Dodgy Default Removal

[car2403]

You're better off completing an N1 Claim Form and issuing via your Local County Court - your claim probably won't fit in the online form for MCOL.

[GerryPerry]

Okay, after returning froma very nice half-term skiing holiday, I have completed my PoC.

 

I also noticed a real howler on the application form that I'm amazed I didn't spot before...

 

I've now got three separate reasons why they can't have a default recorded against me and must remove it to stay within the law. Marvelous.

 

Lets see what the court says.

 

Here we go.

 

Gerry

[GerryPerry]

BTW, Chris - thanks for the N1 tip.

 

GP

[angel_1]

hiya just wishing you lots of luck but sounds like a very good defence in hand, im just waiting on my m and s - sars info and i may just follow your path,,, as i too been sent only an app form and very dark supposed terms and conditions that i cant see how connected at the time so who knows, i might be wrong but my gut instinct is telling me to run with this for the time being

 

off to send a dispute letter cos getting lots of calls but always mindful of building my case for court - if it gets there

 

laters all

 

angel x

[GerryPerry]

Angel, I think that's a correct path to take; get as much as you can possibly get - that's when you start to rack up the errors that they have made and build your case.

 

I think that its very rare that they say, oh yes, pardon me, my mistake, let me just correct that default - you have to sue them.

 

GP

[GerryPerry]

Hey folks,

 

I may need to call on some default expertice.

 

Is it possible under Section 7 of the 1974 Act to issue a default notice that says something along the lines of....

 

"If you don't pay at least 50% of the legal minimum payment every month for ever then we will automatically default you at some stage in the future"

 

Can you get away with a letter like that under the Act?

 

Gerry

[GerryPerry]

Folks

 

I have been reading with interest the default bit of the CCA 1974.

 

PART VII

DEFAULT AND TERMINATION

 

Default Notices

87.—(1) Service of a notice on the debtor or hirer in accordance with section 88 (a "default notice ") is necessary before the creditor or owner can become entitled, by

reason of any breach by the debtor or hirer of a regulated agreement,—

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as

terminated, restricted or deferred, or

(e) to enforce any security.

(2) Subsection (1) does not prevent the creditor from treating the right to draw

upon any credit as restricted or deferred, and taking such steps as may be necessary to

make the restriction or deferment effective.

(3) The doing of an act by which a floating charge becomes fixed is not

enforcement of a security.

(4) Regulations may provide that subsection (1) is not to apply to agreements

described by the regulations.

88.—(1) The default notice must be in the prescribed form

and specify—

(a) the nature of the alleged breach;

52

(b) if the breach is capable of remedy, what action is required to remedy it

and the date before which that action is to be taken;

© if the breach is not capable of remedy, the sum (if any) required to be

paid as compensation for the breach, and the date before which it is to be paid.

(2) A date specified under subsection (1) must not be less than seven days after the

date of service of the default notice, and the creditor or owner shall not take action

such as is mentioned in section 87(1) before the date so specified or (if no requirement

is made under subsection ( 1)) before those seven days have elapsed.

(3) The default notice must not treat as a breach failure to comply with a provision of

the agreement which becomes Operative only on breach of some other provision, but

i£ the breach of that other provision is not duly remedied or compensation demanded

under subsection (I) is not duly paid, or (where no requirement is made under

subsection ~1)) if the seven days mentioned in subsection (2) have elapsed, the

creditor or owner may treat the failure as a breach and section 87(1) shall not apply to

it.

(4) The default notice must contain information in the prescribed terms about the

consequences of failure to comply with it.

(5) A default notice making a requirement under subsection (1) may include a

provision for the taking of action such as is mentioned in section 87(1) at any time

after the restriction imposed by subsection (2) will cease, together with a statement

that the provision will be ineffective if the breach is duly remedied or the

compensation duly paid.

89. If before the date specified for that purpose in the default notice the debtor or hirer

takes the action specified under section 88(1)(b) or © the breach shall be treated as

not having occurred.

 

I presume that the "prescribed form" is as defined by the list of things in s.88 - there is no separate list outside the Act is there?

 

GP

[GerryPerry]

I've just been re-reading Post 10 from Car2403 in the context of my post above: loads of useful stuff there - thanks Chris.

 

I would advise anyone reading this thread in similar circumstances to go back and have a look at post 10.

 

Cheers GP

[GerryPerry]

See my earlier post....

 

 

"If you don't pay at least 50% of the legal minimum payment every month for ever then we will automatically default you at some stage in the future"

 

 

 

 

 

I'm not sure this type of default notice valid under Section 88(1b).

 

A date is surely a fixed point in time, ie the xxth of month YY of year ZZZZ. A date isn't some point in the unspecified future - surely?

 

I haven't been given a time by which I can remedy the breach have I?

 

GP.

[GerryPerry]

I had a bit of a detour where I asked some solicitors for advice.

 

Having got that, issued my N1; cheque was cashed; and now received my Notice of Issue and waiting to see what happens next.

 

The ball is now in play!

[car2403]

I had a bit of a detour where I asked some solicitors for advice.

 

Hmmm...

 

[GerryPerry]

I was quite lucky, my employer offered the use of the company solicitors; it seemed rude not to accept their once-over

 

GP

[GerryPerry]

I have been looking for any further information on Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

I thought this post was handy on 16th Feb

 

http://www.consumeractiongroup.co.uk/forum/barclaycard/131505-walton-barclaycard.html

 

Damage to the Claimant's Credit Reputation.

 

The authority on this issue is cited from Kpohraror v Woolwich Building Society [1996] 4 All ER 119; as follows

 

It is abundantly clear, in my judgment, that history has changed the social factors which moulded the rule in the nineteenth

century. It is not only a tradesman of whom it can be said that the refusal to meet his cheque is 'so obviously injurious to [his]

credit' that he should 'recover, without allegation of special damage, reasonable compensation for the injury done to his

credit' (see [1920] AC 102 at 112, [1918-19] All ER Rep 1035 at 1037 per Lord Birkenhead LC). The credit rating of

individuals is as important for their personal transactions, including mortgages and hire-purchase as well as banking facilities,

as it is for those who are engaged in trade, and it is notorious that central registers are now kept. I would have no hesitation in

holding that what is in effect a presumption of some damage arises in every case, in so far as this is a presumption of fact.

 

I am trying to track down a pdf of the Judge's ruling on Kpohraror v Woolwich Building Society - any pointers much appreciated.

 

Cheers

 

Gerry

[car2403]

I have the judgment - if you PM me your email address, I'll bash it over.

 

It's worth looking at Durkin v DSG, which will help also.

[scarlet]

I will be interested if Barclaycard will put in a defence. I issued them a N1 on 6th April and they defended 9th April. My claim is for two missed payment markers to be removed as they were given to me on a zero balance. I am surprised that they are defending it as I didn't owe them anything. I am waiting for their defence documents to be sent to me. Can't wait to see your outcome.

[GerryPerry]

Scarlet

 

will let you know. I suspect it'll be a notice of service, then I'll have to wait the 28 days for their defence.

 

Good luck with your case.

[GerryPerry]

Well, Time expired for their defence last week.

 

So, I checked with the court and they say they heard nothing.

 

I've filed for a summary judgement.

 

I expect that they will have slid some paperwork in before the deadline and it just hasn't been processed, but you never know...

[car2403]

Probably claim they didn't receive the paperwork and seek a set aside of the default (not summary) judgment when it's granted.

 

[GerryPerry]

Yup, I'm expecting that.

 

There's not much I can do, never seems to work for me when I claim it (ie when they supposed to send a default that I never received). Perhaps I'll bring that up when we end up in court.

 

I'm ready for them; would rather them capitulate because I want rid of the default asap, but in a way looking forward to my day in court!

 

Cheers

 

GP.

[GerryPerry]

Hmm. I had a call from **DG_Solicitors**. Contacting me directly...

[GerryPerry]

They didn't get to speak to me directly. Left a message with someone. Went along the lines of "It just arrived on my desk today - give us more time - 21 days - you don't want to go to court, just to get rid of default, isn't that right?. If I had the time and I found out you were right, I could advise them to remove the default and its all settled quickly. Otherwise, I'll just defend it."

 

It doesn't sound right. They can always defend it anyway, even after a default judgement. So I give extra time, and it allows DG to prepare a better defence on the one side, and on the other, I give more time and they find out I'm right and they advise their client to remove the default. The benefits of an extra 21 days seem to be stacked in their favour - after all, why would he call? Out of the goodness of his solicitor heart and concern for my welbeing? Not wishing to judge genuine motives, but it just sounds odd to me. Not sure what to do, but instinct tells me not to grant the 21 days.

 

Anyone know how these guys are paid? Fixed fee per case?

[car2403]

Well, it isn't right, as they haven't complied with the Courts directions. They will have to apply to have Default Judgment set aside, costing their clients money and time, all of which could have been avoided if they had simply done what was required of them at the right time.

 

The direction given here is to not allow them any leeway - the same would be true if this was the other way around, so don't get sucked in by this.

 

If they really thought they could successfully defend, why would they keep throwing obstacles in the way instead of just defending? I'm bemused.

 

Keep on at them GP...

[GerryPerry]

Thanks Old bean. Much appreciated.

[car2403]

Thanks Old bean. Much appreciated.

 

Whose told you the rumours?

 

[GerryPerry]

Recieved Ack that Service has been filed and an Allocation Questionnaire.

 

Section K is interesting, wrt List of Directions appropriate for management.

 

I wonder if there's anything in particular I need to watch out for here?