Student Loans Company - Litigation - HELP!

[krysus]

To cut a long story short, SLC have sent me a letter stating they have commenced litigation proceedings.

 

Now the thing is, I have 3 accounts with them, one for my first uni course (93) and the other 2 for another course which I started a few years later at a different uni.

 

Now as part of the whole "bank charge reclaiming" malarky, i issued them with a S.A.R - (Subject Access Request) & CCA requests a few months ago, but never got round to claiming the charges back. Nonetheless, after reviewing the loan agreements, the first loan is unexecuted (no signature from SLC), the other two seem fine.

 

The unexecuted agreement has a balance of about £400, of which 60% is charges. The litigation letter states a balance of approx £2k.

 

Most previous letters from SLC are either related to the "one year" account or the combined accounts for the two years which were together.

 

Now, what they've done is issued proceedings on the combined balance of the 3 accounts, but under the account with the unexecuted agreement, in effect classing all the debt as a single account.

 

Have they shot themselves in the foot by doing this? Surely by linking it all to an unexecuted agreement they've doing something wrong?

 

I intend on sending them a letter outlining this, and the fact that the first agreement is unenforceable without a Court Order, and as it is mostly charges, wouldn't be worth them taking to Court to be enforced.

 

I do intend on making an offer of payment of the balance on the other 2 accounts by installments asap.

 

Any advice please guys?

 

Edit:

Further to the letter outlined by Another_Victime in this link http://www.consumeractiongroup.co.uk/forum/students/92863-krysus-slc-2.html :

 

Furthermore by not providing me with a true copy of this loan agreement you are in default and have committed a criminal offense as laid out in the act. You are also subject to a statutory fine should I wish to report you to the Trading Standards Authority.

 

Is this correct just on the basis that the agreement isn't signed??

[noomill060]

If they have already commenced legal action against you I would simply waot to see what their POC says.

 

Have they even sent you a Default Notice?

[krysus]

Been away for a few weeks, this is the first letter i've opened off them, maybe there is a default notice in the rest of my post somewhere...

 

If their POC does lump all the accounts onto the unenforceable agreement account, where do both I and the SLC stand?

 

EDIT:

Yep, here we go, two default notices dated end of September - one for each of my uni periods. £400 on the first (£150 charges) [unexecuted agreement], and £1650 on the other (£150 charges).

Think i should make them a "full & final settlement" offer?

[noomill060]

Do all these accounts have penalty charges on them?

[krysus]

Yes noomill, as detailed above, approx £150 on "each" account (there's 3 loans, but two accounts).

 

Obviously, it seems a bit late in the day to start claiming for £150 when they're litigating on £1500 of enforceable debt.

[noomill060]

Ah yes, I see you say they do.

 

Right, well the thing is, if they have included these unlawful charges in the default notice, i believe this makes the default notice, well- void.

 

The DN should state what you need to do to rectify the default.

 

They cant claim money they arent legally entitled to, can they?

 

Do nowt, say nowt until you get their claim and POC from the court.

 

Then you can scare the sh!te out of them with a counterclaim and demand fot full disclosure of their penalty charge cost.

[noomill060]

The point is, the Default Notice MUST be 100% accurate to be in any way legally meaningful.

 

If it isnt, if they are claiming for unlawfully applied charged, they are stuffed.

[noomill060]

http://www.consumeractiongroup.co.uk/forum/cases-library/1015-woodchester-lease-swain-co.html

[krysus]

Ok, it (they) state:

 

Bold is my emphasis for later comment

...

 

2. You have breached the condition in each of those Agreements by failing to pay us 14 [a] monthly installments, in whole or in part.

Total Arrears Due under all the Agreements taken together: £1xxx.xx

 

...

 

The outstanding interest bearing loan balance(s) of £15xx.xx [c] together with charges of £150 on your loan(s) under the above Agreement(s) totals £16xx.xx as at the date of this notice.

 

 

Now [a] - i presume that is two loans, 7 payments each.

 

I can't tell if includes any charges or not - i presume is the 'default' element, so looking at it it appears that the default notice is correct?

 

Default for other account is the same, but balance is in the region of £250, plus the charges on that account also.

[noomill060]

I am assuming that you sent them a SAR and that you have a list of all the penalty charges.

[krysus]

Yeah, i have a list of charges.... at least up until they replied to my S.A.R - (Subject Access Request).

 

The amounts quoted on the default notices for charges tallies (near enough - one is £20 higher on the default, the other £2 lower) with my list based on the statements from the SAR.

 

Just realised, if i divide the arrears due by the 14 payments, i end up with a fractional amount! Surely something must be wrong there then?

[noomill060]

If the Default Notice figure contains penalties, its void and legally meaningless because -

 

Accurate Default Notices are vital

 

 

Introduction

 

Businesses engaged in lending or hiring regulated by the Consumer Credit Act 1974 should be aware of a recent Court of Appeal case highlighting the potential pitfalls of creditors failing to ensure that their documentation complies with the regulations.

In the vast majority of cases, before a lender or hirer can take action against a debtor or borrower, a default notice has to be served. The default notice has to comply with the Act and the relevant regulations (Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993). If a default notice in the proper form is not served, the action cannot proceed.

In this case*, the defendant hired a photocopier but failed to pay a quarterly instalment of its rent. The plaintiff served a default notice which substantially overstated the arrears which were then due. Despite this, the judge at first instance held that the default notice was valid and entered judgement for the plaintiff.

 

Correct procedures must be adhered to

 

On appeal, Lord Justice Kennedy held that the Act was enacted to protect consumers, most of whom were likely to be individuals. When contracting with a financial organisation, a consumer was bound to be at a disadvantage. The contract was likely to be in standard form and complex. His Lordship said that if it was said that a consumer had broken the terms of the agreement, the consumer needed to know precisely what had been done wrong and what was needed to put matters right. The lender has the ability and resources to do this and, if it does not do so accurately, it is only right that it should not take the next step. Under s88(1) of the Act there is a requirement that the lender should 'specify' not only the nature of the breach, but also what action is required to remedy it. In the context of this case, that meant specifying with reasonable accuracy what sum the hirer had to pay to remedy the breach.

The Court went on to say that an error that could be described as minimal might be overlooked, but the substantial inaccuracy in this case rendered the default notice ineffective, so the appeal should be allowed.

Tens, if not hundreds, of thousands of default notices are issued every day. This case illustrates how vitally important it is that any default notice is correct in form, as well as in substance. It is likely that the Court would take the same view with regard to the form and contents of regulated agreements.

*Case reference

Woodchester Lease Management Services Ltd v Swain & Co

[krysus]

Thanks for your continued help on this noomill...

 

My understanding is that the default is the arrears element, and hence the figure quoted wouldn't (doesn't) include the penalty charges... they just provide the outstanding balance for information.

 

Any ideas as to how can i determine this based on just the info on the DN, and maybe from my statements?