knox vs Blair, Oliver & Scott [default removal]

[knoxvillain]

Default Removed!!!!!

[postggj]

reading post with intrest

take the four week time scale to deal with complaints with a pinch of salt

my dispute has been going on with hbos since july

they have addmitted to no cca in writing, and no default notice

they refuse to remove default saying its a past history record

ready to issue n1

are there any links for n1 for this case

it was four an aqua credit card

 

many thanks

[knoxvillain]

I didn't have to issue court action, I just sent them a letter saying they were in breach of the Consumer Credit Act 1974 because they didn't issue a Notice of Default and I got up this morning and found an alert from CreditExpert saying the payment history had changed on one of my accounts and I looked and my loan has changed from an 8 (default) to a 5 (not a default). Just got to sort out the default for my HBOS overdraft and Vodafone and then I'm laughing!

[postggj]

may i ask where you are sending correspondents to

interested

how long did it take from first contact to removel

[car2403]

Aren't they just going to Default you again, KV?

[postggj]

again not butting in

 

but at least with both of us we will be given the oppertunity to settle the debt, in my case only £500 with out the default being registered with the cra

 

where were you sending correspondents to

[knoxvillain]

car2403 - I don't see how they could default me now as the account is settled plus the way the Consumer Credit Act talks, if they remove the Default because they failed to issue a Notice of Default, the infraction that cause the default is considered not to have happened.

 

postggj - I sent it to blair oliver and scott and then retail bank collections, halifax

[postggj]

Many Thanks

Blare Oliver Scott Have Told Me They Will Not Be Pursuing The Debt As No Cca

Will Post Letter Tomorrow

Many Thanks

 

DO YOU HAVE THE ADDRESS FOR RETAIL COLLECTIONS

I ONLY HAVE A PO BOX NUMBER

[knoxvillain]

same, I sent it here:

 

Retail Bank Collections

PO Box 607

Trinity Road

Halifax

HX1 2UJ

[knoxvillain]

Got a nice letter from HBOS:

 

I note that there is a record of a default registered against you, however I am unable to locate a copy of this letter and I have therefore, removed this from your credit file. Please not that the copy application has been provided albeit out of time, we may once again enfore the agreement. I do note however, that the debt has now been repaid.

 

I don't see how they could "enforce" the debt now that it's settled. For a start, as noted above and as I already informed them, since they haven't provided the T & C's mentioned in the CCA, the request is incomplete.

 

Furthermore, as they failed to issue a Notice of Default, the default has been removed and under the Consumer Credit Act 1974, the infraction that caused the default is now considered to not have happened. Has anyone seen HBOS remove a default and then re-do it after issuing a Notice of Default?

[knoxvillain]

Got a very apologetic letter from BoS today saying that they agree it was reasonable for my to send my CCA request to Blair, Oliver & Scott as they were administering the account at the time. Also apologising that my request was not fulfilled in the timeframes set out in the Consumer Credit Act. Attached was a better quality copy of the CCA with terms and conditions attached this time

 

I can't see the date of your signature - the Banks is dated 11 July 2002. What is the date of your signature? If it's before this date, this is a void agreement under s.59(1). (prospective agreements are void)

 

I can now see the dates better. My signature is dated 12/7/02. BoS signature is dated 11/7/02.

[knoxvillain]

Ok so I'm also going for removal of the default for my current account overdraft. They've failed to produce a CCA so I wrote asking for default to be removed. I directed them to sections 87 & 88 of Consumer Credit Act 1974 and received the following in response:

 

By way of explanation of the section of the Consumer Credit Act you refer to has no bearing on the issue of Default Notices or application there of. The section in question refers to the credit agreement you singed when opening the account which we will be happy to provide as you have requested.

 

I can assure you a Default Notice was issued to you at the latest address you informed us of. Failure to keep us informed of your current address or non receipt of this said notice is no basis for us to remove a Default Marker from your credit file. Such action would in fact, be contrary to the Consumer Credit Act as well as illegal.

 

Firstly sections 87 & 88 very specifically deal with Default Notices, they even come under a heading saying "Default Notices" so I don't see how they think it's not relevant. Secondly, my understanding is that HBOS are not legally require to put a default marker on my account. It's up to them whether they do or not. Again, it's up to them whether they remove it, it wouldn't be illegal for them to do so or in breach of Consumer Credit Act so it seems they are actually lying to me? (again)

[knoxvillain]

Now they seem to think sending me the application form I completed in 2003 to have my student account converted into a current account is acceptable. Pity its not a consumer credit agreement.

[car2403]

You're on the right tracks, KV... Just keep the pressure up on them and stick to your own timescales, not theirs...

[knoxvillain]

Thanks. I'm quite confident. I've got tracks to follow up, no CCA and suspected no Notice of Default. It's weird how they removed the Default on my Loan with minimal hassle and they are being a bit more awkward with my Overdraft. Ironically they did have a CCA for my loan but they don't for my overdraft.

[knoxvillain]

complaint sent to FOS

[knoxvillain]

Got a reply from HBOS today:

 

In regards to the details outlined by my colleague I can advise you again that a Default Notice was indeed issued to the address on file dated 15th September 2006. This is confirmed on our system records which are sufficient to comply with regulations. I cannot provide you with an original copy of the notice issued to you, as the letters are system generated however I can provide you with a copy of the standard letter issued. The Default Notice will now be registered as settled due to your account stand at a zero balance; however it will remain on your credit file until 15th September 2012.

 

is this right? All they need is an entry on their computer saying one was issued and thats enough? Please advise.

 

They still haven't provided my CCA though.

[car2403]

Got a reply from HBOS today:

 

 

 

is this right? All they need is an entry on their computer saying one was issued and thats enough? Please advise.

 

They still haven't provided my CCA though.

 

No - they'd need to show the original to enforce the Default, IMO. If they don't have, or can't provide, the original the whole Default can be brought in to question.

 

This is happening across the board, though - I've just had HFC admit in Court that they don't keep original copies of Default Notices and have supplied previous copies reconstructed from their records. The Judge isn't happy...

[knoxvillain]

Can you point me to anything to quote to them to make them see that they should produce a copy of the original notice of default?

 

I took my landlord to court a while ago and I kept copies of all letters I sent them so I could prove in court what correspondance happened. I would never dream of just standing up in court and stating that I had a spreadsheet saying I sent letters and thats enough lol.

 

Maybe they'll have a change of heart when FOS contact them. I think since they are playing hardball with me this time round, i'll be sticking to my compensation claim instead of letting it go like I did for the loan default.

[car2403]

Civil Procedure Rules Part 16 - Practice Direction 7.3(1);

 

7.3 Where a claim is based upon a written agreement:

(1)a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, a

 

I'd suggest that, due to s.87/s.88 CCA 1974, that the Default Notice forms part of the pre-action protocol for Defaulting the agreement - as this is a form of enforcement, even though it doesn't require the Courts intervention at that stage, that they must be able to show that they have complied with the pre-action protocol. Any action without following the prescribed process, or, being unable to prove, on the balance of probabilities that they did, (by producing the original documentation) would be unlawful. Therefore, it stands to reason that "no original Default Notice" = "unlawful enforcement of the agreement".

 

Personally, I think a Judge (especially in a small claim, less chance of it in the fast track) would probably accept a witness statement from a member of their staff to say what their internal process is, coupled with swearing under oath that this happened in your case, would probably suffice. The counter argument to that is that CPR requires actual documentation in support of the claim/enforcement of the agreement, however.

 

Good luck getting the FOS to make a decision based on CPR, though. I don't think they'll even consider it, as it's outside of their remit - only the Court is bound by CPR and "real law" like this. The FOS can flout it any way they want, IMO.

[knoxvillain]

Well I'm going FOS first and failing that I'm prepared to go to court. I will also argue with both HBOS and FOS that a computer entry does not constitute proof of postage. And while their audit system might be able to prove a letter was produced, it probably doesn't prove it was mailed. I had been at my current address for a year and it was up-to-date with HBOS so there is no reason why I shouldn't have got one, I would have dealt with it immediately if I had.

 

I also have 2 examples now of HBOS providing "misinformation" as a Customer Care Manager put it in their recent letter so they are not exactly reliable witnesses.

[knoxvillain]

received a "final response" from HBOS today saying they had nothing to add since they're last correspondance and I should consider it their final response on the matter. They still haven't told me what they're doing about getting me my CCA though. :s They do acknowledge having receive correspondance from FOS in relation to my complaint.

[knoxvillain]

anyone got an idea of how long it's currently taking FOS to start looking at claims? i just keep getting the standard "we're not able to allocate your complaint yet" letter :s

[knoxvillain]

Have complained to Experian as well and explained that HBoS have no CCA so they have to right to register a default and have asked them to get HBOS to backup their right to place the default on my record.

[knoxvillain]

Dear Mr knox

 

Thank you for your e-mail. I would advise that we take cases in strict date rotation to be fair to all complainants. The date we use for allocation is the date your complaint passed into the casework area, in this instance that being xx xxxxxxxx 2008. I can inform you that we have received the papers requested from Bank of Scotland and these will be reviewed along with your submissions in due course. We are aware that your complaint is not charges related but we still do have a heavy workload. Unfortunately I cannot give you an exact timescale except to say we are regularly taking cases for allocation

 

We will keep you advised of developments and your patience in this matter is appreciated.

knox