s.89 - what does it mean?

[Lord_Alcohol]

Re: s.89 - what does it mean?

Ok thinking about this, here is my take on the above points.

We are all in agreement that the contract has to be terminated either contractually or by Default. The lender in this case has decided to terminate using a defective Default notice and has sold the debt on. Now as far as im concerned the bank has wiped it off their books and the last thing they want is it put back on again, i think this is the key point here, does the bank really care that much after it has offloaded the debt.

Now my understanding is the agreement must be reinstated by the bank and they then issue another Default notice or they contractually terminate it. If they contractually terminate it then the default must be removed and no further records can be put on my credit file so it will drop of in 6 years. If they contractually terminate i am not sure if that changes the powers they have to collect the debt?

But either way i'm betting the bank won't touch this mess with a barge pole and leave the bottom feeders to sort this out and they cannot proceed to court without a correct termination.

AFAIK, there is nothing to stop the assignee from giving the account back to the OC to issue a new notice, if that is in fact required.

If the notice is not satisfied it goes back to the assignee as an agreement terminated by default; if the notice is satisfied it's up to the OC what to do (suspend the agreement or contractually terminate). If the agreement is suspended following satisfaction of the notice, then you will have to pay contractual interest, so it might be better for you were it contractually terminated.

Given the short period in which you have been in dispute (last November wasn't it?) I don't think you will gain much from looking at compensation under DPA or declaring unfairness under CCA s.140.

As for your s.78 request I'm not sure how this will help, other than preventing enforecement.

If they serve a new DN then, if the enforcement notice regs are to be believed, the agreement would have to be restored (and probably suspended) beforehand or at the same time. If that isn't the case, then your argument could be that the service of the notice was invalid because the agreement remained terminated when it was served. To show that the agreement was restored, the default would have to be removed from your file and you would need a note from the OC to say that the earlier termination was inoperative.

If this isn't the case, then, with the service of a new DN, the OC is claiming entitlement under ss.87/88 but without observing the contract (the OC is technically in breach by ending it improperly) or s.89 and may also be in contravention of DPA s.4(4) by inaccurately recording the status of the agreement. So if a new DN arrives and you do not want to go down this route then, if your contract allows, you could claim that the original termination was contractual (but mistaken as a default termination), require that the default is removed from your credit file and enter into negotiation to repay the balance. If the dispute has taken time (eg, a year or two) then you can legitimately claim for costs and DPA s.13 compensation in order to reduce the balance.

Just a few thoughts - hopefully others will comment.

HTH
LA

[gravytrain]

Re: s.89 - what does it mean?

It must be held in mind of course that the recording of a default on your credit file has absolutely nothing to do with the issuance of a section 87 notice, it is a requirement of the ICO not the CCA.

The " D " on your file is a simply a recorded of your payment history, and nothing that happens with the section 87,88,89, scenario will make any difference to its existence.

[Lord_Alcohol]

Re: s.89 - what does it mean?

It must be held in mind of course that the recording of a default on your credit file has absolutely nothing to do with the issuance of a section 87 notice, it is a requirement of the ICO not the CCA.

The " D " on your file is a simply a recorded of your payment history, and nothing that happens with the section 87,88,89, scenario will make any difference to its existence.

Well, not quite. The connection between CCA and DPA is the commonplace use of DNs to carry the ICO's notice of intent to file a default, a means by which the ICO considers a data controller to observe principle 1 of DPA. This is why there are often 2 dates or timescales given on a DN - the 14-day s.88 timescale and the ICO's 28-day timescale.

However, the data subject must be notified of the correct amount, and the data controller must record the correct amount. Otherwise there is a breach of principle 4.

If there is a breach of the DPA then the data controller must rectify matters. He cannot just change the amount of the default balance as he's already notified the data subject of a different amount. So he must re-notify the data subject, and he can only do this and comply with all of DPA s.4(4) by removing the current default and re-issuing a new DN (in order to fix his mistake under s.88) which carries the revised and corrected amount.

This argument works where the DN demands a sum that is too high - the data controller is advising the data subject that a D will be recorded against him if he fails to pay a sum which has no contractual or regulatory basis - therefore the amount is in contravention of DPA s.4(4) at both principles 1 and 4. Where it is the timescale in the DN that is wrong and not the amount I am not sure but would think that the principle 1 argument might apply.

The data recorded prior to the D is, of course, accurate. It records the accumulation of arrears. The ICO makes it clear that a D should not be recorded where there is a dispute, and my own experience is that the ICO will hold that a D that has been recorded when the sum specified in the notice of intent to file it is wrong (too high) will have been recorded unfairly and inaccurately. Whether the creditor then does anything about it is another matter of course.

It's a simple argument and I have used it with some success.

[gravytrain]

Re: s.89 - what does it mean?

I have absolutely no idea what you are talking abut here so I WILL BUT OUT.

The credit report is a record of your repayments, if you miss enough payments for your creditor to consider the account is in default he will be entitled to record the fact. This is completely irrespective and independant of any enforcement action he may wish to take.

[Lord_Alcohol]

Re: s.89 - what does it mean?

I have absolutely no idea what you are talking abut here so I WILL BUT OUT.

The credit report is a record of your repayments, if you miss enough payments for your creditor to consider the account is in default he will be entitled to record the fact. This is completely irrespective and independant of any enforcement action he may wish to take.

Sorry to hear that gravytrain

The fact is that DPA and its strange relationship with CCA is not as simple as it might seem.

You are absolutely right that the creditor can consider the account to be in default whenever he wants; however, he still has to record data fairly and accurately, which means that the debtor must be notified of correct amounts. If the actual default is, say, £1K but the debtor was advised of, say, £5K, and this much higher figure is recorded, then there is a breach of DPA becuse the amount is not accurate. There is a further breach because, had the notification specified the correct sum, the D could have been avoided. Both priniciples 1 and 4 are contravened.

The complexity arises where the data controller/creditor has to put matters right when advised of the mistake (for example, by the ICO).

There is no connection between credit files and enforcement, as you say. I have not said that there is.

[patrol30]

Re: s.89 - what does it mean?

Thanks guys for the advice we could debate for weeks and all come up with difference scenarios. I think the best way to see how this one turns out is to take it one step at a time and I will update this as it progresses.

I have no problem paying the outstanding amount if a new DN is issued and it should be interesting to see how this is dealt with. None of this meant as debt avoidance but I honestly think the industry is a complete disgrace and now they have defaulted me I will make the machine work for the cash.

[jax50]

Re: s.89 - what does it mean?

One point about the DN. I was told by my OC that they were going to cancel and re-issue my DN because they had mistakenly assumed I had not received the original...and the FOS were sniffing around (at my behest).

I was strongly advised not to allow a re-issue of the DN so sought clarification from the FOS...they told me that the OC could re-issue the DN with the current date on it, and that this could then be advised to the CRA's and would start the 6 year clock again.

I have had conflicting advice on this since, and as my DN has just 16 months to go, obviously I didn't want a re-issue. In the end I told my OC I had received the original DN and thus there was no need to issue another one. They agreed to this.

Slightly off topic I know, but maybe something to seek clarification on ?

[gravytrain]

Re: s.89 - what does it mean?

You cannot "re start" a default record on your file.

[patrol30]

Re: s.89 - what does it mean?

One point about the DN. I was told by my OC that they were going to cancel and re-issue my DN because they had mistakenly assumed I had not received the original...and the FOS were sniffing around (at my behest).

I was strongly advised not to allow a re-issue of the DN so sought clarification from the FOS...they told me that the OC could re-issue the DN with the current date on it, and that this could then be advised to the CRA's and would start the 6 year clock again.

I have had conflicting advice on this since, and as my DN has just 16 months to go, obviously I didn't want a re-issue. In the end I told my OC I had received the original DN and thus there was no need to issue another one. They agreed to this.

Slightly off topic I know, but maybe something to seek clarification on ?

thanks jax50

In your case I agree but in my case the DN and mark on the credit file is only a few months so will push this and see where it goes. Excuse my ignorance what is FOC ?

[Lord_Alcohol]

Re: s.89 - what does it mean?

I was strongly advised not to allow a re-issue of the DN so sought clarification from the FOS...they told me that the OC could re-issue the DN with the current date on it, and that this could then be advised to the CRA's and would start the 6 year clock again.

There is nothing to stop the OC from putting today's date on the new notice, but can he change the date of the default on your credit file? That seems to be what the FOS is saying.

Of course, if you satisfy the new DN then there should be no D on your file at all - assuming that the notice of intent to file a D was served with the DN and the registration of a D is listed as one of the 'next steps' that the OC will take if the DN is not satisfied, then logically a D should not be recorded if the DN is satisfied.

The OC has already advised you that you are in breach of your agreement, and has given a date for that breach in the original DN. It is only the amount of the breach that is incorrect, not the date. So changing the date would be inaccurate and therefore a contravention of DPA at s.4(4). Therefore, if you do not satisfy a new DN, all that should be changed is the default amount.

Just my opinion of course...

[Lord_Alcohol]

Re: s.89 - what does it mean?

what is FOC ?

That would be the FOS - the Financial Ombudsman Service.

[FlamingParrot]

Re: s.89 - what does it mean?

One point about the DN. I was told by my OC that they were going to cancel and re-issue my DN because they had mistakenly assumed I had not received the original...and the FOS were sniffing around (at my behest).

I was strongly advised not to allow a re-issue of the DN so sought clarification from the FOS...they told me that the OC could re-issue the DN with the current date on it, and that this could then be advised to the CRA's and would start the 6 year clock again.

I have had conflicting advice on this since, and as my DN has just 16 months to go, obviously I didn't want a re-issue. In the end I told my OC I had received the original DN and thus there was no need to issue another one. They agreed to this.

Slightly off topic I know, but maybe something to seek clarification on ?

You're probably referring to the default on your credit file rather than the DN itself having 16 months to go. You can't be defaulted twice for the same account. Creditors tend to re-issue DNs when they were defective in the first instance and they are issuing court proceedings, because a 'bad' DN can be used as part your defence as per Harrison v Link Financial Limited ---> http://www.watsonssolicitors.co.uk/harrison.html

[gravytrain]

Re: s.89 - what does it mean?

It is confusing that is why i prefer to call the cca dn a section 87 notice.

A section 87 notice can be re-issued if defective because the agreement cannot be terminated without a compliant one being issued(in default).

The default notice on the credit record is there to record the date the account went into default, this cannot be updated.(this is a requirement of the ICO)