DCA issued Defaults

[alangee]

Can a DCA issue and register a default, when the original creditor issued an invalid default, but never registered it with the CRA's?

Alan

[Paul.]

Re: DCA issued Defaults

i do not see any reason why they cannot

sorry

[CleverClogs (RIP)]

Re: DCA issued Defaults

i do not see any reason why they cannot

Wouldn't the DCA parasite need to comply with sections 87 to 89 of the CCA and all regulations made thereunder?

[Paul.]

Re: DCA issued Defaults

Wouldn't the DCA parasite need to comply with sections 87 to 89 of the CCA and all regulations made thereunder?

yup

[Never-In-Doubt]

Re: DCA issued Defaults

Ask a closed question and that's the reply you'll get!

Paul, can you elaborate please, it'll help others.

For instance what if they had terminated against the bad original OC DN.....?

[CleverClogs (RIP)]

Re: DCA issued Defaults

Ask a closed question and that's the reply you'll get!

It was the reply I expected.

It means that a DCA may not issue a default notice with immediate effect but must allow at least 14 days for the sums detailed in the DN to be paid and the account returned to compliance with the agreement.

However, if the DN is satisfied within the period, it is difficult to understand how a DCA might comply with section 89, which requires that the account be reinstated as if the default had not occurred.

[alangee]

Re: DCA issued Defaults

The original creditor issued a DN, which had so many problems with it you would have thought it was a joke, but did not default with the CRA's. The OC then terminated the agreement, and sold it to the DCA. After six months the DCA issued their DN - also invalid because the arrears totalled over 20 times what they were six months before - and registered their default with the CRA's. They registered the DN with the CRA's before I had received the Default Notice - they dated the DN 30 September I received it 7 October, they registered it 6 October.

Alan

[alangee]

Re: DCA issued Defaults

One of the things I find hard to understand, is that the DCA bought what they believed to be a terminated agreement - they would have been unaware of the invalid DN. The DCA does not have a copy of the original agreement, I have not entered into an agreement with the DCA, so what term have I breached with the DCA that they can default me on? I know the account and subsequent debt is still there, but, if an agreement is terminated, what parts of the agreement are not terminated?

Alan

[Paul.]

Re: DCA issued Defaults

ok Defaults on credit files are not the same as default notices

default on the credit file indicates a break down of the relationship between the two parties.

If a default notice is bad then its bad and no enforcement is permittted thus no termination which is enforcement ( see mcguffick) can take place.

Thus the contract remains live doesnt it

so the new DCA issues a default, if that notice is also bad can it terminate? nope not in my view

[alangee]

Re: DCA issued Defaults

Hi Paul

I understand what you are saying, but, a default notice (s87) - bad or otherwise - is issued, amongst other things, as a last chance of putting the relationship back on track, and therefore avoiding a D on your credit file.

If the notice is bad for lets say insufficient time to correct the breach, then you are not being allowed to get the relationship back on track, and if it is proved that that notice is bad, but the creditor has still put that D on your credit file, then you have been prejudiced.

Now I may be reading you wrongly, and probably am, but you appear to say that a default can be entered onto your credit file without issuing a s87 notice, whereas the Lending Code says:

40. Subscribers can give CRAs default information about a customer’s debts if:
the customer has fallen behind with their payments;
the amount owed is not being disputed by the customer; and
the customer has not made a proposal that satisfies the subscriber for repaying the debt following the subscriber’s formal demand.
41. But, in all cases, the customer must be given further notice of the intention to disclose the information at least 28 days before the disclosure is made (for example, when a default notice or formal demand is given). At the same time, customers must be given an explanation about how default information registered against them may affect their ability to obtain credit in the future. This notice will mean that customers have 28 days to try to repay or come to some arrangement with the subscriber before default information is passed to the CRA.

As I said in my previous post, Paul, it is around these areas that I find difficult to understand. I understand that a creditor can continue to put late markers or anything else on your file without issuing a notice, but I struggle to understand them defaulting you on your credit file, without giving you the chance to correct it.

I agree, by the way, about a creditor being unable to terminate or enforce on the back of a bad DN.

Thanks for you thoughts

Alan

[alangee]

Re: DCA issued Defaults

If a default notice is bad then its bad and no enforcement is permittted thus no termination which is enforcement ( see mcguffick) can take place.

Thus the contract remains live doesnt it

so the new DCA issues a default, if that notice is also bad can it terminate? nope not in my view

The point I was making here is that nobody knows that the original default is bad, the DCA believes the agreement to be terminated. So how can he issue a default notice on what he believes to be a terminated agreement?

If I do not challenge the original default then the agreement has been terminated.

Alan

[alangee]

Re: DCA issued Defaults

Paul

Now I know that this is going off track slightly, but if a DCA buys what they believe to be a correctly terminated account, which is subsequently found to be still live due to an invalid DN, in what state does that leave the assignment?

I believe that Deed of Assignment/Sale Agreement would have to state what condition the Agreement is - live or terminated. If this is incorrect, does this mean that the assignment is invalid, and must be returned to the original creditor or treated as an equitable assignment? If a date being wrong by one day can invalidate an assignment, why not the state of the agreement - live or terminated.

If that is so, then it brings more questions such as if the OC - Goldfish for example - is no longer trading, what happens then?

Alan

[Paul.]

Re: DCA issued Defaults

a Default notice is a procedural document to ensure that no bar on enforcement falls into the creditors path,

There is no legislation or case law i am aware of that says a DCA cannot put right a bad notice, infact HHJ Chambers QC said quite the opposite in Harrison, so it seems to me that the debt collector can try to remedy the bad notice, the question is can he put it right.

Also in respect of the "D" on the credit file that can also be followed by good reports as i understand it, so the D can show the relationship broke down ( and it did cos you probably didnt pay) and then the relationship was salvaged again

[CleverClogs (RIP)]

Re: DCA issued Defaults

If I recall correctly, the claimant in Harrison v. Burke (attached) had been assigned an account that had been terminated after a bad default notice by the original creditor. The default notice was bad because of a mistake made on the date. Tom Denning - for it was he - decided that the entire debt could not have been assigned and that the only monies to which the creditor had any right were those sums detailed in the default notice.

(Yes, I do know that a link has been posted to that case before, but I cannot find it and I'm too lazy to look.)

[alangee]

Re: DCA issued Defaults

If I recall correctly, the claimant in Harrison v. Burke (attached) had been assigned an account that had been terminated after a bad default notice by the original creditor. The default notice was bad because of a mistake made on the date. Tom Denning - for it was he - decided that the entire debt could not have been assigned and that the only monies to which the creditor had any right were those sums detailed in the default notice.

CC

I thought that was the date on the assignment that was wrong.

Alan