Default notice removal (2nd steps)

drjones69

Good morning all,
The Background
I'm currently seeking to have a Default notice removed from my credit file (using strategies highlighted on this forum, and based around a creditor not fulfilling their requirements in CCA1974 Section 77/78.

Since financial difficulties some time ago, I have kept a spotless credit record for the past 7 years, even recently taking out a credit-rebuilding card faithfully putting a few transactions on it and repaying in full each month, I also now check my credit report every month or so. Whilst I know it's nothing more than an indicator, my credit score with Experian had risen into the 'Good' category until this notice appeared.

Bit of background, initial debt was with 'Cahoot', debt now owned by 'Robinson Way', I am currently within a debt management plan (via Payplan) which I have faithfully kept to for the past ~7 years. The original debt dates back many years (don't have the exact dates, but 2003 is a good estimate).

A couple of months ago a new Default notice appeared on my credit report (from Robinson way), since I had received no Default Warning Notice (or any correspondance at all) I responding with a standard letter asking for copies of my agreement under above clause of the CCA, together with highlights of subsequent action to be taken if not forthcoming (OFT, FS Ombudsman etc). I have given Robinson Way an initial 28 days to comply, and now a second 12 working days. Within the first period I got nothing except an acknowledgement of receipt. During the current period of waiting they have sent me a copy of the 'Notice of Assignment' - for when they purchased the debt from Cahoot. Under the timescales given, they have until the end of this week to complete their requirements, but I wish to ready to move quickly if they do not - as the default on my record is holding up an important investment.

Robinson Way claim the default was issued by the original creditor in Jun 2008, although the default is listed as belonging to Robinson way on my credit file (I have also contacted creditexpert to get more details regarding the record, and have added a notice of correction to it.) For the removal of doubt, the default notice only appeared on my record in September of this year, although it is dated 2008.

Now the questions :
1) The notice of Assignment (dated Jul 2008) was sent to an address I had not lived at for 3 years previous, I assume the initial default warning went the same address - does this aid or hinder my case?

2) As Robinson Way have presented me with the Notice of Assignment, are they now washing their hands? Or under the CCA is it still their responsibility to furnish me with all the other paperwork (Default notice, original credit agreement etc) - or are they implying I need to put in the leg work to contact the original creditor? Is there a section of the CCA I can review/quote regarding this?

3) If the responsibility is still with Robinson Way, and they fail under their obligations is there a standard letter template anyone can direct me for drafting the letter to OFT and the Ombudsman (I have plenty of templates for the letters to send to the creditor, but can't locate for what do send if the need to escalate arises).


My Intentions
The most important result for me is to get the default removed, as it's holding up an investment. Once (if) the default is removed, it's my intention to pay debt of in full - but I feel having the default removed initially would put on stronger footing when it comes to negotiation a full & final payment.

Any advice gratefully received.

Ryan

PS. By all means request further information if I've missed out anything which you need to assess the situation fully.

Tixy

If the default notice went to the last known address (if you had not told your creditor of your new addresses) then the creditor complied with their obligation.

Had you previously kept an eye on your other 2 credit files to see if the default had previously been registered with one of the other agencies.

It may be that the default has only just appeared now because your credit file has only just linked up this address and the previous one.

RW can register the default in their name when they buy a debt providing the original creditor remove the default in their name (if it appears on your credit file) and providing they use the correct default date - not a later date (ie not the date they acquired the debt).

Even if a creditor/DCA they cannot supply a copy of the original credit agreement they are still allowed to register a default against a debtor (if they did default on the agreement). This has been decided in a court case.

Occasionally people manage to negotiate removal of a default in return for paying off the debt in full - you might want to try this. Get confirmation in writing from them before you pay.

drjones69

Thankyou for the followup Tixy,
Much of what you covered (about addresses and the like) is,alas, as I expected.

Just so I'm clear on this - if the default on my account is in the name of RW, then does that they have taken the action to register the default? (Or is the name automatically switched over when a DCA buys the debt?) - I ask as, in the their correspondance, they state that the default was placed by the original creditor and they did not register it themselves.

I will continue to communicate with RW with a view to obtaining the original credit agreement, although I acknowledge from the above response, this is unlikely to be as useful a tool as I had hoped. Again, just to clarify for me, do RW still have a responsibility to provide me with this documentation, are am I supposed to approach the original lender?

Finally, and this more out of genuine curiosity, do you happen to know the name of court case mentioned above?

Regards,
Ryan

fermi

The case is ---> McGuffick v The Royal Bank of Scotland Plc [2009] EWHC 2386 (Comm) (06 October 2009)

The original issue of the default would have been before your CCA request, so for that the judgement isn't that relevant. Continuing to report the default data is, and is allowed.

Assuming that the original creditor did indeed record a default before selling on the debt, then the default record would simply have had it's name changed to RW.

See paragraphs 52 to 54 here: https://forums.moneysavingexpert.com/discussion/3172602

However, now that the default is in RWs name, they have taken on the full legal duty to ensure that the default and subsequent information is accurate, and to amend it or not.

Debt collectors will often tell you porkies and say that only the original creditor can change or remove it. That is not true.

So, the issue seems to be here whether

(a) an original notification of the default was issued.

(b) whether that being in 2008 could be considered fair.

If you dispute those, then arguably RW then have a duty to corroborate the information they are recording on your files by obtaining and supplying proof.

However, I think it would be a good idea to approach the original lender for proof as well. By making a Subject Access Request if needed.

On issue (b), have a careful read of what is said about defaults and DMPS here: https://forums.moneysavingexpert.com/discussion/3172602

fermi

fermi wrote: »

Assuming that the original creditor did indeed record a default

I emphasise that point, as many debt collectors have a habit of registering a brand new default immediately they buy the debt, regardless of what the original creditor has done.

If that falsely replaces one from the original creditor that had an earlier date, or falsely represents the date that you would have defaulted with the original creditor, then that would be very wrong.

Not saying that is what RW have done, but something "smells" a bit here.

drjones69

Afternoon all,
Just thought I'd give you a little update on this matter.
I've written to RW on 3 occasions now, and they still haven't complied with the requirements of section 77 of the CCA. I have also given the option of receiving a complete repayment of the amount owed in exchange for removing the default notice. A total of (approx) 10 weeks have now elapsed, and I believe they've been given ample time and opportunity to deal with the matter.

I am now looking at pushing the matter up to the Financial Ombudsman and the OFT, and will be drafting my letter to them this evening.

I now have a couple new questions - as much to satisfy my curiosity as anything else.

1) RW state that they cannot remove the default as it must stay on a credit file for 6 years (which I know), I do find it ironic that they are happy to quote this regulation, but the one I queried them under they are quite happy to ignore ;-) This has got be me thinking - does a creditor actually have the authority to have credit agencies remove a default (as I believe they are implying they don't)? I know it's common sense that they do, but aside from on forums such as this I've never seen something in writing (ideally from a .gov.uk) site that I can refer them to.

2) I've been informed (through this forum) that the Ombudsman has the authority to require credit agencies to remove a default notice (should they, eventually, find in my favour) - but, again, I can't find this in writing anywhere, aside from on forums such as this, (I have spent a long time reviewing the Ombudsman website to no avail) - anyone able to point in the right direction?

3) In addition to failing to send me copies of the documents I have requested, at no point have RW also sent me an updated copy of the CCA (or a statement of any kind for that matter) - does this mean that RW and I are still bound by the conditions of the Act as it stood when the agreement was put in place? And I must confess, this is as much petty bitterness on my part as anything else, but I'm intrigued to know if, by failing to update me of changes, they are still bound by S77 (4) (b) [ which concerns a credit provider committing an offence if they fail to adhere the terms of the section ] - I am aware it was repealed in 2008, but I have not been notified of this change.

Thank you again for your interest in this thread, and particularly to the people who have been kind enough to provide me answers in the past.

Regards,
Ryan

happy_bunny_2

So, it sounds like the date of the RW default is wrong. Have you looked through this at all?:
http://www.ico.gov.uk/upload/documents/library/data_protection/detailed_specialist_guides/default_tgn_version_v3%20%20doc.pdf

They have to issue the default in a timely fashion, which from your original post, 2008 is clearly not. Maybe Cahoot did and RW just changed the date when they got the debt?

Anyhow, good luck with your complaints and you may want to quote the above or also complain to the information commissioner.

Can you SAR Cahoot or RW for any info? Cahoot seem pretty good at keeping things, they had 2 CCAs of mine from 2001.

happy_bunny_2

Forgot to say, don't know if you have complained to the FOS before, but they have a form you can download and fill in from their website.

You can also give them a call to discuss whether or not they can help you:
http://www.financial-ombudsman.org.uk/consumer/can-we-help-3.htm

drjones69

Just a little update on this matter, as it's still progressing at a molasses-esque pace, as ever interested in any further advice anyone can give on the matter.


I've now completed complaints to,
1) FOS - Have acknowledge and case number, awaiting followup (now overdue, by their timeline)
2) OFT - (as expected) they don't deal with individual complaints, but will consider formal action pending complaints from other customers
3) ICO - No action will be taken as the request of information is under the CCA, and they only enforce requests under the DPA. Have suggestion I make a SAR to RWL (which I intend to do)
4) CSA - Have forwarded my complaint back to the creditor (more on this below)
5) Trading standards - informed I sent this to the wrong office (despite advice from a forum to contact Marsha Bell about the creditor - it was her who wrote back) Robinson Way Ltd are Salford based (hopefully save someone else a bit of time if they find this later). Further letter sent to Salford TS, still awaiting reply.

The creditor has responded to the complaint passed to them by the CSA, after an acknowledgement of receipt and a promise of response within 4 weeks, I got a letter back (after 4.5 weeks), saying that they have still not heard from the original creditor and to wait longer (pretty much a verbatim copy of the palming off response(s) issued in September, October, November and December).

In my followup to the CSA (only recently posted, no response yet) I've highlighted that Robinson Way Ltd have know taken over 110 days (and failed) to comply with a request for which their is a statutory requirement for compliance within 12 (working) days - it is now firmly my belief that this default was filed without following the correct protocol, and the creditor is simply wasting time in the hope that I will grow tired of the pursuit.

This is now getting ridiculous. It is now my plan to seek out legal counsel (I have sufficient cash to push this issue if necessary), as the delaying tactics are now costing me over £400 pcm in terms of lost revenue (I've highlighted this fact to the CSA in the hope that the looming of possibility of legal action for considerable more than the debt is worth will encourage reconsideration of my earlier offer to simply pay the full sum off in exchange for an admission of error on their part and removal of the default notice). If anyone can recommend a reasonable law firm (with a specialism in Consumer Credit Affairs, ideally one based in Yorkshire), I'd be most grateful.

Since I know little about this process (aside from information gleaned from this forum) - what kind of things should I be asking a solicitor for? How does one go about trying to get a court order to force this action?

For my next steps, I am still awaiting the response from a SAR to the original creditor (Cahoot), will be sending a SAR to RWL, and will continue to await response from the FOS.

Regards,
Ryan

ejc81

drjones69 wrote: »

Robinson Way claim the default was issued by the original creditor in Jun 2008, although the default is listed as belonging to Robinson way on my credit file (I have also contacted creditexpert to get more details regarding the record, and have added a notice of correction to it.) For the removal of doubt, the default notice only appeared on my record in September of this year, although it is dated 2008.

Now the questions :
1) The notice of Assignment (dated Jul 2008) was sent to an address I had not lived at for 3 years previous, I assume the initial default warning went the same address - does this aid or hinder my case?

PS. By all means request further information if I've missed out anything which you need to assess the situation fully.

You mention contacting credit expert (experian) but you have not mentioned the other 2 CRA's. Have you actually checked your file with callcredit and equifax?

It sounds like cahoot have defaulted you in Jun 2008 when they've handed over to RW. You may find that Cahoot were using callcredit and the original default was on that file but when RW took over the debt they've updated all 3 CRA's to make sure you're screwed!

I had the same issue with a HFC account and a DCA. Callcredit are still actually showing 2 defaults for the same amount/account, one from HFC and one from the DCA which they definately are not allowed to do! HFC offered (what I thought was) full & final settlement, which I took, then DCA started chasing for £600 2 years later! I gave up writing to the DCA because they just do not respond accordingly!

You need to wait for the SAR from OC before you start throwing money at solicitors as you may well find that it will come back with details of the original default. You also need to get your files from equifax and callcredit if you have not done this already?

drjones69

Thanks for the response,
Yes I have checked all credit agencies - I tend to use Equifax and Callcredit only a couple of times per year, and Experian (via Credit Expert) for regular checks and generally just quote information from this one on a day-to-day basis (as I find the interfaces of the other 2 to be poor, at best).

None of the 3 agencies make any mention of the Cahoot default, only the Robinson Way Ltd default.

It is my belief that either RWL have taken on the account and simply updated a default notice to match the date of their takeover of the debt or have filed a new default without reference to the OC and are simply employing delaying tactics in the hope I will lose interest in the matter.

Whilst it is my intention to wait for the SAR made on the OC, time is very much a factor in my concerns. Whilst I have no great desire to waste money on solicitors, the matter has now gone on for 4 months, with Robinson Way Ltd still giving me the same excuse as they were giving in September 2011 - at this rate, there will have been no movement by the time the default expires (2014) - and I'd rather lose a few hundred quid attempting to force the issue, and either vindicate my beliefs or show me to be in error.

Regards,
Ryan