**DISCONTINUED** Restons Letter advising withdrawal of set aside claim

[nemesis45]

Re: No default notice and no credit agreement. Set aside pending.

That is what the judge will have to decide. English Civil Law is based upon the " balance of probabilities " not " beyond reasonable doubt" as in criminal cases.
Anything they intend to rely on will have to be disclosed before the hearing.

nem

[monk_fish_]

Confirmation of no Default Notice from original creditor

I have just had confirmation from the Original creditor that no default notice was issued by them, though they registered the account in default with credit reference agencies.

After this, It appears the account was 'assigned' to

Since the O.C never issued a default notice does this render the debt unenforceable?

Are DCA's allowed to issue default notices after the on an assigned debt?

MAny thanks again peoples:tinysmile_twink_t2:

[ncf355]

Re: Confirmation of no Default Notice from original creditor

Yes

A Default notice can be issued at any time by the then legal owner (in this case the DCA that the debt was bought by)

However, they MUST issue a Default PRIOR to commencing court action


A default notice for the purpose of the Consumer Credit Act 1974 has no direct link to the Default on your credit file, however, the iCO's view is that the Default must be entered on your credit file within 3-6 months of the 'Breakdown of relationship' between you and the creditor

So if a Default notice was issued, but not acted upon (e.g: you made no effort to pay the arrears, or did not pay the FULL amount required to bring the agreement back into sync) you would be able to argue in a complaint to the Creditor, and failing that, the ICO that the Default on your credit file should be matched to that date

[ncf355]

Re: Confirmation of no Default Notice from original creditor

Lack of a Default notice would not render the debt unenforceable, but many other things could


What kind of debt is this (Loan? Card? Overdraft?)

What date was the agreement started?

[monk_fish_]

Re: Confirmation of no Default Notice from original creditor

Lack of a Default notice would not render the debt unenforceable, but many other things could


What kind of debt is this (Loan? Card? Overdraft?)

What date was the agreement started?

IT's a credit card from 1999.
Im challenging the lack of a default notice among other things.
No prescribed terms in original agreement.
No effective assignment.

While fishing for a faulty default notice, the orignal lender admitted they could not find a record of sending one. I do not believe one was ever issued...by the OC or the DCA. I beleive this renders a CCJ awarded invalid.
I just wanted to clarify whether the DCA could issue their own notice after the debt was sold to them, and whether this relies on a default notice never having been issued by the OC..

Thanks for your help

[monk_fish_]

Re: Confirmation of no Default Notice from original creditor

If the original creditor sells the account before they have issued a default notice, would the DCA not have to honour the original credit agreement and credit facility? If not, surely they are in breach of the original terms?

Lets say I remedy the breach before the DCA issues a default notice and I want to carry on with the credit agreement?

[ncf355]

Re: Confirmation of no Default Notice from original creditor

Ah

They've already won in court?

If so, and this was more than say, 28 days ago you wont have much hope setting the court order aside, the Civil Procedural Rules that any attempt to set aside has to be done within a short timeframe

[nemesis45]

Re: Confirmation of no Default Notice from original creditor

A DCA cannot issue a default notice, that is for the creditor.
Can we see a copy of the letter from the creditor please remove name and address.

[ncf355]

Re: Confirmation of no Default Notice from original creditor

Err

The DCA can issue the Default if they own the debt as they are now the creditor

Whatever, though, if a court order was given more than about a month ago, there's little chance of getting it overturned

[monk_fish_]

Re: Confirmation of no Default Notice from original creditor

OK guys..we seem to be veering off track.

I am well within time limits. This is a re-listed hearing in an on-going set aside case.
The claimant was given more time to submit documents.

The most important premise is whether an OC can assign a credit card agreement to a DCA when the OC has not issued a valid DEFAULT NOTICE. The DCA is NOT a card provider and cannot provide services in line with the original agreement. How can they fulfill their contactual obligations under the terms of the agreement and the Consumer Credit Act?

Without a default notice from the OC, they have effectively passed an active credit card account to the DCA. Suppose the breach is remedied before the DCA have defaulted the creditor?

[nemesis45]

Re: Confirmation of no Default Notice from original creditor

I think you are arguing this the wrong way round a " default notice " is the document sent to you before the account has been defaulted to give you the chance to rectify this not being sent to you is the problem.

In this case the creditor did it seems default the account before sale but as above did not issue a default notice ( the DN has nothing to do with the sale only your opportunity to rectify)
That's how I see it.

nem

[ncf355]

Re: Confirmation of no Default Notice from original creditor

Well

If I was in your shoes, I'd just let them hang themselves

If, as you say, the agreement is defective (lacks prescribed terms) and there is no valid default notice, I'd wait for the time Claimant to submit docs to run out and then apply for a strike out with costs in your favour

[monk_fish_]

Re: Confirmation of no Default Notice from original creditor

Time for claimant to submit docs. Has lapsed. Hearing has been re-listed. I dont think they have much chance to sucessfully object to my set-aside. I am just trying to cover all bases.

I dont think a *strike out* is valid...since I would be applying to strike out my own application to set aside the CCJ.

Do you have any information on whether an OC can assign a credit card agreement to a DCA when the OC has not issued a valid DEFAULT NOTICE. This is what has happened.But I dont see how this can be consistant with logic or law. As I stated, the DCA is NOT a card provider and cannot provide services in line with the original agreement.
I am perfectly satisfied that th OC could assign rights under such an agreement to ANOTHER CARD PROVIDER....but to a DCA?? That does just not compute.

thoughts?

[monk_fish_]

Re: Confirmation of no Default Notice from original creditor

http://www.squiresanders.com/files/P...Agreements.pdf

This is what I am driving at....

the approach set out in
Encyclopaedia of Consumer Credit
Law
, now edited by Professor Lomnicka, was correct and
that
“the “duties” referred to in section 189 are...those
statutory duties under the [CCA 1974] which the assignee
has to perform in order to enforce his assigned rights. These
duties have “passed by assignment” in the sense that it is by
reason of the assignment that the assignee becomes obliged
to fulfil them”
;

[monk_fish_]

Re: Confirmation of no Default Notice from original creditor

http://www.squiresanders.com/files/P...Agreements.pdf

This is what I am driving at....

n the context of the CCA 1974, post assignment duties, as well as rights, will pass to an
assignee under a legal assignment.