Amex DN

[smouk]

The usual round of Amex, AIC & Newmans fun. AIC seem to have drifted off and Newmans stepped in to the void. SAR sent to OC and CCA sent to Newmans. In the meantime any thoughts on the DN?

[smouk]

http://i132.photobucket.com/albums/q32/smosmo_bucket/defedit01.jpg

http://i132.photobucket.com/albums/q32/smosmo_bucket/defedit02.jpg

[silverfox1961]

Hi,

 

If they are referring to the date of the latter and giving you 14 days from that date it will be invalid unless the letter is post-dated.

They have to give you a couple of days for delivery and then 14 days to remedy the default.

If they have dated the letter, say, 5th may, you get it today and they give you 14 days from the 5th, it's invalid

[smouk]

Cheers Silverfox, thought as much. Any guidance on the circumstances under which a DN can be issued such as duration of state of arrears etc?

[42man]

As the DN is faulty...they would only be able to claim for the arrears !! however it could be potentially up to a judge - but do have a read of this - http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

[silverfox1961]

I have read that a default notice is usually issued after 3 to 6 missing payments. This should then be followed by a termination notice.

As the DN is invalid, wait for them to terminate then as the DN is invalid, they can only claim the arrears (unless I've misunderstood what I've been reading:-?)

[silverfox1961]

Bu**er 42man beat me to it but it confirms I can read and understand at the same time. See, men can multi-task too:D

[smouk]

Thanks folks! To put this in context, there is still a grey area as to whether the default was complete even by their terms as I did make payment. I'm gathering evidence on that as we speak. They cancelled a week or so after the DN.

 

AIC backed off straight away having made a stupid threat on first contact. Newmans seem a little more, er, belligerent.

[smouk]

Actually, just realised I've put this in the wrong place! Doh!.....and the Amex party room is quite a noisy place so I'm surprised I missed it! Could someone do the honours please?

[smouk]

With the idiot DCA still (trying) to snap at my heels should I formally tell said idiot DCA of this defect or just let them run the course?

[smouk]

As the DN is faulty...they would only be able to claim for the arrears !!

Can anyone shed a little more light on this?

[smouk]

[smouk]

Er, help?.........please?

 

DN invalid but arrears paid (and some) then agreement cancelled and referred to DCAs. Best course of action?

[42man]

Did you read the thread that I linked to in post #5 above ?

[42man]

• Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119
  

[smouk]

Hi 42man

 

I'm trying to think strategy wise, whether it's better to let the Idiot DCA turn up the heat and drag me into court or simply state this to the OC and see what simmers up there? Politely accepting the 'termination' of course?

 

CCA request to DCA expires soon as does SAR request to OC.

Edited May 14, 2009 by smouk
Added info.

[silverfox1961]

Hi,

you say you received the default notice but did you receive a termination letter from Amex?

 

If they have terminated your account, I'd wait till a DCA contacts you and then hit them with the invalid DN

[smouk]

They cancelled very quickly after expiry of DN. See #8.

[42man]

Have a read of this - reproduced courtesy of The Shadow

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the 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.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

6. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

[smouk]

Nice threatogram from the, er, 'solicitors' (read Newmans) - FINAL NOTICE etc etc. Nothing significant other than a different default date - two months further on .

 

Can't wait for the SAR bundle.

[smouk]

Has anybody enquired of Mr Cope, self-confessed *EDIT* stroker and *EDIT* enthusiast, as to why/how letters on his firm's headed paper can be posted in Leeds?

 

Anyone get a reply?

Edited May 28, 2009 by 42man
possibly libellous

[smouk]

SAR response received today - 1st lie on 8th page!

[smouk]

From the SAR stuff is an (alleged) CCA! Any comments?

 

http://i132.photobucket.com/albums/q32/smosmo_bucket/cca.jpg

Edited May 24, 2009 by smouk
oops!

[smouk]

Here's the termination BTW!

 

http://i132.photobucket.com/albums/q32/smosmo_bucket/canc.jpg

[Undercover-Elsa]

Is that your name and address top left smouk..fix it quick if it is

(On the CCA pic)

Elsa x