Old HSBC case taken up by MKDP LLP. When is a Default Rectified?

[Peterbard]

Yes there is

 

Woodchester vs Swain

 

Harrison Vs link needs a look at

 

Brandon Vs Amex

 

for staarters

 

Most available on here

[colin21958]

OK nothing stopping you doing this, however there are some points to keep in mind.

 

If you did not remedy the Dn within 14 days, they were entitled to terminate, there is nothing I am aware of which says they have to terminate straight away.

 

If however you can show that the account has operated in the interim you may be able to claim that this represented their failure to accept repudiation of agreement and therefore the agreement continued, however , the question is, did it operate ? You said the ability to withdraw was lost and you missed contractual payments, a court may well say that it was still in a default condition, and the notice was enough to justify the termination however late.

 

What was the situation regarding the agreement and in particular mentioned having site of an application form with no PTs, it it possible for us to have a look at this.

 

 

Hi Dodgeball,

 

 

They didn't withdraw the facility until June 2010 (about a month before they terminated it, that's 6 months after the DN was issued), letters they sent up to the time of the termination referred to the agreement, terms and conditions, etc., stating that non-payment was a breach of the terms and that if I didn't pay, they would issue a DN. But it the DN was valid still, why would they threaten this? I do believe that 7 months is too long for them to rely on the DN they issued. I have a statement for several months showing demands for only the monthly payment and missed payments after the account was "rectified", plus a single statement following this which showed the account up to date with no overdue or over-limit amounts. I will scan and post the application form which they have presented as the agreement shortly...

 

 

Regards,

 

 

Colin.

[colin21958]

Yes there is

 

Woodchester vs Swain

 

Harrison Vs link needs a look at

 

Brandon Vs Amex

 

for staarters

 

Most available on here

 

 

Thanks, I will examine them...

[colin21958]

Attached are the two pages of the application form which they sent... Only the name, address and date of birth were completed, but they were filled in by them, this form, nor anything like it was never completed by me to my knowledge.

 

 

Oh dear, they have been reduced in size during uploading and of no use to look at. Any ideas how I can upload them for better display anyone? Thanks.

Edited January 3, 2014 by colin21958
Attachments not viewable.

[Peterbard]

Hi Dodgeball,

 

 

They didn't withdraw the facility until June 2010 (about a month before they terminated it, that's 6 months after the DN was issued), letters they sent up to the time of the termination referred to the agreement, terms and conditions, etc., stating that non-payment was a breach of the terms and that if I didn't pay, they would issue a DN. But it the DN was valid still, why would they threaten this? I do believe that 7 months is too long for them to rely on the DN they issued. I have a statement for several months showing demands for only the monthly payment and missed payments after the account was "rectified", plus a single statement following this which showed the account up to date with no overdue or over-limit amounts. I will scan and post the application form which they have presented as the agreement shortly...

 

 

Regards,

 

 

Colin.

 

The problem is that the judge may say,ther was a default notice it was not remedied there was a termination so enforce. This is what happened in Brandon, although the case came unstuck for other issues.

 

Also there will have been a contractual termination clause which they could use to terminate the agreement if issued after a compliant DN this is also in brandon. All of this can be challenged of course but it does make this aspect of you case weak IMO

[colin21958]

The problem is that the judge may say,ther was a default notice it was not remedied there was a termination so enforce. This is what happened in Brandon, although the case came unstuck for other issues.

 

Also there will have been a contractual termination clause which they could use to terminate the agreement if issued after a compliant DN this is also in brandon. All of this can be challenged of course but it does make this aspect of you case weak IMO

 

 

Hi Dodgeball,

 

 

I do understand what you are saying, but I feel that the evidence that the account was treated as if the default was rectified is so strong, that I believe the court would have to agree that the DN was rectified, even though it was by their own actions and even though it was late. They took the money themselves, the exact amount to rectify the DN, they then treated the account as if the DN had been rectified, they even admitted in a letter to me much later on that they had "used offsetting to correct the position on the account". What could they "correct" if it was no the default? etc., there are lots of points I can show which support the fact that both them and I considered that they had accepted the payments they took, even though they were late, as rectifying the default. If they threatened to issue a default notice, several times after all this, then surely it was reasonable for me to expect to be issued with one? Anyway, I will study the cases you referred me to for more inspiration.. Thanks,

 

 

Regards,

 

 

Colin.

[colin21958]

Here are the two pages of the "agreement"...

 

 

http://i1047.photobucket.com/albums/b471/colin21958/MKDP%20LLP/agreement0001.jpg

http://i1047.photobucket.com/albums/b471/colin21958/MKDP%20LLP/agreement0002.jpg

[Mike_hawk]

Attached are the two pages of the application form which they sent... Only the name, address and date of birth were completed, but they were filled in by them, this form, nor anything like it was never completed by me to my knowledge.

 

 

Oh dear, they have been reduced in size during uploading and of no use to look at. Any ideas how I can upload them for better display anyone? Thanks.

 

Try converting to PDF........ also, could you attach a copy of the final statement of account you refer to showing no arrears. As previously mentioned, it could rely on the earlier DN if not remedied within 14 days although it would seem to complicate matters.

 

Dx100 – Instructions on uploading pdfs

Scan the required letters/agreements/sheets

as a picture file

remove all personal info including barcodes etc. using paint

but leave all figures and dates.

Go to one of the many free online pdf converter websites

convert the image to pdf format.

or if you have PDF as an installed printer drive use that

open a new message box here

hit go advanced below the message box

hit manage attachments below that box

hit the add files button on the top right

hit select files, navigate to your file on your pc

hit upload files

NB: you can set where it goes in the post by hitting insert inline.

Then hit reply button

[colin21958]

Try converting to PDF........ also, could you attach a copy of the final statement of account you refer to showing no arrears. As previously mentioned, it could rely on the earlier DN if not remedied within 14 days although it would seem to complicate matters.

 

Dx100 – Instructions on uploading pdfs

Scan the required letters/agreements/sheets

as a picture file

remove all personal info including barcodes etc. using paint

but leave all figures and dates.

Go to one of the many free online pdf converter websites

convert the image to pdf format.

or if you have PDF as an installed printer drive use that

open a new message box here

hit go advanced below the message box

hit manage attachments below that box

hit the add files button on the top right

hit select files, navigate to your file on your pc

hit upload files

NB: you can set where it goes in the post by hitting insert inline.

Then hit reply button

 

 

Attached is a pdf of the application form, although I have also provided links to the two pages on photbacket in a previous post which you may have missed.

 

 

After examining this pdf online, the pictures on photobucket are clearer...

They are here:

 

http://i1047.photobucket.com/albums/b471/colin21958/MKDP%20LLP/agreement0001.jpg

http://i1047.photobucket.com/albums/b471/colin21958/MKDP%20LLP/agreement0002.jpg

[Peterbard]

Here are the two pages of the "agreement"...

 

 

http://i1047.photobucket.com/albums/b471/colin21958/MKDP%20LLP/agreement0001.jpg

http://i1047.photobucket.com/albums/b471/colin21958/MKDP%20LLP/agreement0002.jpg

 

None of this looks like any kind of enforceable agreement, are they saying this is the document you signed at execution ?

[colin21958]

Yes. This was what they have confirmed is a "true copy" of the executed agreement in response to a s78 request. It is also confirmed in their system records, which I have a print out of, that they could not find the original agreement.

[colin21958]

On the bottom right hand corner is the reference of this form, and the printer, it shows that the form was printed in 01/02. I have written to the printer asking for a genuine copy of the form, or a copy of the text found on the reverse, as I am certain that what would be found there is the Data Protection Information. This is the only reference to another document on the form. So, if the prescribed terms weren't on the reverse of this form, then the agreement could not possibly be executed properly... Do you agree?

 

Of course, I don't know whether the printer will still have this information, or if they will comply with my request, but I thought it was worth a try!

Edited January 3, 2014 by colin21958

[dx100uk]

a blank application form that can even be downloaded from here

in past threads or other sites like us.

 

no dice , what are they trying to prove...

 

this is what you might have signed...laughable

 

dx

[colin21958]

a blank application form that can even be downloaded from here

in past threads or other sites like us.

 

no dice , what are they trying to prove...

 

this is what you might have signed...laughable

 

dx

 

 

Agreed!

[colin21958]

...also, could you attach a copy of the final statement of account you refer to showing no arrears. As previously mentioned, it could rely on the earlier DN if not remedied within 14 days although it would seem to complicate matters..

 

 

Hi Mike,

 

 

Here is a scan of the statement showing that the account seems up to date and continuing. On previous and subsequent statements there is also a statement at the bottom which says "The account is overdue and overlimit..." etc. But this doesn't appear on this statement...

 

 

http://i1047.photobucket.com/albums/b471/colin21958/MKDP%20LLP/statement.jpg

 

 

Regards,

 

 

Colin.

P.S. The "Dispute Resolution" statement at the bottom appears on all statements as standard and is not there in relation to any default or dispute. All the statements I have, right from the start, all have this statement on it...

[Peterbard]

Yes I agree , this has to be your main defence.

 

Purported agreement improperly executed under section 61 of the act , claimant will require an enforcement order, section 127(3) states an enforceemt order cannot be granted unless the requirements of section 61," signing of agreements" are mett, the prescribed terms must be contained within the document, being the interest rates , a statement relating to the credit available and the method and intervals of repayment, the usual stuff.

 

Add your default argument.

 

perhaps an note that you did not receive a 196 assignment notification(just to fill it out a bit, and bobs your uncle.

[colin21958]

Here is page two of the statement, nothing on it at all:

 

 

http://i1047.photobucket.com/albums/b471/colin21958/MKDP%20LLP/statement2.jpg

[colin21958]

Yes I agree , this has to be your main defence.

 

Purported agreement improperly executed under section 61 of the act , claimant will require an enforcement order, section 127(3) states an enforceemt order cannot be granted unless the requirements of section 61," signing of agreements" are mett, the prescribed terms must be contained within the document, being the interest rates , a statement relating to the credit available and the method and intervals of repayment, the usual stuff.

 

Add your default argument.

 

perhaps an note that you did not receive a 196 assignment notification(just to fill it out a bit, and bobs your uncle.

 

 

OK. That's what I will do then, I was going to include this argument anyway, but I thought the DN issue was stronger than the no agreement, as I have seen so many cases on here where the court enforced even without an agreement at all...

[Mike_hawk]

OK. That's what I will do then, I was going to include this argument anyway, but I thought the DN issue was stronger than the no agreement, as I have seen so many cases on here where the court enforced even without an agreement at all...

 

 

Execution would be the preliminary issue to resolve/defend....... if you were to win on that matter the DN problem would fall away

[AndyOrch]

Reconstituted versions of the agreement are valid for a section 77/78/79 request.

[Mike_hawk]

Reconstituted versions of the agreement are valid for a section 77/78/79 request.

 

 

It would appear the claimant isn't able [at this time] to source the prescribed terms at execution......... guess that could change during litigation

[AndyOrch]

Absolutely Mike...you can only challenge it if they wish to rely on it for enforcement purposes.

[Peterbard]

Reconstituted versions of the agreement are valid for a section 77/78/79 request.

 

Yes indeed, if this is all that the OP received in response to the section 78, I wold have thought that this was also none compliant as it does not include the necessary information.

 

Personally I would throw in none compliance with the copy regulations as well

[Peterbard]

OK. That's what I will do then, I was going to include this argument anyway, but I thought the DN issue was stronger than the no agreement, as I have seen so many cases on here where the court enforced even without an agreement at all...

 

It would be far easier for a court to enforce with no agreement than it would be for them to enforce this

[colin21958]

Execution would be the preliminary issue to resolve/defend....... if you were to win on that matter the DN problem would fall away

 

 

Yes, thanks, I understand...