AA Credit Card debt sold to 1st credit - now claimform***Settled by Tomlin Order***

[AndyOrch]

You dont have to do anything unless it ordered by the court

[dpac123]

So presumably I need to complete the N180? What should I say?

[AndyOrch]

You dont say anything just complete the tick boxes and opt for mediation.

[BRIGADIER2JCS]

Hi If this is a "recon" agreement no signatures are required.

 

 

The addresses of debtor and creditor must be those as at the inception of the account.

 

 

DNs are generic, and not routinely archived as "hard copy" all the creditor needs to do

is note on the records of the account was sent on a specific date, this can be relied upon.

Same applies to NOA's.

 

The Ts& Cs at inception and Closure of the account and any material amendments must be present.

[dpac123]

Ok thanks. And then presumably at some point there will be a chance to enter a witness statement?

[AndyOrch]

Have they actually made application for SJ or just threatened?

[dpac123]

Have they actually made application for SJ or just threatened?

 

 

Don't know - all I have is the notice of allocation and their letter dated 20th August which states:

 

 

" We will refrain from doing so for 14 days to allow you to make payment of the claim amount, interest and costs, failing which we intend to make an application for summary judgement."

[dpac123]

hi if this is a "recon" agreement no signatures are required.

 

The addresses of debtor and creditor must be those as at the inception of the account.

 

So the credit agreement is defective?

 

Dns are generic, and not routinely archived as "hard copy" all the creditor needs to do

is note on the records of the account was sent on a specific date, this can be relied upon.

Same applies to noa's.

Don't default notices have to be in the corrct format to be valid?

 

The ts& cs at inception and closure of the account and any material amendments must be present.

 

 

what evidence that they have closed the account?

[AndyOrch]

Don't know - all I have is the notice of allocation and their letter dated 20th August which states:

 

 

" We will refrain from doing so for 14 days to allow you to make payment of the claim amount, interest and costs, failing which we intend to make an application for summary judgement."

 

Okay so we deal with if and when...just proceed with the claim for now...I will post you some information later with regards to reconstituted agreements and reasons that invalidate them.

 

Andy

[dpac123]

Thanks Andy - and the deal with default notices - I thought if they were invalid they can't be enforced?

[AndyOrch]

Invalid being the appropriate word and how you present your argument.

[BRIGADIER2JCS]

what evidence that they have closed the account?

The creditor must have terminated the account before it sold the debt!

Yes the document does not have your address as at the inception of the account it is defective.

DNs are as said generic and even if defective a judge can tell the creditor to issue a new compliant DN. (and often do so)

The Creditors record of events such as the sending of DN's and NOA's is acceptable evidence that the documents were sent.

[dpac123]

I was told that if a default notice is defective and the account is terminated i.e. sold or court action started, then a default notice can't be reissued because it would effectively be on a dead account and would require both parties to agree - is this not true?

[BRIGADIER2JCS]

I was told that if a default notice is defective and the account is terminated i.e. sold or court action started, then a default notice can't be reissued because it would effectively be on a dead account and would require both parties to agree - is this not true?

NO it is not true.

[dpac123]

So the basis of the defence below is completely wrong? http://www.consumeractiongroup.co.uk/forum/showthread.php?336532-RBS-taking-me-to-court-*Struck-Out*-**-New-claim-issued-by-RBS-**/page13

 

 

Our defence is below, could I get some help with drafting the witness statement? Many thanks,

 

D IN THE ABC county court CLAIM NO: DEF BETWEEN:- National Westminster Bank (Claimant) V MR DPAC (First defendant) MRS DPAC (Second defendant) DEFENCE TO SUBSTITUTED PARTICULARS OF CLAIM BY ORDER OF DISTRICT JUDGE DATED 3 MARCH 2014

 

1. We have received a copy of the credit agreement relating to account number 12345 together with terms and conditions referred to in the credit agreement.

 

2. We have received two default notices from the Claimant for account number 12345. The original default notice, received in 2009, is invalid for the following reasons:

 

• The Loan Account Number is incorrect.

 

• The amount of arrears stated is incorrect.

 

• The date in subsection 1 is 25th May 2009, which is less than 14 days after the date of service (11th May 2009 + 2 days allowed for postage) – see the Consumer Credit Act 1974 Section 88(2) which states: A date specified under subsection (1) must not be less than 14 days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those 14 days have elapsed.

 

3. The second default notice was received in 2013 although the account was closed by the claimant in 2009 (see point 9 below).

 

4. The Experian report for Mr DPAC dated 01/03/2014 shows the second default was registered on 31/03/2013 and that there have been 40 clear payments since the beginning of the loan. If this is correct, the claimant will have proof of these payments and the balance would be considerably lower than £17,221.72. If this is incorrect, the claimant has made significant errors in their reporting of our personal data to credit reference agencies and is in breach of the Data Protection Act 1998.

 

5. If the second default notice registered on Experian on 31/03/2013 is correct and payments were up to date during 2011 and 2012 as the Experian report shows, we would like to know why we were taken to court in 2012 and why the original, defective default notice was relied upon at that time.

 

6. We have received a recall termination notice for an overdraft on account number 23456 which gave until 25th May 2009 to make an alternative arrangement for repayment but did not include a date of service or a signature.

 

7. A default notice was registered on Experian on 30/04/2013 for account number 23456 although the account was effectively closed by the claimant in 2009 (see point 9 below).

 

8. We have never received an explanation as to why funds were moved from account number 23456 on 21/03/2009 to account number 12345 in full knowledge that there were insufficient funds in this account and for the express purpose of creating an overdrawn position to create a fee. The Claimant will be put to strict proof that manual intervention was applied to the Current Account.

 

9. With reference to BCOB rule 5.1.1 and the example of unexplained peremptory closure of accounts, we can confirm that although account number 23456 remained open so that bank charges could accrue and so payments could still be made into the account, our access to the account was terminated on or around 02/03/2009. This termination was characterised by us not being able to access the account online or via an ATM. We will be relying on the terms and conditions within the facility letters to clarify that the termination of the overdraft complies with BCOB rule 5.1.1.

 

10. It is averred that if the Claimant cannot produce the facility letters stipulated under Conditions 2(b) and/or 2© of the Determination as set out above, they cannot therefore claim exemption from Sections 57 to 63 of the CCA 1974. Furthermore, the Claimant will be put to strict proof as to whether it has complied with Condition 2(a) above. In that respect, we refer the Court to the case of Coutts & Co v Sebestyen [2005] EWCA Civ 473 (28 April 2005).

 

11. Notwithstanding the above we will contend that the overdraft balance was accrued penalty charges in its entirety levied by the Claimant.

 

12. In the circumstances we contend that until such time as the Claimant has established a legal entitlement to payment and given disclosure of material which unequivocally justifies an entitlement to the sum of money claimed, it is impossible for the Claimant to show and for the court to determine that we have no reasonable prospect of showing at trial that the sum of money claimed (whatever that sum may be) is not owing to the Claimant.

[AndyOrch]

I thought this was a credit card claim dpac...what is the above for?

 

Andy

[dpac123]

This does relate to a credit card Andy. I was just taken back by Brigadier' s comments about default notices as it would seem to undermine my defence regarding a Nat west loan (above). Just need some clarity on default notices as different people are saying different things.

[AndyOrch]

Termination and recall of an overdraft is completely different to that of a Credit Card and Personal Loan

[BRIGADIER2JCS]

This does relate to a credit card Andy. I was just taken back by Brigadier' s comments about default notices as it would seem to undermine my defence regarding a Nat west loan (above). Just need some clarity on default notices as different people are saying different things.

A "new " default notice can issued to replace a defective DN, judges often allow this.#

 

 

As Andy has said an overdraft is subject to totally a totally different process of recall/termination.

[dpac123]

So the whole basis of the defence for my other claim is all wrong as this relates to a defective loan default notice? http://www.consumeractiongroup.co.uk/forum/showthread.php?336532-RBS-taking-me-to-court-*Struck-Out*-**-New-claim-issued-by-RBS-**

[AndyOrch]

So the whole basis of the defence for my other claim is all wrong as this relates to a defective loan default notice? http://www.consumeractiongroup.co.uk/forum/showthread.php?336532-RBS-taking-me-to-court-*Struck-Out*-**-New-claim-issued-by-RBS-**

 

Not an overdraft as referred to in the defence you posted.....?

 

Dpac You need to be asking all this on your other thread...as you can see it is now complicating this current thread.

[dpac123]

Ok sorry. So for this AA credit card, the invalid default notice is not a defence but the invalid credit card agreement could be?

[AndyOrch]

As promised here are some notes and guidance on recreated agreements and response and compliance to sec77/78/79:-

 

 

[BRIGADIER2JCS]

A defective DN does not affect the underlying outstanding debt.

A defective agreement may well be a valid defence.

[dpac123]

Got an email response from 1st Credit as follows:

 

 

In answer to your queries:

(1) The credit agreement supplied is a reconstituted version of the agreement obtained from the original creditor. It is a true copy based on the information held by the original creditor. Pursuant to the leading decision of Carey v HSBC [2009] a “true copy” of the credit agreement does not need to be the actual signed agreement.

(2) We refer you to the screen entry print out with the details of when the default notice was issued to you. That document refers to the letter code which is the redacted template letter sent out. The screen entry identifies your credit card number account. We attach another copy for your convenience.

We have prepared the Summary Judgment application, which we have now placed on hold. We invite you to contact us with regards to making a suitable offer within 7 days i.e. 15/09/2014 failing which we shall proceed with the application.

Should I do anything with it or just complete and return the N180 for mediation?