Unenforceability & Template Letters

never-in-doubt

xxkizxx wrote: »

Thanks for your reply NID,
yes thats letter i have sent them all, companies I have been contacted by say they cant locate original Ca so will not pursue the debt unless the agreement is found, with reference to default notice it was originally from Capitalone but now it is Lowell Financial ,default date is the same but NEVER recieved default notice from them or Capitalone.
Must add after fighting Capitalone for over 7month now regarding my Ca, today they have now finally admitted this cant be located and stopped trying to fobb me off with a pointless repeated piece of paper and nasty letters from LF!
So basically I will have to wait until 2014 for defaults to drop off, how many years before they dont really have an impact on your credit score?

Hiya,

If you look at the same link: How to get back on the credit ladder you'll see crappy1 don't budge with regard to defaults... ive got them to agree to £96 repayment and to drop pursuing the debt but they will not budge regards to default.... they are a nightmare.

I have beaten them though, I issued a summons and claimed quite a lot of compo under libellous comments registered with CRA's and they paid me to shut-up and removed the default (I got around £2500 after costs) but then that's me, i'm a nightmare and don't back down and as my username suggests - am never in doubt (about the outcome)......

Can you check your credit record and confirm the exact date of default and the date of last payment - it may become statute barred before the default drop-off date which as you say is 6yrs from date of issuance or 6yrs from date of last payment whichever is sooner.

never-in-doubt

captainhaggis wrote: »

What a superb thread..... How on earth do these idiots (the guy at Crapp1) get jobs?! Good work lad. Keep it up.

Did you read the last few pages where all the letters are? Comments from them like 'we know the default is accurate' to a reply from me like 'you know nothing and I suggest you seek legal guidance prior to responding'...... I love it - the muppets! :rolleyes:

See from here - the letters lol: http://forums.moneysavingexpert.com/showthread.html?p=25057353#post25057353

captainhaggis

never-in-doubt wrote: »

Did you read the last few pages where all the letters are? Comments from them like 'we know the default is accurate' to a reply from me like 'you know nothing and I suggest you seek legal guidance prior to responding'...... I love it - the muppets! :rolleyes:

First few and last few, mate. I'm out of the country tomorrow for a few days to somewhere with very little to do, so I'll try and read through the whole thing then!

They really are fantastic in terms of humour value!

xxkizxx

It reads Date updated 20/10/09 Date Last Delinquent 11/08 Default Date 12/11/08 so if i worked it out right wont drop off till 12/11/14 correct? :mad:

never-in-doubt

How to remove a default

I have been thinking (oooer!)...

If you have had a default registered and the lender confirms that they cannot locate the CCA and so will not pursue the debt (usually in line with s.127 of CCA1974) then it would be worth sending a copy of the letter below to the credit reference agencies, with a photocopy of the letter from the lender/DCA regards to the unenforceability confirmation.

It may actually work for you, i.e. instead of hassling the lender/DCA to remove the default - go to the data processor (i.e. the third party, credit agencies) as they can get 'done' just as hard as the data controller (the owner of the data, i.e. lender/DCA) and they may remove the default for you.

Its worth a go, nothing to lose

Dear Sirs,

Ref: 12345678

I write with reference to an ongoing complaint with Lender Name Here and their unlawful addition of a default notice against me.

It is quite evident from the attached correspondence that Lender Name Here do not follow simple guidelines and as a result I am left with no option but to pursue legal action against them, however in the meantime, as you can see from the attached correspondence, the default registered is in fact unlawful and a clear breach of s.87 & s.88 of the Consumer Credit Act 1974. As such i'd like you to consider immediate removal of the default whilst this matter is being investigated by the relevant governing bodies, bearing in mind you are classified as the data processor and can be held liable to any libel litigation I may pursue.

I quote:

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

(b) to demand earlier payment of any sum, or

(c) to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e) to enforce any security.

(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.

(3) The doing of an act by which a floating charge becomes fixed is not enforcement of a security.

(4) Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.

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;

(c) 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.

s.87(1) of the CCA1974 clearly states that a default notice must be served before the creditor or owner can become entitled, by reason of any breach by the debtor. As they have failed to, and continually ignore my request to, send a default notice to me then they are in clear breach.

Please ensure immediate removal of this default and speak to Lender Name Here yourselves and try to obtain a copy of the default notice? As you are aware, if they cannot substantiate the accuracy of the data to you then you have an obligation to act; by removing the incorrect data registered.

I look forward to your response within the next 21 days.

Yours faithfully,

sign here

Credit Reference Agencies Addresses:

Experian Ltd
Customer Support Centre
PO Box 8000
Nottingham
NG80 7WF

Equifax Plc
Credit File Advice Centre
PO Box 1140
Bradford
BD1 5US

Call Credit Plc
Consumer Services Team
PO Box 491
Leeds
LS3 1WZ

never-in-doubt

Lol, just thought i'd knock that up to see if it helps anyone....

Official thread is here: How to remove a Default

Hope it comes in handy to you guys...

timmmers

never-in-doubt wrote: »

How to remove a default

I have been thinking (oooer!)...

If you have had a default registered and the lender confirms that they cannot locate the CCA and so will not pursue the debt (usually in line with s.127 of CCA1974) then it would be worth sending a copy of the letter below to the credit reference agencies, with a photocopy of the letter from the lender/DCA regards to the unenforceability confirmation.

It may actually work for you, i.e. instead of hassling the lender/DCA to remove the default - go to the data processor (i.e. the third party, credit agencies) as they can get 'done' just as hard as the data controller (the owner of the data, i.e. lender/DCA) and they may remove the default for you.

Its worth a go, nothing to lose



Credit Reference Agencies Addresses:

That may be a better idea than you think, after all..the CRAs have zero to gain from that default, they aren't trying to force any repayments or anything. It's just hassle for them for nothing, and possibly reflects on their reputation should any action come from them allowing an unlawful default to remain? Their business is built on being seen to be accurate and reliable ..unlike DCAs who only wish to profit from recovery of debts they buy.

The DCA club website seems to reflect how they are getting hammered ...one article I noticed mentioned "my nemesis" in relation to another forum based on this kind of action.

t

never-in-doubt

timmmers wrote: »

That may be a better idea than you think, after all..the CRAs have zero to gain from that default, they aren't trying to force any repayments or anything. It's just hassle for them for nothing, and possibly reflects on their reputation should any action come from them allowing an unlawful default to remain? Their business is built on being seen to be accurate and reliable ..unlike DCAs who only wish to profit from recovery of debts they buy.

I agree with what you're saying but always remember a CRA will hide behind 'we are just putting data up that was provided by the lender - speak to them to get it amended'. However, the actual law is clear above in my letter - they have a right as data processor to safeguard our data - unfortunately they tend not to side with the consumer that frequently.....

However, press the right buttons and issue the right threats and they will listen to you (eventually) and remove the default, even for a few days whilst they check with the actual default referrer. *This way it clears the path to make an application, such as mortgage or whatever (just get your timings right)

* Did I really just say that :whistle:

timmmers

never-in-doubt wrote: »

I agree with what you're saying but always remember a CRA will hide behind 'we are just putting data up that was provided by the lender - speak to them to get it amended'. However, the actual law is clear above in my letter - they have a right as data processor to safeguard our data - unfortunately they tend not to side with the consumer that frequently.....

However, press the right buttons and issue the right threats and they will listen to you (eventually) and remove the default, even for a few days whilst they check with the actual default referrer. *This way it clears the path to make an application, such as mortgage or whatever (just get your timings right)

* Did I really just say that :whistle:

They have a right to store data, this is true. However, newspapers have a right to distribute news stories..and a legal obligation to ensure they are correct. If they aren't proved to be correct they get sued. Big time.
A CRA supply information that can harm us financially and by reputation, they have the laws regarding the industry to deal with and comply to, but also the general laws that we all have to comply with too.
I can be sued for posting here that someone is a rapist or maybe that Martin Lewis is actually a bankrupt ...he could hammer me for that. If it were another forum he could also hammer them for allowing it and not correcting it.

you can't legally pass info like that around if you know it to be wrong, or even if you don't..ignorance is no defence in law. These people actually charge for the info which is worse if it's inaccurate.

a lawsuit would be costly, but there have been cases of large groups getting together to batter big companies and fund their case...even lawyers who help free or cheaply.


t

terimon

Hello again Never-in-doubt. NatWest replied back

I write with reference to your recent request under section 78 (1) to supply copies of the original agreement set out under the Consumer Credit Act.

We appreciate that under s.78(6) of the Consumer Credit Act if you decide not to meet your obligations under the card agreement as they fall due we will be unable to take steps to enforce repayment of the card debt by court action. Nevertheless, we expect you to meet your obligations under the agreement, bearing in mind that the agreement isn't void, and remains valid albeit unenforceable.

We do not dispute that the agreement is currently not enforceable so we see no need for any threatened action to obtain a court declaration to that effect.

For the avoidance of doubt and as previously advised if you do not make the card repayments as they fall due we will report your default to the Credit Reference Agencies.

-The information Commissioner Office have considered the circumstances in which credit reference agencies should be permitted to record details of unenforceable credit agreements.

-The ICO has expressed the view that where a credit agreement clearly existed and credit has been provided to the debtor and notwithstanding that it may not fulfil all the requirements of the CCA and as a consequence, the agreement is unenforceable, it is appropriate for information about the agreement, including any failure by the debtor to repay his or her debt, to be recorded with the credit reference agencies. A factor in the view expressed is that responsible lending decisions are dependant upon lenders receiving accurate information about individuals' ability (and/or inclination) to repay their debts.

This is our final response in the matter.If you are dissatisfied with this final response, you may refer your concern to the Financial Ombudsman Service. I can assure you that we will co-operate fully with any investigation they may undertake. If you decide to take this course of action, you must do so no later than six months from the date of this letter.

The enclosed leaflet, produced by the Financial Ombudsman Service, gives you more details about what thet do and how you can contact them.

Yours sincerely