DeFault Notice re Cr Cd

[Guest]

thanks

 

Yes send the letter see what they come up with.

 

DFC ? .....yes, but not me!

Edited November 13, 2009 by Ford

[Guest]

Hi

 

update:

-No reply to my letter yet as per post #41. have previously rec'd the usual 'final reponse' letter from oc, so am not expecting any reply.

-Have noticed that dn does not include a statement as per schedule 2, 10a of the 1983 regs.

-Have received a letter from mh a inhouse dca offering a 'special arrangement' to pay a short term min monthly payment 'based on the total outstanding bal' to avoid legal action.

 

any thoughts? how should i reply, if any, to dca letter?

 

thanks

Edited November 26, 2009 by Ford

[cerberusalert]

The a/cs in dispute so they can't take enforcement, I would ignore them and see what their next move is.

[Guest]

thanks again cerberusalert, much appreciated.

[Guest]

Hi,

 

Re recent sar request - have had letter back confirming request, but saying re call log that due to the way their system works i need to give them a list of dates and approx times of calls! Any ideas on a suitable reply to this? thanks

[Guest]

Hi

 

Re sar above - i sent letter back saying that they, due to their resources, should have a log of all recorded calls. got a letter back saying that they will send cd of all recorded calls.

Have received some info re sar in time, but it is incomplete. Will send an 'incomplete' letter accordingly?

 

My DN also does not comply with para 5b of the 1983 regs.

 

Have received threatogram from 'inhouse' BL S collections dca saying 'have been instructed by client to recover outstanding balance (the total balance)....telephone with proposals to clear the debt....failure to do so may force us to make contact by telephone or advise client to consider a personal visit.' (BL S are asking for payment. I was not given any notice that BL S had been instructed)

 

Any advice on my next step please? thanks.

Edited January 11, 2010 by Ford

[Guest]

Hi

 

have received some further info re sar, but it is still incomplete imo.

BUT, they have also sent me someone elses info (a relative) re their cr cd details and personal details! how should i deal with this? thanks.

Edited February 15, 2010 by Ford

[cerberusalert]

Make a complaint to the ICO they have breached the Information Act by sending you someone else's information. Your relative should complain too.

 

Complaints about data protection policy - ICO

[Guest]

thanks cerberusalert

 

do you think i should let the bank know what they've done, or go straight to ICO. (ICO site link says to contact them (the 'organisation') first)? would I, or relative or both, be entitled to compensation?

 

thanks

[cerberusalert]

Your relative certainly can claim compensation. IIRC the going rate is around £300 but I'm not sure whether you can or not, but it's worth a try. A snotty letter to them telling them how disappointed you are that a reputable bank could so blatantly breach the data protection act etc etc & how can you be convinced that your personal information hasn't been passed on to an unauthorised third party + if they don't come up with an acceptable resolution you will be making a complaint to the ico.

[cerberusalert]

BTW, don't mention you are related it's irrelevant anyway.

[Guest]

thanks

 

relatives' surname and address is the same as mine! so, they'll know that it is a relative wont they? (unless they're that ignorant:lol:). any further thoughts? thanks. ps, relative is mad that they have sent me their details.

Edited February 12, 2010 by Ford

[Guest]

any ideas anyone please on a draft letter relative can use to send to bank, and/or ICO?

 

thanks.

Edited February 12, 2010 by Ford

[Guest]

Hi

 

re dpa breach - do you think i should contact bank first about their breach, or should relative contact them first? thanks.

[cerberusalert]

Yes you complain first. It'll be interesting to see what they do.

[Guest]

thanks

 

should i send them a copy of the relatives info that they sent me, or just say eg that they have sent me someone elses' details?

[cerberusalert]

Yes send a copy.

[Guest]

thanks

[Guest]

Hi

 

have had a few template t'ograms from BL S inhouse dca, usual stuff threatening 'personal visit' etc, and numerous calls (not answered, except a couple just to say in writing only and then hung up). have previously sent them the in dispute, trespass, and s10 letter, and a 'pre' harassment letter. although calls have stopped (for now!), they have not replied to my letters.

Have now rec'd their template letter threatening legal action if i don't phone them in 14 days, usual threats eg consequences if ccj obtained and fall into arrears, also stating their min costs & that i haven't contacted them & if i dont phone they will be forced to commence legal action!

 

How should i respond to this? thanks.

Edited March 7, 2010 by Ford

[Guest]

anyone any thoughts on the above post? thanks.

[cerberusalert]

If they tried to obtain a CCJ you have a defence in the fact that the DN is defective and as soon as they sent the termination notice or demanded the full amount it was unlawful rescission of contract.

 

*The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default*1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.4. The Default notice supplied by the Claimant is dated Friday to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August. (You will need to amend this point to suit your own situation. I am unable to open your default notice so cant see the remedy date. )5

. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).6. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 1

19.7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:Section 87. Need for Default Notice(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -(a) to terminate the Agreement, or(b) to demand earlier payment of any sum, or© to recover possession of any goods or land, or(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated,

restricted or deferred, or(e) to enforce any security.9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:Section 88. Contents and effect of Default Notice(1) The Default Notice must be in the prescribed form…10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render

the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have

a right of action having terminated the Agreement unlawfully.*14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.*15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not s

erve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on* XX/XX/XX*. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

 

[Guest]

thanks. (my dn is offline at mo)

 

do you think i should reply to their letter in some way, or just leave it and wait to see what they do next?

Edited March 17, 2010 by Ford

[cerberusalert]

I'd ignore for now and see what their next move is.

[jonnyt79]

Hi

just been reading your thread Ford, my cca looks like yours. with my t&C 'Overleaf'

 

I then backed off thinking it was enforceable.

 

 

Cerberusalert...does the t&c printed 'overleaf' count as within the four corners?

would it be possible for you to have a look over mine please?

 

http://www.consumeractiongroup.co.uk/forum/lloyds-bank/223346-cca-request-question.html

 

thanks jonny

[Guest]

hi,

have now received 'standard' letter from a different dc a ('robin.' way)threatening legal action - saying 'formal demand for payment..formal notice of intended court action. we may take action unless pay full amount in 10 days' 'if court action is taken...etc.

i had no notice of their 'instruction', & don't think they are 'owner' as letter says 'amount due to Loyds', 'client has authorised them to recover full amount..' ?

(have previously had letter from oc saying they are looking into my complaint, re BL S. nothing further heard from them on that yet)

should i send dispute letter to robin.?