A couple of questions re Co-Operative Bank credit card

[nicklea]

Good grief, where to start with this post.

 

I do have a number of problems with what cecil says.

 

without a valid agreement, they have made a gift of the money. they can ask for it back, thats all

 

To be fair, this is absolutely correct, as I said above, if this is the case, then you're home and dry.

 

as for repudiation, there is considerable debate about it. look it up and make your own decision. as for the DNs, most agree that when the account is terminated, a 2nd DN cannot be served as there is no live agreement to serve it on. you cannot default what doesn't exist.

 

What he means by this is that a few people - definitely not 'most' - on this site have advanced this argument. However, I would point out that this has never been successfully argued in court and certainly all the cae law disagrees with what cecil claims.

 

Have a read of these threads for examples of what I say:-

 

http://www.consumeractiongroup.co.uk...=1#post3313813

 

http://www.consumeractiongroup.co.uk...=1#post3345492

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?276677-Reissue-of-court-proceedings&p=3358263&viewfull=1#post3358263

 

I really would suggest that, given these above examples, following Cecil's advice could be quite dangerous.

 

I would further suggest that it is unlikely that he/she has ever seen the inside of a court and has certainly never tried to advance these arguments himself in court.

 

You must be aware that you get a number of people here that are really gung ho in pushing people into situations that they really should reflect on more deeply before pursuing.

 

 

 

Whether the first DN and termination paperwork was correct, they can effectively terminate by their actions.

 

Oh no they can't. The CCA is quite clear on this. And before you try to say taht a debtor can accept the termination of a contract have a read of the first link I gave above where the OP in fact DID accept the termination and then got really shafted as a result of doing that. Also, the person in the third link above also got shafted

 

 

The crux is when are you entitled to believe that the agreement is terminated - if they refuse to fulfil their responsibilities and satisfy your rights under the contract, they cannot expect you not to do the same, regardless of whether the paperwork is correct. They can repudiate by their actions, as well as by faulty paperwork. As i said, research repudiation as there is a lot of debate, and no case law in the finance sector, but loads of it in contract law.

 

But have a read of your terms and conditions. They all say that if the agreement ends then you still have to pay back the full amount that is owed regardless.

 

Also, if you want to talk about repudiation then, I would suggest - as do others such as pt2537, that in fact it is the debtor that first repudiates the contract by not making the contractual payments on time

[Tartan Barty]

I have a 1990's credit card with the Co-op that they brought from a now government owned mortgage lender. They got greedy so I CCA'd them, with an application form being what they sent back. I put the account in dispute so they sent a dodgy DN through and then terminated the account within the DN period. I lodged a complaint with the CRA's and the co-op removed the default. My problem is that they are just sitting on the account doing sweet FA. The don't even update the CRA's anymore so my debt just sits there. Before the DN I even offered them 25% F and F which they said the minimum was 75%. So know we're both shafted.....they get no money from me and I'm in limbo for the next 4 years until its SB (Scottish).

 

They really are morons of the highest order.....only worst crudit beat them in the stupidity stakes!!!!

[Peterbard]

HI

I think the problem is that some do not understand the difference between a terminated agreement and one that is void or ended.

When an agreement is terminated it does not mean that an agreement no longer exists, it merely means that the terms of the contract no longer apply to it.

The agreement depends on the liabilities under it as long as there are liabilities there is an agreement, if it has been terminated then it is a, terminated agreement, for the agreement to be at an end the liabilities would have to be discharged.

Section 87 says that it applies to a regulated agreement, it does not say under an agreement or on a live agreement. It is perfectly acceptable to issue a default notice on a terminated agreement, we know it is because DCA’s do it all the time.

I put the question to the OFT a couple of weeks ago to see if they could get the message over better than I appear to be doing.

I wrote

Dear Sirs

I wonder if you could answer this for me.

We have a member who has had his credit card terminated under the contractual term in his agreement; he is not nor has ever been in arrears.

Does this mean that if in the future he falls into arrears and breaches the payment arrangement the creditor will be unable to issue a default notice and terminate s the account is already terminated.

PeterBard

TCU

They replied

Dear Mr Bard

Thank you for your e-mail of 21 March 2011 to the Office of Fair Trading (OFT).

In reference to your enquiry, I have spoken with our credit team who have provided the following information.

The creditor could issue a default notice or could continue with the termination provisions if there is no amount due on default. The creditor can serve a notice of default sums under Section 86E of the Consumer Credit Act while continuing with the termination procedure.

I hope this information proves helpful.

Yours sincerely

Gurpriya Tooray

Enquiries and Reporting Centr

OFT

Peter

[cecilrhode]

hey, nicklea, I'm not gung ho at all, but you are right, you do get all sorts of people on here, knowledgeable ones, and ones that think they're knowlegable.

 

I haven't tried pushing anyone into anything, I've simply given an opinion. A fair opinion, and suggested the OP look things up. As for repudiation, you're entitled to your opinion. In my opinion, repudiation a is well accepted concept on this site. As part of a balanced approach, I point out several times that there is a lot of debate about it. Unlike you, I tried to point out that there are difference in opinions. If I was pushing him into something, I wouldn't be pointing out the debate would I? I'd just be telling him to follow my advice because everyone else's is dangerous. Just like you did.

 

As for repudiating by their actions, I think the argument went over your head. Maybe you jumped the gun and were so keen to criticise me that you didn't read what I said properly. Or maybe you don't know enough about it to understand.

 

As I said, there are many examples of repudiation available to study. It is a well founded concept in common law and contact law, as I said. A party can repudiate a contract by their actions, ie, in not fulfilling core elements of the contract. Obviously, nicklea, to break a contract, your actions must be incompatible with it. ie, you break and therefore repudiate by your actions. Duuhrr, I hope thats clear enough for you. No where was I referring to what the CCA allows. The CCA doesn't mention repudiation at all.

 

As for the few examples you quote, I daresay you may be right. Lots of cases go pear shaped, mainly because the person doesn't have legal aid, does it themselves and doesn't argue the case properly. Sometimes this is because they don't understand the concept themselves, and rely on quoting what they've read. Not surprisingly, they don't convince the judge. Sometimes, the judge is just an ass who has no time for the legal argument and makes his mind up before he goes into court. I've seen that many times in court, where the judge makes ridiculous decisions that fly in the face of the facts. Judges are sometimes like offside decisions in football.

 

As for me, you are quite right, I haven't made that argument in court. But I have challenged several creditors and said I'm more than willing to make that argument in court. They haven't taken me up on the offer. I wonder why? They might win. On the other hand they might not.

 

To fred, I simply say that I always wonder how come the poster before me has all these people supporting his views, and I wonder why these people don't publicise their views in their official capacity? He's a one trick pony who only ever seems to comment on repudiation, but asked for the thread he started on this very subject (http://www.consumeractiongroup.co.uk/forum/showthread.php?280020-Contracts-Termination-Repudiation-and-Rescission), to be closed, possibly because too many people disagreed and wouldn't let him preach to all us uneducated idiots.

 

His argument about contract existing where there are liabilities is either a red herring, or proof he doesn't understand the concept. When a contract is repudiated, the innocent, ie non-repudiating party is entitled, if he wishes, to treat all obligations as discharged. IE, the contract can be ended at that point. No obligations left, no liabilities. It is OVER. Thats basic contract law, and in fact, is a pretty standard definition of repudiation. Now that I've said that, I fully expect him to come back with smart ass insults and rude comments because thats his style

 

As for the 'source' he quotes, ie the OFT, they shouldn't be giving legal advice. What they should do is look at their diary and see what they were doing late last year. In case they can't work it out, they were screwing up a court case on charges because they didn't know the law. If the OFT were any use, we wouldn't be complaining about the blatant breaches of OFT guidelines by those in the credit industry. Before they branch out into supplying legal advice and interpretations of the CCA, they should actually do what they should do which is to regulate the industry effectively.

 

Now, Fred, I hope you are able to get some relevant advice, and that this thread doesn't simply turn into a pulpit for those wanting to argue about repudiation and whether it exists or not.

 

Good luck

[Peterbard]

hey, nicklea, I'm not gung ho at all, but you are right, you do get all sorts of people on here, knowledgeable ones, and ones that think they're knowlegable.

 

I haven't tried pushing anyone into anything, I've simply given an opinion. A fair opinion, and suggested the OP look things up. As for repudiation, you're entitled to your opinion. In my opinion, repudiation a is well accepted concept on this site. As part of a balanced approach, I point out several times that there is a lot of debate about it. Unlike you, I tried to point out that there are difference in opinions. If I was pushing him into something, I wouldn't be pointing out the debate would I? I'd just be telling him to follow my advice because everyone else's is dangerous. Just like you did.

 

As for repudiating by their actions, I think the argument went over your head. Maybe you jumped the gun and were so keen to criticise me that you didn't read what I said properly. Or maybe you don't know enough about it to understand.

 

As I said, there are many examples of repudiation available to study. It is a well founded concept in common law and contact law, as I said. A party can repudiate a contract by their actions, ie, in not fulfilling core elements of the contract. Obviously, nicklea, to break a contract, your actions must be incompatible with it. ie, you break and therefore repudiate by your actions. Duuhrr, I hope thats clear enough for you. No where was I referring to what the CCA allows. The CCA doesn't mention repudiation at all.

 

As for the few examples you quote, I daresay you may be right. Lots of cases go pear shaped, mainly because the person doesn't have legal aid, does it themselves and doesn't argue the case properly. Sometimes this is because they don't understand the concept themselves, and rely on quoting what they've read. Not surprisingly, they don't convince the judge. Sometimes, the judge is just an ass who has no time for the legal argument and makes his mind up before he goes into court. I've seen that many times in court, where the judge makes ridiculous decisions that fly in the face of the facts. Judges are sometimes like offside decisions in football.

 

As for me, you are quite right, I haven't made that argument in court. But I have challenged several creditors and said I'm more than willing to make that argument in court. They haven't taken me up on the offer. I wonder why? They might win. On the other hand they might not.

 

To fred, I simply say that I always wonder how come the poster before me has all these people supporting his views, and I wonder why these people don't publicise their views in their official capacity? He's a one trick pony who only ever seems to comment on repudiation, but asked for the thread he started on this very subject (http://www.consumeractiongroup.co.uk/forum/showthread.php?280020-Contracts-Termination-Repudiation-and-Rescission), to be closed, possibly because too many people disagreed and wouldn't let him preach to all us uneducated idiots.

 

His argument about contract existing where there are liabilities is either a red herring, or proof he doesn't understand the concept. When a contract is repudiated, the innocent, ie non-repudiating party is entitled, if he wishes, to treat all obligations as discharged. IE, the contract can be ended at that point. No obligations left, no liabilities. It is OVER. Thats basic contract law, and in fact, is a pretty standard definition of repudiation. Now that I've said that, I fully expect him to come back with smart ass insults and rude comments because thats his style

 

As for the 'source' he quotes, ie the OFT, they shouldn't be giving legal advice. What they should do is look at their diary and see what they were doing late last year. In case they can't work it out, they were screwing up a court case on charges because they didn't know the law. If the OFT were any use, we wouldn't be complaining about the blatant breaches of OFT guidelines by those in the credit industry. Before they branch out into supplying legal advice and interpretations of the CCA, they should actually do what they should do which is to regulate the industry effectively.

 

Now, Fred, I hope you are able to get some relevant advice, and that this thread doesn't simply turn into a pulpit for those wanting to argue about repudiation and whether it exists or not.

 

Good luck

 

Hi

Please show one example of a creditor repudiating an credit agreement under the consumer credit act.

 

Repudiation is a major part of contract law, it is very difficult for a creditor to deny the existance of a contract(to repudiate it) when he has liabilities owed him under it, as in a credit agreement.

The probem with using these arguments is that an understanding of the basic principles are required before you can apply them. You really need to go right back to basics.

Friendly advice

 

Peter

[Peterbard]

hey, nicklea, I'm not gung ho at all, but you are right, you do get all sorts of people on here, knowledgeable ones, and ones that think they're knowlegable.

 

I haven't tried pushing anyone into anything, I've simply given an opinion. A fair opinion, and suggested the OP look things up. As for repudiation, you're entitled to your opinion. In my opinion, repudiation a is well accepted concept on this site. As part of a balanced approach, I point out several times that there is a lot of debate about it. Unlike you, I tried to point out that there are difference in opinions. If I was pushing him into something, I wouldn't be pointing out the debate would I? I'd just be telling him to follow my advice because everyone else's is dangerous. Just like you did.

 

As for repudiating by their actions, I think the argument went over your head. Maybe you jumped the gun and were so keen to criticise me that you didn't read what I said properly. Or maybe you don't know enough about it to understand.

 

As I said, there are many examples of repudiation available to study. It is a well founded concept in common law and contact law, as I said. A party can repudiate a contract by their actions, ie, in not fulfilling core elements of the contract. Obviously, nicklea, to break a contract, your actions must be incompatible with it. ie, you break and therefore repudiate by your actions. Duuhrr, I hope thats clear enough for you. No where was I referring to what the CCA allows. The CCA doesn't mention repudiation at all.

 

As for the few examples you quote, I daresay you may be right. Lots of cases go pear shaped, mainly because the person doesn't have legal aid, does it themselves and doesn't argue the case properly. Sometimes this is because they don't understand the concept themselves, and rely on quoting what they've read. Not surprisingly, they don't convince the judge. Sometimes, the judge is just an ass who has no time for the legal argument and makes his mind up before he goes into court. I've seen that many times in court, where the judge makes ridiculous decisions that fly in the face of the facts. Judges are sometimes like offside decisions in football.

 

As for me, you are quite right, I haven't made that argument in court. But I have challenged several creditors and said I'm more than willing to make that argument in court. They haven't taken me up on the offer. I wonder why? They might win. On the other hand they might not.

 

To fred, I simply say that I always wonder how come the poster before me has all these people supporting his views, and I wonder why these people don't publicise their views in their official capacity? He's a one trick pony who only ever seems to comment on repudiation, but asked for the thread he started on this very subject (http://www.consumeractiongroup.co.uk/forum/showthread.php?280020-Contracts-Termination-Repudiation-and-Rescission), to be closed, possibly because too many people disagreed and wouldn't let him preach to all us uneducated idiots.

 

His argument about contract existing where there are liabilities is either a red herring, or proof he doesn't understand the concept. When a contract is repudiated, the innocent, ie non-repudiating party is entitled, if he wishes, to treat all obligations as discharged. IE, the contract can be ended at that point. No obligations left, no liabilities. It is OVER. Thats basic contract law, and in fact, is a pretty standard definition of repudiation. Now that I've said that, I fully expect him to come back with smart ass insults and rude comments because thats his style

 

As for the 'source' he quotes, ie the OFT, they shouldn't be giving legal advice. What they should do is look at their diary and see what they were doing late last year. In case they can't work it out, they were screwing up a court case on charges because they didn't know the law. If the OFT were any use, we wouldn't be complaining about the blatant breaches of OFT guidelines by those in the credit industry. Before they branch out into supplying legal advice and interpretations of the CCA, they should actually do what they should do which is to regulate the industry effectively.

 

Now, Fred, I hope you are able to get some relevant advice, and that this thread doesn't simply turn into a pulpit for those wanting to argue about repudiation and whether it exists or not.

 

Good luck

 

Hi

Just re read this the only bit I really take exception to is the one trick pony remark, here are a few of my tricks.

One of the first threads detailing the methods of prving an agreement unenforceable

http://www.consumeractiongroup.co.uk/forum/showthread.php?103383-Agreement-Enforceability&highlight=

An explanation of distance marketing

http://www.consumeractiongroup.co.uk/forum/showthread.php?106544-Distance-Marketing&highlight=

This you have seen

http://www.consumeractiongroup.co.uk/forum/showthread.php?280020-Contracts-Termination-Repudiation-and-Rescission&highlight=

This is when I started a petition against the TCE bill (bailiffs)

http://www.consumeractiongroup.co.uk/forum/showthread.php?61524-Baliff-petition-Stop-them-getting-a-legal-right-to-forced-entry-Peter-Bard&highlight=

This is an explanations of APR and how it is calculated and its effect on agreement enforceability

http://www.consumeractiongroup.co.uk/forum/showthread.php?187938-Interested-in-APR-and-fees-and-how-they-effect-agreement-unenforceability&highlight=

In addition I have done pieces on contract cancellation and am also very interested although by no means expert in the bank charge situation.

Finally i had the termiation thread closed because it was attracting the attention of uninformed posters like yourself who where obscuring the offerings of the more informed members of this forum.

Now let’s have a look at your credentials

Peter

[nicklea]

cecil,

 

The OP has, I would suggest, had his initial questions answered. however, a lot of people come and read these threads but never ever register or post anything and can take things that they read as gospel. In that light I do have some issues with your post.

 

I haven't tried pushing anyone into anything, I've simply given an opinion. A fair opinion, and suggested the OP look things up

 

I really would suggest that your fair opinion is misleading when you use the phrase ''as for the DNs, most agree that...''

 

I was merely saying that your 'most' were - in my opinion - a small minority. Also that - this time not my opinion but fact - that this argument has never been successfully used in court and, despite your assertion that:-

 

Lots of cases go pear shaped, mainly because the person doesn't have legal aid, does it themselves and doesn't argue the case properly.

 

Well someone like pt2537 has a different take on it:-

 

So, creditor issues a Default notice and demands that you repay due to your breach of contract, given that he has no need to issue a default if your not in breach.

 

If the default is not valid for a defect more than a de minimis breach, then the view of most counsel is that the lender CANNOT terminate as he is barred by the statute from doing so. The act is clear that there is no sanction civil or criminal but for that provided by the act itself. So, if the default is not valid there can be no termination.

 

This seems to be the view of the judiciary at large also, im aware of a number of reported cases where the judge has taken the view there can be no termination, i speak to a number of solicitors who are fighting CCA cases up and down the country.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?196312-Invalid-Default-Notices&p=3157631&viewfull=1#post3157631

 

I would suggest that it's not down to cases not being properly argued but more the fact that there is no basis in law for this argument.

 

 

Moving on to repudiation,

 

As for repudiation, you're entitled to your opinion. In my opinion, repudiation a is well accepted concept on this site.

 

May I ask, ''well accepted'' by who? I would suggest that there are a number of people on this site that half understand things and push these views and then there are a number of very experienced and qualified members who really do know what they are talking about and have shown this argument to have no basis.

 

Of course you are entitled to your opinion, I just have problems when you say things like ''most agree that..'' or ''well accepted..'' where, from my experience, this isn't the case.

 

 

As for repudiating by their actions, I think the argument went over your head. Maybe you jumped the gun and were so keen to criticise me that you didn't read what I said properly. Or maybe you don't know enough about it to understand.

 

As for me, you are quite right, I haven't made that argument in court.

 

Far from it going over my head, I would suggest that I do have an understanding of the issues. I have successfully defended a court claim based on repudiation. This wasn't consumer credit, it was to do with a contract that my company had been involved with.

 

 

 

 

As I said, there are many examples of repudiation available to study. It is a well founded concept in common law and contact law, as I said. A party can repudiate a contract by their actions, ie, in not fulfilling core elements of the contract. Obviously, nicklea, to break a contract, your actions must be incompatible with it. ie, you break and therefore repudiate by your actions. Duuhrr, I hope thats clear enough for you.

 

Well, as you say to me above, ''Duuhrr'' who does the repudiating first? The debtor repudiates the contract by not making the required payments.

 

Now you may not be interested in my opinion. I've never met you and I wouldn't know you from Adam. But I have met pt2537 and so I do know why people listen to him. For example:-

 

but after conference with a couple of the top consumer credit barristers who have been involved in cases which went to Court of Appeal and Lords, the view coming back is the repudiation argument will never get off the ground, just look at the legal definition of repudiation

 

You withhold payment, or fail to pay per the contract you are in breach of contract, the party signalling the intention to no longer perform is YOU, so how does the lender repudiate?

 

Chitty on contract doesnt provide the answer, Tritel doesnt, Halsburys doesnt, infact whereever you look i dont think you will find the answer

http://www.consumeractiongroup.co.uk/forum/showthread.php?196312-Invalid-Default-Notices&p=3157641&viewfull=1#post3157641

 

and also here, for example:-

 

I say again, did you stop paying? if you did then you are the contract breaker, and therefore you are in trouble with the recission / repudiation arguments, sorry if its not what you wanted to hear, but you can of course wait for someone to come along and agree with you, and that is of course your right, i am merely conveying my experience and the advice i have been given from the leading barristers in the world of CCA law, and of course my experience of advocacy with my clients

 

 

Finally, moving on to your point:-

 

No where was I referring to what the CCA allows. The CCA doesn't mention repudiation at all.

 

I would suggest that that is precisely the point. As a result, even if one could argue that the creditor had repudiated the agreement, then there is no sanction or remedy available to the debtor:-

 

170. No further sanctions for breach of Act.

— (1) A breach of any requirement made (otherwise than by any court) by or under this Act shall incur no civil or criminal sanction as being such a breach, except to the extent (if any) expressly provided by or under this Act.

 

Contract law does not defeat statute, if statute is in conflict with common law then statute prevails. This is our constitution.

 

The point is,

 

The regulated regime is there to offer protection by information, it is not some large hammer to use to beat the creditor with, you only need to review the crowther report to see that , the penalties are explicitly set out by the Act where parliament felt they needed to be.

 

There is also a case called R vs Kettering Magistrates Court which also confirmed the common law provisions in respect of contracts are not applicable unless the act provides them, by virtue of s170

 

I was took to appeal over a common law remedy we had sought and got judgment in the first instance and the Court of Appeal ruled that there could be no sanction for breach of the act unless the act provided it

 

From my point of view, these arguments are not succeeding in court, we are getting enquires from people who are losing their cases on these arguments and i am struggling to find counsel who accept these arguments each time referring me back to the same points i raise here

[Peterbard]

Hi

 

"Before they branch out into supplying legal advice and interpretations of the CCA, they should actually do what they should do which is to regulate the industry effectively."

 

Sorry but i have to say this is very funny.

 

Peter

[Peterbard]

Hi

As Nicklea says ther may be others reading so i feel i should correct this, i am sorry if you feel that this will be just me being a smart ass but there we are.

"His argument about contract existing where there are liabilities is either a red herring, or proof he doesn't understand the concept. When a contract is repudiated, the innocent, ie non-repudiating party is entitled, if he wishes, to treat all obligations as discharged. IE, the contract can be ended at that point. No obligations left, no liabilities. It is OVER. Thats basic contract law, and in fact, is a pretty standard definition of repudiation. Now that I've said that, I fully expect him to come back with smart ass insults and rude comments because thats his style"

 

Yes you are right if an agreement is repudiated then both parties reject their obligations to perform, however this does not mean that the liabilities under the contract dissapear.

What happens is; the the contract is rescinded and both parties would be put back to the status they were in before it was made. This would mean that all liabilities would be refunded to the creditor, this is an equitable remedy under both consumer and contract law. So you see the debtor would have to repay the loan even if it was repudiated, this is what happened in the case above.

This is really what repudiation means, it certainly does not mean that no further action on the contract is available and that no action can be taken to recover losses under that contract. In fact the opposite is true, the only way either party can recover anything other than genuine liquidated costs(liabilities or princiople sums in a loan) under a breach is through repudiation of contract.

Peter

Edited April 5, 2011 by Dodgeball

[toymaker1]

Hi,

 

I have an issue with the Co-Operative bank and a credit card account that I have with them. Firstly I have evidence that they have issued incorrect default notices and termination notice as the required numbers of days was not correctly given. I have pointed this fact out to them and they issued revised default notices and a second termination notice (this time allowing the correct number of days). I have rejected their reissuing of the default notice and again pointed out their original error. I obviously kept copies of all their letters. As a matter of interest the account has not been passed to any debt collectors or solicitors. Amount outstanding is over £9k and this has been terminated (originally) in May 2010 after arguing about the lack of them being able to provide an form of valid credit agreement since January 2009.

 

It has now been a number of months since I have heard from them and all I get now each month is a credit card statement which shows another months interest calculation and £12 charge for being overlimit and £12 for late payment default. Interestingly I also get their regular updates on changes to the terms and conditions of the credit card and a bit of junk mail with special offers on things like Co-Operative Insurance etc...

 

I also note on my credit file with Experian that they continue to record defaults on my not paying anything and being in arreas etc.. I am sure their tactic is if they cant collect on the account then leave it and simply trash my credit file with defaults etc.. If they had a strong case to collect or take me to court then why havent they done so?

 

My questions are if they have Terminated my credit card account then:

 

1. Should they still be applying interest and penalty charges?

2. Should they still be recording my default each month with Experian etc..?

3. Should they still be using my data to send me junk mail/mail shots and account updates?

4. Can a credit card account be terminated twice?

 

Any advice or comments welcome.

 

Thanks,

 

Hello Fred.

 

Unfortunately, from my understanding of your post, it sounds as if you are in a very tricky position. Although it is not what you would like top hear, IMO you would not win at court, and theCo-operative Bank appear to hold all the cards.

My reasons for saying this are that I think you have misunderstood the termination issue,- which is understandable, and most of us would fall into the same trap.

That is to say, the thing that was incorrect was the default notice, (which I presume was sent to you because you were in arrears). They terminated the account as a consequence of you failing to comply with the requirements set out in the default notice. There was no termination notice as such (i.e. a notice required to be a prescribed form). The notice which had to be in a prescribed form was the default notice. When they later told you it was terminated, they were merely informing you that the account had been terminated in accordance with your failure to comply with the terms of the default notice, and as they had stated they would do in the default notice. The fact that it was a letter sent to you after you had not complied with the default notice notifying you that your account had been terminated, rather than a Termination Notice as defined in the Termination and Default regulations, is a subtle but crucially important distinction.

The point is that it was not really a fault termination notice, it was a faulty default notice, of which termination (albeit incorrectly) was the consequence.

I believe that a judge would say that once you pointed out to the creditor that the default notice was faulty, the creditor then sent to you a correct default notice, and a judge would say that was perfectly permissible for the creditor to do that, and that you then failed to comply with the corrected DN It could even be argued that the second, corrected, DN offered you a second chance to put the account back into order, to avoid termination after the second, correct default notice.

If I was in your position I would write to them proposing a repayment plan which is affordable out of your income - even if that is £20 a month, and request that they suspend the interest, to avoid increasing your indebtedness. They would probably refuse at first, but if you are persistent and polite, they would have to seriously consider your offer.

 

I hope that makes sense.

 

Regards.

[intend]

Sorry to go back to basics amongst all the knowledeable post but if an account is terminated can the CC A) continue to charge interest? B) charge late or missed payments at £12 a pop

 

Intend

[Peterbard]

Sorry to go back to basics amongst all the knowledeable post but if an account is terminated can the CC A) continue to charge interest? B) charge late or missed payments at £12 a pop

 

Intend

 

HI

Sorry i thought Nicklea answered this in post 6. It depends what it says in your T and Cs. It would have to spoecifically metion it as the prescribed term would only apply whilst the agreement was live.

 

Really from reading this you have two choices . You either gamble that they have no agreement and that they cannot enforce, or you contact them and make some arrangement to pay and avioid the threat of court action. There are letters in the library asking them to freeze interest also there are guidlines they should follow in cases of hardship.

 

If you decide on the latter i would do it sooner than later unless you contact them they will keep adding interest.

 

Peter

[fredsdebt]

A couple of questions re Co-Operative Bank credit card.

 

Brief background summary

 

I have a credit card with the Co-Op with an outstanding balance of around £16k.

This account has been in dispute with Co-Op since early 2009

and as far as I am concerned is caught up with an unlawful rescission

and they did not meet my S.78 requests.

They should not have continued to apply interest to the balance

and this was the case during 2010, 2011, 2012, 2013 but

 

 

I can see from my latest Experian credit file enquiry that the Co-Op still have the account in their name rather than any Debt Collectors

and they are now showing the default balance increased by just over £1k in January 2013,

I assume as additional interest and penalties.

 

I have not been advised of any new charges being applied or any update from Co-Op on the status of my account.

I have previously back in 2010 put my point across re the S.78 and unlawful rescission.

 

 

I have also requested copies of my signed agreement for the card but the Co-Op were unable to provide anything only an application form

(so therefore my understanding is they can’t enforce anything through the courts).

 

Previous letters from them state;

 

"The bank acknowledges that none of the Termination Notices served were in fact effective in terminating the Agreement, as the requisite time period was not afforded to you to rectify the default. As such your account was terminated incorrectly. I appologise for the inconvenience and confusion this must have caused"

 

They then goes on to say;

 

"The effect of the incorrectly served notices is that the bank cannot enforce the debt against you although it is still entitled to take certain recovery action, including the issue of court proceedings during the period of default"

 

My thoughts are therefore they have (without the agreement) ‘gifted’ me the money and can only ask for it back.

The debt is unenforceable, without an agreement a court is prohibited from making a judgement.

Also, if they had a watertight case against me for that kind of value then they would have taken me to court by now rather than letting it sit there.

 

Questions

 

1) I am looking to let this sit until the statute bar date (6 years) which by my calculations should be in 2016

but on my Experian report Co-Op have changed the default date to show January 2013 when I have been in default since 2010.

How do I get the Experian report to show 2010

 

2) The amount shown on the Experian report is incorrect as how can the Co-Op prove how they have calculated the balance

with no agreement and having not applied any charges or interest during 2011-2013?

 

3) Should I try and get these point corrected or leave until the statute bar date is past

(i.e. by my calculation i.e, in 2016 rather than theirs – i.e. 6 years from January 2013) and then tackle it?

 

Thank you, Fred

[dx100uk]

4 old threads merged for history.

 

 

ideally you had no need to recind the original DN

as had the not sent a new one

it would not be showing by now.

 

 

dx

[citizenB]

They can indeed issue a claim against you - however, whilst being in default of the s78 request, they should not be able to obtain judgment. So makes a nonsense of their statement.

 

I think if you hadn't said anything about the original default date, then it might have dropped off your file by now. It is my understanding that they can correct files if the original information was incorrect.. and as you pointed out to them that they had made a mistake !!!