Defective Default Notice and DCA

[Duffers Mum]

Some help/advice please

 

A defective DN has been issued by the original creditor,

followed by another equally defective DN,

then the account is transferred to a DCA.

 

DCA say they have now complied with CCA by providing copy of agreement and some T&C's

which they say relate to time account was opened (after 12 months of requesting same by me),

 

they reject F&F offer and ask for a lot more which I can't raise..

 

.am now presuming this will possibly go to court as quite a large debt.

..if I mention to DCA that DN's were defective I believe they will have to send back to original creditor to rectify?

 

If they do this and original company issues new fully compliant DN and then send it back to DCA

what happens to the interest and charges the DCA have added on the back of the original defective DN's?

 

Can they just add all those charges back on once its returned to them, or will they have to start from scratch again?

 

Thank you

[The Mould]

Some help/advice please

 

A defective DN has been issued by the original creditor, followed by another equally defective DN, then the account is transferred to a DCA. DCA say they have now complied with CCA by providing copy of agreement and some T&C's which they say relate to time account was opened (after 12 months of requesting same by me), they reject F&F offer and ask for a lot more which I can't raise...am now presuming this will possibly go to court as quite a large debt...if I mention to DCA that DN's were defective I believe they will have to send back to original creditor to rectify? If they do this and original company issues new fully compliant DN and then send it back to DCA what happens to the interest and charges the DCA have added on the back of the original defective DN's? Can they just add all those charges back on once its returned to them, or will they have to start from scratch again?

 

Thank you

 

Good afternoon Duffers Mum

 

It is not your responsibility to inform the creditor/dca of their failures to serve a valid statutory default notice, therefore, do not advise them of their said failures.

 

Kind regards

 

The Mould

[Duffers Mum]

Ok...but if I don't inform them, surely I won't be able to use this to my advantage..if it is to my advantage1

[dx100uk]

whose name is against the debt on your CRA file?

 

you cant have two DN's on the same debt anyhow

unless a previous arrangement has been broken by you,

 

i'd be very careful about relying solely on the defective dn's in court

many papwerwork errors are now all but useless.

 

if you made no attempt to rectify the DN reason within the given time span

then that really poss nulls out any arguement as such.

 

what about penalty charges/ppi etc etc too?

 

 

dx

[Duffers Mum]

The default is showing with the DCA on my credit file. I wouldn't rely on it solely because I realise that nowadays these DCA's can do exactly what they like and the nice little judges just sit back and come down on their side all the time. Its taken the DCA a year to get me what they say is the CCA with T&CS applicable at time of opening of acccount, in the meantime they've whacked on charges, despite there not being any clause in the T&C's which say they can. I was just hoping if I mentioned about the DN's the charges the DCA had already added would become void because it would have to go back to the original creditor to be rectified? However I think i'm clutching at straws! Am going to to send an SAR off to original creditor tomorrow to see what that brings!

[The Mould]

Hello again Duffers Mum

 

What is the history on your case?

 

Such as; How did the issuance of the first invalid default notice come about?

 

What were your reasons given as to the offer in full and final?

 

How old is the Credit Agreement?

 

Has there been an assignment of the agreement to the dca or is the dca acting upon instructions given by his client - the creditor?

 

Would be grateful to you if you would please post up the details of this matter - chronology/case summary.

 

Kind regards

 

The Mould

[Duffers Mum]

The original thread is here:|-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?262556-Sainsburys-Bank-now-assigned-to-Cabot

 

I didn't want the thread about the Defective DN caught up with it which is why I started a separate thread as it could apply to others (who might not be interested in reading through my long thread above!)

 

In brief..I asked Sainsburys to accept reduced payments, which they wouldn't..they issued a DN, for some reason they then issued a second one(?), I sent a CCA request to Sainsburys, most seemed to think what they sent didn't comply, I therefore advised the account was in dispute, eventually they agreed to reduced payments and stopped interest and charges, then all of a sudden I got a letter from Cabot saying Sainsbury's had sold the account even though it was in dispute. I advised Cabot I was still waiting for the CCA, they sent me a reconstructed CCA which was nothing like the original would have been...they then started adding interest...12 months on they suddenly send through the same CCA as what Sainsburys sent and a separate set of T&C's which they say are from when the account was opened (2002). I have a disability and have now been made redundant, I get JSA for 6 months and then it stops and DH will have to support me, there will be little prospect of me getting work in the long term due to my disability and of course the economic climate. I wrote to Cabot offering them approx 12% of the outstanding balance as a F&F, they declined, coming back and saying they would accept £XXXX (approx 90% of what the original balance was before their interest charges which are now close to £1200).

[The Mould]

The original thread is here:|-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?262556-Sainsburys-Bank-now-assigned-to-Cabot

 

I didn't want the thread about the Defective DN caught up with it which is why I started a separate thread as it could apply to others (who might not be interested in reading through my long thread above!)

 

In brief..I asked Sainsburys to accept reduced payments, which they wouldn't..they issued a DN, for some reason they then issued a second one(?), I sent a CCA request to Sainsburys, most seemed to think what they sent didn't comply, I therefore advised the account was in dispute, eventually they agreed to reduced payments and stopped interest and charges, then all of a sudden I got a letter from Cabot saying Sainsbury's had sold the account even though it was in dispute. I advised Cabot I was still waiting for the CCA, they sent me a reconstructed CCA which was nothing like the original would have been...they then started adding interest...12 months on they suddenly send through the same CCA as what Sainsburys sent and a separate set of T&C's which they say are from when the account was opened (2002). I have a disability and have now been made redundant, I get JSA for 6 months and then it stops and DH will have to support me, there will be little prospect of me getting work in the long term due to my disability and of course the economic climate. I wrote to Cabot offering them approx 12% of the outstanding balance as a F&F, they declined, coming back and saying they would accept £XXXX (approx 90% of what the original balance was before their interest charges which are now close to £1200).

 

Thank you for the above Duffers Mum

 

The agreed reduced payments with Sainsbury's, did you default on that said agreement?

 

Did you make any payments to Cabot as per the said agreed reduced payments with Sainsbury's?

 

Who served a Notice of Assignment - Sainsbury's or Cabot?

 

Have you continued with the agreed reduced payments with Sainsbury's (even though Cabot say they own the debt)?

 

Interest and charges are invalid under the terms of the said agreed reduced payments, I have seen the default notices (posted in your original thread) - both invalid.

 

If your 'credit agreement' is 2002 and the requirements of s.61 CCA 1974 and subsequent Regulations were not complied with, then the 'credit agreement' is irredeemably unenforceable under s.127 of the 1974 Act (repealed by the 2006 amendments). Based upon the details you have posted here and on your original thread, it appears that you applied for credit by way of Application form and that said s.61 applies, therefore, the 'credit agreement' is unenforceable.

 

Kind regards

 

The Mould

[dx100uk]

this is why we try and ask users to refrain from starting a new thread each time they get a diff problem on the same debt

 

this is your third or 4th thread on these peolple now

 

just makes people repeat the same questions and get the same answers.

 

dx

[The Mould]

http://www.legislation.gov.uk/uksi/1983/1553/contents/made

 

http://www.publications.parliament.uk/pa/ld200203/ldjudgmt/jd030710/will-1.htm

 

http://www.publications.parliament.uk/pa/ld199900/ldjudgmt/jd000511/dimond-1.htm

 

The above authorities concerning unenforceable credit agreements.

 

Kind regards

 

The Mould

[Duffers Mum]

The Mould, thank you for your help...

 

DX - I'm very sorry! I just wanted an explanation on the interest charged on the back of invalid default notices, sometimes when a thread gets long people can't be bothered to read it so you don't get an answer. This site sure has changed from what it used to be.

[charlie*]

If your 'credit agreement' is 2002 and the requirements of s.61 CCA 1974 and subsequent Regulations were not complied with, then the 'credit agreement' is irredeemably unenforceable under s.127 of the 1974 Act (repealed by the 2006 amendments). Based upon the details you have posted here and on your original thread, it appears that you applied for credit by way of Application form and that said s.61 applies, therefore, the 'credit agreement' is unenforceable.

The Mould

 

It would be very interesting to know if the above would / might be applicable to Sains 2004 apps/allegd agreements.

[BRIGADIER2JCS]

The Mould, thank you for your help...

 

DX - I'm very sorry! I just wanted an explanation on the interest charged on the back of invalid default notices, sometimes when a thread gets long people can't be bothered to read it so you don't get an answer. This site sure has changed from what it used to be.

 

The site is most certainly different more efficient and effective for keeping

things organised so that users get the best advice as quickly as possible.

[dadofholly]

i'd be very careful about relying solely on the defective dn's in court

many papwerwork errors are now all but useless.

dx

 

Disagree slightly - a Court cannot enforce an agreement on the back of a faulty DN.

[BRIGADIER2JCS]

A DN can be rectified at any time.

[dadofholly]

A DN can be rectified at any time.

 

But until it has it cannot be enforced.

[BRIGADIER2JCS]

Agreed but it is unwise to be reliant on

faulty paperwork now as DX said.

[dadofholly]

If the creditor wants to go to court with a faulty DN then let them - how many actually rectify prior to a hearing?

 

And if they have failed to correct then it is safe to rely on.

 

Would agree this is dodgy ground if it is your only defence - but as it is a bar to enforcement its a bloody good one if it's what they have provided you with. Some Creditors that i know of have issued up to 3 DN's and still not got it right.

[BRIGADIER2JCS]

All I am saying is be wary and do not rely

on the faulty paperwork the DCAs/Creditors

have been made aware of the problems of

defective paperwork because of the effectivness

of sites including CAG.

[Duffers Mum]

They are not yet aware that the DN's are faulty (wll they might be after reading this thread of course!) I'm currently awaiting a response to my SAR from the original company to see what that brings up.