Dayglo's mission to get his life back!

[jimfishybob]

One of the conditions for processing in Schedule 2 is that the individual has given his consent to the processing. It is our view that consent is not easy to achieve and that organisations should consider other conditions for processing before looking at consent. No one condition carries greater weight than any other. All the conditions provide an equally valid basis for processing. Merely because consent is the first condition to appear in both Schedules 2 and 3 does not mean that organisations should consider it first.

It is our view????

So, by that reasoning, all law is irrelevant if a statutory body deems that they don't have to do it? This letter makes plenty of references to views and reports and so on....but still doesn't answer the fundemental issue, where in law, or statute, or prescendent,(sp?), does it say this is allowed to continue?

[jimfishybob]

Sounds like their little chat yesterday went well.

[jimfishybob]

Surely Schedule 2(2) is only applicable if your are still party to that agreement, (as stated). If a default has been issued, the agreement is no longer in situ and therefore you cannot be a party to it. Therefore it is an irrelevant argument.

[jimfishybob]

It's not quite that clear cut though is it?

 

Non-performance of a contract by one side may make the contract voidable but probably does not make it void. The contract may be rescinded or terminated at a point in time but that does not necessarily remove both or either parties right to "performance" of the contract.

 

For example:

 

You take out a loan for £1000 interest free (for simplicity) and agree by contract to repay it over 10 months @ £100 / month. You make three repayments and then default. The lender argues breach of contract by the lendee, that the contract is therefore voidable and terminates it at that point. The lender would still be entitled to sue for performance of the contract as the contract would still exist, albeit terminated 9 months short. You still owe the lender his benefit i.e. £700 and you are still liable to perform that part of the bargain; if that were not the case the debt would cease to exist on termination and the lender would not be able to pursue you for the balance or sell the debt on to a DCA.

 

So 2(2) may still be valid even if the contract is terminated??

 

 

I'm treading murky waters here and maybe a test case is the way to go.

 

But....

 

The CCA Section 100 gives the creditor specific rights after termination or default of the contract, one of these is the recovery of sums or goods owed and I suspect this is the stipulation under which they continue pursuit for monies. Nowhere, does it mention CRA's or the continued right to process information.

[jimfishybob]

don't forget Vodafone are claiming that they aren't covered by the CCA.

I am almost convinced that the contract I signed with them back in 1997 was at a time when it WAS covered by the CCA.

 

Check out the exapmles at the end of the CCA. I have to fly now but I'm sure that least one of them relates to goods or services being supplied with payment in arrears and therefore extending credit facilities by default to the hirer,this is consequently covered by the CCA. Whether they like it or not.

[jimfishybob]

I received this from one of the CRA's today

=========================================================

Concerning the defaulted account you should be aware that when an account is defaulted it is the creditor who has terminated the account, not you. They will have terminated the contract because you breached the terms and conditions. The Consumer Credit Act 1974 provides legislation with regards to the process a company must follow when terminating a contract in this manner and the rights afforded to them after the date of default.

 

I would suggest you read Part VII of the Consumer Credit Act 1974 (Default and Termination).

 

A company’s rights when defaulting an account are provided under Section 87 of the Consumer Credit Act 1974.

 

87 Need for default notice

 

(1) Service of a notice on the debtor or hirer in accordance with sections 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by any 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.

 

Default notices will advise that if you not comply with the company’s request to make certain payments to the account, or bring it back into line with the original terms and conditions, they will terminate the contract and demand repayment of the total sum in full. They also state they will advise the credit reference agencies that you have defaulted.

 

I would draw your attention to Section 88(4) as outline below:

 

88 contents and effect of default notice

 

(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply wit it.

 

Therefore, by not complying with the conditions of the default notice you are allowing the company to impose further conditions upon you which are not set out in the original terms of the contract.

 

If you have any concerns regarding the legitimacy of the default entries I suggest you refer back to the original terms and conditions of each particular account and the default notices you will have been sent. If you do not have these available I suggest you contact the companies concerned directly.

======================================

 

That's all fabulous. Thank you Mr. CRA. However, you seem to have left out the bit that shows there's a legal entitlement for them to do this.

 

What's that?

 

There isn't a bit like that?

 

Oh dear.

 

Never mind.

 

I assume then that if the default notice said it was ok for them to nick my kids and poison my dinner, that would be ok too would it?

 

Glad we got that cleared up.

[jimfishybob]

I agree.

 

In fact, there's an argument that this is even more unlikely to go to court than a request for bank charges. If a bank goes to court and loses over penalty charges then the industry stands to lose a few billion quid from the many billions it makes. If the credit reference industry is taken to task and loses then, (precedent or not), their is a real possibility of a revolt and the whole industry collapsing.

[jimfishybob]

Why would the CRA's give them recompense? They (apparently), only supply the data that Vodafone have instructed them to supply? So, Vodafone would claim against the CRA's for doing what they told them to do?

 

The I.C.O. I can understand, but then if the whole industry hadn't been constructed on huge slab of nepotism, The I.C.O. would have had the balls to actually represent the consumer in the first place rather than toadying to the needs of monopolistic corporations whose only gain in all of this is a little "f*** you" because you are no longer a customer of theirs.

 

The I.C.O. deserve all that's coming to them.

[jimfishybob]

This could be acheived by responsible lending. Responsible lending means checking that an individual has the means to repay credit rather than did they pay somebody £20 a few months late 5 and a half years ago.

 

The thinking that that the credit industry couldn't operate responsibly without the CRA's is a fallacy, they did for years before they were even a twinkle in the lenders eyes. In fact, prior to the CRA's I would guess that there was far less irresponsible lending than there is now.

 

Besides, what effect does how my finances were operated when I was 24 have any bearing on how they are now? This is an irrelevance as far as risk management goes. I could have a £100,000 a year job now, but couldn't get a mobile phone.

[jimfishybob]

It would operate just as effectively if the six years were reduced to two.

[jimfishybob]

The other option of course, as has already been suggested and, I think the only viable alternative, is to force lenders to seek redress throught the courts. This way, everything stays nice and legal, the debtor has the opportunity to defend him/herself and the banks cannot arbitrarily destroy peoples lives on their own say so.

 

This also addresses my main issue with the default system. The industry has obviously been out one night and agreed with themselves that a default has equal stature to a CCJ. Therefore, it purposefully circumvents the legal process and avoids all that nasty, "well, he/she might have a valid defence' nonsense.

 

If you remove defaults from the system it would work equally well, (statistically, or otherwise), as it does now, but it would likely cost lending institutions more money.

 

The question has to be asked, if the lenders have a legitimate case, then why not just procede straight to court? What is it about defaults that suits them so over a Court Judgement?

[jimfishybob]

Pmsl

[jimfishybob]

Hmm....

 

I don't suppose....

 

They couldn't have....

 

You don't reckon...

 

...They've collaborated on this do you?

 

Surely not.

[jimfishybob]

Don't suppose there's news on this?

[jimfishybob]

Keeping me bits crossed.

[jimfishybob]

I think we need to be careful about the term 'default notice'

 

Section 87 lays down the requirements for a default notice and what exactly it allows a creditor to do. None of the allowances listed involves reporting the default notice to a CRA and therefore knackering your life for the next 6 years.

 

This could be construed 2 ways. Either:-

 

They have no right to register the default notice in the first place as only a court can decide whether your ability to obtain credit should be restricted. (unlikely).

 

Or

 

A 'default notice' and a 'CRA default' are 2 seperate entities which just happen to have the same nomenclature. Therefore it could be argued that there is no need to supply a default notice in order to place a default on your file. The only reason they would need to supply such a notice would be to pursue the avenues laid down in section 87, (including passing the debt onto a DCA).

 

Worth discussing?

[jimfishybob]

8-)

[jimfishybob]

I thought this was fairly straightforward. MCOL lists the fees as 'where a claim is for money and money only'

 

The reason some people have got away with it is because the court admin weren't that bright in their case.

[jimfishybob]

Interesting that they suggest that I was still party to the agreement the moment before the default note is issued and then not?

 

This may be true but is largely irrelevant.

 

They are still submitting your info to the CRA's. Your contention isn't that they did it originally but that they are still supplying 'default flags' in their monthly runs.

[jimfishybob]

I've looked into the mechanics of this - and technically they don't update my file monthly, they just choose not to do anything with it at all. The CRAs renew it monthly in the absence of any instruction to the contrary

 

Really?

 

Every day's a school day.

[jimfishybob]

That complicates things.

 

Will ponder on this for a while...........

 

Is it the same for all creditors?

[jimfishybob]

It's about time.

 

Bloody ducks.

[jimfishybob]

Oh my GOD, it would seem they are tracking these things and this needs clearing up, how do we find out who what and were these secret records are kept and have them stoped, this is a disgrace.......

 

For this you'll need to find someone who's credit record was sparkling before they claimed their charges and then went down afterwards. They then need to write to the CRA's and ask them for an explanation.

 

I reckon anyway,

[jimfishybob]

They do, but that criteria is based, at least in part, on the scores and info from CRA's.

[jimfishybob]

Seems Vodas defence was to question the courts jurisdiction.