BOS default problems

crazyhaggid

I'm having problems with a default registered in error against me by the Bank of Scotland. I'm trying to appeal it through the ombudsman using the quite right argument:

As you may be aware section 88 of the consumer credit act 1974 as amended hereby referred to as the act states:
88.—(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.

I would also like to draw your attention to the case “Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998.” Where Lord Justice Kennedy said that if it was said that a consumer had broken the terms of their credit agreement, the consumer needed to know precisely what had been done wrong and what was needed to put matters right. The lender has the ability and resources to do this and, if it does not do so accurately, it is only right that it should not take the next step.

The Bank of Scotland first threatened a default in September 2008 in a letter. This default notice is quite clearly not in the prescribed form as it undoubtedly fails to satisfy 88(b). Part of the letter states:
“To remedy the breach you must pay into your bank account the sum of £0.00 before the 25th October 2008” Despite my best efforts I couldn't pay £0.00 and so they registered a default

However the ombudsman has written back with the following reply:

The Bank of Scotland has now responded and states it considers the credit information it recorded and subsequent default when passing the account to its agents to be an accurate reflection of your account.

Whilst you have raised the issue of the findings in the case of Woodchester V Swain & Co, it is clear that even here two separate judges have taken different views on what is required by the Consumer Credit Act. Whilst we are required to consider the law when making our assessment, it is not for this service to make decisions which would be better dealt with in court. It is clear that the case to which you refer relates to the degree of error within the information contained in the notice.

In light of the bank's response I have discussed your case with a senior colleague and have approached the bank to request it confirm whether any subsequent default notice was issued on your account. If it has done so and the details were correct, then this remedies any previous breach. It should also be noted that when the bank issued its notice of default, albeit with errors in September 2008, it did not register a default with the credit reference agencies at this time

If the ombudsman's is not there to regulate the Banks who is?

Any help would be very much appreciated as this is preventing me from getting a mortgage!

DarkConvict

Me thinks the OFT is saying is that the default you received saying "sum of £0.00" was indeed incorrect, but the default was not placed on your credit file. They have asked the bank to see if a 2nd default notice was sent as this would replace/supersede the previous invalid default, with a valid default.
If the bank has not sent a 2nd default then the default should be removed as it was placed incorrectly.

You could consider contacting the 3 credit agencies yourself, but i would wait on the OFT first.

crazyhaggid

DarkConvict wrote: »

Me thinks the OFT is saying is that the default you received saying "sum of £0.00" was indeed incorrect, but the default was not placed on your credit file. They have asked the bank to see if a 2nd default notice was sent as this would replace/supersede the previous invalid default, with a valid default.
If the bank has not sent a 2nd default then the default should be removed as it was placed incorrectly.

You could consider contacting the 3 credit agencies yourself, but i would wait on the OFT first.

Thanks for the reply, having checked the credit file myself they have now registered a default. But they did not send a second correct/incorrect default notice telling me about this.

DarkConvict

What is the placed/start date of the default, they have as a guideline upto 6 months to place it, so they might not have sent a 2nd one, but place it a few months later than September.

An option is to send your bank a SAR letter, it gives them 40 days to send you all the info they have on you, this includes default notices sent to you.

crazyhaggid

Would should I do it they say they sent me a second default, which I know they did not? Do they have to prove that they sent it? I know I'm sick of having to send all my letters recorded delivery as my word seems to be worth nothing in this investigation, is their word taken as gospel?

DarkConvict

Here is a SAR template by the way - http://forums.moneysavingexpert.com/showpost.html?p=11753093&postcount=9

never-in-doubt

Anihilator wrote: »

No, Something posted is assumed to be received in law.

Hence if they say they posted it the ombudsman are saying your case falls down to legal argument and definition rather than a clear yes or no hence its for your lawyers to convince a judge over BOS Lawyers.

But not a default notice, which only comes into effect upon receipt of the notice to the actual debtor. If the notice was never received then no default notice can be registered with the CRA's.

The crux of the matter is that the bank can create a default notice if this was the case, therefore with legal documents the simple law of assumed delivered does not come into play - it is their responsibility to ensure it is delivered.

The OP needs to SAR the lender, this will show everything and answer some of their questions: SAR Request Letter

crazyhaggid

Thanks for the replies everyone do you think I should send the SAR letter now or should I wait for the ombudsman's reply?

crazyhaggid

ok the omb has now replied and stated that although I have pointed out how the Bank of Scotland have failed to issue a default notice in line with the requirements of the law they are still not going to ask them to remove it. Instead they want me to accept the default and £50 compensation from BOS.

I would appreciate it if someone could tell me what I should do now?

DarkConvict

State that you find this unacceptable and that the OMB / FSA is failing in there duty to ensure banks treat their customers fairly and to the guidelines & regulations set down. The default was not placed in line with the strict requirements of placing a default and it is having an unfair and substantial decrement to your credit file. This default is or may cause financial issues such as been refused for contracts or options of better financial products such as lower interest rates on credit.

Further more, the information about the default is likely to be inaccurate and thus under the data protection act 1998 it should not be visible on your credit file.

crazyhaggid

thanks for that I'll send this to him