Help needed with Default?

[d.stenson]

I recently decided to pay all my outstanding debts which is now complete except one which is in dispute over the amount and not relevant for this post.

The problem I have is that The Brilliant Gift Shop have place a default on my name with the CRA's and I would like it removed on the grounds that i did not receive and notice and that it is now paid in full.

I understand that just because it is now paid in full it is not a reason to remove the default notice but I sent one letter to their registered address 1st class and one recorded delivery asking them to provide me with a breakdown of the charges and in return if all charges are correct then I will pay the bill withing 5 days. They claim not to have received any letters and only responded to me when i sent a copy of the letter which i previously sent recorded delivery via email to the Director of J D Williams Ltd who are the company that own The Brilliant Gift Shop. After replying to my email the account was settled within 48 hours.

The default in question was place on my name beginning of August and if they replied to either of my letters i believe the default would of been avoided. I did keep a copy of all correspondence and the receipt of the recorded delivery which contains the tracking number.

I have issued them under the CCA letter asking them to provide me with a copy of the default notice. (You must supply me with a signed true and certified copy of the original default notice). They have replied to me telling me that as the account is now settled and closed they they are under no obligation to provide this to me. I obviously think think this is either wrong or extremely unfair and would like to know what my next step would be in these circumstances. I can supply the response letter from TBGS and a copy of letter requesting the default sent if needed.

After doing some re-search i think they are right and think I would need to attack from a Data protection angle and try recover a copy of the default notice that way. Is this right or will i just be anding fuel to the fire and am i best just going straigh to the OFT etc... Any help would be great as I would like this removed due to the circumstance.

Quote:

After recently obtaining a copy of my credit file from Experian I was concerned to note that your company has placed a "Default" notice against an account in my name. Further to this I have a recollection of ever receiving such a notice, and I therefore require you to substantiate this data at your earliest convenience. 1. You must supply me with a true copy of the alleged agreement you refer to. This is my right under your obligation to supply a copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit). Your obligation also extends to providing a statement of account. I enclose a £1 postal order in payment of the statutory fee, PO Serial Number 1587 716732. 2. You must supply me with a signed true and certified copy of the original default notice 3. Any deed of assignment if the debt was sold on I would request that this data is provided to myself within the next 28 days, if you are unable to provide this data then I must insist that it is removed from my files as unsubstantiated.

Letter i sent to TBGS

Quote:

With regards to your request for a copy of the deed of assignment and a copy of the original default notice, please note, there is no legal requirement to provide you with a copy of the deed of assignment, notice from the assignee, Reliable Collections Lyd, is sufficient under the law of property act 1925 to require you to pay the assignee. This would not carry your signature, as debts are freely assignable without this. As previously explained, this is not the same as issuing a default notice as defined under section 88 of the Consumer Credit Act 1974. Any defaults, which we file with credit reference agencies, are filed in accordance with the guidance issued by the information. Commissioners Office. The term The term default on credit reference files is used to refer to the situation when the relationship between lender and borrower has broken down.

It goes on about the duties to report etc.. Any ideas for next letter or am I out of ammo.

[Celestine]

Re: Help needed with Default?

As you did not receive a copy of the Default Notice, I can't see how you had the opportunity to rectify the default.

I don't think you are out of ammo at all, but you will need to change tack.

I am currently involved in suing Lloyds for wrongful defaults. We got the defaults removed and are now arguing over damages.

The relevant case law is Durkin v HFC. Durkin received 8k just for damage to his credit file.
Apart from the obvious failures to give you a fair opportunity to settle the debt, they are also breaching s.13 of the Data Protection Act.

Do a bit of reading around and then put together a letter indicating that you will issue proceedings if the default is not removed.

[d.stenson]

Re: Help needed with Default?

The problem i have is i am confused by their reply, did they not providing me with a default as their is one on my credit file, are they refusing to provide me with a copy, or something else. Might be a stupid question but im a little lost with this. I understand they have failed to provide me with a default notice but they stated that what they have done is "not the same as issuing a default notice as defined under section 88 of the Consumer Credit Act 1974"

[teaboy2]

Re: Help needed with Default?

By refusing to provide you with one they are in breach of section 13 of the data protection act 1998. The fact you did not receive a default notice means they are in breach of section 87 of the consumer credit act 1974 which regulates the credit agreement, not only that but as you sent them letters, which if they had responded to, the default would never had occured means the registering of the default on your file is libelous and you can claim damages for libel i.e. inaccurate recording of data that has caused damage to your credit file, though you may need prove it prevented you getting any credit.

I personally would email the above to the director of J.D. Williams and inform them if the default is not removed, you will look at taking legal action on the above grounds. Make it clear that if they had responded to your originally letter offering full and final settlement and asking for a full break down, then the outstanding balance would have been paid in full earlier and the default will have never had occured in the first place, qoute the case law that Celestine referred you too as well.

[d.stenson]

Re: Help needed with Default?

Just emailed the director as requested. Will keep everyone updated. Thanks

[jax50]

Re: Help needed with Default?

By refusing to provide you with one they are in breach of section 13 of the data protection act 1998. The fact you did not receive a default notice means they are in breach of section 87 of the consumer credit act 1974 which regulates the credit agreement, not only that but as you sent them letters, which if they had responded to, the default would never had occured means the registering of the default on your file is libelous and you can claim damages for libel i.e. inaccurate recording of data that has caused damage to your credit file, though you may need prove it prevented you getting any credit.

I personally would email the above to the director of J.D. Williams and inform them if the default is not removed, you will look at taking legal action on the above grounds. Make it clear that if they had responded to your originally letter offering full and final settlement and asking for a full break down, then the outstanding balance would have been paid in full earlier and the default will have never had occured in the first place, qoute the case law that Celestine referred you too as well.

Does 'Not receiving' a default Notice include receiving a 'defective' DN, in terms of the actions to be taken by the debtor ?

[teaboy2]

Re: Help needed with Default?

No the lack of a DN is not defective but simply a failure to provide a DN though failure or defective DN's have the same result, the debt is still unenforceable, and if sold could be unlawful rescission or repudation of contract, though thats just legal theory as its not yet been tested as a counter claim. Though i used the unlawful rescission/repudation arguement with MBNA and just this week discovered that they had removed the Defualt from my credit file, in fact there have completely removed all mention of the debt from my file, and no it has not been 6 years either. So its clear that although unlawful rescission is legal theory in terms of consumer credit agreement, it appears the creditors agree with my unlawful rescission argument of simply do not want to wish risking losing to it and setting a legal precedent that consumers can use, when they sell accounts off the back of defective DN's. Though MBNA are not the only ones to remove a default, i had a number of the defaults removed and now showing as settled or the account completely gone from my file as a result of creditors removing them. So something had spooked them.

[jax50]

Re: Help needed with Default?

No the lack of a DN is not defective but simply a failure to provide a DN though failure or defective DN's have the same result, the debt is still unenforceable, and if sold could be unlawful rescission or repudation of contract, though thats just legal theory as its not yet been tested as a counter claim. Though i used the unlawful rescission/repudation arguement with MBNA and just this week discovered that they had removed the Defualt from my credit file, in fact there have completely removed all mention of the debt from my file, and no it has not been 6 years either. So its clear that although unlawful rescission is legal theory in terms of consumer credit agreement, it appears the creditors agree with my unlawful rescission argument of simply do not want to wish risking losing to it and setting a legal precedent that consumers can use, when they sell accounts off the back of defective DN's. Though MBNA are not the only ones to remove a default, i had a number of the defaults removed and now showing as settled or the account completely gone from my file as a result of creditors removing them. So something had spooked them.

Thanks teaboy2. In my case I have 2 defective DN's from 2 companies, but I've only recently spotted this. However, these both reach 6 years in a couple of months so am thinking should I just let them expire naturally ..

[teaboy2]

Re: Help needed with Default?

Yeah, it would actually take a hell of a lot of months of letter writing to get them removed anyway, so your best just leaving them to expire. Though if the debts were not yours, then thats a compeltely different matter and you would have grounds to claim damages for libel.

[d.stenson]

Re: Help needed with Default?

Just an update,

Just received a final response from The Brilliant Gift Shop which included a copy of the default notice that they apparently sent to me which I never received.

Is my best action now to proceed with the financial ombudsman or is their other steps that I should now pursue.

Below are the links to the default notice i revived:

Page 1

Page 2

Any help would be great.

[miliitant]

Re: Help needed with Default?

default notice is well and truly f++ked up

it needs to be headed

default notice served under 87 (1) of the consumer credit act 1974

so if they defaulted you with the CRA, and have not gone through the correct statutory process

[Magrew]

Re: Help needed with Default?

Do they have proof this was sent? Are you certain that you did not receive it? It is not that I doubt you it is just that the fact that this notice exists clouds things somewhat. I haven't examined the validity of the notice because that is irrelevant if it was never received by you. It is difficult for you to prove something didn't happen ie you did not receive it. First though they would need to have evidence that it was sent and delivered. Is there any possibility that they could prove that?

Can you swear you never received it? You may have to if this goes all the way.

[miliitant]

Re: Help needed with Default?

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

i have put this up and i will leave wilson and durkin out of it for the time being

[Magrew]

Re: Help needed with Default?

Seems an excellent course.

I bow to M's superior knowledge. There appears to be no concern around the issue or receipt of the notice.

[Magrew]

Re: Help needed with Default?

Just an update,

Just received a final response from The Brilliant Gift Shop which included a copy of the default notice that they apparently sent to me which I never received.

Is my best action now to proceed with the financial ombudsman or is their other steps that I should now pursue.

Below are the links to the default notice i revived:

Page 1

Page 2

Any help would be great.

I don't think I would take this to the ombudsman. They often struggle with matters that require any legal finesse. I would offer them a chance to rectify, if they don't then go for a pre-action notice and take it to court. There are others on the site that will give help and support in that course.