Default Notices: time to remedy

[Lord_Alcohol]

Re: Default Notices: time to remedy

Hi Paul really you cannot keep saying judges are wrong.

If judges were right all the time then appeals would be a waste of time and rulings would never be overturned.

post 5043

I Have many many more

http://www.consumeractiongroup.co.uk/forum/showthread.php?196312-Invalid-Default-Notices/page253&highlight=welshperson3

Have we seen the judgement and do we understand cosalt's (the defendent) position? Did he argue against resurrection of the agreement? I have no idea at all.

That episode IMHO was an utter disgrace and should never have happened.

A default notice is a notice before action nothing more, that is what parliament agreed it would be and that is what it is.

No it isn't and why do you persist in this absurd interpretation? A DN is a notice given to the debtor to advise him that if he does not remedy his breach then action may be taken. It is nothing else. It is not a notice of intended action, or a termination notice. It is, as per s89, the debtor's last opportunity to put things right.

If you disagree with this then you must misunderstand CCA ss 87-89. Please re-read it and it should become clear.

Also, read Woodchester again, and the infallible judge's view that a DN must be precise and clearly state what the debtor must do to put matters right.

Termination is not as big a deal as you make out a creditor can terminate an agrement at the drop of a hat, if its inforcement of the termination you are refering to then that is up to the judge to decide.

Termination on breach, which we discuss here, can not be brought about at the drop of a hat! Termination on breach requires compliance with s88. It says so in the Act.

Please let's get the facts right shall we Peter? Your reputation is relied upon by many, but your comments are consistently inaccurate.

LA

[The Debt Star]

Re: Default Notices: time to remedy

I think we also forget that DNs are a means to intimidate and bully debtors to settle on threat not only of court, but also of trashed up credit reports. In my case HSBC sent a DN despite failing to communicate properly hitherto and as soon as the default period expired promptly slung on a Default withthe CRAs and chucked the account off to Metropolitan to hound and pursue me.

[Lord_Alcohol]

Re: Default Notices: time to remedy

I think we also forget that DNs are a means to intimidate and bully debtors to settle on threat not only of court, but also of trashed up credit reports. In my case HSBC sent a DN despite failing to communicate properly hitherto and as soon as the default period expired promptly slung on a Default withthe CRAs and chucked the account off to Metropolitan to hound and pursue me.

Agree completely, which is why it is so disappointing that some VIP members of this site take the view that the lender can issue any old DN, bin the contract and sue the debtor without adhering to the statute that he maintains regulates his products.

The focus by many seems to be on the debtor's original breach, in my view a completely misleading position, and to justify it by referral to Denyer in Brandon as though that ruling applies to all defaulted regulated contracts. No counter argument has been raised on here by VIP members (AFAIK), when it is clear to me that there is one (or more!).

Add that to Peter's utterly baffling analysis of the agreement following the lender's termination, seemingly based on a single case for which we have seen no judgement, and we have a problem.

On another thread here on LB, Peter and others have publically scurried away rather than to argue/debate issues that they have previously been engaged in. It seems that even raising the issue of contract termination/repudiation raises the hackles of many VIPs on LB, to the point where it makes no sense to even bother raising it as a subject for discussion.

It seems to me that DNs are being increasingly used by the banks as a means to secure early repayment of monies, and that breach by the debtor offers them a relatively easy way to achieve this. If this is not the case, then one question to be asked is why do the banks not re-open contracts when their errors with the DN and termination are flagged up by the debtor?

And another question is; why do lenders consistently get their documentation wrong when (a) it is very simple and (b) they have colossal resources at their disposal which should ensure that they do not?

I think this is a consumer protection issue that is being avoided by Peter Bard and some other VIP members, for reasons which remain wholly baffling.

LA

[Guest]

Re: Default Notices: time to remedy

Peter,

I continually find myself "biting my tongue" when you post on this issue.

I have a great deal of respect for the advice i have seen you posted all across the Web but on this one issue i really believe that you have a blinkered view of the topic.

When ever someone critisices you, you either get defensive or refuse to continue to discuss.

I completely agree you are entitled to your opinion, but what seems to be lacking in all your arguments on this particular subject is a Logical, reasoned argument based in FACT or STATUTE or CASE LAW.

You postulate and post up theoretical examples, but fail (imo) completely to reason these out.

Whereas i feel (again imo) that i have shown factual and reasonable arguments based upon Statute and case law, with reference to contract law.

If you feel that i am wrong to critiscise a Judge or Judges for making decisions that are CLEARLY WRONG that is once again "your opinion".

It doesnt take a lot of reading to find many examples of just that happening.

Statute is enacted by Parliament, the courts may interpret this ONLY where there is ambiguity. To apply an INTERPRETATION to a plain, intelligible section of ANY ACT IS IMPEACHMENT.

Despite your opinion this is FACT.

Hi Paul

Really i have argeud all of these points over and over again, perhaps you have missed them, i do not amean to appear patronising and i am not always right but in this instance i feel suere of my case. On the contry and a again with respect it is you that are advancing the theory here, i am representing the percieved pracice i have shown case law, at least in lower courts, the reason it has not gone higheer is because no one has challenged the judgements, why doyou think that is.
Yes DN s are used to frighten debtors but that is becuse there funcion is to precceed court action that is scarry.

As i said to LA if you want to go throuh these issues one at a time i will i think half the problem is that we argue to manny issues at once and it gets confused so if you want to name an issue regarcing the regs i will do my best to respond.
Peter

[Angry Cat]

Re: Default Notices: time to remedy

I think we also forget that DNs are a means to intimidate and bully debtors to settle on threat not only of court, but also of trashed up credit reports. In my case HSBC sent a DN despite failing to communicate properly hitherto and as soon as the default period expired promptly slung on a Default withthe CRAs and chucked the account off to Metropolitan to hound and pursue me.

Perhaps Debt Star, what you are attempting to communicate are the results of the McGuffick v RBS case:

[/quote]
The meaning of enforcement

The Act does not define what constitutes "enforcement" and therefore does not define what actions a creditor may not undertake during a period when the agreement is unenforceable. The debtor argued that any coercive action to compel or secure performance of the removed obligation or liability of the debtor to make repayment amounted to "enforcement" including any reporting to CRAs.

Mr Justice Flaux concluded that not only did reporting to the various CRAs not amount to enforcement, but that a number of other activities did not constitute enforcement either, such as:

• reporting to CRAs without also telling them that the agreement is currently unenforceable
• disseminating or threatening to disseminate the debtor's personal data in respect of the agreement to any third party
• demanding payment from the debtor
• issuing a default notice to the debtor
• threatening legal action
• instructing a third party to demand payment or otherwise to seek to procure payment
• bringing proceedings.

Consequently, the injunctive relief sought on behalf of the debtor was refused for the above (and other) reasons.
Office of Fair Trading (OFT) draft guidance on sections 77, 78 and 79 of the Act

The OFT has issued a draft guidance note to businesses in relation to their duties to give debtors and hirers copy documents and statements of account on request under sections 77(1), 78(1) and 79(1) of the Act. The draft note provides guidance so that businesses can understand what steps they should take to comply with their obligations under the Act in relation to these sections.
The guidance notes are intended to avoid the numerous disputes that have been generated over whether a request has been properly made, whether the duties have been complied with and whether as a consequence the agreement can be enforced.
On the question of enforcement, the OFT did address the wider question of what is considered within the term "enforcement", preferring to await clarification from cases before the courts which were likely to provide more authoritative rulings on the issue. Nevertheless, the OFT suggested that enforcement went beyond enforcement by obtaining a court order and included: demanding earlier payment of any sum; recovering possession of any goods or land; and treating any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred. It will be interesting to see how the OFT reviews its draft guidance note in light of this decision:[/Quote]

http://www.oft.gov.uk/shared_oft/bus...it/OFT1272.pdf

The industry have saught to punish debtors via their credit reference agency credit files for quite some considerable time;
the McGuffick judgement IMO made matters worse.

Having said that, the industry also must abide by the eight principles of the Data Protection Act 1998;
The Oft Guidelines on Debt Collection (their fitness to hold a Consumer Credit Licence);
The CPUTR's and;
The Consumer Credit Directive.

Finally, the issuing of a Default Notice(s) under sections 87/88 of the Consumer Credit Act and the registering of defaults with the Credit Reference Agencies are two different matters, which should not be confused.

[paulb2905]

Re: Default Notices: time to remedy

Peter, it wasnt meant as an "attack" on you but more an expression of my frustration.

I will spend some time compiling a list of issues (once again) particularised and post them up, i suggest you give it a few days for others input around the area before any response to those issues.

Also as you well know lower courts decisions are not binding or set precedent AND in my 1st SJ hearing the Judge said " i do not know the statute & law surrounding the CCA" so clearly we are going to get incorrect decisions on that basis.

Additionally with regard to your comment re Higher Court decisions it is very very often the case that the Lenders withdraw from proceedings purely to prevent precedent being set.

[Guest]

Re: Default Notices: time to remedy

Hi
Termination on breach, which we discuss here, can not be brought about at the drop of a hat! Termination on breach requires compliance with s88. It says so in the Act.

Please let's get the facts right shall we Peter? Your reputation is relied upon by many, but your comments are consistently inaccurate.

LA

Firstly can we both try and drop the agressive tone , i have been as guitly of this as you but it is not helpful, so lets call a truce eh and just discuss the issues.



Ok fact termination on breach is not essential for enforcement see brandon in fact see swain , wasnt that a contractural termination also have to check but i think it was.
The termination is not important it is the enforcement of the recovery of liabilities under the contract post termination that is the issue.
Peter

[Guest]

Re: Default Notices: time to remedy

Peter, it wasnt meant as an "attack" on you but more an expression of my frustration.

I will spend some time compiling a list of issues (once again) particularised and post them up, i suggest you give it a few days for others input around the area before any response to those issues.

Also as you well know lower courts decisions are not binding or set precedent AND in my 1st SJ hearing the Judge said " i do not know the statute & law surrounding the CCA" so clearly we are going to get incorrect decisions on that basis.

Yes but surely if the debtor thought he had a arguable point in law he would appeas it to a high court wouldnt he. surely once in the last 25 years?

Additionally with regard to your comment re Higher Court decisions it is very very often the case that the Lenders withdraw from proceedings purely to prevent precedent being set.

Maybe but seems unlikely if their was a strong argument
Hi Paul
no you missunderstand i wasnt thinking of a list .
Just one issue at atime.
Perhaps the function of section 89 and the "breach has not occured" or something like that pehaps if we can get one point agreed at a time. Just a thought.
Peter

[The Debt Star]

Re: Default Notices: time to remedy

It seems to me that DNs are being increasingly used by the banks as a means to secure early repayment of monies, and that breach by the debtor offers them a relatively easy way to achieve this.

That is a total FACT. No argument about it.

I won't go into all the ins and outs of it here, but the FOS have just told HSBC to remove a Default from my GFs credit report. It was placed there by HSBC after they sent a DN during a formal complaint process and without (in the words of the FOS) having "corresponded properly" to her prior to doing so.

So that's one VICTORY for common sense against the banks' indiscriminate use of DNs to bully consumers. And without the need to go to court to get the Default removed.

If anyone is interested we will post up the FOS letter when it arrives. GF only got the call from the FOS about the good new2s yesterday. Oh, and HSBC will have to pay £300 compensation to her as well

[Angry Cat]

Re: Default Notices: time to remedy

That is a total FACT. No argument about it.

I won't go into all the ins and outs of it here, but the FOS have just told HSBC to remove a Default from my GFs credit report. It was placed there by HSBC after they sent a DN during a formal complaint process and without (in the words of the FOS) having "corresponded properly" to her prior to doing so.

So that's one VICTORY for common sense against the banks' indiscriminate use of DNs to bully consumers. And without the need to go to court to get the Default removed.

If anyone is interested we will post up the FOS letter when it arrives. GF only got the call from the FOS about the good new2s yesterday. Oh, and HSBC will have to pay £300 compensation to her as well

I also had information removed from my credit file after logging my complaint with the ICO;
the credit reference agencies refused to remove the information, as did the Bank concerned.
But, if the information had remained on my credit file, it would have breached the DPA.

Yes agree, the industry use this as a form of punishment, to bully them the general consumer!

[jumper999]

Re: Default Notices: time to remedy

That is a total FACT. No argument about it.

I won't go into all the ins and outs of it here, but the FOS have just told HSBC to remove a Default from my GFs credit report. It was placed there by HSBC after they sent a DN during a formal complaint process and without (in the words of the FOS) having "corresponded properly" to her prior to doing so.

So that's one VICTORY for common sense against the banks' indiscriminate use of DNs to bully consumers. And without the need to go to court to get the Default removed.

If anyone is interested we will post up the FOS letter when it arrives. GF only got the call from the FOS about the good new2s yesterday. Oh, and HSBC will have to pay £300 compensation to her as well

That's some good news TDS for your GF,

What would someone's advice be if a Default was registered on their credit file PRIOR to receiving a DN and whilst there was a dispute ongoing?

I mean, if your GF can get £300 what would the payout be for this mistake?

Or I must not have read the CCA incorrectly and I am sure that HSBC are allowed to make BIG discrepancies like this?

[The Debt Star]

Re: Default Notices: time to remedy

Hi AC. But of course what neither of us have elaborated on is the amount of time, effort, heartache and commitment it took to get this result. Most victims of "DN Kultur" wouldn't be prepared to run a 6 month running battle with their creditor.

[Guest]

Re: Default Notices: time to remedy

That's some good news TDS for your GF,

What would someone's advice be if a Default was registered on their credit file PRIOR to receiving a DN and whilst there was a dispute ongoing?

I mean, if your GF can get £300 what would the payout be for this mistake?

Or I must not have read the CCA incorrectly and I am sure that HSBC are allowed to make BIG discrepancies like this?

Hi
A default notice (section 87 )and a record of default on your credit file are two different things.
There is no reason why a CRA cannot record a notice on your file without issuing a Section 87.
A notice on your credit file is dependant on repayment history.
The creditor should however give you 28 days notice of there intention to put the notice on your file.

They cannot however put a note on your file if the debt is in dispute, but this is a matter for the FOS and the ICO.
Peter

[jumper999]

Re: Default Notices: time to remedy

Thank you peter,

A credit file shows the payment history........can the credit file show when the account was open?

[Angry Cat]

Re: Default Notices: time to remedy

Hi AC. But of course what neither of us have elaborated on is the amount of time, effort, heartache and commitment it took to get this result. Most victims of "DN Kultur" wouldn't be prepared to run a 6 month running battle with their creditor.

Quite so, Debt Star.
And for many it could take longer than six months...

One has to understand the legislation and stand up for one's rights!

In my case the bank concerned attempted to place a further default marker on my credit file, when the original default as registered had already been processed fior six years.

As previously stated:
I wrote to all three CRA's, asking them to remove the incorrect data; they would NOT.

I wrote to the Bank concerned and they too would NOT remove the incorrect information.

I then made a fornal complaint to the ICO, who investigated and agreed that the data re: the account cannot be processed for longer than six years from the date of the first default as registered with the CRA's.

Result: the incorrect information was removed.

[Emphasis Added]: I kniow for a fact that the additional incorrect default information was irecorded with the CRA's as a punishment.
------------------------------- merged -------------------------------

Thank you peter,

A credit file shows the payment history........can the credit file show when the account was open?

Yes, it will show the start date.