First Direct & Final Demand

[girlie12]

We sent the usual letter to First Direct requesting a copy of our agreement, a copy of the default notice & any deed of assignment & have had a copy of a "Final Demand" sent although nothing else.

 

Just wanted some advice because the Final Demand doesn't say Default on it & want to know if it is "legal"

 

It says the following & is dated 13/01/05

 

"Dear Sir

 

FINAL DEMAND

 

Despite our previous correspondence concerning your debt, we have to date received no satisfactory response.

We now DEMAND immediate repayment in the sum of £*****. This amount is made up as follows:-

Account number Balance Credit/Debit

1234567899 £****** Dr

 

The outstanding balance of £***** will have further interest added on the same basis as presently applies until the date of repayment.

 

YOU HAVE SEVEN DAYS TO REPAY IN FULL or let us have satisfactory proposals for repayment by instalments or otherwise. If immediate repayment in full cannot be made, the enclosed Financial Statement must be completed & returned.

 

If you fail to comply with this demand DEBT COLLECTORS or SOLICITORS will be instructed.

Details of your default including your name and address will be given to the CREDIT REFERENCE AGENCIES named below if we have still not received a satisfactory response from you within 28 days. Credit Reference Agencies supply information to lenders in order to establish an individuals credit history quickly & simply.Lenders then use this information to help decide whether or not to accept applications for credit from their customers. If details of your default are given to Credit Reference Agencies this may make it more difficult to obtain credit elsewhere in the future"

[lookinforinfo]

What date did you send the CCA request-and did you include the £1 payment?

[girlie12]

I faxed it to them on the 12th November so didn't send the £1 - is this a problem?

[lookinforinfo]

Well yes. Part of the stipulation of the CCA is that the payment must be made.

And without the £1, the Company does not have to respond to your request.

So to stop everything in its tracks, you will need to send another CCA request

including the £1. If they had the original agreement, they would have sent it.

[car2403]

What they've sent you doesn't comply with Part VII of the CCA 1974, so any Default/Termination is unlawful.

 

Follow the advice given, as you can't query this without requesting a copy of the agreement. Templates are available in the library if you need them.

[girlie12]

I sent a letter to First Direct on 26th Nov enclosing a postal order requesting:-

1. You must supply true copy of agreement etc
   
2. You must supply a true & certified copy of the orig default notice not a Final Demand as prev sent.
   
3. Any deed of assisnment if the debt was sold on.

Now received a reply -

"Please find enclosed your postal order along with copies of account opening forms for your accounts (single loan account & joint bank account). There is no legal requirement for us to hold copies of Default Notices so I have been unable to enclose a copy per your request.

 

The 1st Account you held (joint bank account) was not a consumer Credit Act regulated product,therefore no Default Notice is required.

 

As we received no satisfactory response to the Final Demand your accounts were passed to Metropolitan Collection Services and an entry was made on your credit file. The final Demand is our notice to register adviser information on your credit file and satisfies our legal obligations beforepassong accounts to a Debt Collection Agency.

 

Once your account is paid in full this is reflected on your credit file, which is updated.

 

No Deed of assignment is required as Metropolitan Collection Services are part of HSBC group.

 

I trust this clarifies the position.....blah,blah!!"

 

Please advise what action I now need to take - I am feeling a little lost amongst all the paperwork:confused:

[car2403]

Well, "account opening forms" sounds like an application form to me!

 

Can you scan/post up what they've sent you? (Removing personal information of course)

 

They are wrong about the bank account - read here;

 

http://www.consumeractiongroup.co.uk/forum/general-debt/31515-ccas-overdrafts.html?highlight=overdrafts

 

then this post;

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/125120-wescot-credit-services-advice.html#post1307682

[girlie12]

Have scanned all pages in to one folder but as I am not as good as I thought I was on the computer, I don't know how to put it on here for you to see!

 

Please advise

[rory32]

If you open a photobucket account and upload it to there you can the insert the links or images into posts. Have a read here for further instructions (towards the end of the guide) http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

[rory32]

Here's a little more on Coutts & Co v Gabriel Oscar Alan Sebestyen 2005 which outlines the legal position on the Act and overdrafts http://www.shlegal.com/Asp/uploadedF...it_12_05. pdf page 5

[girlie12]

Have added these thumbnail images of our Bank Account Application Form & the Loan Agreement - Hope someone can zoom in on them & advise please

 

 

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[girlie12]

This was the final demand letter - no default notice

 

 

[car2403]

The account forms are application forms and bear no relation to the overdraft agreement. Without any documentation as outlined in the OFT Determination, they can't rely on that to say they don't need to comply with the CCA - the application forms don't contain the prescribed terms, (credit limit, repayments and interest rates) so the overdraft will be unenforceable as a result under s.127(3) CCA 1974. (When will these Banks learn how to comply?)

 

The loan agreements look ok as it has the prescribed terms. (above) The APR isn't right, but works out at 6.67%, which is within the tolerance allowed under the regulations;

 

Permissible tolerances in disclosure of the APR

1A. For the purposes of these Regulations, it shall be sufficient compliance with the requirement to show the APR if there is included in the document -

 

(1) a rate which exceed the APR by not more than one; or

 

(2) a rate which falls short of the APR by not more than 0.1; or

 

(3) in a case to which either of paragraphs 2 or 3 below applies, a rate determined in accordance with the paragraph or such of them as apply to that case.".

 

What is the date of your signature? If it's after the date printed on the agreement, that could make this a prospective agreement, so is void under s.59; (the fact the signature is printed and predated adds weight to this argument)

 

59.—(1) An agreement is void if, and to the extent that, it purports to bind a person to

enter as debtor or hirer into a prospective regulated agreement

 

IMHO, this agreement is properly executed. If you want to challenge it, you will have to do so based on the fact they can't provide any evidence of the original Default Notice, so can't prove that they have Defaulted the account correctly.

 

Also, do you know if they have applied charges to the Loan account? This would invalidate any Default Notice, unless they can prove their charges are lawful, (which they can't) as the Default amount includes those charges;

 

Failure of a Default Notice or a Termination Notice to be accurate not only invalidates such Notice, (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, (Wilson v First County Trust, Wilson v Robertsons (London) Ltd [2006] EWCA Civ 1088, Wilson v Pawnbrokers [2005] EWCA Civ 147) but would also give the Claimant a claim for damages in the sum of £1,000. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

[girlie12]

Thanks for your speedy & indepth response.

 

The loan agreement WAS dated the day after their date so I reckon this may make it void under S59.

 

Will have a look at whether any charges have been added to the loan account.

 

Are there any templates I can use for my reply for either the bank a/c or loan?

[car2403]

There won't be any templates for this, as each case has it's own specific merits and won't fit a template as such.

 

I'd avoid discussing the enforceability of the loan agreement, as you don't want to point out the obvious - plus this could help them if they decide to enforce against you later.

 

Stick to the Default Notice issue, IMHO, so start by writing back telling them they do have an obligation to prove they have Defaulted you within the prescribed process of the Act - if they haven't, suggest that they remove the Default from your credit file, as unsubstantiated.