Default notice

wayne99

Hi guys,

I need a bit of info if possible with regards to Default notices placed on credit files.

If someone slaps a default notice on your credit file is there a set procedure / or set legal requirement they must adhere to ? what i mean what steps must they take before adding a default on your credit file ?

can a DCA just slap a default on your credit file without telling you ? without issuing a default notice ? or ever telling you they now own the debt ?

when they add the default what must they do at that stage ? e.g. send it to you, not send it to you ?

where is the information contained that can back up the legal requirements for a creditor to add a default notice and the terms of adding it ?

If i felt that a default had been added incorrectly or the correct procedure had not been followed what ever that was, what can i do about it ?

Does a court have the power to order the removal of a default ? and if so for what reasons ?

sorry for all the questions, but iam starting the process of disputing some defaults and the main reason is that they have been entered by a completely different company then the one the credit was taken out from, no CCA has been signed, no notice of assignment has ever been sent, no default notice or warning about a default notice has ever been issued, are these grounds to defend the entry's ?

thanks

Wayne.

never-in-doubt

wayne99 wrote: »

Hi guys,

I need a bit of info if possible with regards to Default notices placed on credit files.

If someone slaps a default notice on your credit file is there a set procedure / or set legal requirement they must adhere to ? what i mean what steps must they take before adding a default on your credit file ?

can a DCA just slap a default on your credit file without telling you ? without issuing a default notice ? or ever telling you they now own the debt ?

when they add the default what must they do at that stage ? e.g. send it to you, not send it to you ?

where is the information contained that can back up the legal requirements for a creditor to add a default notice and the terms of adding it ?

If i felt that a default had been added incorrectly or the correct procedure had not been followed what ever that was, what can i do about it ?

Does a court have the power to order the removal of a default ? and if so for what reasons ?

sorry for all the questions, but iam starting the process of disputing some defaults and the main reason is that they have been entered by a completely different company then the one the credit was taken out from, no CCA has been signed, no notice of assignment has ever been sent, no default notice or warning about a default notice has ever been issued, are these grounds to defend the entry's ?

thanks

Wayne.

I thought you'd already been on my thread mate? Ok, start with the below - that is s.87 & s.88 of CCA regards to defaults.

Basically, a court has the power but it'd be an extravagance to say the least (i.e. the legal bill will outweigh the default value)....

Read this letter that you can argue, with the CRA's: #11

s.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.

s.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.

Subsequently, 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.

never-in-doubt

wayne99 wrote: »

If someone slaps a default notice on your credit file is there a set procedure / or set legal requirement they must adhere to ? what i mean what steps must they take before adding a default on your credit file ?

They should send you a termination notice, this is a final demand giving you 14 days in which to pay the whole balance.

wayne99 wrote: »

can a DCA just slap a default on your credit file without telling you ? without issuing a default notice ? or ever telling you they now own the debt ?

No! If they have done this you have a good case, you must first be sent a Notice of Assignment (NoA) whereby the OC sells the debt, the new DCA then closes the original default as settled and a new one is created with their details and the original start date of the original default.

If the DCA bought the debt and added a default without you even knowing they have breached CCA1974 and you should inform FOS. However check with the CRA's as they may have messed up with the actual default in which case it will be removed forever!

wayne99 wrote: »

when they add the default what must they do at that stage ? e.g. send it to you, not send it to you ?

Send a default notice but usually you'd be aware due to the Termination letter they should have sent.

wayne99 wrote: »

where is the information contained that can back up the legal requirements for a creditor to add a default notice and the terms of adding it ?

Above ^^^ - In my last post mate

wayne99 wrote: »

If i felt that a default had been added incorrectly or the correct procedure had not been followed what ever that was, what can i do about it ?

Complain to the OC, then the DCA, then the FOS then the CRA's using the link I posted above with the letter template.

wayne99 wrote: »

Does a court have the power to order the removal of a default ? and if so for what reasons ?

The court has the power to remove anything it wants - whether the lender/DCA listens is another matter altogether - can you really afford to take them on like this? :eek:

wayne99

cheers pal,

I have been on your thread, this is the situation some defaults have been entered on mine and my wife's credit files from phoenix recoveries, (cam) we have sent requests for the CCA along with payment, and have requested proof of the default notices.

They cant have proof of the default notices as they have never been sent, and if they have we did not receive them.

No CCA's were ever signed from little woods so i cannot see how they can supply them ?

the defaults were entered in various months in 2007 so they are getting on for 3 years old now, the recorded delivery letters were sent on the 4th feb 2010 and have been signed for and the postal orders have been cashed.

I have raised a dispute also with equifax as there are 3 entries on my report for equifax but only one on experian - the ones on equifax are under the name phoenix recoveries, the one on experian is for credit account management.

this is there reply to equifax:

Response (Administrator) 11/02/2010 10.27 AM Good Morning,

I can confirm that we have received the request for a copy of the CCA, which has been requested. This account will remain on hold until this has been supplied.

Kind Regards.


what is the next process ? I gave 14 days on the first letter for them to gather information and respond, which they have not bothered to do yet, but they have replied to the dispute with equifax (as above) so when i hit 14 days i presume there is a letter which is a little more aggressive then the first ?

wayne99

they have never issued me with a NOA or the default notice, they simply placed it on my credit file with no missed payment dates on there just there details and a big fat D

so i guess i have good reason to dispute

never-in-doubt

wayne99 wrote: »

cheers pal,

I have been on your thread, this is the situation some defaults have been entered on mine and my wife's credit files from phoenix recoveries, (cam) we have sent requests for the CCA along with payment, and have requested proof of the default notices.

They cant have proof of the default notices as they have never been sent, and if they have we did not receive them.

No CCA's were ever signed from little woods so i cannot see how they can supply them ?

the defaults were entered in various months in 2007 so they are getting on for 3 years old now, the recorded delivery letters were sent on the 4th feb 2010 and have been signed for and the postal orders have been cashed.

I have raised a dispute also with equifax as there are 3 entries on my report for equifax but only one on experian - the ones on equifax are under the name phoenix recoveries, the one on experian is for credit account management.

this is there reply to equifax:

Response (Administrator) 11/02/2010 10.27 AM Good Morning,

I can confirm that we have received the request for a copy of the CCA, which has been requested. This account will remain on hold until this has been supplied.

Kind Regards.


what is the next process ? I gave 14 days on the first letter for them to gather information and respond, which they have not bothered to do yet, but they have replied to the dispute with equifax (as above) so when i hit 14 days i presume there is a letter which is a little more aggressive then the first ?

If there are 3 entries, you go back to Equifax and argue that there should be one entry per default and unless they remove all three within the next 24 hours you'll consider seeking legal advice for their libellous data.

Regards to the complaint, mention to Equifax that the CCA has nothing to do with your query, the fact remains that you never had an account with them and so there should never be a default. You will have a good case, I have already beaten CAM twice personally so wait the 14 days and see what transpires - then you should send: 2. CCA Reminder

All taken from here: Unenforceability & Template Letters II

never-in-doubt

wayne99 wrote: »

they have never issued me with a NOA or the default notice, they simply placed it on my credit file with no missed payment dates on there just there details and a big fat D

so i guess i have good reason to dispute

Yea, see what happens then i'll get involved for you mate - I need the CCA (dodgy copy) first before anything can really be argued....

wayne99

never-in-doubt wrote: »

If there are 3 entries, you go back to Equifax and argue that there should be one entry per default and unless they remove all three within the next 24 hours you'll consider seeking legal advice for their libellous data.

Regards to the complaint, mention to Equifax that the CCA has nothing to do with your query, the fact remains that you never had an account with them and so there should never be a default. You will have a good case, I have already beaten CAM twice personally so wait the 14 days and see what transpires - then you should send: 2. CCA Reminder

All taken from here: Unenforceability & Template Letters II

there are 3 entries for 3 seperate accounts mate, but they have only put one entry on experian

never-in-doubt

wayne99 wrote: »

there are 3 entries for 3 seperate accounts mate, but they have only put one entry on experian

Ok, fair do's - I thought it was one account NOT 3 (how the hell do you get 3 catalogue accounts with the same firm anyway?) :rotfl:

Wait and see what they reply with and then i'll sort you a response as and when. Or send the letter detailed above to the CRA's. #11

wayne99

one was with

lxdirect, additons and extra - but one of the entries for some bizarre reason one account has just my first and middle name with no surname the others have first and last name with no middle name ??? strange...

never-in-doubt

hold fire a week or two and see what they send back mate - have you send a cca request for each account and a £1 cheque for each account ??