s.89 - what does it mean?

[teaboy2]

Re: s.89 - what does it mean?

No, you won in court so the debt is unenforceable as a result. So in your case you need to pursue to remove the default on the basis their claim in court was thrown out.

Though if you hadn't have been to court you could have follwed the above!

[ncf355]

Re: s.89 - what does it mean?

The judge did place "Claimant must apply for relief from sanctions" on the order though, which I presume means they could apply to re run the case with a valid default (which we know they cant get)

?

[teaboy2]

Re: s.89 - what does it mean?

In that case if they do issue a valid DN, then simply pay the arrears within the 14 days on the DN, then claim unlawful repudiation if they refuse to respect section 89 and allow you to continue use of the account as though you had never defaulted. If they don't do anything, then leave it as it is, as after 6 years from your last payment the debt is statuted barred anyway. Plus i doubt they will do anything as they have probably written the debt off as a lost cause.

[labman]

Re: s.89 - what does it mean?

after 6 years from your last payment the debt is statuted barred anyway.

Not quite accurate. :beagle:6 clear years with no payment or written acknowledgement of the debt.

[basa48]

Re: s.89 - what does it mean?

No, you won in court so the debt is unenforceable as a result. So in your case you need to pursue to remove the default on the basis their claim in court was thrown out.

Though if you hadn't have been to court you could have followed the above!

Not absolutely sure I concur with this, a default registered with a DCA isn't the same thing as a Default Notice.

Generally lenders argue that records at the CRAs reflect only the conduct of the account, i.e. if the debtor misses (usually up to 3) payments then that is considered a default.

I know from personal experience it is next to impossible to get defaults recorded with CRAs removed, the best I achieved was getting it reduced to 'missed payments' which is generally regarded as badly as a default. I think lenders see it as 'shorthand' for a default anyway.

[teaboy2]

Re: s.89 - what does it mean?

Oh but i achieved it though basa, and that was without going to court, so its always worth trying especially when the court ruled the debt was unenforceable, which is likely because they could prove liability.

[jax50]

Re: s.89 - what does it mean?

It seems the OC can post a DN and CRA files whenever they like. I went 2 years in breach before a DN and CRA entry was issued. That was 4 years ago. However when they did do it, I was half way through a new 6 month payment plan when this came out of the blue. So, even though I hadn't missed any of the 'agreed' payments, I was defaulted...something they could have done 2 years earlier and now I would be looking forward to it coming off my file as 6 years have passed.

[Lord_Alcohol]

Re: s.89 - what does it mean?

So,

if I've got this right (via S89 and other sections)-

O.C should buy back account and issue fresh, valid default as DCA is not in the position to extend the facilities offered by the store card the agreement applied to?

In addition, DCA has royally screwed up by trashing my credit file with an unlawful DF?

IMO it is too late for the OC to have the agreement reassigned in order to observe s.89, which states that blah blah "as though the breach never occurred". As you have been taken to court it is impossible to view the breach as not having occurred.

What in fact happened is that the OC assigned a live credit agreement to a (presumably) unlicensed body, which I believe is illegal, as firms must hold an OFT credit licence in order to hold regulated agreements. Were you to receive a DN, it would have to come from the OC, not the DCA (unless it is licenced). Were you to then satisfy the DN or not, the OC could invoke a contractual or default termination and reassign the debt to the DCA.

However, it might be better to argue that the assignment to the DCA acted as the OC's notice of cancellation, which cannot be a default termination, and therefore there can be no effective default recorded on your credit file because that would conflict with Principle 4 of the DPA (accuracy), as it is not accurate to claim that you defaulted on your agreement, which was terminated in consequence, when the actual reason was that the OC breached the regs which you both agreed to and effectively forced a default situation on you.

The grounds under CCA would be s.140, it being unfair to breach the regs and assign the agreement to an unlicensed party - which profits the OC and no-one else - and s.13 of the DPA for defamation and loss of credit rating.

You might find a letter to the DCA, cc the OC, on this basis might help sort the problem.

There is no legal basis for service of a new DN - the agreement is clearly terminated, defective DN or not, and DN's cannot be served under a terminated agreement.

One thing to watch out for - if your contract holds a termination clause, which is presumably prior to CCD (Feb 2011), then the OC can always argue that the termination was contractual. This came up in Brandon and I think courts will be sympathetic to lenders in this respect. The solution might be to say that, if the termination was contractual, then why did the OC claim it was a default termination and record a default on your credit file? You can agree to a contractual termination but only if the OC or DCA cleans up your credit file, for example.

Just a few thoughts but hope helps

LA

[ncf355]

Re: s.89 - what does it mean?

Thanks all for the feedback!

[jax50]

Re: s.89 - what does it mean?

Has anyone been able to calculate the 'amount due' / minimum payment from a credit card statement ? I've had a look at mine and I haven't a clue how it is worked out. This figure has been transposed onto the DN, but it's impossible to verify. It's not 3% of the o/s balance, it's not the sum of interest charges...The card doesn't split the balance o/s between cash and purchases. The o/s balance on the DN is from a statement a month after the amount 'due now'.

Confused ? Too right I am...

[jax50]

Re: s.89 - what does it mean?

Yes it would offset the original arrears. But we still need a valid DN, where you can then say well, hang on the arrears where paid when the refund was issued so Valid DN would have been remedied instantly upon it being issued. Then procede with Unlawful Repudiation. Put it this way they can not issue the refund to the account then claim you still owe the arrears, as they can't have it both ways! So actually go ahead and ask for the new DN so long as you know the refund will be paid withing the 14 days deadline to remedy that you will get on the new DN.

Some progress on this...the OC has upped the refund amount a bit...but has now bought back the whole account from the DCA. They have also said they will remove the CRA entry from my file too. So the DN is rescinded. That will place me with a reduced debt, and no default....which leaves me confused..... The OC then said..'Once the debt has been returned (from the DCA) , our collections team will be in contact to discuss repayments to the account. Please be aware that if you don't bring the account update (sic) , we will follow our collections process and the account can be defaulted again."

Now I'm very confused....

There is no default anymore...the agreement though is not 'live', (ie I don't have a card...), yet their collections will discuss repayments ?

Help !! :santa_cheesy:

[labman]

Re: s.89 - what does it mean?

Regardless of whether or not the agreement is live, do you owe the money?

[Lord_Alcohol]

Re: s.89 - what does it mean?

Regardless of whether or not the agreement is live, do you owe the money?

My thinking entirely labman.

Given that the agreement is reassigned back to the OC, the original assignment must have been 'bad', the OC and DCA recognising that it was so. I'm not sure what, if any, advantage this bestows on jax.

It seems therefore that the agreement is not terminated, leaving the OC free to serve a new DN and that is what he implies anyway.

I think the best you can do jax is to get the balance reduced as much as possible (compensation, refund of charges/interest etc, whatever you can) and enter into an agreement to repay it, hopefully without contractual interest being reapplied. If a new DN is served and satisfied, and it may be already if reductions cover the original arrears, then the OC has no grounds for proceedings but can, of course, terminate the agreement contractually, at which point the remainder of the balance is still due. The OC could also, at that point, assign the debt equitably.

[jax50]

Re: s.89 - what does it mean?

Regardless of whether or not the agreement is live, do you owe the money?

I don't know the answer to this question. Do you mean morally or legally ? While it was with the DCA the account was in dispute as they could not produce a copy of an agreement or any terms after a CCA request...this is maybe one reason it has gone back to the OC. The original DN was defective too.

[jax50]

Re: s.89 - what does it mean?

My thinking entirely labman.

Given that the agreement is reassigned back to the OC, the original assignment must have been 'bad', the OC and DCA recognising that it was so. I'm not sure what, if any, advantage this bestows on jax.

It seems therefore that the agreement is not terminated, leaving the OC free to serve a new DN and that is what he implies anyway.

I think the best you can do jax is to get the balance reduced as much as possible (compensation, refund of charges/interest etc, whatever you can) and enter into an agreement to repay it, hopefully without contractual interest being reapplied. If a new DN is served and satisfied, and it may be already if reductions cover the original arrears, then the OC has no grounds for proceedings but can, of course, terminate the agreement contractually, at which point the remainder of the balance is still due. The OC could also, at that point, assign the debt equitably.

Am not sure if the assignment was bad, but the recent letter from the OC mentioned that as the DN had been sent to an incorrect address in 2008, they were going to 'buy' back the account and remove the CRA entry. I am not sure if removing the CRA entry actually means they DN is withdrawn (is it possible to issue a DN yet not mark a CRA file?).

I guess I will have to wait and see what comes..but if the DN is indeed withdrawn does this make it a live account ?

Also, if they at some point issued a new DN, given the account was defaulted already 4 years ago, does the 6 years start again or run on from the original date...regardless of the fact there may be a period in between where the CRA entry was removed ?

How does a contractual termination differ to what was done previously...does this mean CCA 1974 does not apply ?

The refunds I have managed to obtain more than cover the original arrears from back in 2006-2008, so in effect the original DN is satisfied...I don't they the OC or the DCA know the original DN was faulty. I haven't told them.

Sorry, lots of questions...and it's Christmas nearly...so Happy Christmas guys :santa_smiley:...and thank you for your time..