Default removed, but then...

[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 ?

[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...

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...

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.

[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

[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...

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...

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

[cardiac arrest]

Re: Default removed, but then...

but within 6 (months). However it's ONLY a guidance paper.


actually the OC did not default until 2 years after the 1st missed payment...otherwise it would be off the CRA file now..

[gravytrain]

Re: Default removed, but then...

Only a suggestion, please feel free to ignore or alter any or all of the following.

I acknowledge receipt of your letter dated and thank you for the confirmation of the refunds wich are due to me for miss-selling of the insurance.
I am confused however about your assertion that the account was not correctly terminated, previously you were at great pains to insist that a default notice had been issued and it had been subsequently terminated and sold.
This as far as I am concerned is the accounts current status. My understanding is that the account cannot be re-instated once correctly terminated unless both parties agree, and I do not.
I am happy for the marker to remain on my file as it correctly records the time when the account entered the default condition as per your own records, however since the account is terminated you must realize that the refund can no longer be added to the debit balance by you.
Section 18 of the consumer credit act states quite clearly that the PPI agreement forms a separate contract, therefore the repayment should be repaid accordingly, and be forwarded to the other party on that contract.
I look forward to receiving repayment of the above mentioned.

[cardiac arrest]

Re: Default removed, but then...

Only a suggestion, please feel free to ignore or alter any or all of the following.

I acknowledge receipt of your letter dated and thank you for the confirmation of the refunds wich are due to me for miss-selling of the insurance.
I am confused however about your assertion that the account was not correctly terminated, previously you were at great pains to insist that a default notice had been issued and it had been subsequently terminated and sold.
This as far as I am concerned is the accounts current status. My understanding is that the account cannot be re-instated once correctly terminated unless both parties agree, and I do not.
I am happy for the marker to remain on my file as it correctly records the time when the account entered the default condition as per your own records, however since the account is terminated you must realize that the refund can no longer be added to the debit balance by you.
Section 18 of the consumer credit act states quite clearly that the PPI agreement forms a separate contract, therefore the repayment should be repaid accordingly, and be forwarded to the other party on that contract.
I look forward to receiving repayment of the above mentioned.

Thanks for that Gravytrain...However the refund is not in respect of missold PPI, but is made up of late payment fees, over limit fees and interest charges applied during a period when the OC had agreed reduced payment terms. I asserted that having accepted reduced payments from me then it was inappropriate to then apply the fees and charges. They disagreed for many years, but now, after they advised I complain to the FOS (which I have) they seem to have backtracked and agreed to refund.

SO is the above still applicable, slightly reworded ?

[gravytrain]

Re: Default removed, but then...

Thanks for that Gravytrain...However the refund is not in respect of missold PPI, but is made up of late payment fees, over limit fees and interest charges applied during a period when the OC had agreed reduced payment terms. I asserted that having accepted reduced payments from me then it was inappropriate to then apply the fees and charges. They disagreed for many years, but now, after they advised I complain to the FOS (which I have) they seem to have backtracked and agreed to refund.

SO is the above still applicable, slightly reworded ?

Hi sorry only read the post indicated , should have read your whole thread, yes ignore the bit about the refunds and section 18 it would not apply because late payment charges are subject to the loan account.

The rest should be OK though IMO.

[gravytrain]

Re: Default removed, but then...

Perhaps

I acknowledge receipt of your letter dated xx/xx/xxxx and thank you for the confirmation of the refunds due to me for wrongly applied charges.
I am confused however about your assertion that the account was not correctly terminated, previously you were at great pains to insist that a default notice had been issued and it had been subsequently terminated and sold.
This as far as I am concerned is the accounts current status. My understanding is that the account cannot be re-instated once correctly terminated unless both parties agree, and I do not.
I am happy for the marker to remain on my file as it correctly records the time when the account entered the default condition as per your own records.
Please subtract the refund from the default sum due under the terminated agreement and advise.

[Never-In-Doubt]

Re: Default removed, but then...

See this is the thing, if the refund won't touch the sides of the debt - why bother?

Surely chasing UE and ignoring the reclaim part is best here?

That's what I'd be doing. If they get heavy I'd then look to re-reclaim using new figures and interest rates.

Just my view on it

[gravytrain]

Re: Default removed, but then...

See this is the thing, if the refund won't touch the sides of the debt - why bother?

Surely chasing UE and ignoring the reclaim part is best here?

That's what I'd be doing. If they get heavy I'd then look to re-reclaim using new figures and interest rates.

Just my view on it

I thought the reclaim was a done deal ?

I thought we were talking about damage limitation.
Perhaps I should read the whole thread.