Barclaycard - double default on credit file ???

[ncf355]

Re: Barclaycard - double default on credit file ???

Spirit is quite correct here, those that don't have the benefit of this forum and its wealth of knowledge no doubt regularly get caught by the court action without an agreement approach that the DCA's regularly take.

It is a great shame that they are allowed to commence a claim via Moneyclaim without evidence of an agreement - something the law desperately needs to change (the benefit of this would be two fold - debtors would not be forced into paying unenforceable agreements where they lack knowledge of the law, and Moneyclaim wouldn't be so laden down with such claims, allowing more time for the processing of claims with substance)

[spirit2534]

Re: Barclaycard - double default on credit file ???

Spirit is quite correct here, those that don't have the benefit of this forum and its wealth of knowledge no doubt regularly get caught by the court action without an agreement approach that the DCA's regularly take.

It is a great shame that they are allowed to commence a claim via Moneyclaim without evidence of an agreement - something the law desperately needs to change (the benefit of this would be two fold - debtors would not be forced into paying unenforceable agreements where they lack knowledge of the law, and Moneyclaim wouldn't be so laden down with such claims, allowing more time for the processing of claims with substance)

It does seem that Moneyclaim is an automated system to extract money from mainly innocent people.

[McGinty]

Re: Barclaycard - double default on credit file ???

Thanks for this and I will certainly try this route firstly. If this is the case then the Mercers default, whether it was recorded or not is the one that really counts. I will write to Barclays and along the lines you have suggested and I will let you know the outcome. Is there a time limit I should give them to respond-14-28 days perhaps? Mc

[nemesis45]

Re: Barclaycard - double default on credit file ???

Correct default notices are a generic form, fill in the blank spaces with the required details of an account and send it out, if the debtor
remedies the default or makes an arrangement then no default, the creditor does not even have to keep a hard copy, just a note on a file.
!4 Days from the date on the letter is reasonable.

[McGinty]

Re: Barclaycard - double default on credit file ???

Hi again-I have a draft letter prepared for Barclays-can you have a read please and feel free to tweak where necessary-thanks Mc

Dear Sirs,

With reference to the above account which you allege I owe in the region of £6500, I have been asking for a copy of the original agreement for several years now-in fact since 2008. You have failed to send this to me and I dispute the debt that is owed. Mercers, one of your in house collections department sent me a Default Notice under Section87 on 14^th January 2008 .

At this point my relationship with Barclaycard had clearly broken down and the default should have been filed at that point-or certainly within a 3 to 6month period following as is within the guidelines set by The Information Commissioners Office. A subsequent Default Notice was also issued by Mercers on 11^th September 2009 and this also was never filed.

Barclaycard filed the default notice on 8^th August 2010.


I require you to supply a true copy of the original agreement or remove the default notice immediately. In a recent case; Grace v Black Horse in The Court of Appeal (not sure how to put this-any help please?)

The Default actually took place in January 2008 not August 2010. Therefore Barclaycard have continued to enforce a default beyond the recognised 6 year timeline for an unenforceable agreement, and I seek compensation in the sum of £??? How much do you think is reasonable here please?

[ncf355]

Re: Barclaycard - double default on credit file ???

"In the recent case of Grace v Black Horse (In the Court of Appeal and therefore binding on lower courts) it was determined that a Creditor may not continue to enter a Default on a persons CRA files where that Default relates to an unenforceable debt.

As, contrary to the requirements of the Consumer Credit Act 1974 (as amended) Section 78, you have thus far failed to furnish a true copy of the executed agreement that relates to the alleged debt and in doing so have exceeded the statutory timeframe of 14 days for such supply to my request, this alleged debt remains unenforceable.

In addition, the failure to show a signed agreement containing the terms prescribed by the Consumer Credit Act 1974 (as amended) makes this alleged debt irredeemably unenforceable via S127(3) of the Consumer Credit Act 1974"

[ncf355]

Re: Barclaycard - double default on credit file ???

The Default actually took place in January 2008 not August 2010. Therefore Barclaycard have continued to enforce a default beyond the recognised 6 year timeline for an unenforceable agreement, and I seek compensation in the sum of £??? How much do you think is reasonable here please?

Based on what you have told us within this thread, I think January 2008 is an unrealistic date to aim at, I would put something along the lines of:

"It is therefore my belief, based on the evidence regarding the first Default notice and the breakdown of relationship the same denoted, that The Default actually took place no later than July 2008 and NOT August 2010.

With regard to the above, it is my position that Barclaycard have continued to enforce a default beyond the recognised 6 year timeline for a Default (this without recognising the further position, that the agreement appears unenforceable at law, so the the issue remains as to whether a Default should, in fact, have EVER been registered).

Accordingly, I require and demand that Barclaycard make a reasonable offer of compensation , such amount to be considered in the light of Durkin v DSG Retail Ltd in the Supreme Court, London, 2014 that considered an award of £8,000 plus interest would be reasonable for such an injury to credit."

[ncf355]

Re: Barclaycard - double default on credit file ???

Note that I put "At the latest" as this is the date that I would imagine that they could push a reasonable thinking person into accepting was the date to record a Default (original Default notice date + 6 months)

[nemesis45]

Re: Barclaycard - double default on credit file ???

let's Be Very Clear a DEFAULT NOTICE and the DATE on it DO NOT RELATE TO THE DATE A DEFAULT IS PLACED AND REGISTERED WITH THE CRA'S.
Have you phoned Barclays to find out the ACTUAL default date?

[ncf355]

Re: Barclaycard - double default on credit file ???

let's Be Very Clear a DEFAULT NOTICE and the DATE on it DO NOT RELATE TO THE DATE A DEFAULT IS PLACED AND REGISTERED WITH THE CRA'S.
Have you phoned Barclays to find out the ACTUAL default date?

Nem

I accept there is no direct STATUTORY connection

However, as I have said on many threads, the default date CAN and HAS been used to demonstrate at what date the "breakdown of relationship" took place and it is this (breakdown of relationship) the ICO clearly state as the main point of reference for when a Default should be registered (e.g 3-6 months after last full contractual payment was made)

Again, were such a marker of when a default should be registered not to exist, the creditor would be at liberty to carry on reporting "5“ markers to the CRA's ad infinitum until such point as the whim took them to mark a Default

That is not the case and could not be justified at law

I have used a Default notice as evidence many times when convincing creditors, the ICO and the courts of the" true" default date as opposed to the dates that the creditors have seemed to randomly pluck from the air

The ICO make the point quite clearly in their guidance (again, I accept it is only guidance, but I have found it persuasive in court) that the idea in all of this is to create a common time frame across the various creditors as to when a Default is placed, so all Defaults have similar meaning, standing and duration.


Obviously, use of a Default notice as a reference point would only be worthwhile where the Debtor failed to remedy the Default notice by either paying nothing at all, or amounts that failed to meet the arrears/ongoing contractual payments.

[ncf355]

Re: Barclaycard - double default on credit file ???

I would add that the only common situation where I see the 3-6 month rule running into difficulty is an authorised overdraft as it is clearly difficult to ascertain where the "breakdown of relationship" occurs

However, if the creditor calls in the overdraft or a s76 notice is served with no action from the debtor, this could be argued as the start of the 3-6 month timeline

[ncf355]

Re: Barclaycard - double default on credit file ???

Where a Default has not been issued (such a situation appears to be rare in the case of credit card and loan debts) the Debtor can rely on the date the first full contractual payment was missed, (so long as no full contractual payment was made after this date) + the aforementioned 3-6 months as a point at which a creditor should have entered a Default to the CRA's

Another point of reference is when a Creditor places the account with a (external or internal) Debt Collection Agency thus demonstrating "breakdown of relationship.

[McGinty]

Re: Barclaycard - double default on credit file ???

Thanks for the help-it is much appreciated and I will get this letter sent tomorrow. On the question of phoning Barclays-no I haven't but I have a copy of 2 credit files with the same matching date of the default in 2010. Mc

[nemesis45]

Re: Barclaycard - double default on credit file ???

The distinct problem in all of the discussions on defaults/default notices stems one from the " generic" nature of the DN ( there being no obligation on the creditor to archive copy, just a file note is made and two the vague terminology used in the guidance documents
e.g. " Should" & Might Expect".

I've over the years had many discussions with the ICO and the OFT on this and have a file of written replies which just emphasise the loose terminology.

My concern is the many cases where debtors are claiming to have been defaulted twice or as in one case I'm dealing with the debtor claims 4 defaults on one debt.

The cause is clear debtors receiving a DN have two common reactions " ignore it'll go away" and " blind panic" the first leads to a default and ultimately in many cases a judgement by default, the latter results in an hasty and ill advised call to the creditor setting up a totally unaffordable payment plan doomed to failure very quickly.
Thus another DN is issued and further promises of payment are made if this fails the scenario continues.

A DN if remedied is null and void and has no further impact on the conduct of the account.

I must disagree that "default dates are plucked from the air", creditors have in the vast majority of cases specific conditions in the agreement that will lead to default and a time scale for it.

[ncf355]

Re: Barclaycard - double default on credit file ???

McG,


I'v written out a letter for you to use, obviously it's up to you whether to use it and again this is purely based on my own experience, NO legal training!





Dear Sir/Madam

I DO NOT ACKNOWLEDGE ANY DEBT TO YOUR COMPANY OR ANY RELATED 3RD PARTY

YOU MAY CONSIDER THE CONTENTS OF THIS LETTER A NOTICE UNDER SECTION 10 OF THE DATA PROTECTION ACT THAT REQUIRES YOU TO CEASE PROCESSING DAMAGING DATA

I have recently had cause to view my credit files and note an entry by yourselves in relation to the following account:

BARCLAYCARD ACCOUNT NUMBER: XXXX XXXX XXXX XXXX

The entry is set as a Default, with a date for the Default taking place as 08/04/2010.

I have a number of issues with this entry, that I shall now list:

1) The last payment made on the alleged debt was January 2008, meaning that by the ICO's own guidelines, the Default (if it was to be entered) should have been registered no later than July 2008.

This would mean that this Default should in fact have been removed by no later than July 2014, meaning you have falsely extended the acceptable life of this Default by some 6 months as at the time of writing this letter and continue to do so.

2)Not withstanding the above point, in addition I have previously sent a S78 request for a true copy of the agreement under the Consumer Credit Act 1974 - to date, this has not been fulfilled as I have received no response.

I am sure you are aware that whilst you are in Default of this request, statute provides you may not take steps to enforce any alleged agreement

3) Without sight of an agreement made under the Consumer Credit Act 1974, containing the prescribed terms and signed by myself, it is my position that this alleged debt is also legally unenforceable via S127(3) of the same act that would prevent enforcement via a court of law

As I believe the above to be the case, I draw your attention to the case law of Grace v Black Horse, Court of Appeal 2014 where it was confirmed that an unenforceable debt may not be registered in Default via the Credit Reference Agencies as such agencies have no service available to show 'unenforceable' alongside such a Default.

WHAT I REQUIRE:

I require and demand the following from you:

1) That you take immediate steps to remove all reference to this account from 3rd party CRA's that you currently report my data to

2) That as you have caused damage to my credit status beyond the acceptable time limit for a Default, you make an offer of adequate compensation for this unjustified damage caused by your lack of care in relation to my personal data.

When assessing the amount of compensation you are prepared to offer, I would ask that you consider the award made in Durkin v DSG Retail at the Supreme Court, London, 2014 - this amount being £8,000 plus interest for the act of injury to a persons credit (to be clear, these were non pecuniary damages).

I require a positive response within 14 days from your receipt of this letter (this letter having been sent via 1st class recorded mail).

Yours faithfully,


Mr/s X