CITI/1st Credit

[shep65]

Hi All,

Am searching around for some info on a default notice so here are details in short :-

Had a CITI Credit Card which I was defaulted on in January 2009 ( as per Experian) and then sold to 1st Credit.

After many arguments/offers with 1st Credit they tried to take me to court in September last year.

After my defence went in they failed to contact the court in the prescribed time limit and I sent an N244 Unless notice which the judge upheld and gave them until the 16th November to come up with 1) a signed agreement and 2) the default notice.

Neither of them arrived and my case was struck out.

If they could not come up with an agreement or the default notice surely I should be able to get the DN removed from my credit files?

[teaboy2]

Re: CITI/1st Credit

You could have included a note in your unless order that if they can not produce such documents or fail to do so, that they should remove the default they filed with credit reference agencies, or you will commence a counter claim for liable and abuse of the court process, as a result of their vexatious claim and inaccurate recording of a default on your credit file, causing you stress and financial prejudice.

You could still bring a claim against them, by referencing the previous court claim they made against you, so that a judge can identify the previous claim they had issued against you.

Though your first step should be to send them a formal letter before action instructing them to remove the default or you will sure them for liable and for damages for both the liabel and their vexatious claim due to the stress and finanical prejudice you have indured as a result of their inaccurate registeration of a default on your file and their vexatious claim they had issued against you that was struck out in your favour.

Though before you doing any of that, i would suggest you speak to a solicitor first, many of which give free 1 hour consultations.

[bluebottle]

Re: CITI/1st Credit

If I may add to Teaboy's excellent advice, I am somewhat surprised the judge who struck-out the case didn't rule the other side a Vexatious Litigant. This would be a major hammer blow to any DCA or creditor as it means they would not be able to initiate ANY legal proceedings in ANY court without submitting case papers to the High Court and securing the permission of the High Court to proceed.

I would certainly seek damages from the other side, as Teaboy recommends, and it would probably be a good idea to discuss Vexatious Litigant with your legal advisor(s).

Best of luck.

[berniel]

Re: CITI/1st Credit

Feel i must put you right here , appollogies to the previous posters

You need to write to the creditors Data handling department and copy in the CRA.

Tell them that you did not recieve the 28 days notice before the default was registered on your file. They should then remove the entry.

They will then send you the required notie under ICO guidlines and replace your entry on the file after28 days.

Entirely a waste of time i am affraid, the notice of default that is required under the ICO is nothing to do with the Defult notice required under the consumenr credit act.

The notice is purely a record of your payment history, unless you remedied your account within the 28 days your relationship with the creditor would have broken down and they would be entitled to record a default

Bernie

[berniel]

Re: CITI/1st Credit

HI Shep
Sorry i know it is difficult when you get conflicing advice on here.
I recommend that you give customer services at Experian a ring i am sure they will clarify.
Bernie

[teaboy2]

Re: CITI/1st Credit

The problem with your advice though bernie is that it would allow them (1st credit) to reissue a default - Therefore putting the OP back to the position they were in when the first default was issued and basically restarting the whole process and sequence of events again, and should they some how find the agreement, then the OP will be up the creek without a paddle so to speak. And thats not to mention the fact the default would be dated as being issued this year and would therefore remain on the OP's file till 2018 instead of 2015 when it is currently due to drop off. Therefore further prejudicing the OP financially for an additional 3 years.

Thats why its better to go down the liable and Vexatious claim route as it would force them to remove the default and prevent them from reissuing a default without having the agreement, and the permission of the court if they are ordered to remove it by a court as a result of the OP taking court action.

[berniel]

Re: CITI/1st Credit

Hi
No the entry on the credit report is simply a record of patments made, if the OP has missed enough the Creditor and the ICO consider they are in default then they can register the fact.

The OP cannot get it removed ( unless he can show that he paid) just marked settled.

CRAs have to issue reports on missed payments, defaults on all kinds of accounts many are not covered by the CCA so no 87 notice these have to be recorded in the same way.

Anyway shep give experian a call or drop them an email if you have an accout they will explain probably better than me

Bernie

[teaboy2]

Re: CITI/1st Credit

You are missing the point Bernie. They have no proof the debt was the OP's therefore no proof they are entitled to record the data on the OP's credit file, hence why the OP can claim for libel and there issuing of a Vexatious claim.

The OP does not have to show he paid, as the creditor has to prove the debt actually belonged to the OP/debtor and that they were therefore entitled to record data on their file. No agreement, no default notice etc, means they have no proof the debt belonged to the OP, and a court will and has ruled in the past that the default was libellous and not only awarded damages but ordered the removal of the default too.

Also i know perfectly well what the difference between the registering of a default and a payment history on an credit file is. So why mention that i do not know, perhaps a reference to a previous argument between us - Peter!

I am also well aware of the fact CRA record data on verious forms of financial accounts that are not all covered by the CCA, you do not need to educate me on something i am already well educated on, unless you want to be seen as patronizing.

[berniel]

Re: CITI/1st Credit

You are missing the point Bernie. They have no proof the debt was the OP's therefore no proof they are entitled to record the data on the OP's credit file, hence why the OP can claim for libel and there issuing of a Vexatious claim.

THe debt is recorded under a term of the DPA not Conumer Credit Act Teaboy. I presume there will be prviouse (0) recorse on the file befoe the (D).
I am sure the CRA will contend that is proof enough that an account existed

The OP does not have to show he paid, as the creditor has to prove the debt actually belonged to the OP/debtor and that they were therefore entitled to record data on their file. No agreement, no default notice etc, means they have no proof the debt belonged to the OP, and a court will and has ruled in the past that the default was libellous and not only awarded damages but ordered the removal of the default too.

Could you shoe this case law please

Also i know perfectly well what the difference between the registering of a default and a payment history on an credit file is. So why mention that i do not know, perhaps a reference to a previous argument between us - Peter!

I metion it because it is the whole point Teaboy.

As i said the OP just has to ring Experian they will confirm everything i say.

You are confusing having an enforecable agrement with the function of the DPA.
Two completely seperate things. You could say that their was no permission given to share data because no agreement existed, unfortunately the CRAs opperate on the belief that if payments were made then an agreement is said to exist, please dont take my word for this , as i said give them a ring.
Bernie

[berniel]

Re: CITI/1st Credit

I am also well aware of the fact CRA record data on verious forms of financial accounts that are not all covered by the CCA, you do not need to educate me on something i am already well educated on, unless you want to be seen as patronizing.

THis was not intended to be patronising Teaboy.
I mearly meant to ilustrate that recording a default on a file is not dependant on a default notice being issued under the Consumer Credit Act, because Defaults are registered on accounts that arn't under the act.

This is an illustration that the Notice of default issued iunder the ICO guidlinesis a differnt thing to the default notice under the act.

Many times a creditor will issue a notice of default and place a marker on a credit file long before he decides to enforce the agreement at that later point he would have to issue a default notice under sectionn87 do you see the difference?

Brnie

[teaboy2]

Re: CITI/1st Credit

And as i explained in previous argument with you peter, in order to inact the provision of regulated agreement under the consumer credit act 1974 they must issue a valid default notice as section 6f of schedule 2 the consumer (default, termination and enforcement) regulations 1983, prevents them from being entitled to enact a provision such as registering a default with credit agencies off the back of an invalid default or on failure to issue one. The reason for that is simple 1 a default is not deemed to have occured if the default notice is invalid. In other words the only time a default is deemed to have occured is when a default notice is and compiles with legislation and allows the full 14 calander days from when it is deemed served for remedy and where such redemy did not occur. Not only that they are not permitted to register the account status as defaulted, untill after the remedy date either.

There is nothing in the Data Protection act that allows them to register a default for a regulated credit account, willy nilly. The ICO guidelines are more for unregulated agreements than they are for anything else. And do not take precedence over legislation.

[teaboy2]

Re: CITI/1st Credit

THis was not intended to be patronising Teaboy.
I mearly meant to ilustrate that recording a default on a file is not dependant on a default notice being issued under the Consumer Credit Act, because Defaults are registered on accounts that arn't under the act.

This is an illustration that the Notice of default issued iunder the ICO guidlinesis a differnt thing to the default notice under the act.

Many times a creditor will issue a notice of default and place a marker on a credit file long before he decides to enforce the agreement at that later point he would have to issue a default notice under sectionn87 do you see the difference?

Brnie

I accept that it may not have been intended to be patronizing, however recording of payment history and the registering of a default are 2 different things. Yes recording of payment history is under the DPA, but the registering of a Default on regulated agreements most comply with legislation in regards to issuing default notices before they can actually register the default status off the account with CRA's.

Your merging to very different things into one. A default shown on payment history is not a registered default but a defaulted (missed) payment the account itself is still not in default, only that 1 payment is. A registered default is when the account itself is registered as being in default, usually after the creditor has decided that the debtor is not likely to repay the debt, which normally occurs after 6 or 7 missed payments. The missed payments are not defaults themselves, but nothing more than a record of what payments were missed or were late if the payment is subsequently paid - nothing more nothing less.

Its the account status showing as default as a result of the creditor registering the account as defaulted, that is the issue here, not missed (defaulted) payments prior to the registering of the default status on the account. Though the whole record for the account in question would likely be removed upon successful claim for libel and their Vexatious claim against the OP.

[berniel]

Re: CITI/1st Credit

And as i explained in previous argument with you peter, in order to inact the provision of regulated agreement under the consumer credit act 1974 they must issue a valid default notice as section 6f of schedule 2 the consumer (default, termination and enforcement) regulations 1983, prevents them from being entitled to enact a provision such as registering a default with credit agencies off the back of an invalid default or on failure to issue one. The reason for that is simple 1 a default is not deemed to have occured if the default notice is invalid. In other words the only time a default is deemed to have occured is when a default notice is and compiles with legislation and allows the full 14 calander days from when it is deemed served for remedy and where such redemy did not occur. Not only that they are not permitted to issue a default untill after the remedy date either.

There is nothing in the Data Protection act that allows them to issue a default for a regulated credit account, willy nilly. The ICO guidelines are more for unregulated agreements than they are for anything else. And do not take precedence over legislation.

The ICO guidlines apply to all accounts, all you have to do is read them Teably credit accounts are mentined over and over again, and really why would they not.

As i try to explain the entry is not made under the consumer credit act it is made under a provision of the DPA. You are correct they are not allowed to enter records of missed payment willy nilly just when payments are missed.

I know you are not able to undrstand this teaboy, from previous experiance, all that i say to the OP is ring Experian or have a word with your solicitor before you waste your time and money.

Bernie

[teaboy2]

Re: CITI/1st Credit

Again i stand by Legislation itself, and fail to see how guidelines would take precedence over such legislation. I do not doubt they mention regulated agreements too, as i have read them myself, but clearly your interpretation is different to mine and you seem to think the legislation itself is irrelevant.

I agree the entry of missed payments are made under the provisions of the DPA (e.g recording of accurate data), but before they a can register the account status itself as being defaulted, they most comply with CCA and relevant Regulations/legislations under the CCA, before they can register the account status as defaulted. This is what the ICO guidelines does not give guidance on, its guidance is based purely on the assumption that a default of account has occored and the legislation regarding issuing of DN etc has been complied with and default not remedied by the debtor. Basically the guidance picks up from the point where the DN was valid and not remdied, but not before that point.

[berniel]

Re: CITI/1st Credit

[quote=teaboy2;249470]Again i stand by Legislation itself, and fail to see how guidelines would take precedence over such legislation. I do not doubt they mention regulated agreements too, as i have read them myself, but clearly your interpretation is different to mine and you seem to think the legislation itself is irrelevant.

They dont take precedent they are differnt things one is the DPA and the other is the Consumer Credit Act

I agree the entry of missed payments are made under the provisions of the DPA (e.g recording of accurate data), but before they a can register the account status itself as being defaulted, they most comply with CCA and relevant Regulations/legislations under the CCA, before they can register the account status as defaulted.

No because the definition that the credit agency uses for a defaulted account is that the relationship has brocken down with the debtor it has nothing to do with the CCA secion 87 default. A secction 87 DN is mearly a precursor to enforcement.

Bernie