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Hi can some one give me advice. At the start of the year a default appeared on my file for an account which they are saying defaulted in 2008. - I actually defaulted in 2004 so should be long gone off my account,
I sent the following letter to the company who issued the default:
I do not acknowledge any debt to you or any other company or organisation that you claim to be representing
To Whom It May Concern,
After recently obtaining a copy of my credit file from the credit agency, I was extremely concerned to note that you'd added a default notice against me on 29/09/2008. I feel this default entry was not only added unlawfully but also without merit. Doing so has immediately put you liable to a breach of Consumer Credit Act 1974, in particular s.87(1) of said Act;
Section 87(1) of the 1974 Act allows the creditor to send you a default notice giving you fourteen days from the date you receive it to pay the arrears. The default notice must contain all of the necessary information under the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 ('the 1983 Regulations'), which includes;
I never received any such notice and as a result I contest the accuracy of the default and until such time you can provide proof that you complied with the above Act, you must remove all derogatory data from the files of any credit reference agency.
In addition to this I would also point out that under The Prescription and Limitation (Scotland) Act 1973 Part 1 Prescription Section 6:
“If after an appropriate date, an obligation (an appropriate debt) has subsided for a continuous period of five years:
(a) without any relevant claim having been made in relation to the obligation, and
(b) without the subsistence of the obligation having been relevantly acknowledged;
then as from the expiration of that period the obligation shall be extinguished...”
I would further point out that the Office of Fair Trading (OFT) say under their Debt Collection Guidance on statute barred debt that:
“It is unfair to pursue the debt if the debtor has heard nothing from the creditor during the relevant limitation period”
“It is unfair to pursue the debt if the debtor has heard nothing from the creditor during the relevant limitation period”.
The legal requirement for the debt to remain in the required period is:
(a) my written acknowledgement of the debt, or
(b) any payment that I have made in that relevant period.
No other form of acknowledgement is construed in law to be acknowledgement and to infer that any other form is in itself in breach of the law and the Debt Collection Guidance. You have implied that the issue of a default is acknowledged, and this implication is in breach of the law and the OFT Debt Collection Guidance. Consequently, having taken advice, should you ignore this letter, I will be making a formal complaint against your company.
Further, as the last written acknowledgement/payment of this debt was made over TEN years ago and no further acknowledgement or payment has been made since that time. Unless you can provide evidence of payment or written contact from me in the relevant period under Part 1 Section 6 of the above Act, I suggest that you are no longer able to take any court action against me to recover the alleged amount claimed.
The OFT Debt Collection Guidance states further that:
“continuing to press for payment after a debtor has stated that they will not be paying a debt because it is statute barred could amount to harassment”.
I am more than happy to issue you a Subject Access Request which should include a copy of the documents I request, which I am hopeful will include a copy of said termination and default notices which, if they are missing, will leave me no alternative but to seek legal enforcement via CPR31.16. Without sight of said default notice, I cannot argue the authenticity, enforceability or execution and therefore will use this as my claim if I am forced into taking legal action, all costs will also be claimed.
It would, however, be in both our interests if you simply agree to remove the default being there are so many inconsistencies with the alleged default notice, the execution, the enforceability and the legal compliance that you must surely have no other alternative but to remove it, least of all as a gesture of goodwill? As I was never in receipt of any of the statutory documents (Notice of Termination of Contract; Notice of Assignment or Default Notice) then the actual default notice that is shown on my credit file is unlawful and should be immediately removed. I do not want to take this through the courts but I will enforce removal by judgement if necessary, at the end of the day you have acted unlawfully by not issuing a fully compliant and correctly executed legal document. Therefore, assuming you are happy with my proposal please confirm, in writing on letterheaded paper, the following points will be carried out;
a) The Default Notice will be removed
b) The Status of the account will change from “Defaulted” to “Settled”
c) The Current Balance will appear as £0.00
d) The Default / Delinquent Balance will be set to £0.00
e) There will be no date in the “Defaulted Date” field (as it will be removed)
f) There will be no date in the “Date Last Delinquent” field on the report
g) This will apply to all 3 Credit Reference Agencies, namely Experian,Equifax & Call Credit
Failure to agree will result in more formal papers being sent, by return and in the meantime, I look forward to your response within the next 21 days.
I await your written confirmation that all derogatory data from the files of any credit reference agency will be removed; no further contact will be made concerning the above account and confirmation that this matter is now closed.
I look forward to your reply.
Yours faithfully
Now, I received a letter of acknowledgement to say the complaint was getting investigated, 2 weeks then another letter saying it was getting passed on to a senior investigator. and now I recievde a final response - looking for some advice on where to go from here. They are saying they cannot investigate as they cannot access my credit file and asking me to provide them with a copy of my credit file. Is this a legitimate move? What should my response be? Any help appreciated
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I sent the following letter to the company who issued the default:
I do not acknowledge any debt to you or any other company or organisation that you claim to be representing
To Whom It May Concern,
After recently obtaining a copy of my credit file from the credit agency, I was extremely concerned to note that you'd added a default notice against me on 29/09/2008. I feel this default entry was not only added unlawfully but also without merit. Doing so has immediately put you liable to a breach of Consumer Credit Act 1974, in particular s.87(1) of said Act;
Section 87(1) of the 1974 Act allows the creditor to send you a default notice giving you fourteen days from the date you receive it to pay the arrears. The default notice must contain all of the necessary information under the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 ('the 1983 Regulations'), which includes;
- a statement saying the notice is a default notice served under section 87(1) of the CCA1974
- a description of the agreement
- the name and address of both the debtor and the creditor
- details of the breach (i.e. late payment) and, if the breach can be remedied, the date by which it must be remedied or, if the breach is not capable of remedy, the amount required to be paid after the expiry of the specified date;
I never received any such notice and as a result I contest the accuracy of the default and until such time you can provide proof that you complied with the above Act, you must remove all derogatory data from the files of any credit reference agency.
In addition to this I would also point out that under The Prescription and Limitation (Scotland) Act 1973 Part 1 Prescription Section 6:
“If after an appropriate date, an obligation (an appropriate debt) has subsided for a continuous period of five years:
(a) without any relevant claim having been made in relation to the obligation, and
(b) without the subsistence of the obligation having been relevantly acknowledged;
then as from the expiration of that period the obligation shall be extinguished...”
I would further point out that the Office of Fair Trading (OFT) say under their Debt Collection Guidance on statute barred debt that:
“It is unfair to pursue the debt if the debtor has heard nothing from the creditor during the relevant limitation period”
“It is unfair to pursue the debt if the debtor has heard nothing from the creditor during the relevant limitation period”.
The legal requirement for the debt to remain in the required period is:
(a) my written acknowledgement of the debt, or
(b) any payment that I have made in that relevant period.
No other form of acknowledgement is construed in law to be acknowledgement and to infer that any other form is in itself in breach of the law and the Debt Collection Guidance. You have implied that the issue of a default is acknowledged, and this implication is in breach of the law and the OFT Debt Collection Guidance. Consequently, having taken advice, should you ignore this letter, I will be making a formal complaint against your company.
Further, as the last written acknowledgement/payment of this debt was made over TEN years ago and no further acknowledgement or payment has been made since that time. Unless you can provide evidence of payment or written contact from me in the relevant period under Part 1 Section 6 of the above Act, I suggest that you are no longer able to take any court action against me to recover the alleged amount claimed.
The OFT Debt Collection Guidance states further that:
“continuing to press for payment after a debtor has stated that they will not be paying a debt because it is statute barred could amount to harassment”.
I am more than happy to issue you a Subject Access Request which should include a copy of the documents I request, which I am hopeful will include a copy of said termination and default notices which, if they are missing, will leave me no alternative but to seek legal enforcement via CPR31.16. Without sight of said default notice, I cannot argue the authenticity, enforceability or execution and therefore will use this as my claim if I am forced into taking legal action, all costs will also be claimed.
It would, however, be in both our interests if you simply agree to remove the default being there are so many inconsistencies with the alleged default notice, the execution, the enforceability and the legal compliance that you must surely have no other alternative but to remove it, least of all as a gesture of goodwill? As I was never in receipt of any of the statutory documents (Notice of Termination of Contract; Notice of Assignment or Default Notice) then the actual default notice that is shown on my credit file is unlawful and should be immediately removed. I do not want to take this through the courts but I will enforce removal by judgement if necessary, at the end of the day you have acted unlawfully by not issuing a fully compliant and correctly executed legal document. Therefore, assuming you are happy with my proposal please confirm, in writing on letterheaded paper, the following points will be carried out;
a) The Default Notice will be removed
b) The Status of the account will change from “Defaulted” to “Settled”
c) The Current Balance will appear as £0.00
d) The Default / Delinquent Balance will be set to £0.00
e) There will be no date in the “Defaulted Date” field (as it will be removed)
f) There will be no date in the “Date Last Delinquent” field on the report
g) This will apply to all 3 Credit Reference Agencies, namely Experian,Equifax & Call Credit
Failure to agree will result in more formal papers being sent, by return and in the meantime, I look forward to your response within the next 21 days.
I await your written confirmation that all derogatory data from the files of any credit reference agency will be removed; no further contact will be made concerning the above account and confirmation that this matter is now closed.
I look forward to your reply.
Yours faithfully
Now, I received a letter of acknowledgement to say the complaint was getting investigated, 2 weeks then another letter saying it was getting passed on to a senior investigator. and now I recievde a final response - looking for some advice on where to go from here. They are saying they cannot investigate as they cannot access my credit file and asking me to provide them with a copy of my credit file. Is this a legitimate move? What should my response be? Any help appreciated
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