Default & FOS

[Pdm]

Re: Default & FOS

Cel, See below is this of any help. Thanks for your help

[enquirer]

Re: Default & FOS

... but essentially they are saying that as there is no evidence that I could have paid arrears ...

How do they know this? Did you present evidence that you had the werewithal?

[Celestine]

Re: Default & FOS

OK, I really need to see your credit file overview. To see how the default appears alongside everything else.

[Bill-K]

Re: Default & FOS

I really don't think the FOS should be speculating about whether or not the claimant was in a financial position to rectify the cause of the default. If they were looking for evidence, then did they ask YOU, Pdm ? It is accepted that no DN was issued, so it follows that you were not even made aware that the account was defaulted. In effect, the opportunity to rectify the situation was denied you, so you weren't given the chance to take any of the steps which Cel has listed to stop the default. I most certainly wouldn't recommend it, but you could even in theory (as a VERY VERY last resort !!!) have taken out a 'Pay Day Loan' with one of the sharks to avoid the default. That is surely irrefutable evidence that is public knowledge - thanks to Wonga's incessant advertising.

However, it is true - I believe - that even if the DN marker is removed, if the account is still in arrears, then (as Pdm mentioned in post #9) they can simply issue another DN (which of course they will make sure you get !!!) and you'll be back to square one with a newer DN and a re-set clock. So, unless you can settle the arrears (if you haven't already done so), then it seems like a pointless exercise to pursue this IMHO. Getting a faulty default removed does not protect the account from being defaulted subsequently.

[MIKE770]

Re: Default & FOS

The FOS frequently mention quote:- claimant was in a financial position to rectify the cause of the default.

They do make such comments, even state that a period of say 3 months has past so the debtor had plenty of time to rectify?.

[Bill-K]

Re: Default & FOS

They do make such comments, even state that a period of say 3 months has past so the debtor had plenty of time to rectify?.

Indeed so, Mike - and in many cases, it is reasonable to look into these aspects. But in this case, the FOS and the creditor both agree that the default is flawed because the required legal process had not been followed. Pdm's financial circumstances were not the cause of this failure to properly process, and IMO should therefore have no bearing on the FOS's decision. Whether Pdm was able to clear the arrears or not doesn't alter the fact that the Default Marker was wrongly applied and should be removed.

After its removal, then - and only then, I believe - the creditor should look again at the state of Pdm's account and decide whether to start the process of issuing a DN.

The question of whether a previous Default Marker was correctly applied has been answered and agreed upon - it was not, and the remedy is its removal.

The question whether a subsequent Default Marker may be applied is IMO an entirely separate question, and is not dependent on Pdm's circumstances in January 2011, but their circumstances now.

If Pdm's account now would still mean a DN could be issued, then I don't think there is anything to be gained by removing the original DM, so the arguments become purely academic, really.

That's my take on this, anywayz.

[MIKE770]

Re: Default & FOS

Think you are right on that point!

[Bill-K]

Re: Default & FOS

Cheers, Mike. Maybe right - but Cel might have a better take on it, as she has been looking into dodgy defaults lately.

[MIKE770]

Re: Default & FOS

We see what Cel comes up with!

[Celestine]

Re: Default & FOS

I cant tell till I've seen the whole credit report.

However, I think the debt is @twelve thousand, so out of reach of 'normal borrowing'.

The real question is whether tackling this risks the default being reissued and the clock starting over. That is a real concern.

[Bill-K]

Re: Default & FOS

I cant tell till I've seen the whole credit report.
OK.
However, I think the debt is @twelve thousand, so out of reach of 'normal borrowing'.
But surely, it's not the whole debt that would have to be repaid to avoid another default, is it ? Just the amount by which it is in default ? - Although we don't know what that amount is as yet.
The real question is whether tackling this risks the default being reissued and the clock starting over. That is a real concern.
Agreed.

....

[Pdm]

Re: Default & FOS

To all, massive thanks to all for contributing - this is very helpful and constructive - more so than other forums I joined. I will be sending Cel as much info as I can shortly. Not sure if it is helpful but having been unknowingly defaulted in Jan 2011 I continued making the nominal payments we agreed upon until Sep 2011 when we settled. My CRF is marked as a zero balance - is this helpful. Creditor also said in writing they will not sell debt on por pass to 3rd part DRA - but I now understand they can legally change their mind - but surely if CRF is marked with a zero balance is this not now a closed matter and as such a new default could not be issued?

[Celestine]

Re: Default & FOS

surely if CRF is marked with a zero balance is this not now a closed matter and as such a new default could not be issued?

You'd think so in any normal fair situation.

Have a quick read here
http://www.legalbeagles.info/forums/...-Vital-Reading

It's clear many lenders are totally ignoring the guidelines drafted in 2007.

If you want, send documents to admin@legalbeagles.info if you struggle to upload or anonymise anything.

[Pdm]

Re: Default & FOS

Cel, Have just post relevant docs to the address you suggested.

For all, The background is:- Lost job in June 2010, immediately engaged with all creditors - was suffering depression at time. All creditors supportive and helpful - permitting reduced payments - even current one. Took employer to tribunal - at pre- hearing (jan 2011 - at time creditor issued default notice) it was decided I was sufficiently suffering with depression that I qualified for protection under the disability discrimination act - unfortunately lost actual tribunal!!!!! Not aware that default was recorded - continued dialogue with creditors, one wrote off debt, one asked for a small nominal sum to settle - neither creditor recorded default. Other creditors such as mortgage lender permitted reduced payments but never recorded a default. When I was mentally able to engage with current creditor we agreed on a sum and that they would not pass on to DCA or other 3rd party. Creditor marked the balance on my CRA as £0 in Sep 2011, having recorded a default in jan 2011, during which time and subsequent to the default being recorded I continued to nominal payments as best I could (think I missed one month, but made it up the next). Apart from the issue with removing a defective DN - never issued, I am minded that as we agreed a settlement and the balance is showing £0 that the agreement between me and the creditor is terminated, as such they could not reissue a DN or pass on to a DCA - any thoughts? Thanks in advance

[Pdm]

Re: Default & FOS

Below is extract of final response from FOS. Gutted really, i dont feel it is up to them to judge my financial position or how within all reasonableness i would have responded had i received a DN. it irks me that an individuals opinion, who does not know me, is taking precedence not just over the CCA, but also the ICO not to mention the data protection act. Any advice would be appreciated. Thanks in advance.

Further to my previous email, I have reviewed your submission and discussed you case with senior colleagues. I can confirm that my position remains unchanged as I am not satisfied you would have been able to pay the full default balance. However, at this stage there is no obligation to agree with my opinion. If you would like to have your complaint reviewed by an ombudsman, please send me the response slip.

An ombudsman's decision will take nine to twelve months and is legally binding on the business if you accept the decision.