Default Notice and bad weather excuse

[cyclingoscar]

Hi,

 

I hope someone has a view on this query

 

I received a Default Notice today, which expires 5th December - Tomorrow.

The notice it self appears fine (i.e. a debt that I know about which is being disputed). What is a concern is that after a call to the organisation concerned, is they say - tough. It was posted 19th November and therefore meets their legal obligation to give 14 days to respond. Complain to the Post Office!

 

What they will not answer is how I am supposed to respond with only one days 'actual' notice, plus I was not aware of the notice and therefore did not have 14 days.

 

Discuss

 

Many thanks for your help.

[Tingy]

OK! Firstly when you say the account is being disputed, have you actually placed it in dispute? what were the circumstances around this? Secondly you cannot reply in one day. I actually make the 14 days up on Dec 3rd! We really need to know if this is formally in dispute or whether you are just disagreeing with each other at the moment. What has been defaulted on?

 

Without this knowledge it is hard to advise.

[cyclingoscar]

Thanks for coming back to me.

 

The account is in dispute and the case with the FOS. The FOS have judged in favour of the other party. We had a few weeks to decided whether to accept or disagree with the judgement with a date in December.

 

They just wanted to get the first strike in ;-)

 

I wonderd if the DN was duff as even though they 'posted' is with just over two weeks before it expired, but as I only get it with a day to go. OR does the DN go in their favour regardless of how long I actually have to respond!

 

Ta

 

[Old Cogger]

post it upfor us to see minus your personal details

[postggj]

was it sent by

 

tnt

uk mail

royal mail

 

do you still have the envelope

[cyclingoscar]

Hello and thanks again for replies,

 

Standard letter via UKMail then Royal Mail for the last mile.

 

Yes, kept the envelope. Not franked on it as a business envelope but it does have those little orange & black dashes across the front which might prove something if push came to shove and it was analyzed by the Royal Mail and / or UKMail.

 

I took the leap from XP to Windows 7 a couple of months ago. The scanner didn't make the jump as not compatible, (a topic for the beer garden perhaps ). Until I get a new scanner I drag out the old kit when needed - rarely. I'm in tomorrow evening so will do scan and post then.

 

Ttfn

[denisek]

it seems a bit unreasonable for them to brush you off like that when the whole country is suffering from extreme weather and the post office having trouble delivering. why should you take it up with the post office? it was sent by them so theyre the ones in contract with the PO, not you. since it expires tommorow, i would advice you take all the letters (and envelopes) and notices to your local CAB tommorow morning and get one of their advisors to call on your behalf. they have lots of experience with these cases. it usually takes a few weeks for the debt collectors to move on to the next stage of collection so theyre just taking the pee basically!

[cyclingoscar]

I've done the DN.

 

denisek. I agree, taking the pee and some.

 

http://i1030.photobucket.com/albums/y369/carlyve/smile/ScanImage111_ALT.jpg

 

I hope this is clear enough.

 

Cheers,

[2Grumpy]

Hi,

 

I hope someone has a view on this query

 

I received a Default Notice today, which expires 5th December - Tomorrow.

The notice it self appears fine (i.e. a debt that I know about which is being disputed). What is a concern is that after a call to the organisation concerned, is they say - tough. It was posted 19th November and therefore meets their legal obligation to give 14 days to respond. Complain to the Post Office!

 

What they will not answer is how I am supposed to respond with only one days 'actual' notice, plus I was not aware of the notice and therefore did not have 14 days.

 

Discuss

 

Many thanks for your help.

 

That would be correct if they had posted it first class and it wasn't posted on a Thursday or Friday because then there are 2 days extra for delivery. 19th November was a Friday. Poor LTSB ...

 

As it is, UKMail is 4 days for delivery.

 

Don't discuss this with LTSB any more. Don't give them any clues to their problems. Just wait for them to terminate your account (unlawfully). Then you won't owe more than the overdue amount on the DN.

[2Grumpy]

Thanks for coming back to me.

 

The account is in dispute and the case with the FOS. The FOS have judged in favour of the other party. We had a few weeks to decided whether to accept or disagree with the judgement with a date in December.

 

They just wanted to get the first strike in ;-)

 

I wonderd if the DN was duff as even though they 'posted' is with just over two weeks before it expired, but as I only get it with a day to go. OR does the DN go in their favour regardless of how long I actually have to respond!

 

Ta

 

 

How on earth did you get through their complaints procedure, get LTSB's final determination & through the FOS in only a couple of weeks?

[cyclingoscar]

Hi all,

 

Its not Lloyds TSB. Now they have gone for termination I'm not bothered if they see this any more. This account is with The Co-orporation (trading as smile).

 

I'll tell you a little bit more about Saturday after I got the letter. As the deadline was imminent I though I would ring, (don't normally) this was just to get a not on the records that I disagreed with the DN prior to expiry.

 

So I called, went in the queue and after 20minutes, (use 0161 477 1927 not the 0845/0870 number they give you). I asked a simple question. How am I supposed to have 14 days to reply to the default notice when I have had only 1 actual day? The telephone operator said that I had been given plenty of time as the letter was posted 19th November. I again asked how I had been given 14 days’ notice, if I was not aware of the Default Notice? He said that I had been given enough time as they had posted it in enough time. We had a circular discussion for about half an hour including the phone drone refusing me the opportunity to speak to his Manager. Eventually he said I could have a call back from a manager within 48 hours.

 

> Section 87(1) of the 1974 Act allows the creditor to send you a default notice giving you fourteen days from the date you receive it to pay the arrears.

 

I have checked on the UKMail website and their Business service is a two day delivery option. Unless the Bank chose to use the cheaper choice; “for less time sensitive mail try our Economy Class, three day definite option”. Assuming the Bank used the two day service, (I would not call a Default Notice less time sensitive mail). 19th November is a Friday, so as Saturday and Sunday are not working days this would have meant that if the letter was delivered correctly it should have arrived Tuesday 23rd November at the absolute earliest. Therefore I still would not have had 14 days to respond prior to the Bank’s expiry date of 5th December. The only way the Bank could have given me enough notice would have been to arrange for next day delivery or hand delivered the letter the following day. So the fact that the letter took so long to arrive is an academic issue.

 

By the way the promised 48hour call took twice as long to happen. I was not in so I had a message waiting for me.

 

So the Bank have now sent a Termination Notice (dated 6th December), which arrived before they gave me a call back!!!!

 

So it is now rescission time, (sorry bad pun). Decision time:

 

Now I am a bit confused about this rescission business:

The Defective DN was not for arrears only, it was for the whole amount outstanding. So as they have caused a rescission, can they start proceedings for the whole amount? After I have written to accept the termination of course. So even though the DN is defective they can still come after me as the DN and TN have the same (correct) amount.

 

Any help would be much appreciated.

 

Cheers,

 

P.S. If a rescission is an unmaking of the contract to "pre-contract" conditions, I didn't have the overdraft made up of charges so surely I don't owe anything, (not that simple I guess)

[cyclingoscar]

Hi,

Though you might like this extra bit since the last post. I have just found a a secure message, from yesterday.

 

Paraphrasing here; The phone operative I spoke to on Saturday needs to discuss some more points. Could I call them back.

 

Arr. I didn't know they cared.

 

I have replied. Along the lines of; since my conversation on Saturday 4th December, I have received a Termination Notice. I will therefore not be making any calls to the Bank. You will need to put any question(s) you have in writing. I do not want there to be any chance of misunderstanding which can sometime be the case with phone calls...

 

Cheers,

[Tingy]

Recission is the legal term for renouncing a contract. Normally, a contract is a legally binding agreement that is enforceable in court. A contract can be rescinded by operation of law or by mutual assent of the parties. It has the legal effect of erasing the contract as if it never happened.

Effect

 

1. When a contract is rescinded, the normal effect is to return the parties to the status quo ante -- their condition before entering into the contract. This includes returning any money or other consideration that had been exchanged, compensating parties for partial performance and returning the relative rights to the parties against each other to their state prior to the contract. This means that a suit for breach cannot later be brought for failure to perform under a contract that has been effectively been rescinded.

Rescission by Law

 

2. A contract can be rescinded by a court as an equitable remedy if the contract is void or voidable due to a defect in its formation. This can occur if one of the parties to the contract was a minor at the time the contract was formed, was mentally incapacitated, or was intoxicated. A court may also elect to rescind a contract if there was fraud, duress, undue influence at the making of the contract, or if its terms are unconscionable.

Mutual Rescission

 

3. Contracts can be rescinded by mutual assent of all the parties. Rescission is an all or nothing deal -- partial rescission is not rescission, but modification of a contract. Rescission can be written or oral, but must be evidenced by definite mutual assent. Contract rescission must be accompanied by an exchange of valuable consideration, though generally the mutual release of obligations under the contract is sufficient consideration to effectuate the process.

Repudiation

 

4. Breach of a contract is not the same as rescission. It is not an offer to rescind, but can be treated as such by another party to the contract. Repudiation occurs when, prior to some performance under the contract becoming due, the obligated party states a definite and unequivocal intent not to perform. Ordinarily, repudiation constitutes a breach of the contract, but the other party can treat it as an offer to mutually rescind the entire contract.

 

 

 

 

REPUDIATION

1. The act of repudiating or the state of being repudiated.

2. The refusal, especially by public authorities, to acknowledge a contract or debt

Quote:

Term: repudiatory breach

1.

A repudiatory breach of contract is a breach of contract that goes to the very root of the contract, evidences intention on the part of the party in breach that they no longer intend to be bound by an essential term of the contract.

Breach of a fundamental term in this way entitles the innocent party to accept the breach of contract (that is the repudiation of the contract) and bring the contract to end, or alternately affirm the contract.

If the innocent party wishes to accept the breach and terminate the contract, they must do so unequivocally and without undue delay. Delay in its own right is not fatal, provided the innocent party does not do anything to affirm the contract in the interim, and it is prudent to put it on the record that the innocent party objects to the conduct.

Repudiatory breach: Repudiation of contracts - London lawyers & solicitors, UK

Quote:

Repudiation may be an express renunciation of contractual obligations by one party (A)1. This will be so whether A absolutely refuses to perform his side of the bargain2 or unambiguously asserts that he will be unable to do so3. However, it's more commonly implied from failure to render due performance4 or, in cases of anticipatory repudiation5, by the party in default putting himself in such a position that he will apparently be unable to perform when the time comes. A party (B) seeking to rely on repudiation implied from conduct must show that the party in default has so conducted himself regarding lead a reasonable person to believe that he won't perform6 or will be unable to perform at the specified time7; as where A refuses to perform unless B complies with requirements not contained in the contract8. The fact that a breach is deliberate won't necessarily amount to a repudiation9; nor will words and conduct which do not amount to a renunciation of the contract10.

Where the parties genuinely differ regarding the meaning of the contract a party won't necessarily be treated as having repudiated if he refuses to perform except according to his own bona fide interpretation of the contract11, although that interpretation turns out to be erroneous12. Where one party to a contract conceives that he is no longer bound by it, or has a right to rescind it or have it declared null and void, and issues a writ for the purpose of obtaining that which he believes to be his right, he doesn't thereby repudiate the contract in any event13. The issue of a writ by an employee in respect of a claim for accrued wages doesn't represent a repudiation by him of his contract of service14.

A party isn't bound before the time for performance to give a definite answer whether he intends to fulfil the contract or not15.

Case Law

Quote:

Repudiation of contract

Date 18 November 1998 Judgment Bedfordshire County Council -v- Fitzpatrick Contractors Limited, TCC 16 October 1998 The Issue Repudiation of contract. Implication A repudiation occurs when a party intimates by words or conduct that it does not intend to honour its obligations under the contract.

 

Most professionals in the construction industry understand the concepts of termination and repudiation. It is appreciated that these matters need to be approached with sensitivity and caution, proper legal advice being crucial.

 

Nevertheless it is commonplace to find situations where the termination of a construction contract has been poorly handled with a flurry of letters, faxes and E-mails blinding commercial judgement.

 

The case of Bedfordshire County Council -v- Fitzpatrick Contractors demonstrates how such actions may appear entirely unreasonable when under the cold examination of a court of law. The proceedings arose out of the termination of a highway maintenance contract awarded by Bedfordshire County Council to Fitzpatrick.

 

The contract was for a period of four years, with work to be carried out pursuant to works orders for the construction, maintenance and clearance of all directly maintained highways in Bedfordshire.

 

The contract envisaged the operation of the Transfer of Undertakings (Protection of Employment) Regulations 1981, to the effect that there would an automatic transfer of the employment of the Council's highways maintenance employees.

 

This meant that Fitzpatrick was concerned to ensure that the value of work executed under the term contract would be sufficient to keep the transferred workforce gainfully employed, otherwise it could face substantial redundancy costs.

 

During the tender Fitzpatrick had requested the Council to confirm the minimum contract value per annum and had been told that it would be of the order of £6M, although this figure could not be guaranteed.

 

In February 1996 Fitzpatrick's tender was accepted and it was agreed that the commencement date would be 1 June 1996.

 

As June approached however, it became obvious to Fitzpatrick that the anticipated volume of work orders would not be available to it by 1 June. On 24 May it wrote to the Council stating that it was only in receipt of work orders for the first month of the contract with a value of approximately £15,000. It noted that a spend level in the order of £400,000 per month would be a minimum requirement to maintain gainful employment for the transferring employees.

 

A snow storm of correspondence commenced. The Council responded to the effect that it considered there was no obligation upon it to provide sufficient work to guarantee gainful employment for the transferred workforce at the start of the contract.

 

The first of June passed without Fitzpatrick commencing work, and the Council immediately made provision for the continuation of highway maintenance by employing the direct workforce that was to have been transferred to Fitzpatrick.

 

Relations between the parties deteriorated further. On 11 June Fitzpatrick wrote to the Council stating that it considered that 1 July would be a more appropriate date for the contract to commence.

 

The following day the Council replied to the effect that unless Fitzpatrick confirmed its intention to take up all its obligations under the contract by 15 June, the Council would treat this as a repudiation and terminate the contract.

 

On 13 June, not having received an acceptable response from the contractor, the Council gave notice terminating the contract forthwith.

 

The Honourable Mr Justice Dyson QC was first asked to consider the issues of liability.

 

Firstly Mr Dyson had to consider whether there was an implied term of trust and confidence in a long term contract of this type, in similar terms to that which would exist between an employer and employee. This, it was argued, would apply to the effect that the contractor would not conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the parties.

 

Mr Dyson was satisfied that no such term should be implied and that the contract stood perfectly well on its own terms.

 

Turning to the actions of Fitzpatrick, it was clear that it was in breach of contract by failing to accept the transfer of the workforce and start work on 1 June. It was not a term of the contract that there should be sufficient work available on 1 June and even if there had been such a term, this would have given rise to an entitlement to damages payable to Fitzpatrick. It would not entitle Fitzpatrick to refuse to perform the contract.

 

Such a breach of contract by Fitzpatrick did not however amount to repudiation. The Council was in no doubt that Fitzpatrick had the will and the ability to perform this four year contract. Furthermore the Council had failed to make 'time of the essence' of the contract by its letter of 12 June, since it had failed to give Fitzpatrick reasonable notice.

 

In Mr Dyson's view the failure to commence work was not a breach which would deprive the Council of substantially the whole of the benefit which it was intended that the Council should obtain from the further performance of the contract.

 

It followed from this that the Council was in repudiation in terminating the contract on 13 June.

Quote:

Vitol SA v Norelf Ltd; House of Lords (Lord Mackay of Clashfern, Lord Chancellor, Lord Griffiths, Lord Nolan, Lord Steyn, Lord Hoffmann) 20 June 1996

An aggrieved party could as a matter of law accept a repudiation of a contract merely by himself failing to perform the contract. Whether in any particular case he had done so must depend on the circumstances.

The House of Lords allowed an appeal by the sellers, Norelf Ltd, reversed the decision of the Court of Appeal ([1996] QB 108) and restored the decision of Mr Justice Phillips ([1994] 1 WLR 1390) affirming an arbitration ruling against the buyers, Vitol SA.

The dispute arose out of a contract of 11 February 1991, by which Norelf sold to Vitol a cargo of propane c.i.f. north-west Europe to be shipped from the United States. Delivery of the cargo to the ship was to take place from 1 to 7 March. The sellers were to tender the bill of lading to the buyers promptly after loading. On 8 March the buyers telexed the sellers as follows:

It was a condition of the contract that

delivery would be effected 1-7

March 1991 . . . We are advised that the vessel is not likely to complete loading now until some time on 9 March, well outside the agreed contractual period. In view of the breach of this condition we must reject the cargo and repudiate the contract.

The buyers never retracted nor attempted to retract their repudiation of the contract. The sellers did nothing to affirm or perform the contract. Instead they resold the cargo at a loss. They then claimed against the buyers US$950,000 in damages, being the difference between the original contract price and the resale price. The premise of the claim was that they had accepted the buyers' repudiation.

The arbitrator held that the tenor of the rejection telex was such that the failure of the sellers to take any further step to perform the contract which was apparent to the buyers constituted sufficient communication of acceptance of the buyers' repudiation.

Jeremy Cooke QC and Andrew Wales (Clyde & Co) for the buyers; Andrew Popplewell and Miss N. Davis (Holman Fenwick & Willan) for the sellers.

Lord Steyn said it was established law that where a party had repudiated a contract the aggrieved party had an election to accept the repudiation or to reaffirm the contract. Acceptance of a repudiation required no particular form; it was sufficient that the communication or conduct clearly and unequivocally conveyed to the repudiating party that the aggrieved party was treating the contract as at an end. The aggrieved party need not notify the repudiating party of his election to treat the contract as at an end; it was sufficient that the fact of the election came to the repudiating party's attention.

The issue here was whether non-performance of an obligation was ever as a matter of law capable of constituting an act of acceptance. One could not generalise on the point. It all depended on the particular contractual relationship and the particular circumstances of the case. Like Phillips J, his Lordship was satisfied that a failure to perform might sometimes signify to a repudiating party an election by the aggrieved party to treat the contract as at an end.

The Court of Appeal had been strongly influenced by an obiter dictum of Kerr LJ in State Trading Corp of India Ltd v Golodetz Ltd [1989] 2 Lloyd's Rep 277 at 286, that saying and doing nothing at all, other than a continuing failure to perform, cannot constitute an acceptance of a repudiation even if the grounds for such an acceptance then exist.

In his Lordship's opinion that passage, if intended to enunciate a general rule, went too far. A continuing failure to perform would necessarily be equivocal; but his Lordship disagreed with the view of Nourse LJ in the Court of Appeal ([1996] QB 106 at 116-117) that failure to perform a contractual obligation was necessarily and always equivocal.

Sometimes in the practical world of businessmen an omission to act might be as pregnant with meaning as a positive declaration

There are several more repudiation case laws

Rescission

Quote:

Nonperformance or Breach

Quote:

One party to a contract can rescind it because of substantial nonperformance or breach by the other party. The party who knowingly and willfully fails to perform cannot complain that the other party to the contract has injured him or her by terminating the contract. The right to rescind does not arise from every breach but is permitted only when the breach is so substantial and fundamental that it defeats the objective of the parties in making the agreement. The breach must pertain to the essence of the contract. The act must be an unqualified refusal by the other party to perform and should amount to a decision not to be bound by the contract in the future. A party to a contract who is in default cannot, however, rescind because of a breach by the other party.

When time is of the essence in a contract, failure to perform within the time stipulated is a ground for rescission. Otherwise a delay in the time of performance is not considered a material breach justifying rescission. When performance is intended within a reasonable time, one party cannot suddenly and without reasonable notice terminate the contract while the other party is attempting in good faith to perform it.

An unconditional notice by one party that he does not intend to perform a contract is a ground for rescission by the other party. In order to justify rescission, the refusal must be absolute and unconditional.

When one party to a contract abandons it and refuses further performance or her conduct shows that she is repudiating the contract, the other party is entitled to rescission. A disagreement over the terms of the contract and a subsequent refusal to perform in a particular manner by one of the parties do not constitute an Abandonment of the contract justifying rescission.

Probably the clearest explanation with regard to CCA

Quote:

Although a breach of contract by one party is not an offer to rescind, the other party can treat the repudiation as an offer to rescind that he or she can accept, leading to rescission of the contract by mutual assent. Rescission must be clearly expressed, however, and the conduct of the parties must be inconsistent with the existence of the contract. The fact that some of the materials that form part of the subject matter of the contract have been returned is not conclusive as to whether rescission has occurred.

[cyclingoscar]

WOW

 

Thanks for this. 1 espresso coming up Then I'll start reading.

[smugorwhat]

BRANDON_CASE.pdfHi All, do be aware of the American Express v Brandon judgement that is being used by creditors at the moment in relation to default notice periods. Brandon has requested an appeal, but that won't be granted or denied until 3 Feb 2011.

 

Essentially the Judge states that if the default notice only gives you one day it is irrelevant if the creditor doesn't begin enforcement before 14 days.

[cyclingoscar]

Hi all,

 

Thanks for the heads-up re the Brandon case, smugorwhat. The Co-op went for termination prior to the 14 days I should have had, but not before their 14 days, (ignoring the one day issue). Time will tell, I guess!

 

Cheers,

[cyclingoscar]

Right,

Back home and have read of His Honour Judge Roderick Denyer QC handwork. Yes there are some similarities. American Express (Brandon case) did have an extra week in their Default Notice time. But I think key here is the service of the default Notice to me. I notice section 176 of CCA '74 goes something like this:

 

Firstly

s.176 Service of documents. E+W+S+N.I.

 

(1) A document to be served under this Act by one person ( “the server ”) on another person ( “the subject ”) is to be treated as properly served on the subject if dealt with as mentioned in the following subsections.

 

(2) The document may be delivered or sent [by an appropriate method] to the subject, or addressed to him by name and left at his proper address.

 

(3) For the purposes of this Act, a document sent by post to, or left at, the address last known to the server as the address of a person shall be treated as sent by post to, or left at, his proper address.

 

(4) Where the document is to be served on the subject as being the person having any interest in land, and it is not practicable after reasonable inquiry to ascertain the subject’s name or address, the document may be served by—

 

(a) addressing it to the subject by the description of the person having that interest in the land (naming it), and

 

(b) delivering the document to some responsible person on the land or affixing it, or a copy of it, in a conspicuous position on the land.

 

(5) Where a document to be served on the subject as being a debtor, hirer or surety, or as having any other capacity relevant for the purposes of this Act, is served at any time on another person who—

 

(a) is the person last known to the server as having that capacity, but

 

(b) before that time had ceased to have it,

 

the document shall be treated as having been served at that time on the subject.

 

(6) Anything done to a document in relation to a person who (whether to the knowledge of the server or not) has died shall be treated for the purposes of subsection (5) as service of the document on that person if it would have been so treated had he not died.

 

As the DN was not "left at his proper address." until one day prior to the expiry of the DN is would appear be defective. In other words it is not good enough to be stuck in a post box by the creditor and they assume it is delivered. Their termination arrived 5 days after the DN arrived

 

Secondly

On the last page of the PDF:

"21. The law on this point is if the parties agree a reasonable sum to be paid as compensation for breach of contract, known as liquidated damages, the courts will enforce the agreement. The courts will not enforce a term that is a penalty for non- performance."

 

My whole argument with the Bank has been how 'reasonable' or not this sum is.

 

So tomorrow I will be accepting their unlawful rescission.

 

Update tomorrow.

Cheers,

[Guest]

re service, also note

 

'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.'

[cyclingoscar]

Thanks for that Ford,

 

The argument about the actually delivery will go down to their word verses mine. I don't have "absolute" proof of delivery but we know that it arrived 4th December so "subject to proof to the contrary" may apply.

 

Luckily ignoring this, the Co-op have sent the DN via a third party mail carrier with their equivalent of second class. They have not allowed for 14 clear days upon theoretical delivery and to cap that, then sent the Termination before these 14 days elapsed.

So we are going to accept their 2offer".

 

Cheers,

[cyclingoscar]

Hi all,

 

Acceptance of their unlawful rescission has been sent today. A copy has gone via their secure message system and a actual letter will be going very shortly recorded delivery.

 

The ball is back in their court for the moment:

 

dear sirs

Re XXXXXXXXXXXXXXXX

 

 

I refer to your letter of dd/mm/yyyy and note that you have unlawfully rescinded the agreement referred to above. I accept that the agreement is at and end and I am now relieved of any and all obligations that the alleged agreement may have held me to

 

Kindly inform me of the genuine arrears outstanding as at the date of termination (not including any unlawful charges or interest added to the account)

 

yours sincerely

cyclingoscar

Kindly

 

 

Cheers,

[Guest]

Thanks for that Ford,

 

The argument about the actually delivery will go down to their word verses mine. I don't have "absolute" proof of delivery but we know that it arrived 4th December so "subject to proof to the contrary" may apply.

 

Luckily ignoring this, the Co-op have sent the DN via a third party mail carrier with their equivalent of second class. They have not allowed for 14 clear days upon theoretical delivery and to cap that, then sent the Termination before these 14 days elapsed.

So we are going to accept their 2offer".

 

Cheers,

 

re 'proof to the contrary'/'ordinary course of post' - didn't royal mail recently state officially that their normal deliveries had been affected by the bad weather, and that in some cases they could not even guarantee next day delivery re their 'special delivery'!? if this coincides, could this be used to corroborate your delivery date, if needs be?

are you sure that the rest of the dn itself is wholly compliant? post it up if you can (minus any identifiables)

Edited December 15, 2010 by Ford

[cyclingoscar]

Hi and thanks Ford for input,

 

Certainly parts of the country are having trouble getting mail, but not here. But even if their legal team decide that so long as the Default Notice was posted and it doesn't matter if it was delivered or not, (as was their first response). The date posted and expiry on the DN have 16 days between inclusive. Deduct the first weekend 20st & 21st Nov. Then knocking off the UKMail 2-day definite service, which is the best option they do, (but not sure if this is the service used) we are left with 12 days at the absolute best. The Bank issued the Termination 6th December; this is before the "14 days have elapsed".

 

It was on an earlier post, but here it it:

http://i1030.photobucket.com/albums/y369/carlyve/smile/ScanImage111_ALT.jpg

 

Plus for 'completeness', the Termination:

http://i1030.photobucket.com/albums/y369/carlyve/smile/ScanImage121_ALT.jpg

 

Hope they are legible enough?

 

Cheers,

 

[cyclingoscar]

Hi all,

 

Minor update, the Bank have replied via Secure Message for accepting their termination:

Hello Oscar,

 

Thank you for your recent message the contents of which have been noted.

 

I can confirm for you that your letter has been received and has been forwarded to our customer feedback department who will be in contact in due course.

 

Regards smile

 

Cheers,

[Guest]

oscar

re dn - apart from dates, the only other issue (minor) i can see atm is that they do not appear to have complied with para 5b of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983?

this is re a current account o/d? have they previously sent you an 'o/d letter' outlining the terms etc of the o/d? also consider s140 CCA.

imo.

[cyclingoscar]

Hi,

 

Thanks to Ford for the last post and sorry for taking so long in replying

 

About time for an update. It went fairly quiet about this matter. A couple of letters went to and fro to the Bank. I even put an ultimatum in saying if they so not bother to reply in 28 days I would assume the matter is closed and the account will be seen as settled. They didn't reply. I was sort of hoping they might go to court so could test the Unfair contract route.

 

Then. 25th Feb when we were away. Had letter from Phoenix Credit Services Limited; "We have been instructed by the Co-operative Bank to collect the full balance outstanding against the account......."

 

Did two things 1) Took the unusual step of ringing the number on the letter. They agreed to sent a letter for a new settlement (?) (I also got ready a, this account is in dispute - send it back to the original creditors letter).

2) Wrote to contact at Customer Feedback saying we had received a letter from their pretend debt collectors. Reiterated that if they want to go to court, they must be prepared to face the wroth of the Judges due to wasting the courts time over a matter that could be resolved without action. Plus they will have to answer the question I have been waiting 4 years to have an answer to.

 

This Saturday (5th March) then had a 'Special Offer' from the Bank. It almost brought a tear to my eye, perhaps after all the Bank could be called ethical

"Your account has been selected to receive a 50% discount off the balance outstanding, if you pay within 10 days from the date of this letter........."

So practically we have till Friday to either agree or disagree with the offer. My gut says settle and my head says let them whistle.

 

Cheers