Hillesden DCA CCA request

[mr.ton]

Re: Hillesden DCA CCA request

If that were me i would do everything i could to obtain a refund of monies already paid!
It could be argued that monies were paid under duress/threats/intimidation etc....or they could argue that it was a gift - it would be a tricky area and no guarantee of success, but well worth a try at least! lol

[thewife666]

Re: Hillesden DCA CCA request

Im not to worried about chasing them for a refund I just dont want the default on my record.
------------------------------- merged -------------------------------
Just a quick question. Do I write to Hillseden and get them to remove the default or would I just be wasting my time chasing them?

[labman]

Re: Hillesden DCA CCA request

If they can't prove there's a debt, they can't put a default on your file. At present they need to produce a proper default notice - if they haven't done this, then the default should be removed. Don't expect it to be an easy thing to achieve though, Credit Reference Agencies are pigs to deal with, and you may well end up having to complain to the ICO to get it removed.

[thewife666]

Re: Hillesden DCA CCA request

Thank you

[Guest]

Re: Hillesden DCA CCA request

Peter,

It seems to me they have admitted this in writing, thus, as I said, the OP does not have to pay. I also qualified it by stating that if an enforceable agreement is produced, then payment would have to recommence. However, as they've admitted in writing it is unenforceable, it's hard to see how it can suddenly magically change status.

the point is that people must not get the idea, which is still being peddled by some of the less informed on thes forms, that becaue a creditor does not respond to a sction 78 request he does not have to pay.

This is wrong for all the reasons i mentioned and also very dangerous for those who are easily paying ther agreements but due to this belief think they can default without consequence.
The manchrster caes put this beyond all dispute.

Also it is not one hundered percent certain that the production of a signed agreement is needed to enforce, this was also adressed in the manchester hearing, the court only has to show on the ballance of probablities that an agreement would have been signed to comply with both the act,section 127(3) and cvil law.

Granted the creditor would have to put on a good show of it but it is not iimpossible and the production of statements and accounts drawn on by the lender may go a good way.

Peter

[Guest]

Re: Hillesden DCA CCA request

If they can't prove there's a debt, they can't put a default on your file. At present they need to produce a proper default notice - if they haven't done this, then the default should be removed. Don't expect it to be an easy thing to achieve though, Credit Reference Agencies are pigs to deal with, and you may well end up having to complain to the ICO to get it removed.

THe default notice issued under the Consumer credit act has absolutely nothing to do with the notice of default recorded on your CRA record.

Niether does the fact of if the agreement is rnforceable.
The note on your file is a record of your hitorical payments, this will be confirmed by the payments statements.
The ICO say that a notice of intended entry defoult and give you 28 days to respond but this is not a requirement of the CCA and the fact the agreement is enforceable or not is irrelelvent.

Peter

[Guest]

Re: Hillesden DCA CCA request

If that were me i would do everything i could to obtain a refund of monies already paid!
It could be argued that monies were paid under duress/threats/intimidation etc....or they could argue that it was a gift - it would be a tricky area and no guarantee of success, but well worth a try at least! lol

Yes i see your argument , the creditor arrived at the debtors house put a gun to her head and made her pay protection money, othwise they would shoot the dog.
Yes i could see the judge going for that particularily if he is a dog lover.

Or you could as you contend that the bank gives the money away, it is not unheard of is it,, happens all thea time, i am he sure will totally agree that you have a sound legal case there.

Just before the men in the white coats arrive.

Peter

[teaboy2]

Re: Hillesden DCA CCA request

THe default notice issued under the Consumer credit act has absolutely nothing to do with the notice of default recorded on your CRA record.

Niether does the fact of if the agreement is rnforceable.
The note on your file is a record of your hitorical payments, this will be confirmed by the payments statements. Actually the payment history is irrelevant, as it could show upto 7 defaulted payments, yet the accounts actual status may still show as being satisfactory. It is the account status itself that is relevent, as when the status shows Default thats when the account has been defaulted, regardless of how many defaulted payments occured prior to the date the account status changed to default.
The ICO say that a notice of intended entry defoult and give you 28 days to respond but this is not a requirement of the CCA and the fact the agreement is enforceable or not is irrelelvent.

Peter

Technically Peter, if a default notice is invalid then the default on the credit file is not accurate as they have not issued the default inaccordance with Consumer credit act 1974 or in compliance with Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983. As such they are not entitled to register the default on the credit file until a valid default notice is issued and the statutory 14 days has passed without remedy. For them to do so of the back of an invalid DN they have in effect prejudiced the debtor.

Also an invalid Defualt notice means the default itself is deemed to have not occured until a valid default notice is issued as without a valid notice, the creditor has no rights to enforce, terminate, or demand any early repayment. As the issuing of a default on a credit file occurs then the creditor is saying they have enforced their rights to default the debtor, demand early repayment and to recover possessions or securities or terminate the agreement, which they are clearly not entitled to do to begin with unless they had issued a valid DN to start with.

Off course my view and your views are simply just technical arguments that could go either way if tested, but i doubt it has been even tested in court or will likely be tested.

[Guest]

Re: Hillesden DCA CCA request

Technically Peter, if a default notice is invalid then the default on the credit file is not accurate as they have not issued the default inaccordance with Consumer credit act 1974 or in compliance with Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983. As such they are not entitled to register the default on the credit file until a valid default notice is issued and the statutory 14 days has passed without remedy. For them to do so of the back of an invalid DN they have in effect prejudiced the debtor.

THis is completely incorrect please read the ICO information leaflet,
Default notices are registered on all kinds of account not just ones covered by the CCA, telephone bills bank accounts utilities even . They all have to have a common form of reference to give the future lender an accurate picture of the applicants creditability. Only CCA agreements have to give a DN. If the DN is remnedies the notice sill still appear on the register as it is a record of actual payment.

Also an invalid Defualt notice means the default itself is deemed to have not occured until a valid default notice is issued as without a valid notice, the creditor has no rights to enforce, terminate, or demand any early repayment. As the issuing of a default on a credit file occurs then the creditor is saying they have enforced their rights to default the debtor, demand early repayment and to recover possessions or securities or terminate the agreement, which they are clearly not entitled to do to begin with unless they had issued a valid DN to start with.

NO It does not read a above

Off course my view and your views are simply just technical arguments that could go either way if tested, but i doubt it has been even tested in court or will likely be tested.

No your views are flawd and do not represent the truth of the situation you require more reading

Peter

[teaboy2]

Re: Hillesden DCA CCA request

Peter Originally Posted by teaboy2
Technically Peter, if a default notice is invalid then the default on the credit file is not accurate as they have not issued the default inaccordance with Consumer credit act 1974 or in compliance with Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983. As such they are not entitled to register the default on the credit file until a valid default notice is issued and the statutory 14 days has passed without remedy. For them to do so of the back of an invalid DN they have in effect prejudiced the debtor.

THis is completely incorrect please read the ICO information leaflet,
Default notices are registered on all kinds of account not just ones covered by the CCA, telephone bills bank accounts utilities even . They all have to have a common form of reference to give the future lender an accurate picture of the applicants creditability. Only CCA agreements have to give a DN. If the DN is remnedies the notice sill still appear on the register as it is a record of actual payment. Thats true they are many different account that may be defaulted - However you can not other look the legislation that regulates as to when and how an account can be defaulted, which in this case is the CCA (as its a regulated agreement) and off course the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983. Said regulations do not apply to unregulated aggreements such as phone contracts and therefore phone companies can place the account into default at anytime nor do they need to issue a Default Notice under the CCA as you will find all default notices for unregulated accounts do not refer to any legislation and is therefore simply ment to inform you you are in defualt of your account. However Default Notices on Regulated agreements are regulated by legislation and as such have to comply with said regulations and not only be valid but also allow you a full 14 days prior to putting your account into default status on your credit file. So your point is mute peter as well missing the obivious difference between the regulated and unregulated account types..

Also an invalid Defualt notice means the default itself is deemed to have not occured until a valid default notice is issued as without a valid notice, the creditor has no rights to enforce, terminate, or demand any early repayment. As the issuing of a default on a credit file occurs then the creditor is saying they have enforced their rights to default the debtor, demand early repayment and to recover possessions or securities or terminate the agreement, which they are clearly not entitled to do to begin with unless they had issued a valid DN to start with.

NO It does not read a above - What does not read as above, i think you will find those are my own words and interpretation based on what is stated in the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 which makes it clear if the defualt notice does not comply with said regulations that they are not entitled to demand early repayment and to recover possessions or securities or terminate the agreement. which means they can not default the account legally until a valid DN is issued, it was not an exaqct qoutation of legislation and you dam well know that.

Off course my view and your views are simply just technical arguments that could go either way if tested, but i doubt it has been even tested in court or will likely be tested.

No your views are flawd and do not represent the truth of the situation you require more reading - NO peter they are not flawed, yours on the other hand seem to be, as you refer to the ICO guidance (Which is not legislation) and base you view of it, whilst at the same time ignoring the fact that unregulated accounts can be defaulted at any time when a payment is missed yet a regulated account the creditor must comply with the CCA and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 prior to being entitled to default the account.

You know what peter, opening insulting me - for example saying "you require more reading" (i assume of the ICO Guidlines that you seem to think is law in this particular issue) just because i have a different interpretation of the law to you is starting to get boring now Peter and i still remember you attempts to belittle me previously in another thread the other day, just because you didn't agree that the sales of goods act applied to all sales including private sales which many a solicitor will tell you.

You CAN NOT be right all the time peter, so why do you have to troll threads putting down other peoples opinions just because they differ from you. You are not the law, you are not the Judge, you are not a solicitor or trained legal professional Peter your but just a person with your own view and interpretation like the rest of us here, nothing more nothing less. So get the hell of your high horse and start respecting other peoples intepretations, as you might just learn that you are indeed not always correct. If you can not do that, then all i can say is arrogance and ignorance will not get you anywhere.

Ohh and perhaps you should read more as you clearly missed the meaning of the part where i said "Off course my view and your views are simply just technical arguments that could go either way if tested, but i doubt it has been even tested in court or will likely be tested." As it makes it clear your view is nothing more than a techinical argument, albeit, likely based on the ICO Guidelines and that mine is a techinical argument based on metioned Legislation and Legal Regulations where neither partys techinical argument has been tested. So infact making it clear that either one of us or both of us could be correct or infact either of us or both of us could be wrong.

[Guest]

Re: Hillesden DCA CCA request

Please read the ICO information leflet and it will avoid any further embarressment.
This is an old isue and one resolved and confirmed many times by authorites from ICO and the CRAs.

Peter

[teaboy2]

Re: Hillesden DCA CCA request

Please read the ICO information leflet and it will avoid any further embarressment.
This is an old isue and one resolved and confirmed many times by authorites from ICO and the CRAs.

Peter

Oh but i have see section 31 where it specifically states the following - "If a notice of intention to file a default is served (see paragraphs 32 to 37), the default date should be the date the notice becomes effective."

A notice of intention to to file a default is served, is reference the service of a Default Notice (as the intention to file is always included with the DN as standard practice nowadays) on the debtor as confirmed in section 32 and 33. The default date should be the date said notice becomes effective. I.e. 28 days after the date notice of intention with a valid default notice is issued.

From section 32 - "Lenders who have to provide a notice of intention to file a default under a relevant code of practice should be aware that not complying with the code may be taken into account in any assessment of the fairness of their processing." In this case CCA and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 - MUST be complied with fully before the creditor can issue the default to file.

Off course the Default Notice as a result has to be valid first, otherwise the default on file will have been placed in breach of ICO guidelines, which is what the ICO leaflet is guidelines - see section 32 which makes it clear a notice of intention to issue a default on credit file must be served with a formal Default notice under section 87(1) and therefore will also have to comply with Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983. If the default notice is invalid then it has not been fully served under section 87(1). As such, the creditor will not have complied with section 87(1) if the DN is not valid and therefore would be in breach of CCA 87(1) and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 as well as the ICO guidelines.

So the ICO Information Leaflet as you put it, actaully clearly backs up my intepretation as your clearly confused by the Notice of intention to serve a default and the requirements imposed by the ICO on the creditor prior to the creditor being able to issue a default to a debtors credit file.

So to summarise - If the intention to issue a default to credit file is served with a formal default notice that does not fully comply with either section 87(1) CCA or with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (I.e. Default notice is Invalid). Then not only is the Default notice invalid, but if the creditor were to continue and issued the default to file they do so in breach of ICO guidelines as well as being in breach of section 87(1) CCA or with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 too.

Now for the benefit of the OP and this thread, we should prevent this turning into another argument between the two of us which would only ruin the thread and will not actually help the OP as a result. As i said we both have 2 different views on what is nothing more than a technical arguement that has never been tested and is unlikely to be tested in a court. So arguing about our different views here would be pointless.

[Guest]

Re: Hillesden DCA CCA request

HA HA

Now remove your brackets and see what it really says.
The notice of default can be sent with the default notice but does not have to be it gives 28 days notice not 14 as per the dn. The notice of default cannot be remedied as the dn can, because it is a record of payment.

A notice of default on an account can, and regularily is issued withou a section 87 default notice being sent, the creditor may not want to enforce but he is compelled to report account activity by ICO guidlines.

As i said this is very old ground and not really worth my time, i understand it may not be an area you are familiar with but most of us on here are.

All the information is there in the guidlines.

Peter

[Guest]

Re: Hillesden DCA CCA request

HI
Found this for you, it should help you with your understanding of the subjuect it defines "default" in data handling terms in paragraph 2.

This is in contrast to a default notice(section 87) the definition of which must be sent under the cca before enforcement can be commenced.

Excepts from the, Data Protection Technical Guidance:

A 'default' can be said to occur as soon as the borrower fails to meet the terms of their credit agreement. However, adopting this definition for credit referencing purposes would create difficulties since it is accepted that not all these defaults should be reported, for example, where weekly payments are late but are quickly remedied.

The term 'default, when recorded on a credit reference file should be used to refer to a situation when "the lender in a standard business relationship decides the relationship has broken down"

Where there is an unresolved dispute about whether a default exists, lenders should refer to paragraphs 42-45.

Indicators of a default

The account has been referred to a collection agency or, in-house debt collection department;

The account has been referred for legal action;

The account has been included in a bankruptcy, IVA or similar;

The asset financed has been repossessed or instructions for repossession have been given;

The lender takes or has taken steps to cut off the service provided (or would do so if they were not prevented on social rather than commercial grounds or by other regulations, codes of practice or statute);

The customer has not made satisfactory proposals in response to a demand for payment;

The customer has given clear indication, for example, by handing back an asset, that they do not intend to meet their contarctual obligations;

The lender has evidence that an account has been opened or used for fraudulent purposes by the applicant.

Time framework

Although there will be some flexibility in the definition of a breakdown, we believe that there should be somer general rules for the minimum period of arrears which should exist before a default can be filed. Equally there should be a maximum period after which, if anything is to be recorded with a credit reference agency, a default must be filed. The following are in line with the practices currently adopted by most lenders:

Accounts should not be routinely filed as being in default where full payments or those due under a rescheduled agreement are fewer than three consecutive months in arrears;

Accounts should normally be filed as being in default where those payments due have not been received for six months.

This time framework only relates to filing defaults. It does not affect the lenders' ability to continue to report accurately on the extent of arrears using monthly status codes.

Please also see:
Resheduling of Agreements and;
The 'sale' or assignment of debts on defaulted accounts:

Peter

[teaboy2]

Re: Hillesden DCA CCA request

HA HA

Now remove your brackets and see what it really says.
The notice of default can be sent with the default notice but does not have to be it gives 28 days notice not 14 as per the dn. The notice of default cannot be remedied as the dn can, because it is a record of payment.

Wrong, if a default notice is required under section 87 (1) then notice of intent to issue default should be sent with said default notice. Granted it states can be sent with, but it states that purely because other account types do not require a Default notice under section 87 (1). Also i never said the intention to issue a Default to file had to give 14 days, i said the Default notice itself in order to be valid must give a clear 14 days from date it is served on the debtor to be valid. If you reread above i actually stated they must give 28 days from the date of the notice of intent before issuing a default to file. Though before they can issue a default to file they must comply with relevant legislation and the default notice itself needs to be valid and comply with section 87 (1) and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983. Also a DN can only be remedied if the account is still with the original creditor and has not been sold to a 3 party.

Section 33 in full - "Notices to comply with Sections 13.7 of the Banking Code and 7.5 of the Lending Code should provide adequate warning. A notice of intention to file a default can be sent with a formal default notice served under Section 87 of the Consumer Credit Act 1974. Where lenders are not required to issue these notices, they can send an intention to file a default through a final demand, letter or relevant account statement, which should make clear not only the intention to file but also the date of the intended default. The date should allow the customer enough time to respond properly. Lenders who have to provide a notice of intention to file a default under a relevant code of practice should be aware that not complying with the code may be taken into account in any assessment of the fairness of their processing."

A code of practice would refer to the relevant legislation and regulation for which the code of practice is governed by or based upon.

It is only when they are not required to send a Default Notice under section 87 (1) where they can send one without a default notice under section 87 (1). The following part makes it clear they must compliy with all codes of practice i.e. in this case Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 which requires them to state their intent to issue a default to file (or to be precise to enforce such a provisionof the agreement which becomes operative only on a breach of another provision (i.e. debtor defaults on payments) and is therefore a notice of intent to issue a default) included in a default notice - "Lenders who have to provide a notice of intention to file a default under a relevant code of practice should be aware that not complying with the code may be taken into account in any assessment of the fairness of their processing."

A notice of default on an account can, and regularily is issued withou a section 87 default notice being sent, the creditor may not want to enforce but he is compelled to report account activity by ICO guidlines.

Sorry but according to the ICO guidlines they must first issue a notice of intent to file a default before putting a default on an account with the credit reference agency's. What your saying above is that a default can be placed on an credit file at any time. Which is wrong. Your also saying they can issue an notice of intent at anytime without a default notice, which although is correct for unregulated agreements like phone contracts, it is not correct for regulated agreements as the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 requires such notice of intent be given as a perscribed term of 6 (f) "to enforce any provision of the agreement which becomes operative only on a breach of another provision of the agreement as specified in the notice," in this case any provision of the agreement which becomes operative only on breach of another provision of the agreement means - A the proviosion of the creditors right to issue a default on the debtors file (usually a provision in a CCA terms and conditions) can only be enacted if the debtor fails to remedy the the default notice (i.e. breach as specified in the Default notice) within the required 14 days.

So in other words if the default notice is invalid then the creditor does not have the right to enforce another provision which only becomes operative on a breach of another provision of the agreement. I.e. the creditor does not have the right to enforce the provision to issue a default to the debtors file due to the default notice being invalid as a default is deened to have not occured if 1 the default is remedied within the timescale or 2 the default is invalid and does not comply with regulations and legislation, which also means the default did not occur as the only time a default is deemed to have occured is when the DN is valid and the Statutory 14 days have past without remedy.

As i said this is very old ground and not really worth my time, i understand it may not be an area you are familiar with but most of us on here are.

All the information is there in the guidlines.

Peter

Oh am very familier with it peter, you just have no idea just how familiar am with it, which just happens to be the problem. By the way guidelines are not detailed specific information on how and when a default can be issued to file, there is more to whats stated in the ICO guidance notes (which is all they really are) then what is actually included in them. But then guidance notes are not ment to be detailed specific codes of practice that such guidance notes are based upon. The guidance notes are their to help companies interpretate the code of practice issued by the relevant body (in this case ICO) or relevant legislation and to help the public, whom likely do not have access to the code of practice issued to companies by said body, or access to relevant legislation, to understand what their BASIC rights are. Hence why its not detailed and only goes into the BASICS and why they are called Guidance Notes.

Treating such notes as being LAW would be foolish and a dangerous path to follow Peter when your advising people on their rights. As clearly your advising that creditors can issue a default to file willy nilly, which simply is not the case at all.

You seem to be forgetting one KEY point. The right to issue a default on to a debtors file is a PROVISION in the terms and conditions of the credit agreement and such provision can only be enforce upon the debtors breach of another PROVISION of the agreement, in this failing to make payments.

As for what you put in Post 29 - well as you said "This time framework only relates to filing defaults" It doesn't relate to regulations and legalisation that must be complied with prior to filing defaults, it is simply based on filing defaults when the creditor is legally entitled to issue a default to file. If they are not entitled to issue the default to file then what you put in post 29 does not apply as they must still have compiled with section 87 (1) and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 first, before they can start issuing a default to file.

Now for the sake of not ruining this thread i have no intention of continuing this rather pointless arguement that is of absolutely no benefit to the OP. So i suggest you refrain from responding to my post to prevent this arguement ruining the thread. This is the second time i have requesed we end the argument now