law from 1991 [1999] in relation to the CCA 2006 changes in respect of s127(3)-(5). I understand these changes do not apply to Agreements made prior to approx 2007 onwards (or whatever date the CCA 2006 came into force).

 

Did you read it like that? Or have I misread it?

 

I can see a reason for mentioning the CCA 2006, but they should've made it clear that this only applies to Agreements that came after CCA 2006, and not before.

 

Good Thread BTW.

 

Cheers,

BRW

[car2403]

Hello Chris!

 

Going back to the Information Commissioners Office's Letter in Post #27, and specifically to their Comments under the Title "Impact of the Consumer Credit Act 2006", they seem to be assuming this is retrospective. They are mentioning Case Law from 1991 [1999] in relation to the CCA 2006 changes in respect of s127(3)-(5). I understand these changes do not apply to Agreements made prior to approx 2007 onwards (or whatever date the CCA 2006 came into force).

 

Did you read it like that? Or have I misread it?

 

I can see a reason for mentioning the CCA 2006, but they should've made it clear that this only applies to Agreements that came after CCA 2006, and not before.

 

Good Thread BTW.

 

Cheers,

BRW

 

The 2006 Act is not retrospective;

 

The agreement was made before s.15 of theConsumer Credit Act 2006 came into force - therefore, those sections otherwise repealed by s.15 Consumer Credit Act 2006 remain in force

 

s.15 came in to effect in April 2007.

[banker_rhymes_with]

Hello Chris!

 

My concern is that the ICO's Letter does not seem to have realised this.

 

Cheers,

BRW

[car2403]

Hello Chris!

 

My concern is that the Information Commissioners Office's Letter does not seem to have realised this.

 

Cheers,

BRW

 

You should be concerned, because they are wrong.

[banker_rhymes_with]

Hello Chris!

 

Looks like anyone making a Complaint to the Information Commissioners Office regarding an Agreement made prior to April 2007, would be wise to mention that the CCA 2006 is not retrospective in respect of s127(3)-(5), just to disabuse them of that little misconception!

 

Cheers,

BRW

[car2403]

Hello Chris!

 

Looks like anyone making a Complaint to the Information Commissioners Office regarding an Agreement made prior to April 2007, would be wise to mention that the CCA 2006 is not retrospective in respect of s127(3)-(5), just to disabuse them of that little misconception!

 

Cheers,

BRW

 

It looks like (seeing other threads making complaints to the ICO also) that this was a one-off and hasn't been repeated. I think the individual concerned has had some training as a result of complaints referred back for further review.

 

You are right though, in that those making complaints now need to include this information in the complaint, otherwise it could be kicked back in the same way.

[Rhia]

Great Stuff car...subscribing. I have always thought the CRAs will be the next big target. App the EU has told UK to bring its six year practise down to just three years in line with Europe but some DCAs are fighting hard against this. Someone elsewhere on one of these forums also established that there IS NO LEGAL basis whatsover for the six year rule and this was based on the Rehabilitation of Offenders Act where the lowest grade of offence is deemed "spent" after six years.

Go for them boy!!!

[2Grumpy]

The lenders and CRAs are quite happy to extol the information commissioner's advice that recording defaults & letting them stay there for 6 years is ok & in the public interest, but I haven't seen anything about the Information Commissioner's "Data Protection Technical Guidance: Filing defaults with credit reference agencies" (http://www.ico.gov.uk/upload/documents/library/data_protection/detailed_specialist_guides/default_tgn_version_v3%20%20doc.pdf)

 

The aim of the guidance is to provide advice to credit grantors on the conditions under which information about defaults is filed with the credit reference agencies. Only if credit grantors file defaults information in broadly comparable circumstances to each other will credit reference agency records provide meaningful information about the financial standing of individuals, and be processed in a way that is fair to those individuals. The guidance sets common standards for filing defaults while recognising that some differences exist with the wide range of credit products available.

This makes interesting reading; especially sections 42 - 45: Unresolved disputes

 

After reading this, it says that if you query an entry, the CRA should mark the entry as "in dispute" and give a reasonable time "around 28 days" for the creditor to substantiate the entry - i.e. not just say that it is correct and should stand.

 

If the CRAs point to one set of guidance notes in their defence, they can't pick and choose which ones they abide with. It's about time someone started quoting this at the CRAs.

 

Having published this guidance I'm not sure how the Information Commissioner manages to make the decisions that it does on things that obviously flout the guidance that he gives.

 

The guidance might help those with claims against the CRAs/banks too.

 

Grumpy

[car2403]

2Grumpy, I'm using this exact bit of ICO advice in my case against O2, which is due to be heard next Friday;

 

http://www.consumeractiongroup.co.uk/forum/telecoms-mobile-fixed/111666-car2403-o2-wescot-dca.html

 

It's interesting that O2 are relying on the ICO's view on Credit Agreement Data Sharing to allow the CRA to continue sharing my data after the end of the contract, but they haven't commented on the technical guidance given by the ICO on registering the Default in the first place...

[2Grumpy]

 

It's interesting that O2 are relying on the Information Commissioners Office's view on Credit Agreement Data Sharing to allow the CRA to continue sharing my data after the end of the contract, but they haven't commented on the technical guidance given by the Information Commissioners Office on registering the Default in the first place...

Just like my complaints to banks about their DCAs and their own behaviour. They answer bits of the complaint but don't mention the bits that cause them grief. At least it shows their weak spots

[jermaindefoe]

Hi everyone, i am trying to get the 2 defaults remvoed from my account, the 2 defualtd are really not fair as i am sure they havent sent me any documentation to say "your account will be defualted, never the less, i proceeded to send them a letter asking to provide me with the defualt letters they sent me, they provided me with the follwowing,

 

Termination Notce - Barclays Cash card Account.

In accordance with Sections 76(1) and 98(1) of the consumer credit act 1974.

Important you should read this carefully.

It is a term of your agreement with the bank that the full amount outstanding on your account is repayable with interest on demand at any time. Persuant to that term, the bank hereby terminates your agreement with effect from 20/01/2006 and makes demand for full and immediate repayment of the balance on the account currently (£xxx) with effect from that date. In the meantime no further drawings on the account will be permitted. Daily interest charges of 11p will accru from the date shaown below until full payment is made, assuming no change in the itnerest rate

If you do not settle the balance on your account the Bank may transfer the responsibility for recoveery of the debt to one of its recovery units or agents with a view to taking action for recovery.

Additionaly it is the banks intention to register detils of the account with credit reference agencys.

This may seriously effect your ability to obtain credit

If you have difficulty in paying any sum owing under the agreement, you can apply to the court, which may make an order allowing you or any surety more time.

If you are not sure what to do, you should get in touch with CAB etc....

Mrs L James

Senior Collections Manager.

 

This was also accompanied by

 

You have advised us that you are concered about a defualt notice placed on your account, please see the true and certified copies of the original defualt notice as requested (this being the one i posted above)

 

I can confirm a balance of £xxx was transfered to our recovery unit on the 26th may 2006, the balance was settled on the 27th june 2006

 

The defualt notices have been correclty registered as satisfied (which in fact it hasent). If is not then please do not hesitate to contact me and i will gladly have your file updated. I am sorry this is not the answeer you want but i hope my explanation is helpful. If you would like to comment further on this then please call me on xxxxxxxxxxxx Iwill keep your file open for 8 weeks and if you dont reply within this time then i will assume your complaint as satisfied.

 

Our aim is to resolve all complaints internally although we recongise on this occasion this has not been the case. As we have not been able to agree a way forward you may be able to ask the financial ombudsman servie to review yoyr complaint. We will help you if this is the case.

 

Yours sincerly

 

Steve conely

 

Customer relations

 

is this a classic fob of letter or am i banged to rights, i have written a draft reply and was wondeirng if someone could tell me if what i am writing is whats needed in a reply for thsi circumastane

 

thanks people

 

Thank you very much for your swift response to my letter. I would like to start by saying that in your letter to me previously you stated that I should contact you if either of the two previous balances were not showing as satisfied on my credit report. I would like to take this opportunity by saying that the balance of £xx is still showing as unpaid and I would like this to rectified please. This was on account number xxxxxxx

 

Secondly, after a comprehensive read of the consumer credit act I have found the following information which has been taken as a direct quote;

Section 87(1) of the 1974 Act allows the creditor to send you a default notice giving you fourteen days from the date you receive it to pay the arrears. The default notice must contain all of the necessary information under the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 ('the 1983 Regulations'), which includes

i. a statement saying the notice is a default notice served under section 87(1) of the 1974 Act

ii. a description of the agreement

iii. the name and address of both the debtor and the creditor

iv. 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;

v. 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

vi. 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

vii. 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 and recovery possession of the motor vehicle)

viii. 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

ix. if an amount of money is required to be paid, the amount before deducting any rebate on early settlement

It comes to my direct attention that you have not sent me a letter of default notice, but however a letter of termination. In thinking that you will proceed to tell me that Barclays don’t issue statements of default but only termination notices I have read through and found the following irregularities with what the Consumer Credit Act dictates.

 

The following sections have been, in my opinion left out of the termination notice and therefore do not comply with what I asked you to produce me;

 

· (ii) a description of the agreement

· (v) 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

· (x) 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

As previously stated, all I wish is for a true copy of a “default notice” to be sent to me in order for me to try and remove something from my credit rating that I believe shouldn’t be there due to me not being able to recall receiving them in the first place.

If the possibility of removing the default notices from my credit score can be resolved in a more simplistic way then I am open to talking, but until I receive legitimate evidence of the default notice I shall continue to write to you.

Yours Faithfully

[citizenB]

If what you typed at the top of your last post is exactly how the letter looks then it doesnt appear to be a proper DEFAULT NOTICE.

 

Hopefully someone with more knowledge of these matters will look in soon.