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Everything posted by Lord_Alcohol

  1. Thanks Slick The COBS link is a goldmine, so cheers for that. I think an action is the order of the day. I'll send a letter to that effect then start proceedings. I'll post any developments here. Thanks again LA
  2. Hi Slick Sadly I have tried (repeatedly) all these things - my letters to BC have been to have the agreement reinstated in full, but I have had no response at all. I know letters are being received as I send them recorded. It is possible that BC will send another DN. However, it is equally possible that BC will record the 8 months 'missed' payments, and this is just as damaging as a default (more so, in fact). This is the problem. I would be able to satisfy any DN that BC served, but would be stuffed should they record the missed payments on my credit file. I have written on numerous occasions regarding my satisfaction of the DN. It has made no difference. I have also spoken with BC customer services and I just get the usual 'we will look into it' type response. I have had a letter from BC to say that it is looking at my complaint, and that it would conclude by end October last year! I have since heard nothing. I do not think I can settle any arrears now as, being a credit card account, I do not know precisely what the arrears are! I could, of course, guess. I am reluctant to do this in case I get the numbers wrong (they are complex) or lose some entitlement later on. The agreement is effectively terminated although I have not received any notices or letters to that effect. I cannot use the card, for example. So, if BC will not engage and will not restore the agreement, then what options are open? My view is that BC simply do not want to continue with the contract. If they did, then they would have done something by now (such as claim money that they are entitled to). Hence, to me, this looks like a repudiatory breach in that BC has restricted credit (without serving notice) and is not performing the contract, and so I should consider rescinding it. Given BC's position I have no other idea of what to do.
  3. Thanks Slick I have a real problem with this approach because BC could easily wake up and say "Oops, sorry, we'll sort it out but did you realise that you are 8 months in arrears and that we have recorded this fact with the CRAs?". That would be a disaster. They could also, instead, serve another DN, as technically I am in arrears. This is why I need to find a 'legal' defence, and claim that the contracted is repudiated by the OC (non-performance, breach of S89, etc) or something similar. I am sure that FOS would eventually agree with me were I to lodge a complaint, but they work so slowly it is hardly worth bothering and, in the meantime, BC could mangle my credit file further. I was thinking of reverting to S102 and sending a notice claiming rescission (due to non-performance) - any thoughts? Cheers LA
  4. Hi Slick That's the odd thing - I do not have use of the credit card (although the account is well within agreed credit limits) and have not received statements. I wasn't able to make contractual payments because I needed the OC to tell me how much to pay, although admittedly I could have estimated the amount and paid that. However, it's not as simple as that because, as I am not receiving any feedback at all from the OC, there is a perceived risk of either losing some/all of the money (ie, it not being credited to my account for some reason) or of losing some 'rights' by making payments (eg, finding that there is no cause for complaint because I effectively continued with the contract as normal). However, I have nevertheless put the money to one side, so can pay if I am asked. A further worry I have is that the OC might suddenly record 8 months of missed payments on my credit file, which would be far worse than the default that is currently there. The letters I have sent to the OC have been to ask for the default to be removed, the account to be reinstated and for a card to be issued. I have also asked for nominal compensation for the recording of the default marker (no amount specified), although this is not a requirement for reinstatement and am not really bothered if they compensate or not. Cheers LA
  5. Hi Slick The DN was satisfied within the given time, so the account was back to normal. However, that was 8 months ago. Since then, nothing has happened at all so I don't know what to do. I have written to BC but all letters are ignored, so need to understand the legalities so can figure out next step. A default was recorded before the DN was served! This is a separate matter that has been passed to the ICO. Cheers LA
  6. Hi folks If a valid, proper S87(1) default notice is satisfied by a defaulting debtor within the stipulated timescale, does anyone know what is supposed to happen afterwards? For example, is the default really considered as not having occured (S89), and do creditors allow the agreement to continue as before, with the debtor given access to credit? If the OC does not consider the breach as "not having occurred", or does not terminate the agreement properly or restrict credit by serving a notice under S98A, then does this amount to contractual or regulatory breach? If so, are any sanctions available, such as rescinding the agreement? This is the current situation on my BC and I'm trying to understand what options are available. TIA LA
  7. Well, Peter Bard will say that your position is hopeless, but I will say that it is not. Your lender has messed up. He needs to wait for remedy (or not) before terminating the agreement. He has removed your entitlement to remedy (an important part of CCA) and prejudged the outcome of any decision you may make. The Act states that a compliant DN must be issued before an agreement can be terminated on breach by the lender, and s89 states that the lender must wait until the expiry date before taking the action set out in the DN. I do not think that this line of reasoning is wrong. It is just that one or two recent cases have given the courts an easy way out. Lastly, I would look to s140 if the lender fails to comply with the Act. LA
  8. Peter The course of action being mooted here is to require that lenders comply fully with the Act, in the same way that they require their customers to. You have seen many examples of lenders refusing to adhere, and of courts condoning that action, to the detriment of the debtor. I am mystified why you deem this discussion and the search for solutions to be so seditious that CAG risks regulation! The bottom line here is that many, myself included, have hit problems and received DNs that cannot possibly be complied with because they do not offer the prescribed timescale or demand sums that are too high to fix the problem. The lender is informed, but refuses to act reasonably. The borrower then loses his entitlements under the Act and faces court, CCJ and all the rest. So I do not understand why this is so unreasonable for you. The basic argument is a mixture of law and reason; that some judges get it wrong and interpret things differently doesn't make it right. I certainly hope you will continue to post as I find your arguments helpful in clarifying the alternative view. LA
  9. Haha, thank you Frett, how I wish you were a high court judge!! Whether this washes in court I don't know so let's keep the posts coming and I hope that Peter will continue to present his views too which I think are valuable. LA
  10. Peter, this is not correct. If the lender states an intent to record the default on the debtor's credit file within his defective DN (that cannot be complied with due to its defects), then the lender breaches the 1998 DPA because the accuracy of his data recording is wrong. He places the debtor in a situation he cannot get out of, and wrongly records the false outcome of his actions. Also, the ICO's own guidelines (at para 35) state; If a borrower fully meets the terms set out in a notice of intention to file a default, it follows that the lender should not file the default. (see http://www.ico.gov.uk/upload/documents/library/data_protection/detailed_specialist_guides/default_tgn_version_v3%20%20doc.pdf) You are wrong when you say that ICO guidelines have nothing to do with CCA. CCA, at ss 147(2), 157, 158, 159 and 160, all cover CRAs. The ICO regulates CRAs by enforcing the DPA. To say that DPA and CCA are separate is just twaddle. Lastly, the DPA principle of fairness and accuracy should prevent a lender from recording a default before the debtor remedies. Lenders must comply with DPA as they must with CCA. LA
  11. Here, the OC terminates on breach, which requires a compliant DN. Section 89 gives entitlement to the debtor to remedy the breach as though it had not occurred. If the OC fails to honour that entitlement, he is therefore in breach. The debtor can terminate at any time, but monies due must be paid. The liabilities are defined by contract and the Act; refer to s87(1)(b) here, as we discuss invalid (ie, non-compliant) DNs. The only sums due are the arrears less the debtor's costs. It is set out in the Act to which both parties agreed. The creditor has no entitlement to recover unpaid amounts where s88 is not complied with. This is clearly stated at s87. It really is very simple Peter. LA
  12. The problem as I see it is that if the courts start making judgements in favour of lenders where the DN is defective then it offers them an opportunity to close credit agreements and collect their money early. This might be a very attractive scenario for them if they are strapped for cash or do not believe that the debtor will toe the line or continue to perform the contract. The argument in Brandon that Amex took no action until after the 14 days plus service seems disingenuous because how would Brandon know that it was 'OK' to clear the arrears after the timescale on the DN? Had he tried to do so, Amex may have told him to get stuffed. In fact, I'm utterly certain that that is indeed what they would have done, the defective DN being an opportunity for them to recoup everything in one hit. LA
  13. We don't know, for all the reasons raised above. If the judge allows the lender to do that, then you should ask him on what basis the agreement is no longer 'terminated', why you no longer have entitlement under s89 and ask that the lender now provides proof that the relationship (as modified by the court's instruction to the lender) between you both is fair under s140. You could also say that you do not agree to reinstatement of the contract, it having been ended by both parties. Just because the lender was not entitled to terminate it he is equally not entitled to reinstate it without your agreement. LA
  14. As for termination by the OC where his DN is non-compliant, it is clear that he is not entitled to end the agreement in the same way that we are not entitled to travel at more than 70mph on the motorways. However, the OC does terminate the agreement, just as we sometimes go faster than 70mph. He faces no specific sanction due to s170, but he has nevertheless terminated the agreement. For a court to say that he hasn't and that he must now resurrect the agreement is a bit like being told that we won't be fined for our speeding offence but we must remake the journey from start to finish while travelling within the speed limit. Clearly a wholly farcical scenario. If a court finds that he wasn't entitled to end the agreement, then clearly he is not entitled to seek sums unpaid. As for reviving the agreement in order to issue a new DN, CCA prevents this because it would remove the debtor's entitlement to the provision at s89 (as well as causing issues under s140). The question here would be; why does the lender have an entitlement reinstated but the debtor has one removed? I just fail to see why the courts and the credit industry are running around trying to find loophopes in something that is fairly clear and designed to protect consumers. It is simplicity itself for creditors to get their documentation in order and comply with the Act, and it is up to the creditors to decide whether to terminate the agreement. That they fail to comply with the Act and choose to terminate is entirely their choice; the consumer can not be expected to pay for their mistakes and abuse of regulations. LA
  15. Where an OC chooses to terminate the agreement following service of a defective DN, I'm now wondering whether his demands for the full balance constitute a penalty and so would be unenforceable under UTCCR 1999. I cannot get around the fact that s87(1)(b) absolutely requires a fully-compliant DN to be issued first. For the OC to excuse himself from this subsection and claim the full balance as it was prior to the DN, it is a penalty placed on the debtor and which is outside of CCA. The balance due is not owed. That is ruled out by non-compliance with s88 and is clearly stated at s87(1)(b). Monies are, however, owed, and these are whatever should have been paid up to termination (less the debtor's own costs). If the full balance cannot be owed due to s87(1)(b), then the OC must be seeking the difference between the outstanding balance prior to the DN and the arrears as a penalty. Any thoughts anyone...? LA
  16. Good luck wp! One other possibility for you is to simply refuse to accept any attempt to resurrect the agreement (so that the OC can issue a new DN). I'm not sure what anyone can do in that circumstance; you'd be acting perfectly reasonably to take that position. As for monies due, we all know what they are because CCA tells us. They are the arrears, because the OC relinquishes entitlement to unpaid amounts through his earlier error. This situation is quite similar to unenforceable agreements and the wish of Parliament to 'favour' the debtor where the OC cannot be arsed to do things properly. I really would like to see a DJ try to force a contract on two parties who have previously agreed to end it. Let us know how it goes wp. LA
  17. Hi Frett What a nightmare. Presumably after Brandon lenders everywhere will start dishing out DN's with no time to remedy, then claim they didn't start proceedings until after the prescribed time. That way they can rely on the courts to grant money orders without having to bother with CCA or wait for the debtor to repay under the agreement. This is likely to be a way for lenders to collect their money early under regulated agreements. Here's a list of s140 cases I found on the "other" web site, which may be useful... http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/unfair-relationships-cases.pdf LA
  18. You have been considerably and unfairly disadvantaged by the OC's activities, presumably based on his failure to perform the contract at ss 88 and 89. You will probably have had adverse data recorded with the CRAs (maybe for some time), in addition to dealing with the stress of being sued. At an absolute minimum, I would ask the court to grant compensation based on; Damages costs for recording of adverse data when your entitlement to avoid this was significantly reduced by the OC's defective DN. Compensation for having the entitlement of s89 unilaterally withdrawn by the OC. A sum to pay for your time and costs in dealing with the matter to date. The fact that the OC's apparent termination has caused additional stress and cost, as had he simply issued a new and compliant DN way back then it's unlikely that you would be in court at all. It may be that, had the DN been compliant, you would have cleared the arrears and maintained payments but, as the DN was not compliant and the OC removed his entitlement to all sums unpaid, those payments were not made. You could therefore ask for, in addition to the above, that the balance of the account is set to what it would be now had the arrears and payments since issue of the DN been made. That would be the minimum I would ask for if the court insists on enforcing a resurrected agreement. I would start off by asking the court to wipe the debt entirely, due to the simple fact that the OC has been unable to adhere to CCA and you have no confidence that he will do so in the future. For example, you may find yourself in the same situation next year, dealing with an OC that cares little about the Act. Having said that, I still maintain that if an OC terminates on the back of a defective DN, it represents unlawful termination and can still be accepted. That might be b******s, but it's what I think at the mo. I would also say to the judge that, assuming he finds against you, that you wish for clear reasons why the OC is apparently exempt from ss 88 and 89 and why in this case s87(1) does not apply to him. If you say that you will require his legal reasoning it implies an appeal is going to be requested, so if the DJ decides to try and make legal history he will know that his name may be later batted around the higher courts. One last point; under s140 the OC must show the court that the relationship is fair. The onus is on him to do so, and not on you to show how it was unfair. He therefore needs to fully justify his actions and demonstrate that they were fair (although how he will do that is a mystery!). LA
  19. Yes, agree with this. The issue of sanctions under s170 wouldn't apply under s140, as s170 allows sanctions permitted under the Act. The problem now, I guess, is getting a court to agree that repeated breaches of the Act by the OC and the resulting mess caused to the debtor is "unfair" under s140 and that it should exercise it's authority to get the debt reduced or binned entirely by way of "compensation". I'm now wholly convinced that the lenders are using the courts to recover money as the preferred option over using CCA, maybe especially where the consumer has been through a bad period and is not paying on time. It's the only explanation as to why they cannot get DNs right and stick two fingers up to the Act. Grrrrrrr..... LA
  20. No, I really meant that s89 intends that the debtor is entitled to remedy the breach as though it never occurred. However, he cannot get himself into this position if he's been dragged through the courts and had his CRF mangled. So, if the OC issues a new DN after these events, he breaches s89. LA
  21. I don't think that it will apply, as there was a breach (hence a DN). LA
  22. The Mould hits the nail on the head again, and this has to be the way forward. If a lender subsequently makes a previously-terminated contract live in order to issue a new DN, he must breach s89 unless there has been zero impact on the debtor. If he absolutley insists on breaching s89 in order to correct his original mistake, then the debtor has s140 available as this would very clearly come under it. I still believe that if a lender terminates a contract on breach and contrary to s88, and the borrower accepts that termination, then the game's up for the OC. If s87 cannot be satisfied, then the OC has ended the agreement unlawfully, but ended it remains. I would say at this stage the OC needs to accomplish the following in order to recover all sums; Convince a court that the agreement is still live, despite a clear statement to the debtor that it is ended and a letter from the debtor that accepts that termination. Ask the court to overlook the various letters of termination, badgering from DCAs, threats of legal action, abuses of the OFT's debt collection guidelines and recording of adverse data with the CRAs. Persuade the court that it (the OC) is exempt from s89, or that the debtor has no need of the entitlement that s89 provides. Re-instate the contract while ignoring all the fundamental tenets of contract law (that a contract can only exist where both parties want it to). Issue a new DN (and hope that it complies with s88!). Hope that the debtor does not make a defence under s140 or, if he does, faces a judge hostile to s140 and the OFT's interpretation of it. I think that's quite a tall order. LA
  23. I see what you mean PT. My understanding, though, is that the protection offered to consumers includes setting out the procedures that both parties must follow in order to perform the agreement, and these include ss 88 and 89. The old s140 offered protection from extortionate credit bargains and this is now extended to cover general 'unfairness'. The OFT covers this in their leaflet which can be seen here; http://www.oft.gov.uk/shared_oft/business_leaflets/enterprise_act/oft854.pdf The provision of information is, of course, an important part of the Act but I would not say the only or even the main part that offers consumer protection - at the moment. LA
  24. Maybe the solution to this is s140? A lender that sues a debtor on the basis of a DN that cannot be complied with due to its inherant defects (too much demanded to remedy, insufficient time) breaches ss 88 and 89 to the detriment of the debtor in very real terms (mangled credit file, stress of being sued, repossession, etc). The debtor also receives from the lender notices that state that the agreement is ended, which he accepts believing that the lender is 'allowed' to take this action. To then find that the lender is wrong on this point, in addition to all the others, must lead him to s140. s140A(1)© "any other thing done (or not done) by, or on behalf of, the creditor" may be deemed as unfair to the consumer, allowing a court to consider the sanctions set out in s140B(1), which include "reduce or discharge any sum payable by the debtor or by a surety by virtue of the agreement or any related agreement". It is clear that s87(1)(b) prevents the lender from claiming unpaid amounts where s88 is not complied with, and that s89 requires that the debtor is given an opportunity to remedy the breach as though it had not occurred. It is therefore hard to see how the Act allows the lender to subsequently 're-open' the agreement and expect the debtor to comply with a new DN without the lender being in breach of s89 and s140. It seems to me that CCA fails both parties here, by not identifying the process to be followed when s88 is not properly followed by the lender (and by not specifying sanctions for breach of s88 ). But, as CCA was designed to protect consumers, and as lenders have a wealth of resources at their disposal with which to ensure that full compliance with CCA is attained, I do not understand why the debtor should in any way be penalised by failings of statute and of the lender himself while the latter suffers no loss for his appalling mistakes. For that reason perhaps s140 is worth a look. LA
  25. It would be good if the OC could use the same reasonable terms as you Peter! What you say makes a great deal of sense, yet the reality is very different. Even if the OC is approached regarding the defective DN, he will probably not budge. That has been my experience with BoS and Egg. Sometimes the TN arrives before the DN expires. Sometimes the default is recorded before the opportunity to remedy is fully utilised. The language throughout is litigious and aggressive; "proceedings will be commenced against you", and so on. The only way a DN can be proved to be inaccurate is in court, by which time the debtor will have had a default on his credit file for a year or two, unable to obtain credit, will have been caused the considerable stress and possibly expense of court, and so on. At that stage, is it unreasonable for the debtor to disagree that a new, compliant DN is the solution to the problem? My view is that if the OC wants to issue a new DN then he should compensate for his error if it has caused stress and costs to the debtor. To me, that is reasonable. However, I would also say that if the OC's termination of the contract has been accepted, then it should be up to the debtor to accept whether or not a new DN be issued (for the reasons given by others above). Lastly, I would not agree that any of this is unfair to the OC. He only has to get his paperwork in order to secure his money or goods. It is not a great deal to ask. LA
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