advice with default notice

[Mojitoman]

Hi - first post, so apologies if I am going over old ground!


Firstly, I would like to say what a great site this is, if I had found it a while back I wouldn't have the issues I now do!!


I have just read Niddy's thread about default notices CRA v CCA, I had absolutely no idea there was a difference and I think I now understand the position I am in. But for my own sanity (and because I have been trying to get a default removed for nearly a year and now don't like the thought of having to concede!!!!) I would appreciate some advice.


Having applied for a new mortgage rate and been refused, I found out in February this year that I had a default recorded on my credit file. When I looked into my file the default had be place against a loan account I have. The loan was taken out in 2011. In June 2013 I set up a DMP with stepchange (a decision I now regret). I was paying a reasonable amount towards the loan as part of my DMP (rather than a token amount) however I did miss a payment in October and one more in December (however since when I am now religiously keeping to the plan).


Having spoken to the bank about the default and looked at information received following a DSAR request, the bank claim to have sent a DN in October 2013 and then defaulted my account at the beginning of November. I did not receive the DN and there are all sorts of inconsistencies on my account (two different default amounts are recorded, one includes payments not due) and the bank cannot confirm what the amount was and how it was calculated.


I think I now the answer - but my question is - I am certain the DN was not issued and the details held against my file are so poor that I am certain the DN could be proved to be invalid. However, I assume this is irrelevant, as the default I want to get removed is not a CCA DN but just a default record against my CRA file.

I have referred this to the FOS and they have hinted that they agree that the DN could be invalid but they are unlikely to recommend that the default on my credit file is removed - which I now assume is because it is not a CCA default.

The alleged default notice was dated 4th October 2013 and the bank have stated that they defaulted on 1st November 13. My credit file shows the default date as 31 Jan 2014.

Do you think there is much point taking this up with the ICO? Any other tips or tactics greatfully received!!

many thanks

Mo

[Undercover Elsa]

Re: advice with default notice

Hi Mojitoman and welcome to AAD
As I understand it, the unfortunate fact of life is that as soon as you start paying less than the contractual minimum amount they can default you.
The CRA file is simply a reflection of how your account was managed. Oddly enough, in the long run a default marker can be better as at least it drops off after 6 years whereas if they'd marked it AP - arrangement to pay-that would stay on for however long it takes to pay off the loan, plus another 6 years. The other benefit of it being defaulted is that interest and charges usually stop at that point, meaning you pay it off much more quickly. I'm assuming they did?

Just my own thoughts, but our administrator Never-in-Doubt is a CRA expert so see what he has to say...

Elsa x

[MrsD]

Re: advice with default notice

I would say that if you are on a DMP, it's fairly certain that they will all default you because you are paying less than the minimum on everything. If you persist with the DMP, the earlier you are defaulted, the better because as Elsa says, they will all fall off after 6 years. How long is your DMP for?

[Mojitoman]

Re: advice with default notice

Thanks Mrs D

The plan was for 5.5 years - so 4 years left to run. 12 more months and my financial position changes dramatically so I would look to come of it then.

[SXGuy]

Re: advice with default notice

It might be an idea to also get the dmp to confirm whether all creditors have stopped interest, other wise at the end of the 5.5 years you may find a hefty balance to find.

[SaltnVinegar]

Re: advice with default notice

It might be an idea to also get the dmp to confirm whether all creditors have stopped interest, other wise at the end of the 5.5 years you may find a hefty balance to find.

+1 on this - have seen too many people on AAD on DMP's whose DMP provider didn't inform them that creditors hadn't stopped interest. If you're getting an annual statement ensure they you're getting them from your creditors NOT your DMP provider (as the statement they provide is the statement of your 'plan' not necessarily the true state of affairs).

Don't want to worry you but best to be aware and not get caught out.

Best
SnV

[Never-In-Doubt]

Re: advice with default notice

Hi & sorry for the delay - what a nightmare!

Ok, first things first - stop calling it a DN - a DN is served under s.87/88 of the CCA. If you are referring specifically to a default at the CRA then we literally call it "defaulted". So to get to the bottom and try to help you sort this, can you clarify exactly what has happened by answering the below questions, then I'll know what is going on - as I say forget the DN unless you were issued one under s.87/88 which gives 14 days to pay the arrears etc....

1. Date of last full payment
2. Date you started the DMP
3. Amount (in %) you paid into the dmp for this account compared with the contractual agreed amount (ie if a credit card the minimum is 3% of the balance, so did you pay 2% or 5% maybe?)
4. Date of default entry on your CRA
5. Date of formal DN (if one ever issued) under s.87/88
6. Date you formally complained to the lender (if applicable)
7. Date you formally complained to the FOS (if applicable)

Also can you clarify if the bank ever sent you anything saying they'd default you or did they just go and do it? The thing is you cannot just get defaulted, there MUST be late / missed payments for at least 3 months first. Did you formally complain to the FOS or just moot the idea to them over the phone / email? Tell me more about what you've done to fight this - the problem is if you've already fought and lost then we cannot reopen the same complaint.

You might need to PM me when you reply cos I am really busy. I was still here at 4am this morning catching up so I do miss posts unfortunately.

[Mojitoman]

Re: advice with default notice

Thanks for all the advice - I will follow it up.

NID - cheers for putting me right on the terminology - that has always been a point of confusion for me.

To answer your queries, using your numbering:
1) date of last full payment 28 May 2013
2) DMP start date June 2013 (first payment towards loan account under DMP 26 June 2013)
3) 43.7% of contractural amount paid under DMP (£563 per month - £246 under DMP). I did miss Nov 2013 an Jan 2014 payments.
4) default date held on CRA 31 January 2014
5) I never received a default notice so hard to say. Having completed a DSAR my bank records state the following: NOD (which I have always assumed to be Notice of Default) as 04 October 2013, NDS (notice of Defaulted Sums?) issued 30 October 2013 and then a LRD (?) 04 November 2013.
6) I complained to the lender on the 06 February 2014 - which was when I first found out that a default had been registered on CRA.
7) Having had a "last letter" from the bank on the 11 February 2014 my next step was a DSAR request then I logged a complaint with the FOS in April 2014. My case is being reviewed by an Adjudicator who is going to give me their final position this week, so I still have the option of referring to an Ombudsman! I have been verbally advised by the adjudicator that they are unlikely to recommend removal of the default on my CRA.

I don't recall the bank ever writing to me to advise that they would default me, I spoke to someone in Nov 2013 (records show it was Westcots) who may have suggested that the bank might take further action, but this being so longer ago, I can't honestly remember. When I spoke to them i did state that I was on a DMP (with Stepchange) and they took the plan number etc and that is on file).

i hope this makes sense, please feel free to ask anything further.

[Never-In-Doubt]

Re: advice with default notice

cheers pal - will check back later tonight. Just got a quick date with the pub

[Mojitoman]

Re: advice with default notice

Great - much appreciated.
Enjoy - I would never want to hold someone back from such an important appointment!!

One other point I forgot to add, interest was last added to my account on 29 October 2013.

[Never-In-Doubt]

Re: advice with default notice

Sorry for the delay, as you no doubt seen I blew the forum up Wednesday so nobody was online

Ok, based on the FOS making a provisional decision lets await that, let me see their letter when they write and we'll take it from there - It wouldn't be beneficial jumping in with arguments when they've indicated they're responding this week - however you do have a right of appeal so lets first see what they say - please PM me when you get an update before doing anything formal with the FOS to follow up the decision

[Never-In-Doubt]

Re: advice with default notice

You need to post a few times then your PM's increase. Just post a few times on the chat threads

However to chat with me (or any mod/site team) your restriction is revoked ie we don't count so you can ALWAYS read our messages and respond.

[Mojitoman]

Re: advice with default notice

Thanks - good to know - although I now wondering if something is not quite right with my account as I can't reply to your PM's if I have any saved!

[Never-In-Doubt]

Re: advice with default notice

Just email me then lol

[Mojitoman]

Re: advice with default notice

First a quick update, I have heard back from the Adjudicator and suprise, surprise, despite the bank not being able to explain the anomalies on my account they are not prepared to recommend the default is removed.

If anyone decides to refer anything to the FOS adjudicator get ready for a laugh!! Despite responding formally to me twice now, each time they have had to go back and reconsider their opinion as they have refered to incorrect information and keep contradicting themselves. At first I was a bit intimidated by the process - not anymore! So far I have found them to be a bunch of clueless fops who in practice, seem to know less than I do about this process!! The phrase "I will have to refer that to my mentor" is very familiar in our conversations!!!

Whilst I am slowly coming round to idea that the default won't get removed, I have decided to make myself a real pain in the backside for the FOS as I assume this costs them (and therefore the industry) money.

One point that came up in conversation today that I would appreciate some advice on is in regard to ICO guidance. As advised above, a notice of default was alleged to have been served in Oct 2013. The Adjudicator keeps referring to ICO guidance - Principles for reporting arrears, arrangements and defaults at Credit Reference Agencies - and stating that the bank acted in accordance with this advice. however, I noted today that this was first published Jan 2014 - being some three months after I defaulted. I have since found the old ICO guidance that would have applicable in 2013, - ICO Data Protection Technical Guidance - Filing Defaults with Credit Reference Agencies. This has a fundamental difference that it recommends a default should only be filed if a customer makes no payment for three months. I had only missed one payment and was therefore technical not in breach of the old guidance! Is this worth raising with the FOS as further evidence that the bank acted unfairly and has not followed industry guidance?

cheers