Help needed with Default?

[miliitant]

Re: Help needed with Default?

thats the way i would go

get them to remove the default from your credit files, then issue a compliant default notice, pay the arrears within 14 days, then the breach would be satisfied and no more default

but the original credit account would still be live and active and as such, you wiill have to pay the remaning contractual payments.but their would be no back interest to pay

this would be the easy way or its court for the removel with damages

[d.stenson]

Re: Help needed with Default?

The letter i received from The Brilliant Gift Shop Stated it was a "Final Response". I assume this means they are no longer going to reply to me directly. I also assume that means if I do request proof of postage or delivery from "TBGS" they will ignore my complaint.

I am positive I did not receive the "default Notice" and am happy to swear under oath if needed.

If they acknowledged or replied to any of my original letters asking for a breakdown of the outstanding balance it would of been resolved within the time frame but as they did not and only replied to an email addressed to the director the default was already placed on my name and damage done. Once i received a reply from the head of complaints the whole account was settled within 24 hours. I'm just now arguing the issue of the default notice which I feel was unfairly and unlawfully placed on my name.

Is my best option now just to start with court proceedings then?

[Magrew]

Re: Help needed with Default?

If you have a stated final response then you are justified to go to pre-action notice on court proceedings as outlined in Celestine's post #2. If I were you I would read the caselaw stated in her post and those referenced in Militant's post #13. Try and frame your arguments around current precedence wherever possible.

It would be worth reading these before you prepare your letter, it will help you understand what a successful argument looks like, it can often deviate from common sense. Unfortunately I entered into a few arguments in the past before I found LB's that were naive to the law and this has made them much more difficult than they need to have been.

There are individuals on this site that will play devil's advocate to your arguments in a very constructive way. Do not take their analysis as personal or negatively. They are simply trying to ensure that you progress with your strongest arm. In a legal argument, if the defendant can find a diversionary weakness, they will milk it to the max in the hope that this will distract the court from the most relevant and certain facts. Limit all opportunities of that occurring.

Militant and Celestine are both very skilled in focussing on the salient points of your argument. There are others with equally honed skills on the site, I won't name them all, it would take too long and I would be worried of offending anyone I missed.

On the face of it your argument looks strong. It is important that this strength is presented forwards.

If you have never researched caselaw the best site to find most is http://www.bailii.org/.

Are you considering using a solicitor?

[Celestine]

Re: Help needed with Default?

Just for the time being....or at least until I can get clarification, do NOT cite Durkin. Quote Kapohraror v Woolwich Building Society [1996] and Smeaton v Equifax [2012]

[Guest]

Re: Help needed with Default?

Hi

Just trying to get my head around this, are you saying that the marker should not have been placed because you did not miss payments or just because an 87 notice was not sent, because if it is the later you have no case.

D

[d.stenson]

Re: Help needed with Default?

I will be representing myself in court.

What are the chances of them attending the courts case and what is the time frame for it to be complete.

[miliitant]

Re: Help needed with Default?

a copy of the alleged default notice has now been sent but it is not compliant with the Credit (Enforcement, Default and Termination Notices) Regulations 1983 ...

so the statement below would be applicable

Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

[miliitant]

Re: Help needed with Default?

I will be representing myself in court.

What are the chances of them attending the courts case and what is the time frame for it to be complete.

are you going to court to get the default removed or is the creditor taking you to court

if you are going for removel of the default a word of warning.

the judge would expect you to go through the information comissionairs office first and get a final response before instigating any legal action

[Celestine]

Re: Help needed with Default?

My default removal case hasn't gone anywhere near the ICO and it hasn't caused a murmur with the two Judges we have encountered so far.

[miliitant]

Re: Help needed with Default?

judge lottery this

when i took on a certain unwelcome car loan company in court, the default removel was part of my claim and the ICO was stipulated by the judge. in the end it was not needed as the judge in his judgement ended all agreements between me and the finance company and had my credit file deleated with this companies details

the judge stated only the ICO was in a position to order the removel of a default. i know that is incorrect but like i said, it depends on the judge on the day

[d.stenson]

Re: Help needed with Default?

I would be taking the creditor to court for the removal of default notice. The account is now settled just want to unfair and unlawful default removed.

[Guest]

Re: Help needed with Default?

It may be a silly question but i am not familiar with this shop.
Was this a credit account or a charge account,

D

[d.stenson]

Re: Help needed with Default?

They are similar to Littlewoods which is a credit account.

[Guest]

Re: Help needed with Default?

Hi
I see, yes a regulated agreement, although catalogues have been known to argue that they are not anything of the sort.

The default notice seems to have everything you would expect from a section 87 default notice , with a few notable exceptions that may or not be of importance. First as identified there is no mention of the act or the section, there is also mention of termination using a contractual clause, usually the agreement is terminated due to breach, also the time for remedy 21 instead of 14 DAYS, may men nothing of course.

More importantly form your point of view, i cannot see the notification that they will be recording a default note on your file.

Recording a notice of default on a credit file is an entirely separate process than the issuance of a section 87 notice which is used purely for warning the debtor of the creditors intention of commencing proceedings, however the warning notices are generally combined.

Your defense can be either that you did not fail to make payments, or that notice of intention to file was not sent, if the later reason the creditor can just send another notice and if you show the account is paid should remove the notice. This is nothing to do with the defects in the section 87 notice it is a different requirement.

D

[miliitant]

Re: Help needed with Default?

i agree

default notice with the intention of terminating an agreement under 87 (1) of the CCA 1974 must be in the perscribed format as to the default and termination regulations with all the terms included in the wording

the reglations are quite explicit

the default notice supplied is seriously lacking and is not compliant with the regulations so in a sense, the agreement is still live and has not been terminated

to enforce this in court, the creditor would have to acknowledge the default notice was defective, or issue a compliant notice before proceedings

be it the agreement was defaulted or not, it will open up the creditor for a poss damages claim

thats how i see it anyway