Nationwide Credit Card debt Any help appreciated!!!

[MikeSplicer]

subbing

[pt2537]

Principle: A default notice requiring payment by the hirer in order to remedy the breach is ineffective if it specifies a sum

exceeding that actually necessary to do so.

 

Facts: The plaintiffs hired a photocopier to the defendant firm of solicitors under a rental agreement providing for

quarterly payments. The agreement provided, among other things, that on default the plaintiffs might terminate the hiring by

written notice. After some two years, the defendants ceased payments. The plaintiffs sent a default notice which complied

with the statutory requirements in form. The notice, however, when it specified the amount required to be paid to remedy the

default, specified an amount exceeding that strictly required to do so. The assistant recorder held that the notice was

nevertheless effective, on the basis that if the defendant paid the amount required it would have done more than needed to

remedy the breach. The defendant appealed.

 

Held: Allowing the appeal, that the Consumer Credit Act 1974, s 88, required the owner to specify not only the nature of

the breach but the action required to remedy it. It was part of a statute plainly enacted to protect consumers. Since many

regulated agreements would be complex, most hirers would be individuals, and the owner would be in a far better position to

provide precise information about that remedial action, the section should be construed as requiring an accurate statement not

only of the nature of the breach but of the action required to remedy it (subject, it might be, to a de minimis dispensation).

Accordingly, the default notice did not satisfy s 88 and was not effective

 

 

this is from Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255

 

the notice above does appear on the face of it to be correct however if you can show thatt he amount required to remedy the breach is wrong the default notice is invalid

 

however , if theres no compliant CCA the default serves little or no purpose as they cant enforce the agreement if there no CCA document

 

regards

paul

[sytra]

Thanks Paul for the help

 

I have another one for you to have a look at if poss, this time it is NDR for littlewoods i was dealing with this for my mother, they have admitted that they have no CCA, thread is here http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/118898-sytra-littlewoods.html?highlight=sytra+v

 

 

Oh and i should add this was sent while Littlewoods were in Default of their CCA request

 

Thanks in anticipation

 

Sytra

[pt2537]

SCHEDULE 2

 

FORM OF DEFAULT NOTICE BEFORE A CREDITOR OR OWNER CAN BECOME ENTITLED, BY REASON OF ANY BREACH BY THE

DEBTOR OR HIRER OF A REGULATED AGREEEMENT, TO TERMINATE THE AGREEMENT, DEMAND EARLIER PAYMENT OF ANY

SUM, RECOVER POSSESSION OF ANY GOODS OR LAND, TREAT ANY RIGHT CONFERRED ON THE DEBTOR OR HIRER BY THE

AGREEMENT AS TERMINATED, RESTRICTED OR DEFERRED OR ENFORCE ANY SECURITY

Regulation 2(2)

 

Details of agreement

1

A description of the agreement sufficient to identify it.

 

Parties to agreement

2

(1) The name and a postal address of the creditor or owner.

(2) The name and postal address of the debtor or hirer.

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3

 

A specification of:--

 

(a) the provision of the agreement alleged to have been breached; and

 

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

 

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

 

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and

the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

Action by the creditor or owner to be ineffective if breach remedied or compensation paid

4

Where any action is specified under paragraph 3© or (d) as required to be taken, a statement that the provision for the

taking of any action by the creditor or owner such as is mentioned in paragraph 6 will be ineffective if the breach is duly

remedied or the compensation is duly paid in the following form--

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER

ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH".

Note:

This statement shall follow the specification under paragraph 3© or (d) of any action required to be taken.

 

Consequences of failure to comply with default notice

5

Where any action is specified under paragraph 3© or (d) as required to be taken, a statement indicating the consequences

of the failure by the debtor or hirer to comply with the default notice in the following form--

"IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE

FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]".

 

Notes:

1. This statement shall be followed by the specification under paragraph 6 of the further action intended to be taken by the

creditor or owner.

 

2. Creditor or owner to omit words in square brackets if there is no specification under paragraph 6(e) of any action

intended to be taken to enforce any security.

 

Action intended to be taken by creditor or owner

 

 

6

A clear and unambiguous statement by the creditor or owner indicating, if any action specified under paragraph 3© or

(d) as required to be taken is not duly taken or if no such action is required to be taken, the action which he intends to take

by reason of the breach by the debtor or hirer of the agreement--

(a) to terminate the agreement;

(b) to demand earlier payment of any sum;

© to recover possession of any goods or land;

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred;

(e) to enforce any security;

(f) to enforce any provision of the agreement which becomes operative only on a breach of another provision of the

agreement as specified in the notice,

at any time on or after the date specified under paragraph 3© or (d), or, if no action is specified under that paragraph as

required to be taken, indicating the date, being a date [not less than fourteen days] after the date of service of the notice,

on or after which he intends to take any action indicated in this paragraph.

 

General

10

A statement in the following form--

"IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE. FOR EXAMPLE

YOU SHOULD CONTACT A SOLICITOR, YOUR LOCAL TRADING STANDARDS DEPARTMENT OR YOUR

NEAREST CITIZENS' ADVICE BUREAU".

 

11

A statement in the following form--

"IMPORTANT--YOU SHOULD READ THIS CAREFULLY".

 

thats what the law says is required in this notice.

 

now is there anything which identifies the account on the notice that youve blanked out? also does your name appear on it? and full postal address?

 

regards

paul

[sytra]

Yes it has her name and postal address then at the bottom on left side it has her Acc no.

 

[pt2537]

well, personally i am of the opinion that, where the agreement is unenforcable such as this case and given that they have failed to produce the agreement on requeest under hte Consumer Credit Act 1974 they are in no position to issue a default notice, after all what provision of what agreement have you breached????

 

if there is no signed agreement how can you breach a provision of it.

 

i think they need telling where to go to be honest

 

regards

paul

[sytra]

thanks again, i will get another letter of to them asap, cant do any harm

 

Sytra

[pt2537]

Hi Sytra,

 

it cant hurt to send a letter saying something along the lines of ....

 

"i note you have sent me a default notice under S87(1) Consumer credit Act 1974. however you have todate failed to supply a credit agreement under the Consumer Credit Act 1974 so i respectfully request that you supply this documentation to allow me to view the terms i am alleged to have breached. "

 

you can also add the date when they had the CCA request as well, it may get a response it may not.i know that NDR have a tendency to ignore letters

 

regards

paul

[Edz11]

Sytra - yours is not a valid default notice. they had a good defence in depth then went to pieces in the last ten minutes.

 

They have to specify a date. doing the "add 14 days to date A" routine means it does not meet the prescribed terms. And.. "before the date shown" is not underlined OR in bold.

 

It is an invalid default notice and as they haven't issued a valid one then they cannot even start enforcement.

 

They are prescribed terms. Can't a BS the size of Nationwide find someone that can read a simple statutory instrument. You might want to beat them to the post by applying under s142 for a declaration that it does not meet the prescribed terms.

 

PS - there are other faults - but I'm not saying yet!

[pt2537]

Do you know Ed your absolutley spot on

 

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken;

 

it merely says 14 days, well i never, i missed that, i had meant to pull up the legislation and have another look and i must admit i missed it.

 

cheers

 

paul

[tomterm8]

One important fact newbies miss - keep the envelope!

 

Legally, there must be 14 days after service to remedy the default. If the envelope date is latter, i.e. you only had 12 days etc to remedy the default, it is void.

 

Under the civil procedure rules, legal service occurs two days after a letter is posted by first class post, so both the above defaults are IMHO void.

[Edz11]

Your mother's is quite a good try. They have actually read the SI but haven't quite understood it.

 

For a start it has been issued by a DCA (NDR). DCA's cannot issue a default notice unless they are the "creditor" as defined by the Act. Clearly they aren't. INVALID

 

The agreement has not been identified clearly. What is the debt for? Catalogue/credit card etc etc. An account number is not sufficient. INVALID

 

£5 charge for the issue of a default notice. They are meeting their statutory requirements under the CCA and cannot charge you for the priviledge (privelidge?) INVALID

 

"legal proceedings may be taken against you". That is not an act governed by the terms and conditions of the agreement. Let Littlewoods get their own Barrister on that one. That term should not be in a default notice. INVALID

 

Although Littlewoods score more "invalids" than Nationwide I give them credit for reading the SI. If they had given it more thought then I'm sure they could have got a "pass".

[sytra]

Thankyou for all your help everyone

 

sorry for all the questions but how would i go about applying for a s142?

 

With a lot of help from this site i have discovered that the NW credit card agreement (well app form) is invalid so would love to get em by the short n curlies :D

 

I think the notice NW sent us for the current acc is valid as it seems to have everything on it, except if it is supposed to be underlined like Edz said, "before the date shown" is in bold but not underlined, also i cant be completely sure when the notice was recieved ( it was well before i found this site ) so never kept envelope but the date to be remedied by is exactly 14 days after the date of the default notice, i dont know if they would think about post dating the notice to give the 2 days for postage?

would it be better to S.A.R - (Subject Access Request) the account again and ask for copies of default and letters sent etc?

 

Sytra

[Edz11]

Bits that are underlined in the regulations must be underlined in the notice or made even bolder if they are sat in bold text.

 

Might seem a trivial point but

Rank Xerox Finance V Hepple and Fennymore (HHJ Hague QC January 1993 Slough County Court)

 

"... the word "wish" has been substituted for the word "want". This is plainly the most trivial of matters, and as strong a candidate as can be imagined for the application of the "de minimis" rule. However, regulation 5(1) provides that the wording of a specfied form must be reproduced "without any addition or alteration" (subject to certain exceptions which do not apply). In view of those words, in my judgment, it is not possible to apply the "de minimis" rule..."

 

So one letter/term in/out and the notice is invalid...

[pt2537]

Hi Ed,

 

ive just been looking at the Judgment Rank Xerox Finance Ltd v Hepple [1994] CCLR 1 and one thing which stands out is the fact that this is a county court judgment, as such its not binding on other county court Judges, so all you would need is a clueless DJ and youre in trouble and could find yourself having to launch an appeal against the judges ruling

 

it would be better to also draw the courts attention to the term of the regulations which says....

 

5 Statutory Forms

 

(1) The wording of any Form specified in Schedules 2, 4 and 5 to these Regulations shall be reproduced in documents

embodying regulated agreements without any alteration or addition, except that--

(a) the words "the creditor" or "the owner" may be replaced by the name of the creditor or owner, by the expression

by which the creditor or owner is referred to in the agreement or by an appropriate pronoun, and any consequential

changes to pronouns and verbs or other consequential grammatical changes may be made;

(b) the word "DEBTOR" may be replaced by "BORROWER" or "CUSTOMER" and the word "Debtor(s)" may be

replaced by "Borrower(s)" or "Customer(s)"; and

© every Form shall be completed in accordance with any footnote.

(2) Any such footnote shall not be treated as part of any Form specified in the said Schedules and may be reproduced in

addition to any such Form.

(3) Where any such footnote requires any words to be omitted, those words shall be omitted or deleted.

(4) Where words are shown in capital letters in any Form specified in Schedule 2, 4 or 5 to these Regulations, and are

reproduced in documents embodying regulated agreements, they shall be afforded more prominence (whether by capital

letters, underlining, larger or bold print or otherwise) than any other lettering in that Form except lettering inserted in

accordance with paragraph (1)© above and no less prominence than that given to any other information in the document

apart from the heading to the document, . . . trade names, names of parties to the agreement or lettering in the document

inserted in handwriting.

 

Regards

paul

[sytra]

Bits that are underlined in the regulations must be underlined in the notice or made even bolder if they are sat in bold text.

 

The wording of the other NW default is virtually the same as the one earlier in the thread except it has an actuall date on it (14 days from date of default) , it doesnt state the amount to be paid, instead says pay back all overdraft and the bold is just that bold, nothing making certain words stand out more than others, it is the same bold print as in the previous nw defsault.

 

Sytra

[Edz11]

Well its only supporting info. Proof that the issue has been raised in a court before and has been decided. Default notices are prescribed so I can't think that any Judge would be daft enough to say "I can ignore that"...what have I said!

 

The Xerox case is more a sign post for a clueless Judge.

[Edz11]

Well it is equally invalid then Sytra. And it has to specify an amount of money if they are saying you should pay something. You are not supposed to guess.

[Josie8]

subscribing

[pt2537]

Well it is equally invalid then Sytra. And it has to specify an amount of money if they are saying you should pay something. You are not supposed to guess.

 

Yep, confirmed by Woodchester Lease Management Services Ltd v Swain

and Co - [2001] GCCR 2255 the debtor must be clearly told what figure is required to e paid to remedy any breach

 

as you say Ed you shouldn't have to guess

[Edz11]

The default notice is treated as an irritant by a lot of Creditors and DCA's. But the default notice has legal status and can't be adapted to meet "local circumstances". I reckon that 70% are invalid for one reason or another.

 

As for getting them removed - I would advocate getting a determination under s142 that the default notice does not meet the prescriibed terms. I can't see Creditors etc being too concerned about defending that kind of application. They just issue another that's correct (providing the agreement exists). The problem is mixing in the removal of a default notice when it's at the potential CCJ stage. The first thing a Judge should look at is "is the default notice valid". If it isn't then the case should be thrown out. But, what seems to happen is that Judges look at the degree of predjudice caused by it. Which is wrong, as the parties shouldn't be in court without there being a valid default notice.

[tomterm8]

Bits that are underlined in the regulations must be underlined in the notice or made even bolder if they are sat in bold text.

 

Might seem a trivial point but

Rank Xerox Finance V Hepple and Fennymore (HHJ Hague QC January 1993 Slough County Court)

 

"... the word "wish" has been substituted for the word "want". This is plainly the most trivial of matters, and as strong a candidate as can be imagined for the application of the "de minimis" rule. However, regulation 5(1) provides that the wording of a specfied form must be reproduced "without any addition or alteration" (subject to certain exceptions which do not apply). In view of those words, in my judgment, it is not possible to apply the "de minimis" rule..."

 

So one letter/term in/out and the notice is invalid...

 

I'm not entirely sure that I agree with the county court judge in this matter. A statutory instrument, as a piece of secondary legislation, must be interpreted in line with the primary legislation. The purpose of a default notice (as described in the primary legislation) is to set out the breach of contract in no uncertain terms, the method of rectifying the breach, the consequences of failing to rectify the breach and certain statutory protections and advisory groups that may help the debtor.

 

I, personally, think that in line with the purpose as described in s87 and 88, the "de minimis" rule might be used by the court, subject to the absolute requirement that these stautory objectives are complied with.

[Edz11]

I'd agree with you if the term "prescribed" was not evident in any of the legislation .

 

But it was, which removes any "common sense" interpretation of the regulations. The primary legislation and the SI both acknowledge prescription, so there isn't any leeway for the courts.

[sytra]

Please can someone help me....... i have been looking everywhere but i cant seem to find the complete case to Woodchester Lease Management Services Ltd v Swain, i wanted to use it in court against Avon to try and get our defaults removed, unless i could just make a reference to it.

Any thoughts??

[shane5408]

Hi,

 

see attached for the case

 

 

 

regards,

shane

Woodchester Lease Management Services Ltd v Swain and Co.pdf