Recently entered default on very old account

[chz80]

Re: Recently entered default on very old account

Update:

Hi All,

I've now received the SaR request; it was a large pack of documents. I've taken a look through and there are things I noticed which I need advice on.

1) I was told in the cover letter that Default and Enforcement notice are not saved by customer name so they were unable to provide them under the DPA. Is this correct? I guess this was an important document for the resolution of this so how can I now get hold of it?

2) It's been confirmed from the statements that I have definitely not made any payment to the account since 2004. I was certain of this anyway. So does this confirm the Stat Barred?

What's interesting is they never generated any statements from 2004 up until 2010!! It's almost like the account was dead for six years and then suddenly resurected! No charges were added during that time and the balance (when the account suddenly came to life again) follows on from the last statement produced in 04.

3) There's a note on the system which I believe relates to correspondence they received from the DPA which mentions I'm claiming the debt is SB, but the note states that "the account was defaulted in August so continue to persue". It's clear that this was never previously defaulted and was only done so in August 2011. Surely this isn't fair!?

Thanks in advance for your help.

[Riz]

Re: Recently entered default on very old account

3) There's a note on the system which I believe relates to correspondence they received from the DPA which mentions I'm claiming the debt is SB, but the note states that "the account was defaulted in August so continue to persue".

If they think it's not SB due to that, then they are sadly mistaken.

A cause of action can still accrue (i.e. time starts to run) even though a claimant is prevented from suing by a statutory procedural requirement which precludes the issue of proceedings.

In Swansea City Council v Glass (1992) the local authority brought a claim against a landlord for reimbursement of the cost it had incurred in repairing a house in multiple occupation. The issue was whether the cause of action accrued when the work had been completed or or only when the local authority had served a written notice demanding payment as required by The Housing Act 1957. The Court of Appeal held that the statutory requirement for a written notice was a procedural matter and that time ran from the date that the costs were incurred and the work completed. If this were not the case the local authority could prevent time from running indefinitely simply by not serving the statutory notice.

In respect of an agreement regulated by the Consumer Credit Act, the question is whether the time runs from the date of actual default by the debtor or from the date of (or the date of expiry of) the default notice that must be served under s87 CCA1974.

The situation is analogous to the Swansea City Council case in that the requirement for the service of a the default notice is a procedural matter that does not form part of the cause of action. It does not affect the creditor's right to payment but only the procedure for enforcing it. If this were not the position, a creditor could delay the running of time indefinitely by not serving a default notice.

This view was supported by West Bromwich Building Society v Wilkinson (2005), where the House of Lords stated that it would be 'strange if a lender could stop time running by its own act'

[Never-In-Doubt]

Re: Recently entered default on very old account

This is 100% statute barred. Well done.

They can't do bugger all. Seriously don't worry - they're entitled to ask but not hassle or harass you.

It's finished. Time to relax now.

[chz80]

Re: Recently entered default on very old account

Great! Thanks both.

What action should I now take for removal of the default on my credit file?

[Never-In-Doubt]

Re: Recently entered default on very old account

Did you get proof of original default date via your credit file?

[chz80]

Re: Recently entered default on very old account

Did you get proof of original default date via your credit file?

Hi NID,

The date entered on my credit file was 18/08/2011 and there was no default added before this time. I didn't receive the DN from LLoyds but there is the note on their system which confirms the account was defaulted in August 2011.

[Never-In-Doubt]

Re: Recently entered default on very old account

Hi NID,

The date entered on my credit file was 18/08/2011 and there was no default added before this time. I didn't receive the DN from LLoyds but there is the note on their system which confirms the account was defaulted in August 2011.

Right so they've actually defaulted you after 6 years have elapsed and the account was already "dead"?

In that case you need to complain to the ICO (not much use like) and also complain to the CRA's for default removal. That said I would not go to the ICO yet as they're pretty crap at the best of times, however try the following -

Basically send the letter below to the CRA that shows the default (copy it an raise an online dispute if you prefer)...

1. You must attach a copy of the statement from 2004 that shows the last payment into the account
2. You must add the correct month in the template where you see this [ENTER MONTH]

Dear Sirs

Account No/Reference No: XXXXXXXX

I recently found out that Lloyds have added a default against me dated 18.08.2011 for an account I have no recollection over. I am led to believe this may have been a current account however what concerns me the most here is the fact that this account was entirely Statute Barred in line with s.5 Limitations Act (1980) which clearly states;

"an action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued"

Now in Plain English this means no action can be taken to enforce this alleged account, and similarly, in line with OFT Guidelines on Debt Collection and more pertinent the Consumer Credit Act (s.87 & s.88) which stipulates that a lender should be defaulting an account within 6 months of the account actually being in default, i.e. no payments received.

This account is clearly Statute Barred and was with effect from 2004 as the attached copy statment that was sent to me by the Bank as part of my Subject Access Request confirms. Quite simply, this account was well and truly Statute Barred with effect from [ENTER MONTH] 2010 and thus no default can possibly be added with effect from August 2011. The account was already lawfully dead by this point.

I formally demand you remove this erroneous default immediately prior to my consideration of legal action for your libellous reporting of false information, as confirmed with the attached proof.

For your information, there was a system note that was sent to me within the SAR that stated

"he is claiming the debt is SB, but the account was defaulted in August 2011 so continue to pursue"

This system note alone proves that the bank do not have a clue as they actually think that the debt is no longer Statute Barred because they defaulted it - although I appreciate this is nothing to do with you, I am highlighting it as their lack of knowledge and due diligence when dealing with a customers personal details causes me grave concern and I am formally notifying you that as you are reporting factually false information that I will also hold you liable as the data processor.

There has been no contact between us for over the prescribed period of 6 years and therefore it totally against all rules and statute to issue a default against a debt from over 7 years ago that is clearly Statute Barred.

I have also sent a copy of this letter to the bank for their consideration prior to my formally making complaints to the regulatory bodies and assessing my legal options.

Yours faithfully,
[ATTACH=CONFIG]11380[/ATTACH]


**Sign over Signature Strip

[Never-In-Doubt]

Re: Recently entered default on very old account

Now, for the bank - send the following:

1. You must send this recorded delivery so you have proof of it and also send a copy of the letter above that you're sending the CRA(s).
2. Send them a copy of the statement from 2004 that shows the last payment into the account
3. You must add the correct month in the template where you see this [ENTER MONTH]

Dear Sirs

Account No/Reference No: XXXXXXXX

I recently found out that you'd added a default against me dated 18.08.2011 for an account I have no recollection over. I am led to believe this may have been a current account however what concerns me the most here is the fact that this account was entirely Statute Barred in line with s.5 Limitations Act (1980) which clearly states;

"an action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued"

Now in Plain English this means no action can be taken to enforce this alleged account, and similarly, in line with OFT Guidelines on Debt Collection and more pertinent the Consumer Credit Act (s.87 & s.88) which stipulates that a lender should be defaulting an account within 6 months of the account actually being in default, i.e. no payments received.

This account is clearly Statute Barred and was with effect from 2004 as the attached copy statment. Quite simply, this account was well and truly Statute Barred with effect from [ENTER MONTH] 2010 and thus no default can possibly be added with effect from August 2011. The account was already lawfully dead by this point.

I formally demand you remove this erroneous default immediately prior to my consideration of legal action for your libellous reporting of false information, as confirmed with the attached proof.

For your information, there was a system note that was sent to me within the SAR that stated

"he is claiming the debt is SB, but the account was defaulted in August 2011 so continue to pursue"

This system note alone proves that you do not have a clue as you are daft enough to actually believe that the debt is no longer Statute Barred because you added a default! I refer you to the following;

A cause of action can still accrue (i.e. time starts to run) even though a claimant is prevented from suing by a statutory procedural requirement which precludes the issue of proceedings.

In Swansea City Council v Glass (1992) the local authority brought a claim against a landlord for reimbursement of the cost it had incurred in repairing a house in multiple occupation. The issue was whether the cause of action accrued when the work had been completed or or only when the local authority had served a written notice demanding payment as required by The Housing Act 1957. The Court of Appeal held that the statutory requirement for a written notice was a procedural matter and that time ran from the date that the costs were incurred and the work completed. If this were not the case the local authority could prevent time from running indefinitely simply by not serving the statutory notice.

In respect of an agreement regulated by the Consumer Credit Act, the question is whether the time runs from the date of actual default by the debtor or from the date of (or the date of expiry of) the default notice that must be served under s87 CCA1974.

The situation is analogous to the Swansea City Council case in that the requirement for the service of a the default notice is a procedural matter that does not form part of the cause of action. It does not affect the creditor's right to payment but only the procedure for enforcing it. If this were not the position, a creditor could delay the running of time indefinitely by not serving a default notice.

This view was supported by West Bromwich Building Society v Wilkinson (2005), where the House of Lords stated that it would be 'strange if a lender could stop time running by its own act'

Now, as you can clearly see, you are in direct breach of varying guidelines and case law and legal precedent and I strongly urge you to remove this erroneous default prior to my seeking clarity on my legal options as this behaviour will not be tolerated and your system remark proves without a doubt that you do not have a clue about any of the associated laws in place to protect people like me against this abuse.

There has been no contact between us for over the prescribed period of 6 years and therefore it totally against all rules and statute to issue a default against a debt from over 7 years ago that is clearly Statute Barred. I have quoted the case law I will refer to so I strongly suggest you fix this mess before it costs you several thousands to repair.

A copy of my letter to the Credit Agencies is also attached for your perusal, if you do not however remove this unlawful entry immediately then I will take things further starting with formal complaints to your governing and regulatory bodies prior to consideration of my legal options.

Time is not your friend right now, I expect to have confirmation from you that this default will be removed within the next 21 days which is ample time to inform the credit agencies of your gigantic error.

Yours faithfully,
[ATTACH=CONFIG]11379[/ATTACH]

**Sign over Signature Strip

[Never-In-Doubt]

Re: Recently entered default on very old account

Signing Digitally - read this: ---> Site Resources | Template Resources | A Guide to Signing Digitally

[Never-In-Doubt]

Re: Recently entered default on very old account

If they think it's not SB due to that, then they are sadly mistaken.

Thanks Rizzle - handy info mate and straight into action with it

Cheers

[chz80]

Re: Recently entered default on very old account

Hi NID, thank you so much for taking the time to draft these letters. I really appreciate your help with this

I'll be sending these in the post first thing tomorrow. I'll update you once I receive a response.

Cheers.

[Never-In-Doubt]

Re: Recently entered default on very old account

Hi NID, thank you so much for taking the time to draft these letters. I really appreciate your help with this

I'll be sending these in the post first thing tomorrow. I'll update you once I receive a response.

Cheers.

Best of luck - keep us updated and remember, no discussing anything on the phone etc - stick to writing

* You know these templates take pride of place on our new website as well, for all to see! ---> allaboutDEBT | Our Templates | Bespoke 'Niddy Special' Templates Menu

[Never-In-Doubt]

Re: Recently entered default on very old account

I have also suggested Nightwatch also uses these templates as she has an almost identical situation - maybe worth reading her thread (compare notes)

---> Lloyds 1978 cc - allaboutFORUMS

[chz80]

Re: Recently entered default on very old account

Letters sent today, so I now await their response.

Thanks to you all; particularly Nid for the letters, advice and patience.

[Never-In-Doubt]

Re: Recently entered default on very old account

Best of luck let us know how you get on mate