No Default notice.

asherd10

A credit card company got a judgement in default against me for an account they claimed I defaulted on, a subsequent ccj was registered against me.
The claimants claimed to have sent me a default notice on 05/12/2017. This I never received.
Despite being unaware of the default notice, I made a payment on 25/04/2018. The amount was for £500, this payment brought me below my credit limit and up to date on the minimum payments. I was therefore no longer in default.
I was unable to make the next 3 months payments due to quitting work to become a full time carer for my grandfather, so they defaulted my account on 31/08/2018, but they did this without sending me a valid default notice.
They then transferred my account to debt collectors who issued court proceedings i was unware of and got a ccj against me.
I found out from my credit alerts.
I applied using for N244 to set the CCJ aside.
First hearing to set aside was 14th August postponed due to claimants not attending and my filing of my draft defence on the last day of the order.
30th August was the second hearing, postponed due to claimants filing witness statement 1 day before the hearing and 1 month after all particulars of claim relied on in the original claim were to be handed to me.
I await the courts instructions on the 3rd hearing date, in the mean time I would like to get some advice.

In my opinion, the credit card company is at fault for not sending or issuing a default notice after I had resolved the over limit and sums in arrears issues.
It is a requirement that they do this, therefore they should not be able to default my account and enforce the agreement.

I have considered paying the amount I owe the company to the debt collectors, however, the account would still appear on my credit file as a defaulted for the next 6 years which would detrimentally affect my ability to obtain credit. I maintain I did not default, because they did not send me a default notice, so I feel resolving it in the aforementioned way would be completely unfair.
Also breaching the CCA and therefore my agreement should mean I am no longer bound by its terms and do not have to pay the outstanding balance. I still would, but its the principle, a company shouldn't be allowed to just default your account without valid notice.
Note*** i am not trying to skip out on the debt, i am trying to make sure it is being pursued legally.

asherd10

p.s they have been unable to provide a copy of the claimed default notice sent 05/12/2017, instead, they're relying on a screenshot of an internal system which is all in coded text, saying that one of the highlighted lines is the default notice when the two lines above and two lines below look exactly the same. Court rules say i have the right to examine the document. Without it, I can't tell exactly what the requirements were for bringing my account out of default. Most comments online say the notice would ask to clear the minimum payments, which is what i did. But some say it would ask to clear the whole balance. So you see, it is important i have it so that i can tell whether i was actually still in default even after clearing the minimum payments.

[Deleted User]

They’re not required to send or issue a default notice.

The fact is, you didn’t make any payments for 3 months or presumably contact them to let them know you won’t be able to make payments.

The court could ask for proof that you made contact with them (in writing) to advise you were unable to make the payments and to request a payment plan or the account be frozen etc.

You need to get this paid.

boo_star

!!! wrote: »

They’re not required to send or issue a default notice.

The fact is, you didn’t make any payments for 3 months or presumably contact them to let them know you won’t be able to make payments.

The court could ask for proof that you made contact with them (in writing) to advise you were unable to make the payments and to request a payment plan or the account be frozen etc.

You need to get this paid.

Yes, they are, for a debt regulated by the consumer credit act.

But their record that a default notice was sent is sufficient.

I'd be paying that debt off pronto if it was me, you don't have a viable defence.

sourcrates

This is covered by Sec 87 CCA 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.


So yes, a default notice was required before the agreement was terminated, however, they have complicated matters for you, by obtaining a judgement in default.

For a setaside to be successful, you must meet two tests :

(1) You must have a defense with a reasonable chance of success.
(2) You must not have recieved the court papers.


Lack of a default notice is a technical breech of the CCA, but, and I am choosing my words very carefully here, I don`t think it would constitute a defense against the claim.
You should really take legal advice on this point, as failure to send a default notice carries no penalty for the creditor under current guidence.

Certainly do not start your defense with this :

"Also breaching the CCA and therefore my agreement should mean I am no longer bound by its terms and do not have to pay the outstanding balance".

Judgement has been granted so whatever went on before is now irrelivant, as the court has decided you are liable, I would urge you to seek clarification on your defense before the hearing, try the Legal Beagles website, they will give you the legal run down of your chances here.

asherd10

The record does not identify as a default notice this is what it says
"0013 collltrs 02/12/2017 01:02:18 05/12/2017 00:38:38 sent"
That is impossible for me or the court to identify as a default notice. A default notice is required according to s87 (need for default notice) and s88 (contents and effect of a default notice) of the consumer credit act. Section 86E (2) also states a need for notice to be provided. Court rules also say I have the right to examine any evidence being used against me. The debt should be paid...I agree, but not under these circumstances where the credit company have not complied with the law and I would end up with a defaulted account on my credit file.
If a company does not have to provide a default notice as some suggest, then what's to stop any credit company from defaulting an account after one missed payment. The laws are in place to protect consumers from just this sort of behaviour.

asherd10

!!!. The information you supplied is completely wrong, they most certainly do have to provide default notices...unless you mean they do no have to provide a copy.

asherd10

Also 3 months missed payments does mean you are in default, unless given a default notice, these months of missed payments would be classed as sums in arrears. If I failed to pay those sum in arrears which I did.then a default notice should be issued, which it wasn't. The notice would set out the terms of repayment. If I then failed to meet those terms my account could be defaulted.

sourcrates

asherd10 wrote: »

The record does not identify as a default notice this is what it says
"0013 collltrs 02/12/2017 01:02:18 05/12/2017 00:38:38 sent"
That is impossible for me or the court to identify as a default notice. A default notice is required according to s87 (need for default notice) and s88 (contents and effect of a default notice) of the consumer credit act. Section 86E (2) also states a need for notice to be provided. Court rules also say I have the right to examine any evidence being used against me. The debt should be paid...I agree, but not under these circumstances where the credit company have not complied with the law and I would end up with a defaulted account on my credit file.
If a company does not have to provide a default notice as some suggest, then what's to stop any credit company from defaulting an account after one missed payment. The laws are in place to protect consumers from just this sort of behaviour.

What you say is all correct, but it is just a technical breech of the rules, your trying to get the court to agree with you that not sending a default notice is grounds for a defense to the claim, and as I said, I don`t think it is, its a breech of the rules, but its not a defense.

This is just my opinion as a layman.

See what Legal Beagles have to say.

asherd10

I understand what you're saying, but as a court should they not be interested in ensuring all laws are complied with. They may not believe I did not receive the court documents, (which I didn't) but they should be able to see that had I received the documents my defence would be that the claimants have not complied with the law in bringing the claim and that I did not default on my account..payment was slow, but not no existent. I showed my willingness to clear the balance when I paid them £500 3 months before they closed my account.
*Inner thoughts* if the courts don't care that they did not follow the law, then why bother to have
laws and judges.

[Deleted User]

Did you contact them and advise them you won’t be able to make payments for 3 months?