Invalid Default Notices - Default Removal

confused90

hi never in doubt, thank you for the useful info and links, i'll most certainly be reading them all in full but i wonder if you might be able to advise me on what to do first in my case just to get the ball rolling.

In breif i had a car finance agreement a couple of years ago with close motor finance, after a small misunderstanding regarding VT-ing the agreement (the misunderstanding being that close thought i wanted to VTand decided to get all heavy handed when in fact i had decided not to VT) close never attempted to take the next months payment, i didn't notice that the direct debit never went out of my bank, three weeks later two meat heads with no paperwork and no i.d. turned up at my door at 10pm, broke into the vehicle and towed it away stating that close had told them to come and get the vehicle and as close owned it and it was on a public road they were legally entitled to "steal the vehicle back" (i've checked and it is actually legal if 1/3rd has not been paid) all they left me with was a calling card with the two guys supposed names on it for a recovery company called "ram recovery" no business address and no phone number and i could not find any business listed in the uk under this name.

close sold the vehicle for £1,200 at auction despite the vehicle being worth £6,500 and billed me for in excess of £5,000.

i took this case to trading standards, they backed me and we eventually went to the FOS. I was disputing the amount owed on the grounds of it being an unfair consumer contract, that since i was not in arrears at the time of reposession they had broken our contract and not myself and therefore i could not be bound by the terms of the agreement, i had a strong case and issued several "take me to court if you think i'm wrong" ultimatums.

Without going into too much detail, (as i said this would be breif and i am aware it's anything but at this point- sorry:o) close decided not to attempt to enforce the debt and sold the account instead, effectively cutting their losses, the ombudsman partially upheld my complaint and said he was "not able" to decide on the rest due to the legal isues of the argument being "for a court to decide".

So i had disputed the alleged debt through all proper channels, partially won, had the backing of trading standards was itching to fight the rest of the case and close pulled out, not bad as no one is now asking me for money but close recorded a default on my file for £5000 which i 100% disagree with, i do not owe them this money, i did not default, i challenged them on it and they refused to fight the case and prove i owed the money and i want this default removed....


now, heres the question (if you are still reading, i hope you are) what is the best way for me to tackle them on this?

i'm not trying to say they didn't follow procedure as such (although they might not have done i'm not sure) but that the default recorded is false and the amount stated is not owed and i did not default and therefore this default should never have been recorded and should therefore be removed....Should i argue this point or just see if i can get it removed due to not serving the correct notices etc?

Any help would be most welcome and i'm sorry this is such a long post but after 18 months of dispute there is alot to explain and despite the length of this post this is a breif outline of whats happenned so far this post could have been alot longer had i explained everything:eek: ..lol, thanks in advance i hope you can help.

never-in-doubt

confused90 wrote: »

hi never in doubt, thank you for the useful info and links, i'll most certainly be reading them all in full but i wonder if you might be able to advise me on what to do first in my case just to get the ball rolling..

Hiya

Ok, the first thing to do is to send this letter to each of the CRA's adding the part and copies of letters confirming the details you stated (regards to the FOS etc) demanding they remove the unlawful default before you seek legal action for Libel. It may be in the template but just check - 9. Default Removal Letter to CRA's

Its easy to get removed in your case, basically the onus is now on the CRA's to act appropriately.

Good Luck - keep us updated with what they say in their reply.

confused90

never-in-doubt wrote: »

Hiya

Ok, the first thing to do is to send this letter to each of the CRA's adding the part and copies of letters confirming the details you stated (regards to the FOS etc) demanding they remove the unlawful default before you seek legal action for Libel. It may be in the template but just check - 9. Default Removal Letter to CRA's

Its easy to get removed in your case, basically the onus is now on the CRA's to act appropriately.

Good Luck - keep us updated with what they say in their reply.

thank you, i have book marked this thread and i will update when i get a response and let people know what the outcome is.

thank alot mate, i tried to get some help on this a month or two back but got no replies to my thread, must have missed ya that time but good to see someone helping others with this, there are too many instances of creditors recording false and misleading info with cra's who can't be bothered to adhere to the law and check that creditors followed correct procedure before asking them to record defamatory information about someone.

since no one in authourity seems bothered about this (probably because when mp's get a default threat they just falsify the old expenses form and get it paid before any action is taken ) it's nice to see someone doing a little to help us out. :beer:Cheers:beer:

cocker100

never-in-doubt wrote: »

Hiya matey Glad you like the thread, it is very handy and when you have nothing to lose, anything is worth a go.....

However, you won't be liable to a refund so assume the default is wiped as defective the account would go back into arrears and as you've (assumed based on your example) paid £1000 off a £7000 debt, i'd assume the original terms would kick in meaning the minimum repayment on such a debt multiplied by the amount of months may be more than the £1000 you have paid, if you see what I mean?

for example;

£7k debt
£1k paid
14 months in arrears @ 3% of debt as minimum monthly payment = £210 per month
multiply the £210 min payment by 14 months = £2940
meaning you're £1,940 in arrears.

Make sense?

So you may still be liable to pay arrears - it would be best to get the default wiped and then arrange a repayment plan that suits both parties, so long as you stick to this agreement no action will be taken, but your credit file should show A/P (arrangement to pay) as opposed to D (Default).

Maybe you mis-understood the arrears bit.

Having read through part of that CAG thread, only the arrears on the account at the time the default notice was issued are due by the debtor, eg. £300 in arrears on a total debt of £7,000 at the time of default by the original creditor.

So default notice states "please pay £300 by xxx date or we will terminate the agreement" ( But default notice is defective)

You dont pay, so account is terminated and sold to DCA.

DCA now chases you for the full £7,000, so you include it in DMP and pay £xx.xx per month. During the course of DMP, you have repaid £1,000 to DCA through the DMP, but now realise the default notice is invalid and stop paying.

According to said thread, all you are liable for is the £300 arrears stated in the default notice issued by the original creditor. As you have paid £1,000 since this invalid default notice was issued, you have more than paid the £300 that you are now only liable for. So what happens about the extra £700 you have paid to the DCA, when they have purchased an account that was closed on a dodgy default notice?

Surely they have no right to claim this money and you have the right to claim it back? The original terms and conditions of the account should be null and void because the original creditor cancelled the agreement, albeit unlawfully.

????????????

Cocker:)

never-in-doubt

confused90 wrote: »

thank alot mate, i tried to get some help on this a month or two back but got no replies to my thread, must have missed ya that time

Ahh just seen it here mate: Campaign Against CRA's Enough is Enough

never-in-doubt

cocker100 wrote: »

Maybe you mis-understood the arrears bit.

Having read through part of that CAG thread, only the arrears on the account at the time the default notice was issued are due by the debtor, eg. £300 in arrears on a total debt of £7,000 at the time of default by the original creditor.

Sorry yes, I misread it. You're right in what you say but you're assuming that the arrears are less than what you'd paid on a DMP which usually is not the case, especially if you've missed a lot of payments.

Lets make it Plain English:

You should pay £200 per month, you then stop paying in January. They default you in May meaning you're 5 payments behind which equates to £1000. You wouldn;t be paying £1000 into a DMP in that period.

However, lets say the January in question is January 2003 and they default you in May 2006 meaning you'd paid 40 payments on a DMP, then yes - you may find you have paid too much and can then get a refund. If you were in arrears still then you'd have to pay that, at the time of the default.

In a nutshell, the account would revert to pre-default status meaning only arrears to then would become due - any excess would be set-off against the balance outstanding

cocker100

never-in-doubt wrote: »

Sorry yes, I misread it. You're right in what you say but you're assuming that the arrears are less than what you'd paid on a DMP which usually is not the case, especially if you've missed a lot of payments.

Lets make it Plain English:

You should pay £200 per month, you then stop paying in January. They default you in May meaning you're 5 payments behind which equates to £1000. You wouldn;t be paying £1000 into a DMP in that period.

However, lets say the January in question is January 2003 and they default you in May 2006 meaning you'd paid 40 payments on a DMP, then yes - you may find you have paid too much and can then get a refund. If you were in arrears still then you'd have to pay that, at the time of the default.

In a nutshell, the account would revert to pre-default status meaning only arrears to then would become due - any excess would be set-off against the balance outstanding

Yes, the original arrears on the defective default notice are far less than what I have already paid back to the DCA through the DMP.

I was defaulted after only 3 month of arrears. Lets say £300 for arguments sake. This was in 2007. Account then sold to DCA after dodgy default notice issued the following month in same year. Have been paying DCA through DMP ever since they bought the debt. Have now paid £1,000 since transfer to DCA, clearly repaying the £300 "arrears" from default notice and have therefore satisfied the only debt I am now liable for due to the invalid default notice.

I never paid any money to the original creditor through the DMP, only the DCA as the transfer was vertually instant.

As the original agreement is now defunct due to termination by a defective default notice, the overpayment by me to the DCA of £700 should be refunded to me, not come off the original balance of £7,000, as this amount is no longer able to be collected due to said notice?

Thats the way I read it. Am I right?

Cocker:)

never-in-doubt

cocker100 wrote: »

Yes, the original arrears on the defective default notice are far less than what I have already paid back to the DCA through the DMP.

I was defaulted after only 3 month of arrears. Lets say £300 for arguments sake. This was in 2007. Account then sold to DCA after dodgy default notice issued the following month in same year. Have been paying DCA through DMP ever since they bought the debt. Have now paid £1,000 since transfer to DCA, clearly repaying the £300 "arrears" from default notice and have therefore satisfied the only debt I am now liable for due to the invalid default notice.

I never paid any money to the original creditor through the DMP, only the DCA as the transfer was vertually instant.

As the original agreement is now defunct due to termination by a defective default notice, the overpayment by me to the DCA of £700 should be refunded to me, not come off the original balance of £7,000, as this amount is no longer able to be collected due to said notice?

Thats the way I read it. Am I right?

Cocker:)

An improperly executed DN does not make a debt unenforceable, therefore the balance (£700) will be deducted from the outstanding balance which will still become due. Maybe you're mis interpreting this but you cannot get a refund if there is a balance outstanding. The original agreement is not defunct due to termination, if the termination was improper then you'll find the lender will reapply it - the only exclusion being they cannot add another default.

cocker100

never-in-doubt wrote: »

An improperly executed DN does not make a debt unenforceable, therefore the balance (£700) will be deducted from the outstanding balance which will still become due. Maybe you're mis interpreting this but you cannot get a refund if there is a balance outstanding. The original agreement is not defunct due to termination, if the termination was improper then you'll find the lender will reapply it - the only exclusion being they cannot add another default.

No no, if the creditor has terminated the agreement on the issue of a defective default notice, they cannot re-issue a new compliant default notice and then claim the full balance.

Once they have closed an account using a defective default notice, thats it, they are stuffed! Only the original arrears are then payable and the rest is unenforceable! There is case law that backs this up and if the creditor has registered the default with the CRA's, then they are also liable to pay compensation of £1,000 as has also been set in case law. Search the thread for the links as I cant recall them off the top of my head.

That is the basis of Pinky's claim to the courts. If they could have re-issued the defective default notice with a legal one they would have and Pinky would not have had a case.

Thats my take on it anyway.

Cocker:)

never-in-doubt

cocker100 wrote: »

No no, if the creditor has terminated the agreement on the issue of a defective default notice, they cannot re-issue a new compliant default notice and then claim the full balance.

I understand this but you're talking about what they can and can't do, not what they will and won't do. I am the first to say you get one crack at a default and the easiest formula is one debt = one default. HOWEVER, are you really prepared to spend thousands taking them to court for the sake of a couple of grand? Its risky and not really what we advocate on MSE - CAG, well that's why I posted the link because I didn't want to suggest it was the 'right' way to go about things. It is an option, however.

Sorry the main confusion here is i'm giving an opinion and not legal advice. You want legal advice, then yea take it to court - however risking a massive legal bill for a debt less than £6k, in my opinion is a no brainer - i'd rather cut my losses and keep the default and walk away £6k better off. But then again I speak to 100's of people and if I promoted court i'd be public enemy number 1.... court should be the last option.