I understand the confusion that arises here and to my mind the amex case is not a typical one. For a start the express T&C's that clearly regulated the agreement undermine the protection of the consumer credit act that states, as we all know, that 14 days must be given. In the Amex T&C's it appears that they decided to run a parallel set of conditions that remove to some extent the protection that parliament declared we should have. I would have thought that parliamentary intent would supercede or at least take priority over any conditions contained within a credit agreement but in this case it appears that the judge decided the express terms of the Amex agreement were more important than the CCA 1974. Amex appeared to confirm it was a regulated agreement (despite their own perculiarities undermining CCA requirements as to default time) with the issue of a DN that to all intensive purposes was invalid and not complicit with the CCA, that should have, in my opinion at least have taken a higher priority than the T&C's in the specific Amex agreement. It is after all a law to protect the consumer from unscrupulous lending. This then leads us on to your thoughts on how you find it hard to fathom how a credit card agreement can ever be terminated unlawfully. I for one can imagine many ways it could be terminated unlawfully. For a start if the creditor decides for no other reason than 'they just feel like it' would it be ok for them to just demand the full balance when the consumer expects to only pay the monthly minimum? In doing that I cannot see how that wouldn't be unlawful as it completely undermines the business model of the credit card system and stamps all over the conditions that underpin the contract. If I was in that situation and the creditor just demanded the whole lot in complete defiance of the CCA I would certainly be of the opinion that they'd decided to terminate and I would probab;y elect to accept what can only be considered as an unlawful termination. What else could it be? I agree that most agreements will contain, or certainly should contain, conditions and protocol for termination but the amex case does appear to have contained terms that conflict with the CCA 1974. The judge appears to reference a section 10(2) clause that is perhaps the partial cause of all of this. If the consumer agreed to effectively waive his rights under the CCA by accepting terms that gave him far less time to remedy a default situation I can understand how the judge had to decide between the express contract terms and the conflicting and protective nature of the requirements for default remedy as laid out in the CCA. My personal view is that as the CCA is for the good of all consumers and indirectly creditors, is wholly impartial and specifically deals with default situations the court should have recognised that by giving the consumer less time to remedy the creditor was in effect doing little more than attempting to circumvene the overriding protection and intent of the CCA. I have also seen in some agreements that the term 'we will abide by all appropriate legislation in terminating your agreement' or similar appears. Perhaps the Amex agreement stated something along the lines of 'although we may pretend to adhere to the CCA 1974 by attempting to issue a token Default Notice we have in fact inserted various clauses in this agreement that actually remove all of your protection under this Act and should you accept our terms you should not expect to benefit from any statutory protection should we decide to end any agreement' or similar As far as I can see, and I may be wrong of course, if the creditor after all these years cannot follow a simple default and termination process in order to then stand boldly with the backing and weight of the law behind it then it only has itself to blame when the consumer also bypasses 'what is expected'. If the consumer subsequently adopts the philosophy of Goode, Bennion and Dobson who clearly allowed the notion of the creditor being deprived of their 'right' to collect any debt if they neglect to follow the rules then so be it. I firmly believe any agreement can be unlawfully terminated and I also believe the Amex case is far from typical, hence the surge in DCA's throwing the case around like some golden ticket wherever a DN has not been correctly served. Unless the express terms of the agreement concerned somehow allow the creditor to terminate in contrast to the provisions of the CCA any default that is not compliant with the same, once terminated upon denies the rights of the creditor to collect. The terms are quite simple and defiantly clear. DCA's of course like to brush aside small matters and adopt the broad brush approach wherever it suits, even if the agreement they purport to have is clearly regulated by the CCA and contains no specific deviation from the CCA that would allow them to state a valid DN is not required. As for the acceptance part I also find there is little in the way of case law to support this, however it does seem to fit well with contract law. The argument seems to be that if the provisions of the CCA have been brushed aside then contract law is applicable and one party can elect to accept the breach by the other and relieve themselves from the agreement also, you know all of this I'm certain. As for how it would stand in court I have no idea, however I am aware of acceptance being made to a certain high street bank who messed up a DN, terminated and then passed the debt to their solicitors to chase. The facts of their failure were pointed out, the solicitors kept threatening (and this was for no small amount of money either, a substantial sum in excess of 15k) and the solicitors handed it back to the bank after nearly a year of threatening litigation. The bank is now silent on the matter and the clock is ticking. Not sure how this will end but if they felt that strongly about their position they would have litigated by now. It does therefore have some weight behind it if a major bank is seemingly unprepared to test it before a court.

I'd make sure it is disclosed, they have a duty to provide all documents relating to the case and the account, both those that help their case and those that do not help it. How long ago weer they handling this? Solicitors will place older documentation into archives, they certainly should hold all of the documentation relating to this case and regardless of them not acting for the claimant anymore it is perfectly reasonable for you to request copies so long as you offer to cover their reasonable copying costs. If they are unwilling to make them available you'd have to invite the court to consider why this might be - however you should make requests to gain sight of this. If the provision of it will interfere with the court timings you'd need to make sure the other side and the claimant are aware that you are waiting for vital paperwork. The claimant (given the nature of the documents you need) shouldn't really object to your application to place proceedings on hold if you need to secure more time. Get that SAR off to Shoo straight away.

Sent a PM but it may be that they feel they cannot help if they've not responded on the thread Perhaps best to focus on the nature of the repo and ensure they provide all of the documents along with proof of postage. If they're being difficult you need to let the court know so that they are forced to provide them to you.

Can you verify that the account balance they asked for in this letter is correct for the time it was supposedly sent? If the balance at that date was a different one then you could ask questions. As for Shoosmiths hopefully having the letter you'd need to get in touch with them asap, they should have a copy still. Do you have any other letters that reference this letter in any way to confirm that Shoosmiths had received it? To be fair to Morgans their request to see your letter is more than reasonable and it appears they have recognised the significance of it. I would expect a court would consider their request to be appropriate also so I'd knock a letter up to Shoosmiths asap, perhaps even a SAR might help to uncover anything that could help but aware that time might be pressing. As it's such an important document however (to both sides) I expect you'd be able to mutually agree to hold proceedings until you can verify your position.

I do find this issue confusing and to me it doesn't make sense that any other contract can be ended unfairly by either party allowing the injured party to pull out, however when the CCA is involved (that quite clearly demands a valid DN is produced) such an option to pull out remains elusive. I entirely understand the fact that 'technically' if a valid DN has not been served then 'technically' anything after that should not actually be available, however there are many comparitive examples, contract and not contract related that do not prevent one party from doing something after the other has done something they shouldn't have done. This is simplistic I accept but if I have a contract with a window cleaner and he fails to turn up it doesn't change the fact that because he hasn't turned up I could do them myself. I'm not prevented from doing them myself simply because the contract expressly states that my window cleaner will do them. People drive about without a licence - when they get caught they can't claim that as they don't have a licence they are somehow exempt from prosecution stating that the act of driving they were caught out doing is irrelevent as technically they aren't allowed to drive. Therefore, as they have no licence the court should be prevented from endorsing their future licence with points. I appreciate this is a matter of law but at present I don't understand how the act of 'technically being prevented from doing something' renders the actual act of them actually doing it as unimportant. If I sign a contract with someone and then ignore the law (whatever type of law that may be) how can I then expect the law to come to my rescue, as a priority over the innocent party, when my actions demonstrate I had no regard for that law before I decided to step outside of it? Explanations very much welcomed

Hi all. DX I share your frustrations about default removal when the actual default notice is inaccurate and invalid. I'm currently sending emails back and forth with an advisor from the ICO about this very matter. To date I have established that the ICO is wholly disinterested in a DN that is invalid and/or inaccurate...however they are very interested in it if that DN was not served at the appropriate time. I found this to be bizarre and annoying, the fact that the ICO are disinterested in the actual information but concerned about the concept of whether it was served at the right time I responded and provided details of the Woodchester case regarding an invalid default notice. I pointed out that in effect the ICO would have been quite content to leave this DN on the credit file of an individual if a complaint were made but had that individual shown it to the high court it would not be deemed as a valid and accurate legal document, which a default notice really is. I asked for an explanation as to why the ICO do not appear to line up their thinking with that of the high court. They've also stated that such issues should be referred to the OFT and not to them. I'm waiting for another response at the moment but frankly I'm not expecting to get one as it seemed pretty obvious that somehow, somewhere this is an area the ICO wish to stay well clear of. Wonder why?!

Standard letter yes. HSBC are free to contact you at any time if they wish to mediate so don't rule this out, however given the fact that HSBC is a machine it's probably not very likely but you never know, depends on what they have and how they perceive you given your defence. As for knowing when they received a copy of your defence you could try ringing the court, they'd maybe give you an idea but not sure of any 'official' way of doing this. They may well say the CPR requests are invalid, however you have a basic right to obtain sight of the documents they will rely on and until they do this you are well within your rights to offer no more than the response you've already submitted. Up until a track has been allocated these requests are perfectly valid however the lack of definitive reference to paperwork relied upon does mean the actual matter of disclosure hasn't really happened in full. I suspect HSBC use this sort of POC a lot, it allows them to be vague about the manner of the debt and this is not accidental. Irrespective of this initial difficulty your response made it quite clear to the court that you needed X, Y and Z and you requested the claim be stayed if the court did not order the claimant to respond. If you need to force their hand you can do this. Maybe give them a touch longer to respond now your defence is in and they can see what you've requested, if they still don't provide perhaps after a week or so then send a letter threatening an application will be made to the court if they don't voluntarily supply them. This will help show the court that you are actively seeking resolution and if the claimant starts mucking about and dithering it won't go down very well. You've done what is expected of you, let's see what the bank does next - you never know, they may not wish to proceed if the paperwork you are requesting doesn't exist. For every 25 claims they make of this nature maybe 1 person will know what's what and put them to strict proof. Law of averages might be on your side, we'll see.

Agree completely, the account numbering needs further examination. Would expect to see a record of any new issue of card after a reported lost or stolen call on their SAR documentation, if it's not on there I'd push to know why. Interestingly the DN states payment must be made within 14 days of receipt, that would be 13 days then? As FG has stated the lack of a clear date renders the DN invalid and the actual choice of words they have used just makes it worse. On the POC they claim it rerlates to a 'credit agreement' so presumably this is for a fixed loan for example and not a credit card or revolving credit facility? Doh. Also noticed that on the POC they choose to use the word 'given' as opposed to 'sent' regarding the NOA. That would tie up nicely with the need for them to have used a registered post so presumably they will confirm the NOA was indeed 'given' to you as opposed to it being thrown in the general post with all the other garbage they produce?

How very odd. Not been following this thread but my understanding so far is that they've provided you with 2 differing agreements, each purporting to be a true copy of the original - which I presume they do not hold? First off the Carey issue can be dispensed with as in that case the judge confirmed that the onus of proof lay with the Claimant and not the Defendant - this we know. The Claimant in this case however was the debtor, the bank the defendant so one very important difference. It also specifically addressed issues of non-compliance with section 78, well the claimant has provided you with a copy agreement and this does not negate the rest of the requirements - the Carey excuse is just not appropriate here. To be honest the first thought I had was to use the provision of the 2 agreements against them. In essence if both have been provided as true copies they are both at the same time clear examples that this is not actually the case at all. I would therefore insist that given the obvious confusion the claimant is in that the matter is resolved, and can only be fairly resolved, by producing the original document for the court to inspect. I'd also ensure they follow the Civil Evidence Act regarding documents in court if they are relying on copies, that is perfectly clear and will cause them further inconvenience. It seems from their letter that they rely on the provision of a statement history and the fact you used the facility as further legal ground for their action, I suspect they are either ignorant or/and unable to provide the actual documentation the court will require. So far I'd say they have buckleys, they wouldn't be mucking about if their case was based on anything. Before I waffle on I'll wait to hear back and perhaps others will have had time to provide comment

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You might as well send the 31.15, I expect they'll ignore that as well but helps you later on as you can show they've been obstructive. The court will notify you as and when, as long as you've complied with dates and know all was received you should focus on the claimant and getting what you need from them.

Ok, looks like they're going for the steamroller approach. First class legal work yet again from CL...his mum must be very proud. Love the complete refusal to provide the deed of assignment using the typical 'commercial sensitivity' nonsense. In effect they state 'you owe us money but we refuse the proof of that as it might disadvantage us in world full of other parasites so just deal with it and give us the money'. I think not. Time now to ramp it up and use case law as appropriate to force their hand. Can you re-cap on what you've actually been sent in the way of docs?

Found this too - Holwell Securities Ltd v Hughes [1973] 2 All ER 476 [1973] 1 WLR 757 By cl 1 of an agreement dated 19th October 1971 made between the defendant of the one part and the plaintiffs of the other, the plaintiffs were granted an option to purchase certain freehold property from the defendant. Clause 2 of the agreement provided: 'THE said option shall be exercisable by notice in writing to the defendant at any time within six months from the date hereof...' On 14th April 1972 the plaintiffs' solicitors wrote a letter to the defendant giving notice of the exercise of the option. The letter was posted, properly addressed and prepaid, on 14th April, but it was never in fact delivered to the defendant or to his address. No other written communication of the exercise of the option was given or sent to the defendant before the expiry of the time limit on 19th April. In an action against the defendant seeking specific performance of the option agreement, the plaintiffs contended that, since a contractual offer could be accepted by posting a letter of acceptance, the time of acceptance being the moment of posting, the option had been validly exercised when their letter of 14th April was posted. *Held* - The option had not been validly exercised. The rule that an acceptance of an offer could be effected, so as to constitute a binding contract, merely by posting a letter of acceptance, did not apply when the express terms of the offer stipulated that the acceptance had to reach the offeror. The requirement in cl 2 of the agreement that the option was to be exercised by 'notice in writing to' the defendant meant that the written document had to be communicated or notified to the defendant and was inconsistent with the application of the rule that the mere posting of the document was sufficient. Furthermore, since the option agreement was an 'instrument affecting property', within s 196(5) a of the Law of Property Act 1925, the provisions of s 196(4) were incorporated into the agreement; those provisions were inconsistent with the rule that the posting of a letter was sufficient since they contemplated that a notice would only be effective when it was delivered (see p 163 h, p 164 b and g h, p 165 f, p 166 b to d and g and p 167 b c and h, post). ------------------------------------------end So, it seems that if the specifics of the notification of a particular process (such as assignment) are clearly listed as they are when it states recorded service must be used then acording to the above case the court should uphold the fact that this arrangement should be honoured. If the claimant cannot produce registered delivery details of the NOA then I'd throw this in to support the notion that the claimant must have followed the directions that were already set 'in place' to ensure the notice was delivered in an appropriate manner. If therefore the NOA was not delivered correctly then the claimant has no right to action, the assignment process being wholly ineffectual.

Bear with me on this one I always believed the concept that if a creditor issues a dodgy DN and then terminates it amounts to unlawful repudiation too. However, recent discussions have suggested that the law would not hold that the termination was valid as the DN wasn't valid. I fail to see how the act of termination has anything to do with the issue or not of a DN. They are seperate acts, each with their own format and prescribed requirement. Seems a bit like categorically stating you cannot have a dessert unless you've first had the main meal. Of course you should start with the main meal but a failure to have done so does not prevent you in any way from having the dessert. Doing it this way round does not make the act of eating the dessert any less true. So, it seems that a creditor cannot actually terminate unless the DN is valid, even though they have clearly displayed their intention to end the agreement and recoup all sums? Even though they've passed details to third parties who are now sending threat letters? If the termination is therefore invalid the following must apply? If the termination is not in effect then the decision by the creditor to have passed your details to a third party are surely a breach of Data Protection laws as they are subsequently using that data for wrongful purposes. If the creditor demands full payment from you technically that is evidence of an unfair relationship as the creditor actually can only demand the true arrears amount. Technically if the creditor is demanding full sums it would amount to an unfair business practice as you were expecting to pay on a monthly basis and now they want it all at once. Technically if they are demanding full sums and commence litigation that action is vexatious and an abuse of the court system. All of it would amount to harrassment. On another note if the bank sends out an invalid DN (bearing in mind that these regulations have been around for many years, they are hardly new) and then terminates that contract I would look to the statement of Lord Wilberforce in the case of Saunders v Anglia Building Soc (sub nom Gallie v Lee) [1970] UKHL 5 (09 November 1970) "... a person who signs a document, and parts with it so that it may come into other hands, has a responsibility, that of the normal man of prudence, to take care what he signs, which if neglected, prevents him from denying his liability under the document according to its tenor" I believe the notion that a bank, a supposedly professional organisation, has a basic duty to get things right and not mess a consumer around. If they issue a DN and then Terminate and its all been done with little care and respect for the provisions of the CCA then why shouldn't they be held accountable? How about this? Even if the actual DN and Termination is then considered void I consider the 'accidental' act of the bank to then demand the full sum of X, typically delivered under threat of future action, is paramount to a breach of contract in itself. If the agreement following a supposedly ineffective DN and Termination states you will discharge your obligations on a weekly or monthly basis and the bank then issues what amounts to an unlawful demand for the full sum (as of course the actual agreement is still supposedly live as the termination is invalid) this would amount to an unfair business practice at best. If the agreement is still live you only have a contractual obligation to pay as arranged, so the demand for the full sum should surely represent a further perceived act of repudiation as the bank are only allowed to demand the full sum after a valid DN and Termination. They admit their original DN and Termination was void and as a consequence the contract must therefore still be live. Why therefore do you now have a seperate letter demanding the full balance? It is in effect a double whammy! If the DN is invalid and they terminate you accept their repudiation, however if they state you can't as they messed up and the agreement is still live you are then clearly still bound by the contractual terms between the two parties. If you are therefore within the confines of that agreement the letter you have in your hands demanding the full payment is surely seperate ground to then 're-accept' as if you were within the confines of the agreement at all times and your original acceptance was therefore worthless the demand for the full balance (which would have come after the pointless DN and Termination) would surely constitute an act falling outside of the agreement for which you could then 're-accept'. It is evidence of a very clear breach of contract as the contract you have (which remember is now not actually terminated - therefore live) clearly states that the debtor will discharge their obligations on a monthly/weekly basis and not as the creditor now demands all in one go. They can't have it both ways after all - either it's terminated correctly or it isn't and if it isn't all of the above applies doesn't it? A creditor cannot demand the full sums unless a valid DN and Termination has been effected. Irrespective of valid terminations if you have a demand in your hand for the full sum that is seperate to the DN and Termination letters surely that very letter (as the agreement is still supposedly live to allow the bank to escape its earlier cock up) is evidence alone of a second intention by the bank to end the agreement? You can then accept as the agreement is still live and your contractual obligation is very different to the full sum demanded. What do we think? They can't have it both ways and as Lord Wilberforce commented there is an obligation to ensure that what is sent out is correct, clearly hinting at the peril the sender can expect if they fail to act in a responsible manner.

Thats a shame. As I wrote earlier this isn't my area but feel any number of witnesses may be unimportant, they'll just deny it even if you went that way and perhaps introduce their own witnesses - it'll just descend into a bun fight - the court probably siding with the claimant. Just my guess. As for the figures and sums claimed I guess they would have a duty to have disposed of the vehicle responsibly and to have obtained a sum of money that the car was worth. I'd be very interested to find out who the car was sold to - eg that one of their directors isn't driving around in it now having got a cheap deal on it...yes it does happen more than people realise. I can think of a great cagger who may be able to offer better insight into this having beaten claimants in the past - I'll PM them and see if they'd be ok dropping by. Really not sure about the law behind the figures they are claiming, the T&C's of the original agreement should be a good place to start - all of this I'm sure you've already looked at

Law of Property Act and assignments does seem to be recognised, however not to the extent we'd hope unfortunately as GH reports above. Just found this on another thread where the solicitor makes reference to the same act, quite interesting I guess: http://s947.photobucket.com/albums/ad315/AVALON970/?action=view&current=200910-CHOENSRESPONCETOCOMPLAINT.jpg

Thanks GH, I'd chuck it in anyway...just to provide them with another hurdle - I'm awkward like that

Just found this on another thread - have no idea if it's of use to you but would suggest searching for it and having a read...you never know. Chartered Trust vs Pritcher - deals with repo and what is "informed consent" if the notice is bad then informed consent is not given.

This is developing nicely then Just picking up on the NOA we need to remember that although it may be easy for them to knock out another letter they must be able to show they complied with the Law of Property Act 1925. The NOA must be served via recorded post, they must have proof of posting to prove service was given. I suspect this may be difficult for them...

Ok, this isn't my best area but I do know that the repo can only be done without a court order when the vehicle has had lesss than a third paid and when its on public ground. If it was on a private drive they would have needed a court order to remove it from there. The problem is they'll say it was on the road and you'll argue otherwise. You should definitely have had some kind of pre-possession letter and if they sent that to a wrong address and you can show (perhaps with earlier letters to your actual address for example) that they sent it to the wrong address knowing you weren't there I think that would make a huge difference. If they've refused to provide docs to you you've got to ask and wonder why. Maybe they're aware that earlier letters were sent to the right address and are hoping you don't ask to see the letter sent out warning you of the repo intention that went to wrong address. I'd suggest looking over the paperwork you have to see if you can prove they had your correct address, a letter from them dated before the repo happened with the correct address would be extremely valuable and provide you with the basis for good argument.

Yes perfect, that's where much of my confusion lays. One rule here, one rule there depending on who's not playing golf that day. Either 'it is', either 'it isn't'. This de minimus appears to be a 'do what you want' card.

Thank you Touch frustrating though, its clear their intention is to end the arrangement, especially when a DCA has been involved demanding full sums. So, developing this on if statute must be adhered to without exception (as the termination cannot have occurred due to the failed DN) how is de minimus allowed for a DN that is incorrect due to inaccurate sums demanded, seems a bit two sided. We have Woodchester of course with the 38% inaccuracy but that was fairly exceptional I guess. Also, with the proviso that they can just have another go at defaulting you and terminating you anyway is there any point in actually having a default system if it is clearly weighted towards the creditor? Seems contrary to the 'sophisticated organisations versus the unassuming consumer' thinking that perhaps led to the concept of the consumer being the main protected party. Where did the consumer protection go? How about case law that supports the argumument that 'a man has responsibility for what he signs and allows into the hands of another' - can't recall the case law but you'll know the concept, you're entitled to believe what a reputable (ha ha) organisation gives you believing they'll act on it. Rambling a bit so apologies here but common sense would lead me to the argument surrounding acceptance of an unlawful repudiation/rescission, thus preventing the creditor from being able to have another go. With your info about statute being the highest authority does contract law then allow the injured party to accept, thus removing the option to 'keep at it' until they get the default notice and termination process correct? If that were the case then acceptance would become essential, thus removing any doubt that you allowed the contract to endure etc. Am I way off the mark here?!

Depends really. A stay is a kind of limbo, typically as something has arisen that needs sorting out further and the time scale is perhaps uncertain. As the defendant however if you've done everything as required and its the claimant mucking about you could consider an order to hurry them along a bit, state the stress of the claim is adverse to your quality of life, health etc and that you require the claimant to get their act together. Give them their stay so you are perceived as helpful (they'll get it anyway) and once they've had reasonable time to do whatever it is they need to do consider contacting the court. Not sure how aggressive you should be here but Post will know I'm sure.