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tigercub

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  1. Thanks Andy I reside in Scotland and the agreement was made in Scotland. Essentially then I can just ignore as I already have an agreement in place?
  2. I have an old Credit card debt with RBS which defaulted in Sept 2009 approx. £6300 still due. It no longer shows on my credit file as it dropped off last year. I have been paying £25.00 per month without fail every month towards it for more than 6 years. As I have been making payment it doesn't come under the same rules as being statute barred (Or does it?) I have received a letter stating that Westcot Credit Services will be managing the repayment plan going forward and they will contact me in 14 days. The minimum payment given to RBS was accepted by them in correspondence going back a few years now however they continually asked me to pay more to which I ignored all correspondence and just kept paying the minimum amount that we had agreed. They referred to this as a temporary arrangement. What is the situation with Westcot? I clearly don't recognise them as the debtor and as far as I am concerned my original complaint to RBS is still in dispute however it was easier to pay the £25.00 per month. If RBS have sold the debt to Westcot then I have grounds for unlawful rescission of contract as they haven't told me they were selling the debt. I assume they are just managing it on RBSs behalf? Any thoughts?
  3. Just off the phone with Shelter - Essentially they are saying that the lender can issue as many call up notices as they like and can continue to do so until they eventually take me to court ;-( They have seen some Lenders issue several call up notices before eventually taking people to court and repossessing the property.
  4. [F6Subject to subsection (12) below,] a calling-up notice shall cease to have effect for the purpose of a sale in the exercise of any power conferred by the security on the expiration of a period of five years, which period shall run— (a)in the case where the subjects of the security, or any part thereof, have not been offered for or exposed to sale, from the date of the notice, (b)in the case where there has been such an offer or exposure, from the date of the last offer or exposure. [F7(12)A calling-up notice calling up a standard security over land or a real right in land used to any extent for residential purposes ceases to have effect on the expiration of a period of 5 years from the date of the notice.] I think this basically says the notice ceases to have affect after five years but can they restart the clock by re issuing another notice?
  5. Thanks for the feedback. The call up notice gave me two months to pay before they could take action however this was five years ago. The call up notice has expired and is now null and void. The lender needs to comply with pre action protocol before issuing a call up notice or starting repossession proceedings. My question is still now that the call up notice has expired after 5 years can they then by law start the clock ticking again by issuing a second call up notice? I will contact shelter but from a point of view of law I can't see how they can just issue another notice if they failed to act on the first one issued in 2009
  6. I received a call up notice over 5 years ago which expired in January 2014. In line with the Conveyancing and Feudal Reform (Scotland)Act 1970 I believe that under section 19- Calling up on standard securityparagraph 11 states: (11) A calling-up notice shall cease to have effect for thepurpose of a sale in the exercise of any power conferred by the security on theexpiration of a period of five years, which period shall run- (a) in the case where subjects of the security, or any partthereof, have not been offered for or exposed to sale, from the date of notice (b) in the case where there has been such an offer orexposure, from the date of the last offer or exposure With this in mind and the fact that the original notice has expired & There has been communication between the bank and myself in the 5 year period – does this render the debt extinguished or can they simply just re-issue a new call up notice?
  7. Question Ref Calling Up Notice as stated above: It has come to light that the call up notice that was served in November 2013 was invalid due to the fact that the Bank failed to follow the pre action protocol before issuing the notice. With this in mind the original Call Up issued in Jan 2009 has well expired and as the 2nd call up issued November 2013 is invalid there has been a period of more than five years since the original paperwork was received. Does this mean that they can still pursue the debt or does this become extingushed? Can they issue another call up notice even though 5 years has since passed? Any help greatly appreciated
  8. Thanks for the reply - Varde tried to take me to court a few years back and I sent in a defence letter to the court ( see below ) which then lapsed as they failed to take it any further and the court 'stayed' the case which cannot be opened again unless they reapply to the court in question. I have not heard from Varde for 3 years and the debt drops off my credit report in approx 18 months. AccountNo. **************** Unlawfully Repudiated As defence to the action being raised by VardeInvestments (Ireland) Ltd the defendant notes that the claimant has stated inthe particulars of the claim that monies are due under a regulated creditagreement between MBNA and the defendant the benefit of which was assigned tothe Claimant. The defendant also notes that the claimant has stated that theagreement terminated upon the defendant(s) failure to comply with the terms ofthe agreement and/or the statuary notice of default served by MBNA. To cover the particulars of the claim the defendantwould like to draw attention to three separate points of defence which thedefendant will cover individually on there own merit. Jurisdiction Denied that this court has jurisdiction. Thedefendant resides at XXXXXXXXX This is his principal or main home and thedefendant has domiciled here for the purpose of section 41 of the CivilJurisdiction & Judgments Act 1982 ('the 1982 Act'). The defendant enteredinto a contractual agreement with the original creditor as a consumer.Paragraph 3(4) to schedule 8 of the 1982 Act provides as follows: "(4)Proceedings may be brought against a consumer by the other party to thecontract only in the courts for the place where the consumer is domiciled orany court having jurisdiction under rule 2(i)". Rule 2(i) concerns moveable property whichhas been arrested and is not applicable. Paragraph 3(6) does not apply.Accordingly, this action is incompetent for want of jurisdiction and should bedismissed with expenses in favour of the defendant. The defendant formally requests that the case be struck out due to lackof jurisdiction. Unlawful Termination of Account The defendant states that the alleged account inquestion was unlawfully terminated by MBNA by way of passing the debt to Varde Investments(Ireland) Ltd (With Experto Credite acting on the claimants behalf) prior tothe rectification date of the default notice thus unlawfully rescinding theagreement and the account in question therefore Unlawfully Repudiated. The defendant refers to an MBNA Default Notice dated7th September 2009, received by him on 11th September 2009 with a rectificationdate of 24th September 2009 demanding payment of the full balance whichwas sent to the defendant whilst there was an open dispute with MBNA, Thedefendant also refers to MBNA’s subsequent actions confirming their previouswritten intentions to possibly terminate the agreement. The defendant refers toa point noted in a letter from MBNA dated 31st March 2010 furtherproviding evidence of the rectification date "The letter advised you thatno further action would be taken if the payment requested in the letter wasreceived on the account by 24th September 2009" MBNA fail to notethat they sold the account to a third party prior to this rectification datethus the agreement is unlawfully repudiated. (The account was sold to Varde Investments(Ireland) Ltd 16th September 2009) Further more MBNA demanded payment in full of theentire balance of the account in order to remedy the Default Notice and whichincluded payment of sums not yet due under the agreement. The intent and purpose of the Default Notice is thatif the debtor remedies the default by the date shown (s89) then the status quois preserved - that is to say that if he pays the amount demanded it will be asif the breach had never occurred. In order to remedy the default notice the defendantwas required to pay all of the sums not yet due under the agreement and towhich the failure by the defendant to comply with the default notice is a precursor to the claimant being entitled to claim those sums not yet due under theagreement. The result was that the defendant could not lawfully comply with thedefault notice. Notwithstandingthat the default notice sent by MBNA failed to give the defendant the requiredstatutory time in which to seek legal advice and/or remedy any alleged defect,as laid out in s87 of the CCA 1974 (as amended by the Consumer Credit Act 2006)their actions resulted in insufficient time for the defendant to even obtain anappointment with a solicitor let alone remedy the alleged default. MBNA’sactions have led the agreement to become unlawfully repudiated. Thedefendant has stated in many previous pieces of correspondence to MBNA, ExpertoCredite; who act on behalf of Varde Investments (Ireland) Ltd; and H L Legal& Collections that he has accepted MBNA’s unlawful rescission of theagreement and the defendant has informed MBNA that they were entitled to claimthose arrears genuinely due at the time of the termination (not including anyunlawful charges) The defendant has requested on many occasions for MBNA to advisehim of the exact amount of those arrears, against which the defendant wouldraise a claim for unlawful rescission. These pieces of correspondence were allsent 1st Class Recorded Delivery proof of which can be seen onrequest. Basedon the facts stated above and in previous correspondence sent by the defendantto MBNA, there actions have lead to the agreement becoming unlawfully repudiated.The default notice failed to give the defendant the required statutory time aslaid out in s87 of the CCA 1974 (as amended by the Consumer Credit Act 2006) Thefailure of a Default Notice to be accurate not only invalidates the DefaultNotice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR2255) but is an unlawful rescission of contract which would not only preventthe Court enforcing any alleged debt, but give me a counter claim for damagesKpohraror v Woolwich Building Society [1996] 4 All ER 119. I therefore put the Claimant to strict proof that any Default Noticesent to the defendant was valid and allowed the statutory 14 clear days torectify the breach. I also note that to be valid, a Default Notice needs to beaccurate in terms of both the scope and nature of breach and include anaccurate figure required to remedy any such breach. The prescribed format forsuch document is laid down in Consumer Credit (Enforcement, Default andTermination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulationsthe Consumer Credit (Enforcement, Default and Termination Notices) (Amendment)Regulations 2004 (SI 2004/3237). It is submitted that theMBNA Default Notice served under s87(1) Consumer Credit Act 1974failed to comply with the Consumer Credit (Enforcement, Default and TerminationNotices) Regulations 1983 (SI 1983/1561). For a Creditor to be entitled to terminate a regulated Credit Agreement wherethere is a breach, demand repayment in full or take any legal action to recoverany monies due under the Agreement, a creditor must serve a Default Notice undersection 87(1) of the Consumer Credit Act 1974which 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 canbecome 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 asterminated, restricted or deferred, or (e) to enforce any security. 9. The Act also sets out via Section 88(1), that the DefaultNotice 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. Thereforeit cannot be dispensed with as a De Minimus issue. I note that the regulations do not allow any variation in the form of thesestatements and therefore it is suggested that where the statements are not aslaid down in the regulations the Default Notice is rendered invalid as aconsequence. 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 somedetail the issue of the contents of a Default Notice and should the notice failto comply with the Consumer Credit (Enforcement, Default and TerminationNotices) Regulations 1983 (SI 1983/1561) it would render the Default Noticeinvalid The defendant quotes the comment of KENNEDY LJ: "Thisstatute was plainly enacted to protect consumers, most of whom are likely to beindividuals" the judgment appears to confirm the consumer creditlegislation made under the Consumer Credit Act 1974 asplainly enacted and set out to offer protection to the consumer. Therefore itis suggested that the failure of the Claimant to set out the Default Notice inaccordance with the Consumer Credit (Enforcement, Default and TerminationNotices) Regulations 1983 (SI 1983/1561) could unduly prejudice the defendantas it failed to allow the required time to remedy the alleged default. The Claimant’s failure to issue a valid Default Notice must surely prevent aright of action and would make any termination of the Agreement unlawful, asstatute provides the procedure that must be followed. Since the Claimant hasfailed to adhere to statutory procedure it is averred that the Claimant doesnot have a right of action, and can never now have a right of action havingterminated the Agreement unlawfully. Furthermore, the Arrears Total cannot be accurate, as the Balance on theAccount was at least partly comprised of Unlawful Charges plus additionalCharges and interest added unlawfully whilstthe Account was in Dispute. Therefore, the Arrears claimed cannot be accurate,as they are themselves calculated using a total that was itself inaccurate. This is at all times an Agreement Regulated by the Consumer Credit Act1974. There is no provision in the Act thatallows a large financial institution to terminate an Agreement that is inalleged default or breach simply by giving notice to the Consumer. Section98(6) makes that quite clear. The Creditor must follow the steps outlined inSection 87 and Section 88 if they are to lawfully Default and Terminate, andenjoy the benefits of Section 87. Finally, an invalid Default Notice cannot be remedied by simply issuing a newDefault Notice. The Claimant may not serve a second effective default notice in prescribed formpost-termination of the agreement. Any such second default notice will necessarilystate a date by when the defendant would be required to comply after which indefault the agreement would terminate. The second default notice wouldtherefore contain the fiction that the agreement endured when that cannot bethe case, as it was terminated on 16th September 2009. Terminatingan Agreement on the back of a defective Default Notice, simply confirms theundeniable truth that Termination of the agreement by the Claimant was carriedout in circumstances which then prohibited them from enjoying the benefits ofSection 87, namely the opportunity to seek early Payment of a sum that was,prior to Termination, only payable in the future. Notice of Assignment Further more the defendant has never had a notice ofassignment served as per the legal requirement of the Law of Property Act 1925and as such the defendant is unaware of any debt with Varde Investments(Ireland) Ltd and the defendant does not acknowledge this debt to them. By MBNApassing the defendants information on to Varde Investments (Ireland) Ltd andsubsequently Experto Credite Ltd. not only is this a breach of OFT collectionguidelines, but also in breach of the CCA 1974. Whilst the defendants disputewas clearly in place with MBNA at this time and his Consumer Credit Act requestremained in default; enforcement action is NOT permitted, under s127 thisconstitutes a complete defence at law. The defendant has been in constant communication withMBNA through written correspondence since January 2009 with regards to requestsfor a true and signed copy of the alleged agreement they refer to. This was hisright under MBNA’s obligation to supply a copy of the agreement under thelegislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) forrolling sum credit) - their obligation also extends to providing a statement ofaccount to which to date the defendant still does not have all the information. Furthermore MBNA have not fully complied to aSubject Access Request which was sent to them 20th October 2009 (Data Protection Act disclosure request)Experto Credite have also failed to provide the defendant the requested information under a formalinformation request sent to them in a letter dated 4th October 2010.With this in mind Experto Credite have also recorded a default against thedefendants credit file with all three of the credit reference agencies which thedefendant believes have been applied unlawfully as Experto Credite have nolegal right to the debt. I trust that thisclarifies the defendant’s position and if there is any further informationrequired the defendant can send copies of all documentation that have been sentto MBNA,Experto Credite; who act on behalf of Varde Investments (Ireland) Ltd; and H LLegal & Collections.
  9. I am in an ongoing dispute with Equifax regarding a debt which I do not acknowledge to the current DCA The alleged account in question was unlawfully terminated by MBNA by way of passing the debt to Varde Investments (Ireland) Ltd (With Experto Credite acting on there behalf) prior to the rectification date of the default notice thus unlawfully rescinding the agreement and the account in question therefore Unlawfully Repudiated. Varde have no legal right to the debt and in turn if Aktiv Kapital wish to pursue this debt on there behalf they will have to apply to court in order to lift the stay which was put in place by the Judge when we went to court. With this in mind and the fact that this debt is associated with MBNA and no one else this should show as an MBNA defualted debt not Varde or Aktic Kapital. I do not recognise Aktiv Kapital or Varde as I accepted MBNA’s unlawful rescission of the agreement and as such the debt still lies with MBNA and no one else Equiafax have this debt listed under Aktiv Kapital and are unwilling to remove the debt or the default even though they have no legal entitlement to the debt. Do I have a leg to stand on?
  10. Thanks Ida, I am awaiting an appointment with the original solicitor I used 8 years ago when the overdraft was created. We received a letter from the local authority as well. Shelter is next on the list to contact
  11. Thanks Ida, I believe the initial calling up notice received 19th Jan 2009 is about to expire..... In line with the Conveyancing and Feudal Reform (Scotland) Act 1970 I believe that under section 19- Calling up on standard security paragraph 11 states: (11) A calling-up notice shall cease to have effect for the purpose of a sale in the exercise of any power conferred by the security on the expiration of a period of five years, which period shall run- (a) in the case where subjects of the security, or any part thereof, have not been offered for or exposed to sale, from the date of notice (b) in the case where there has been such an offer or exposure, from the date of the last offer or exposure However the calling up notice should be in conformity with Form A of schedule 6 to this act. I am not sure if this is the case? The notice we have from Jan 2009 also has the incorrect post code and my wifes name is spelt incorrectly, so in my opinion is invalid and unenforceable anyway. They refer to the call up in there core banking data which they have also sent me and in this document; which is some sort of system for them keeping notes, they even refer to the property at the wrong address. The new calling up notice they have sent me (Can they issue a second one if the first one hasn’t expired?) is dated 5th November and states we must pay within 2 months. I am sure then that this will take us up to Sunday 5th January 2014. Exactly 14 days before the initial calling up notice is due to expire and render it unenforceable. If this is the case the new calling up notice runs over the festive period where there is approx two weeks of down time where nothing can be done and in fact will hinder the process and not give me a full two months? Not sure if I can argue this? Does this mean that I can ask to have them extend this by two weeks up until 19th Jan 2014?
  12. Morning,Ill try and keep this simple and to the point. I am joint guarantor for a business loan from Bank of Scotland that was called up in Jan 2009 (Almost 5 years ago) The call up had the incorrect address, namely the postcode and my wife’s name was also completely wrong. I have managed to fight it so far over the last 4 years and ten months. However I have just received a Calling Up Notice from there solicitor demanding payment within 2 months or they will pursue repossession of the property. They have always contacted me and not my wife who is also down as Guarantor. The calling up notice is in my name and I have also had a letter from the local authority regarding potentially being made homeless. Now my question is as the Bank already sent me a ‘call up’ 4 years and 10 months ago can they call up the loan again? They are essentially calling up the loan twice? I was under the impression that the loan would become time barred in January of 2014 as when we reached 5 years it would be staturte barred however as the loan is not governed by the CCA its actually 12 years! The Bank cant produce or are withholding some paperwork that I have asked for, namely the valuation report for the house (Which they don’t have) in order to work out how they can provide a loan higher than the value of the equity within the property at the time resulting in me filing a case of “Unfair Relationship”
  13. Im probably going to make a settlement offer on this one as I have two complaints now upheld by the IOC and the FOS for lack of information being provided on an SAR and various other requests. In theory If this was to go to court I think they would have egg on there face but not prepared to go that far just want it cleared. If I can get this settled within the next 12 mths the record should come off my file anyway as the default will then have hit the 6 year period where it is recorded on my credit file and the account would have been settled anyway
  14. NO PPI on the card, charges now are all associated with the overdue payments. They did however stop charging interest on the card a long time ago so I am only effectively paying what is owed up to the point of default. I incorrectly though that after 5 years this would go away. I take it since I am making payment then until we come to some sort of agreement on a full and final settlement then this can go on until the debt is cleared........ At this rate 15 years!!!!
  15. I have been paying a token payment of £25.00 to the RBS forover 4 years now on a defaulted credit card. I have a question in relation tothe Scottish law when it comes to a defaulted account becoming Time Barred. Due to the fact that I am paying a token payment towards thecard each and every month and have done for four years does this essentiallymean that the default will never become time barred?
  16. Thanks for the replies - Will this information thoough still be removed after 6 years? If the account was noted as defaulted then after 6 years of the default date the CRA have a legal obligation to remove the information. However with the accounts showing as delinquent there doesnt appear to be a date so: 1. How will the CRA know when to remove the information & 2. Will they remove the info as it's deliquent and not default I beleive the account will become statute barred after 5 years but will still show on my credit report for 6 years? Thansk again for all your help
  17. Long story short – I stopped paying a credit card a few years back as they could not produce the CCA after numerous requests. I didtake the complaint to the FOS however as they can’t force the credit card company to produce it they stated it needs to go to court therefore they couldn’tuphold the complaint. However since that happened I didn’t pursue it anyfurther & I have not heard a thing from the Credit Card Company inquestion. No debt collection letters, not a peep….. When checking my credit report recently I noticed ratherthan the account be noted as default with the date of default it is actuallynoted as “Delinquent” with the amount of delinquency however there is no dateof delinquency on the account. I was hoping that after 6 years this will just drop of mycredit report however; what is the difference between default & delinquent and what is the situation with it being removed from my credit file after 6 years? Any help greatly appreciated.
  18. When I moved house a few years back there was NO dead of postponement put in place with regards to an outstanding secured overdraft facility that I had with the bank. The week before moving the solicitor explained that I would have to pay back the outstanding balance with any equity that remained in the property before he could settle my new mortgage. I subsequently phoned my bank manager who spoke to the solicitor and said don’t worry we will sort it this end and you wont have to pay it back. Now a few years down the line my business has gone bellyup and the bank are calling up the debt via the secured overdraft. I have several areas of concern and various arguments with the bank however wanted to concentrate on this point. When the mortgages were changed over there should have been a deed ofpostponement put in place which didn’t happen. Is it a legal requirement to do it? Obviously the bank cannot locate the deed of postponement which I have requested because it doesn’t exist but I wanted to know the legalities of them not having done it? Any thoughts?
  19. Jamcatella & youngsspecial - I know it has been some time since the last post on this subject however I am going through exacly the same situation (2nd charge against property held by Bank) Battle has been going on for 3 years now....... I was wondering if there was any update at all on any offers being accepted by the bank or 2nd charges being removed etc? Any help greatly apprciated......
  20. Hi There mr2mr2 At present I have made absolutely no progress and have not managed to pursue anything further. I am concentrating more on the actual issues with the individual Credit companies concerned than the Credit Reference Agencies at the moment. The CRA's are a nightmare and just do what they please from what I can see. Unregulated so they please themselves............. I have had a letter from the FOS just this morning with regards to my complaint against the Bank of Scotland (Only taken them 2 years to tell me that my case is now being brought in front of the Ombudsman!)
  21. My only issues now is that it still shows on my credit file even though they are not the Original Creditor they still have it listed as a debt in default. I don’t think I have much chance in getting it off my file even though they don’t legally have any entitlement to the debt? Any thoughts?
  22. I have great pleasure in stating that I have today received word back from Court and the correspondence reads as follows: “ I am writing to confirm that the above case was stayed on 7th March 2011. As such no further action can be taken without the claimant making a formal application to lift the stay” Yours Faithfully Her Majesty’s court service I think we can count this as a SUCCESS ;-) :-D:-D:-D:-D
  23. Quick - Update - I have heard nothing from either Varde, Experto, MBNA or the Court as yet...................... The 28 days for Varde to take this to court has expired almost a week ago........ I will keep you posted if I here anything at all ;-)
  24. Hi BH2362 I would also be interested to find out if anyone can help with your post (#301)
  25. Agreed - The letter was made up from comments and points received from other CAG members - On the other hand though the defence letter which I posted as a link was done with a lot more knowledge and thought and has worked. Again this is down to the hard work and effort from people like yourselves who do challenge what other people post - Devils advocate can be good and constructive in order to challenge what people are saying and also help in thinking about what we eventually send to the OC, CRA etc
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