Let sleeping dogs lie ?

[gravytrain]

Re: Let sleeping dogs lie ?

It depends on the situation, if a default is recorded after a couple of missed payments, and then some time later he decides to enforce and issues a section 87 notice, this default record will remain. If the debtor remedies the Section 87, the creditor will continue to report the activity of the account, and yes if it is defaulted again the default date would be up-dated.( although I have known case wher the creditor has been peersuaded to remove the original default if the account is kept in good order, but there is no requirement for them to do so)

The IcO guidelines recommend that the creditor gives 28 days notice before they record a "D" on the file, so if this notice is sent at the same time as the section 87 notice and this is subsequently remedied along with the section 87 then the account should continue with no default being recorded. (Although the missed payments will be).

All copies sent are subject to the form requirements made under section 180 of the act and must represent a "true copy", this is defined by the relevant S/I(1983/1557 etc)

[jax50]

Re: Let sleeping dogs lie ?

It depends on the situation, if a default is recorded after a couple of missed payments, and then some time later he decides to enforce and issues a section 87 notice, this default record will remain. If the debtor remedies the Section 87, the creditor will continue to report the activity of the account, and yes if it is defaulted again the default date would be up-dated.( although I have known case wher the creditor has been peersuaded to remove the original default if the account is kept in good order, but there is no requirement for them to do so)

The IcO guidelines recommend that the creditor gives 28 days notice before they record a "D" on the file, so if this notice is sent at the same time as the section 87 notice and this is subsequently remedied along with the section 87 then the account should continue with no default being recorded. (Although the missed payments will be).

All copies sent are subject to the form requirements made under section 180 of the act and must represent a "true copy", this is defined by the relevant S/I(1983/1557 etc)

Thanks for that, however once a DN has been placed on the CRA files...and it is later found to be defective, and the OC re-issues a corrected DN and notifies the CRA's of this....does this start the 6 years again, or does it run on from the old DN ?

This is the question I posed to the FOS, and their answer was that an OC can reissue as many times as they wish and restart the 6 year clock as many times as they want, thereby keeping a DN entry on your CRA file permanently...

This is the issue that concerns me, and maybe others who are sat on defective DN's thinking they have them 'up their sleeve' for whenever they may face legal action by the OC or DCA.

[jon1965]

Re: Let sleeping dogs lie ?

My understanding is that a default on a CRA is different to a DN. You can only have one default recorded (although the name of owner can be changed but the actual date stays the same)
As for a DN they can issue as many as they want/need to epecially if you "fix" the breach

As for opening a can of worms, well i had been paying two CCJs and one arrangement for 15+ years. When i stopped them all the CCJs huffed and puffed a bit but not heard for 6 months, in fact Barclays told me it was too late to enforce anyway, the arrangement turned out to be UE

I have 3 letters saying there is no CCA and another 2 where what they sent was so laughable it's untrue. You could not even suggest it was a recon

My suspicion is that the FOS are wrong

[jax50]

Re: Let sleeping dogs lie ?

I hope the FOS are wrong...I might ring the guy up again and ask him the same question, again...if you ask often enough sometimes you get the answer you want ...

[gravytrain]

Re: Let sleeping dogs lie ?

Thanks for that, however once a DN has been placed on the CRA files...and it is later found to be defective, and the OC re-issues a corrected DN and notifies the CRA's of this....does this start the 6 years again, or does it run on from the old DN ?

This is the question I posed to the FOS, and their answer was that an OC can reissue as many times as they wish and restart the 6 year clock as many times as they want, thereby keeping a DN entry on your CRA file permanently...

This is the issue that concerns me, and maybe others who are sat on defective DN's thinking they have them 'up their sleeve' for whenever they may face legal action by the OC or DCA.

The purpose of recording a DN according to ICO is to record the point where the relationship between the parties breaks down. The guidelines issue guidance as to when that should be , but guidance is all it is there is nothing in statute.

If DN is recorded and the account remains in default , this is the default date and cannot be updated, despite what anyone may tell you.
If payment arrangements are made after this they can be recorded as a separate payment arrangement and history.

[jon1965]

Re: Let sleeping dogs lie ?

In order to issue a new DN surely the first one must be faulty and then another default must have occured.......

It is possible that given a very particular set up of circumstances what they say could happen but I can not see it being a reality.

In answer to your original question, I would do what FP suggests, start with a CCA request then take a view .

[gravytrain]

Re: Let sleeping dogs lie ?

the section 87 DN entitles the creditor to terminate, if it is correctly presented. Once he has fulfilled this requirement he is entitlesd to terminate, the act does not say that he has to.

He may not send a termination notice for years after the event, there is nothing saying that he cannot send another notice down the line, although all it would be is a letter before action.

One of the consequences of this, due to recent case law is, the SB clock starts to run once the agreement is terminated so it could be some time after the DN is issued.

[jax50]

Re: Let sleeping dogs lie ?

I would disagree. The words are copy of the original agreement. Also I can't reconcile your phrase 'original reconstituted'. If it is reconstituted it is not an original. TBH even a photocopy is not really the original !!

The question Waksman sought to answer was phrased in para 5(2):

(2)If an agreement has been varied by the creditor under a unilateral power of variation, is a copy of the executed agreement as varied, a sufficient copy for the purposes of s78(1), or must the creditor provide a copy of the original agreement as well?


Waksman was discussing the reconstituted agreements sufficient for S78, but followed up with his phrase:
(4)If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;

Clearly (IMO) distinguishing the 'reconstituted' agreement from the 'original' agreement.

It think it has been established that the interpretation is that the creditor must produce a copy (i.e. photocopy) of the original agreement showing the signature.

I have read up a bit more on this, providing the copy of the original agreement where there has been variations.....Wasn't it in fact the 'terms' of the original agreement that was quoted ? Somewhere along the line the word 'terms' has been lost, but if it is true that this is what was said, then it is quite different IMO. Providing a copy of the original T&C's is not the same as providing a copy of the original agreement, they being possibly two different sheets of paper, albeit within the same 'document' ? This seems to be the line taken by creditors who reel off a stored word document that is a ....well not a copy, or a recreation but maybe a 'sample' of the original glossy T&C's that was sent (or not)...

[jon1965]

Re: Let sleeping dogs lie ?

the section 87 DN entitles the creditor to terminate, if it is correctly presented. Once he has fulfilled this requirement he is entitlesd to terminate, the act does not say that he has to.

He may not send a termination notice for years after the event, there is nothing saying that he cannot send another notice down the line, although all it would be is a letter before action.

One of the consequences of this, due to recent case law is, the SB clock starts to run once the agreement is terminated so it could be some time after the DN is issued.

This case was about an HP agreement I think. From my understanding with a credit card they would not have to actually write and say "we terminate your agreement" but once they remove the right to use the card that would act as termination. With a loan I believe it would be from when they demanded the repayment in full

[gravytrain]

Re: Let sleeping dogs lie ?

This case was about an HP agreement I think. From my understanding with a credit card they would not have to actually write and say "we terminate your agreement" but once they remove the right to use the card that would act as termination. With a loan I believe it would be from when they demanded the repayment in full

They would still have to terminate the contract before demanding accelerated payments up until then the debtor would have the right to repay minimum payments. The ability to draw credit and its removal does not mean that the agreement has been terminated.

If they used a contractual right to to terminate in a none default basis, the position is less clear. My opinion is that this would not constitute cause of action because their is no breach of contract.

[jax50]

Re: Let sleeping dogs lie ?

So...the sleeping dog is still snoozing but there is a knock at the door. The 'annual account review' has arrived....ie time to justify still making a notional payment.. Now I've seen talk of I/E statements being compiled and sent ...but this is it a bit personal isn't it, why would you tell all that to a Bank for goodness sake ? I mean even if you did send it, would they ever be able to check it...so what is the status of the Income and Expenditure statement, does it have any legal/enforceable status ?

[FlamingParrot]

Re: Let sleeping dogs lie ?

So...the sleeping dog is still snoozing but there is a knock at the door. The 'annual account review' has arrived....ie time to justify still making a notional payment.. Now I've seen talk of I/E statements being compiled and sent ...but this is it a bit personal isn't it, why would you tell all that to a Bank for goodness sake ? I mean even if you did send it, would they ever be able to check it...so what is the status of the Income and Expenditure statement, does it have any legal/enforceable status?

Nope, not at all, only a court can force you to submit an I&E form or statement of means. With creditors, the general principle is that you don't have to send one unless you think it may benefit you, for example, if they are refusing £1/pcm tokens and you can show them that's all you can afford, then you may want to send one, but it's up to you and has no legal standing.

[jon1965]

Re: Let sleeping dogs lie ?

I would agree with that. In the past when I was in a DMP we sent in an I&E that, to be honest justified the payment I was offering. Then when I stopped working I just sent off a copy of my award letter from the DWP . Income but no expenditure

Many years ago when I had a CCJ with a court appointed repayment , they used to send me a letter every year demanding that I increased my payments (usually by 10%) and sent an I&E. Even in those days I knew enough to understand that I did not need to increase my payment unless the court ordered it so those letters became firelighters

[jax50]

Re: Let sleeping dogs lie ?

So...either just ignore..and carry on which may risk them taking humpage and offloading to a nasty DCA, or send a brief one-liner.. 'there's a recession on and I'm still broke mate'..or words to that effect .... A little niggle inside me is tempted to take them on though, I've received what looks like an UE agreement via a CCA request...but then I think it's off my CRA file now..they've been no hassle..so why upset things...let them make the first move if there is to be one, they've kept it in-house, they don't bother me apart from an annual letter to let them know how I am, I get monthly statements for my perusal...I guess many on here would be happy to have a quiet life like that..but that little niggle is still there, tell me what to do somebody...

[jon1965]

Re: Let sleeping dogs lie ?

Jax, If it's UE and off your credit file why carry on paying...you will never be rid. They can not re default you although of course if you are wrong and it is EN you could get a CCJ.
When I sent out all my CCA's a little over a year ago now, I got one or two back saying we haven't got it we wont bother you again until we have, a couple who sent something back that was UE so I told them it was UE (but not why)and I haven't heard back and some that although they fulfilled the CCA request I genuinely believe that they were not the agreement I would have signed
I am of course in the "lucky " position of having nothing they could take...not complaining, just an observation.

If you haven't you could post an edited version up here for someone to look at.
Just a tip, if you are going to use a black pen to cross out the personal bits, do that on a photocopy and not the original....if you ever needed it a judge would frown on a letter with black marker pen all over it