Default removed, but then...

[cardiac arrest]

Re: Default removed, but then...

Ok makes sense. I'd possibly consider telling them you got the DN but you need to remember a s.87/88 DN can be issued a day after one missed payment and is only a formal demand to settle the arrears. A CRA default marker "should" - in line with ICO technical guidance on default issuance" be added no earlier than 3 months after first missed payment but within 6 (months). However it's ONLY a guidance paper.

So my point is, ignorance may be best here based on them being in default of your CCA. Forget the complaint for now cos it just adds stress. Granted they may re-add a new default with the CRA's but you can argue this when you think 6 years have passed since original s.87/88 default notice service.

Make sense?

so should i just write and clarify for them that the DN was received okay and that they have confused this with the notification of assigment i mentioned (i could quote the letter date)...The termination followed the DN, so the OC has in effect terminated ...do they need my okay to reinstate ?...maybe if they know the DN was received ok they won't bother reinstating..assuming nothing else is afoot

[Never-In-Doubt]

Re: Default removed, but then...

Ok makes sense. I'd possibly consider telling them you got the DN but you need to remember a s.87/88 DN can be issued a day after one missed payment and is only a formal demand to settle the arrears. A CRA default marker "should" - in line with ICO technical guidance on default issuance" be added no earlier than 3 months after first missed payment but within 6 (months). However it's ONLY a guidance paper.

So my point is, ignorance may be best here based on them being in default of your CCA. Forget the complaint for now cos it just adds stress. Granted they may re-add a new default with the CRA's but you can argue this when you think 6 years have passed since original s.87/88 default notice service.

Make sense?

[cardiac arrest]

Re: Default removed, but then...

To answer both questions...There has never been any mention the DN was issued incorrectly, the OC has made that up. the only 'complaint' I made was that I never received the Notice of assignment, because they kept mis-stating my address (a flat in london). So, to all intents and purposes, the account is terminated.

Niddy, I received your PM, thanks..the issue is really that you firstly said to contact the OC, then later advised to sit and wait and see what they do next. If they have assumed I didn't get the DN, should I write and tell them that I did in fact receive this okay...this may then scupper their justification for making the account live again..and as an aside (although this might do for later) the OC have failed to respond to my CCA requests, so it is UE 'til they comply anyway ? The DCA were unable to produce anything to satisfy the CCA sent tothem either, so we told them this was UE too..

[Never-In-Doubt]

Re: Default removed, but then...

I'm not sure what to do...i did PM you on 9th November about this,and another matter more recently. .. and mentioned it my diary. I know you must deal with hundreds of requests,but what is the best way to get your attention if something like this comes up in the future ?

thanks...

Hiya really sorry for the delay.

My PM's get wild - I've over 1300 sat there and miss loads as you must appreciate. Best to email me and I will get round to it but I do still see hundreds of cases a week plus work 80 hours. So email is best usually - webmaster@all-about-debt.co.uk is monitored most frequently as its on my phone too.

What's up? How can I help mate

[gravytrain]

Re: Default removed, but then...

I see they say that the reason they were able to buy this back is because it was not terminated properly( the default notice was not delivered.)

It is just as well for them, because if it was terminated then it could not be reactivated without the consent of both parties and a new contract made.(convenient that )
Did the OP contend that the DN was incorrectly issued?

Did the creditor contend that it was correctly issued when it suited them and have now have they changed their minds.

Could the OP not contend that the account was in fact terminated and they do not consent to it being re-instated, and thank you but the refund belongs to the original party of the agreement, the debtor.

I know it is a long shot but, just A thought.

[cardiac arrest]

Re: Default removed, but then...

Right, seems it's linked here ---> allaboutFORUMS - View Single Post - cardio's Diary

I am at a loss as to why a reclaim was put in when dealing with UE, this has actually caused you to go backwards as it appears they're removing the default, applying a credit then allowing you a period to rectify prior to re-defaulting, this is bad.

But all your own fault, sadly. You should never have pushed this, as soon as I confirmed it was UE you play on that. They can cancel the old default as invalid and leave it gone, then re-default you using a new date IF you accept this. You must write back and refuse the reclaim and also refuse the default amendment and stress that the default is already 4.5yrs old and whether they remedy s.87 & s.88 is up to them but the original default date of the account must remain as May 2008.

You need to try and back-peddle with things and undo the damage caused with this reclaim.

Whatever happens, you cannot let them extinguish the old default. If they do this and you agree they can then add another in a month or so when you don't pay the minimum payment due.

I'm not sure what to do...i did PM you on 9th November about this,and another matter more recently. .. and mentioned it my diary. I know you must deal with hundreds of requests,but what is the best way to get your attention if something like this comes up in the future ?

thanks...

[gravytrain]

Re: Default removed, but then...

http://www.bailii.org/ew/cases/EWHC/QB/2012/2402.html

There is a copy in the case files on here together with my comments.

I must add that this is an unproven theory and not fact,and should not be relied on without further proof IMO.

[cardiac arrest]

Re: Default removed, but then...

Yes the Jones ruling illustrated that rights under a contract and the duties under the statute were transferred,(thus enabling the asignee to be the creditor as defined by the act) not duties under the contract, as I see it.

It is generally held that duties under a contract cannot be assigned.
The refund of charges would be a duty of the creditor and therefore repayable to the other party of the agreement, the debtor not the assignee.
This is how the argument goes.

do you have a link to the case ?

I guess maybe my OC sussed this, and so bought back the whole account to avoid any comeback ?

[cardiac arrest]

Re: Default removed, but then...

They dont half make simple things difficult by being deceitful and greedy.

You would think it would be simple for a lawyer to go over all this documents before they issue them and do stuff for correct reasons.

But by doing stuff half cocked and always with an eye to the bottom line they keep getting stuff sooooooo wrong.

Trouble is, they don't care..at the end of the day, if they get 'bored' with it...they sell it on...and on....and on...so years down the line the debtor is still fighting their corner with DCA no. 7 and the OC has forgotten all about it... Banks are more interested in fiddling LIBOR and selling PPI...paying themselves fat bonuses along the way..well, some of them.

I still can't see how it is 'right' for a DCA to buy a debt for £100 and demand £1000....backed 100% by the law...

must go to bed...

[gravytrain]

Re: Default removed, but then...

Yes the Jones ruling illustrated that rights under a contract and the duties under the statute were transferred,(thus enabling the asignee to be the creditor as defined by the act) not duties under the contract, as I see it.

It is generally held that duties under a contract cannot be assigned.
The refund of charges would be a duty of the creditor and therefore repayable to the other party of the agreement, the debtor not the assignee.
This is how the argument goes.

[oscar]

Re: Default removed, but then...

I don't know how relevant this is, but there is a school of thought which says that if an agreement is assigned to a third party and then a refund is due on the account, the refund should go directly to the debtor and not be debited to the account.

As far as I know this is a theory based on an analysis of the Jones judgement and I do not know how accurate it is, but for the sake of discussion it would explain why the OC were anxious to show the account had not been terminated and sold.

This would be the case if the account had been assigned in absolute - ie sold rather than the creditor asking a DCA to collect for them. When a account is sold in absolute, all rights and responsibilities are sold too - that includes the right to offset refunds / gestures of goodwill against any debt that has been sold.

[ken100464]

Re: Default removed, but then...

They dont half make simple things difficult by being deceitful and greedy.

You would think it would be simple for a lawyer to go over all this documents before they issue them and do stuff for correct reasons.

But by doing stuff half cocked and always with an eye to the bottom line they keep getting stuff sooooooo wrong.

[cardiac arrest]

Re: Default removed, but then...

I don't know how relevant this is, but there is a school of thought which says that if an agreement is assigned to a third party and then a refund is due on the account, the refund should go directly to the debtor and not be debited to the account.

As far as I know this is a theory based on an analysis of the Jones judgement and I do not know how accurate it is, but for the sake of discussion it would explain why the OC were anxious to show the account had not been terminated and sold.

Interesting. To all intents and purposes though, the account had been terminated and sold. The misinterpretation of what i said doesn't change that. The OC doesn't know (I believe) that the DN was defective, and even that could easily be rectified. They did sell it, I have a copy of the NoA..and the DCA has/had it's name on my CRA file..

The OC used as an excuse for not refunding me the fact I had not been making the payments (I was on a reduced payment plan)...that's what they put in their letter to me, inferring that I hadn't actually paid for any of the charges/fees...(although i will have paid some of it).

What a tangled web..

[gravytrain]

Re: Default removed, but then...

I don't know how relevant this is, but there is a school of thought which says that if an agreement is assigned to a third party and then a refund is due on the account, the refund should go directly to the debtor and not be debited to the account.

As far as I know this is a theory based on an analysis of the Jones judgement and I do not know how accurate it is, but for the sake of discussion it would explain why the OC were anxious to show the account had not been terminated and sold.

[cardiac arrest]

Re: Default removed, but then...

I should perhaps just mention, after back reading my file notes, that I never said to the OC that they had sent the DN to a wrong address, nor that I didn't receive it. I did say I never received a Notification of Assignment however...but the OC has twisted this round to mean the DN...and that was their justification for the proposed removal of the CRA entry and the DN.

I did, somehow, receive the DN...although not by recorded or registered mail.

If the OC has just got it wrong, maybe I should tell them...unless of course this was deliberately misconstrued as part of another strategy to apply interest to the account and recover the £1300 they have deducted ? In reality though, having already written off the full account some years ago (upon sale) the £1300 'adjustment' to the balance has no cash impact at all on the OC..