If you are still about on this forum, I have a question for you. Did MKDP LLP apply a default to your credit reference file and if so what date did they apply the default on i.e. how many days after the account was assigned (sold) to them by Barclaycard? Similar situation occurred with me whereby Barclaycard never applied a default after alleged missed payments and then assigned to MKDP LLP. The latter then applied a default within days of assignment. Tut tut.

Looking over this old, but IMO still very relevant thread, I think looking backwards at case law is not so important, as that would only be played out if the bank challenged whether they accepted the offer in the first place. Is that going to happen and if so I'm not sure case law would be required if the man/woman who made the offer can discuss the contract law associated with this simple offer. The offer + acceptance, plus meeting of minds should be enough to prove it is accepted. In one of my cases the bank started to refuse the cheques by sending them back. The first time they did this attempt of amendment of the contract set in place by the official offer, I re-attached the cheque to a letter that clearly stated "if you return this cheque again that has been sent in accordance with our existing contract then both parties accept that you are refusing to accept payment on the debt and therefore it is extinguised [etc] [paraphrased]". They cashed the cheque. The next month's payment was sent with this text alongside the cheque (stapled as usual) and effectively what I feel I did was alter the terms of the original offer with this (i.e. created a new offer) and they did return the cheque, therefore agreeing to the terms. The debt become extinguished. This matter is ongoing and at the moment the bank have held of any further action on their currently open/ongoing court claim. Most interesting however is that the solicitor acting as ombudsman stated that "the bank had accepted his offer and there was contract" during my complaint with to the FOS.

It goes deeper. They (the DCA) registered a default without a default notice and only 7 days after the bank marked the account as satisfied. And the bank had never registered a default and certainly hadn't provided a default notice. We really have to be on our guard from these sharks.

OK, so I don't seem to be able to start a new thread where I would like to (perhaps privileges issue but was able to in the past). So instead I will put up details here and then happy for mod to move it to suitable location under thread title "VICTORY OVER DCA - DEFAULT REMOVED". I need to be a little careful here so won't mention any names, but at this stage I have not signed the proposed full and final settlement offer from the DCA in question at the time of writing this - if I choose to sign then I may be required to remove this post(s). With that out of the way. I had a CC with a bank, they merged/acquired with another bank, they then did the same with a 3rd bank. I carried out a CCA request under S78 with the 3rd bank. I queried the information provided and put the account in dispute and told bank that failure to provide requested information would lead to debt being extinguised. They apparently sold the account (no proof given) to a 3rd party interloper, DCA. DCA pursued me A LOT for the alleged debt of >5,000 but DCA failed to provide a copy of a notice of assignment. First effort was a blank template with no personal details (?!?) and then on second occasion sent me a Notice of Assignment for a different person altogether!! Naughty and I imagine a breach of Data Protection Act. QUESTION - is this reportable to the Information Commissioner and if so what happens to the DCA as a result of being found guilty? The bank never reported a Default but then assigned to the DCA. In light of the above I started charging the DCA for each letter I was obliged to write in response to theirs. Told them they were incompetent and that they must remove any derogatory remarks from CRAs and stop harrassing me for an alleged debt that I ALWAYS denied. As a "gesture of goodwill" the DCA has agreed to write off the full amount that they claim is owing as full and final settlement of any claims, existing or future, against them. I wonder if they are concerned that I may make a claim against them for damages (as in Richard Durkin example)? I am thinking this because in my last letter to them I referenced the Supreme Court decision in the Durkin vs HFC et al case!! Now I am not sure how to proceed. Take the write off as a result and get on with things or go for a small claim for damages, as clearly they know they have no case against me, even though they are trying to kid me by the "gesture of goodwill" garbage. Thoughts anyone? EDIT - I have just checked again and on Noddle the DCA have removed all information already! I have a very recent Credit Report from one of the 3 main CRAs and it states CATEGORICALLY that the bank NEVER applied a DEFAULT to the account. They assigned it after the 6th alleged late payment and then marked as settled. The DCA added a Default dated 7 days after the bank marked it as settled!!! Double naughty!

This is interesting, because I imagine that a cumulative effect may exist for defaults, but I am not sure how banks determine the "risk" of lending i.e. whether upon a single or many defaults. I have an interesting example of where a DCA may be panicking in response to a reference to Richard's case (see earlier posts on this thread from me). I will start up a separate thread so as not to derail and post link in a little while. In short though, the DCA have written off an alleged debt and agreed to remove default and account from CRAs and not to sell or transfer. Victory.

My sympathies go to you and what you have had to endure at the hands of a heartless, soulless entity. Rest assured there are many living breathing men and women that empathize with you. The system is inherently corrupt. How sad is it that you feel helpless to take out a claim against this organisation for fear of losing more money or not being able to afford a claim in the first place. I hate to say it, but you could speak to a solicitor, most offer a free initial consultation and they may take on the case as a no win no fee type jobby. I tried the "do it yourself" approach with a bank and although I managed to reduce the final payment to something less than the original claim (and fended off a Summary Judgement - just) I was out of my depth against a barrister and from the city and probably,using a legal firm could have done much better. Lesson learned. Good luck though. You deserve it!

Hi Richard Firstly, congratulations on sticking this out and receiving a victory, albeit more to the people than to you personally. I have read a number of conflicting reports/opinions on the applicability of the decision for use as precedent in cases of default entries THAT AREN'T in a similar vein to yours i.e. credit cards, loans etc under the CCA 74. What are your thoughts and those of the law firm you worked with? I feel defaults have been applied unfairly to me on both credit card and overdraft accounts both existing and retrospective. Do you feel this is applicable to overdrafts, which I understand (perhaps incorrectly) are not regulated under the CCA74? Anyone else of course feel free to chip in! Thanks in advance TWTT

Who is having this discussion and where can I find it please? Very interested in this aspect too. Thanks - wormy

Need to research the relevance of the law of property act 1925 (unless you care to enlighten me/us) but I do have every intention of writing to the DCAs, and previous CCs who have pressurised me into actions that I would not have taken if defaults weren't threatened and applied to accounts that were in dispute! Is this retrospective in that respect, i.e. where a case has been taken to court and settled, or settled out of court due to such threats/applications of defaults? Certainly is a very interesting change and finally the people are getting something in their favour. Hence it taking 16 years!!! I will need to check the judgement in full, but does this apply to mortgages where a dispute arises, or just in relation to credit agreements under the CCA?

I guess it depends on what the judge said.

I agree that this is potentially good news for consumers being hounded but not such great news for Mr Durkin after being taken to the cleaners!! How does this relate to 3rd party interlopers (aka debt recovery agencies/parasites) who claim to have purchased a debt, often without proof, and then adding a "black mark" (default) to a credit file? I speak from personal experience where two of these companies have entered a single entry each on a credit report pertaining to me (both relating to credit cards); no previous payment history, just a default. They then refuse to remove it and refuse to provide proof of ownership of the debt and/or notice of assignment proof. This is genuinely affecting my ability to obtain a mortgage and I desperately wish to move (and can genuinely afford to)!! Any thoughts?

As yet another man (or woman) becoming subject to a third party attempting to levy their costs upon me without prior consent, agreement or indeed a contract I feel the need to comment here. This is actually the first time that I have purchased a thing from a man that dwells on the land mass commonly referred to as the United States of America, so naturally it is the first time I have become aware of these "shenanigans". I think it is important to state upfront that no contract can be forced upon a man (where I say man I mean both men and women). This is a commonly accepted fact in an open and fair world, although the truth in relation to this may be somewhat different but that is not the subject of this thread! I openly entered into a contract with another man. The contract is good although currently not perfected. This man dwells some distance away from me, and part of the land between us is covered with saline water. I agreed a price with him for the thing I wanted and for the cost of it being delivered to MY DWELLING. His part of the contract included the arrangement of delivery to my dwelling, for which I effected payment IN FULL. He chose a third party to fulfil this part of the contract and therefore he has established a SEPARATE CONTRACT between him and USPS. USPS have delivered my thing to the place commonly known as England and USPS have entered into a SEPARATE CONTRACT with a legal entity known as Royal Mail Group Limited (trading as Parcel Force Worldwide) to deliver my thing to my dwelling. There are now a number of presumptions and assumptions that take place, which, left un-rebutted stand AS fact and therefore may enable a tacitly accepted contract to form between ME and third parties (such as Royal Mail Group Limited, HM Revenue & Customs, or both). At no stage have I thus far knowingly entered into an agreement or contract with HMRC, USPS or Parcel Force in relation to these matters. In my instance, it would appear that HMRC have presumed and assumed that things they call Import Duty and VAT ("Charges") are applicable to the thing I have purchased in my private contract and have further presumed and assumed that I am a person and therefore am subject to these Charges. Big presumptions and assumptions to make and they go to the very root of how this country (and no doubt all others that create positive law via legislative powers bestowed upon Governments) operate. And, as I previously stated, if these presumptions and assumptions are left un-rebutted they stand AS law. Separately, Parcel Force have taken it upon themselves to accept HMRC's assumed Charges as fact and effected payment of them for my thing. This is a contract between Parcel Force and HMRC. Parcel Force are now attempting to enter into a contract with me and in doing so attempting to make me liable for THEIR costs from the Charges and in addition attempting to apply further charges to me for their efforts ("Clearance Fee"), none of which I agreed to. The interesting part now begins in ensuring that I, a man, ensure that I know my rights, I remain fully aware of any contracts I enter into and ensure that any claim I do not accept is rebutted honestly, openly and in good time. All of which I say above is my truth and my understanding of these matters. If you do not agree please avoid personal insults and provide structured rebuttals of the claims I make.

I have settled with MBNA in their case against me (few options left to me) and dropped my case against them. Not the result I was hoping for. I live to fight another day though.

My opinion on this justice system in the UK has now reached an all time low! I still haven't received the Order from the Court following my hearing on 20 April!! I'm pretty sure that there was an order for compliance by this friday coming!! Just called the court and they said "There is a backlog and I should have this done by Friday" to which I replied "I believe there was an order to be complied with by Friday in there", he replied "I'll get it done today and out to you". Unbelievable!

I have found further proof that the terms and conditions MBNA now rely on as being the ones that were present at the time of signing were indeed not provided! If I had known any of this would have been up for scrutiny at a summary judgement hearing I would have better prepared. I thought the summary judgement hearing was for me to show that I could defend the claim at trial (not in the hearing).

I should have prepared properly and/or used a solicitor in my case!!!

Thanks M1 and thanks Paul. So there you have it in DDJ Bradly's Judgement signed 6/1/12 at para 14 onwards "I would not accept any suggestions that a section 78/paragraph 7(1) compliant copy of the agreement could be supplied piecemeal over time, in different documents served for different purposes, leaving the debtor to work out when he has received a proper response"..."The terms of section 78(1) are mandatory: a qualifying copy 'shall' be given to the creditor. The terms of section 78(6) are equally clear: the creditor is not entitled to enforce the agreement until such time of it has complied with Section 78(1). In light of the analysis at paragraphs 12 to 14 above this action must fail." My defence, which mentioned that the S78 had not been complied with, was struck out. I was ordered costs and now only have the opportunity to defend on whether or not MBNA signed the credit agreement. Now That's What I Call Justice XVII.

I can't seem to find this judgement anywhere, do you know where I can find it please?

Thanks They look like a good set of Solicitors to use, perhaps I should speak with them - Nudge, nudge, wink, wink

M1 - are you saying that when a S78 response is made by the creditor they have to provide all the documents in one response i.e. they can't satisfy S78 by providing the documents at a later date, e.g. during proceedings? As far as the creditor in my case is concerned, they provided a document they consider to be the original agreement and terms and conditions from 1999, a new set of terms and conditions to reflect the current position and signed statements. So where do you think they have failed to comply with S78? I must admit that I do not agree that the terms and conditions they have provided as being the original ones are accurate, however that is now down to me to prove.

My problem remains in relation to my Defence being struck out though and at present only being in a position to defend on the question of compliance with section 61(1) of the Act. I am seriously considering the settlement route at this stage.

Hi Vint - thanks for taking the time to look back through all of this. I am well aware of CitizenBs comment in 202 and rest assured that it is being looked at in some detail offline

Although I haven't received the Order from the Court yet, I think my amended defence may be limited to the Claimant's failure to sign the agreement, and not S78. The S78 has arisen due to there being a potential issue for appeal (due to the Judge being unaware of the relevant law - IF I have it correct). There are other options open to me if I act soon, but there is also the option to settle, following receipt of the offer to settle received today.

Ha ha. I am not shouting, apologies if you thought I was. What I was actually doing was highlighting the point and trying to make sure you didn't misunderstand me. I accept that proceedings can be commenced. What I don't accept is that a creditor can terminate an agreement when in breach of 78(1). I have again spoken to an extremely experienced solicitor today and it is he that confirmed that an agreement cannot be terminated when a creditor is in breach of 78(1) and if I understood him correctly for the reasons I highlighted above. With regards to the District Judge, he relied upon the Claimant's Counsel and he couldn't say categorically whether terminating the agreement was or was not deemed as enforcement. I am not just wildly plucking this stuff out of the air. I have better things to do than that. I also appreciate that I have other areas to concentrate on, which were raised by the Judge. Feel free to stay involved, I like the banter, just don't take it personally

That is true. To be honest though, if a default notice is not correct then it is not correct.