AMEX & AIC & Newman

[Blue Thunder]

Brilliant - thanks BRW.

Will take a look and see whats what - thanks for your help.

Cheers

Blue

[Blue Thunder]

Hi BRW,

 

I perhaps do not understand exactly the drift here but nevertheless - I checked out the DN that I was originally sent and checked it against the one submitted as part of evidence. Astonishingly - they differ in date (by one day) and are quite clearly two seperate documents - whereas all of the wording, except one - 'received' has been changed to 'paid' in the 'remedying of the breach sentence in the first paragraph.

Any ideas as to why this should be and why there would be two seperate documents?

Thanks

BT

[the_shadow]

Hi BRW,

 

I perhaps do not understand exactly the drift here but nevertheless - I checked out the DN that I was originally sent and checked it against the one submitted as part of evidence. Astonishingly - they differ in date (by one day) and are quite clearly two seperate documents - whereas all of the wording, except one - 'received' has been changed to 'paid' in the 'remedying of the breach sentence in the first paragraph.

Any ideas as to why this should be and why there would be two seperate documents?

Thanks

BT

 

Because surprisingly the oc's dont actually keep these documents, they are generated from a template overnight in batches I would imagine so to re-create they have to guessstimate the date it would have been sent to you.

 

You now know the evidence they provided cant be relied on and can demonstrate this to the judge:D

 

S.

[banker_rhymes_with]

Hello BT!

 

Yes, as the The Shadow has just said, they differ because they do not have a copy, have no actual idea when they dated the DN, what it looked like, nor when they Posted it...so I'd pull your copy if it is showing on CAG so they can't copy yours, and then get ready to insert it into their backside when in Court.

 

Once you've pointed all of this out to the Judge, the enemy will be bending over by that time and quite resigned to what is coming.

 

Cheers,

BRW

[Blue Thunder]

Thanks BRW and The Shadow,

 

Interestingly - both docs are submitted as evidence. Cant wait for the judge to comment on that one!!!

Wish me luck - in front of Judge tomorrow.

Thanks

Blue

[the_shadow]

Thanks BRW and The Shadow,

 

Interestingly - both docs are submitted as evidence. Cant wait for the judge to comment on that one!!!

Wish me luck - in front of Judge tomorrow.

Thanks

Blue

 

Wishing you all the luck and a pile of pox on amex & co

 

S.

[banker_rhymes_with]

Hello BT!

 

Good luck.

 

Just to remind you, learn this bit off by heart:

 

Their letters confirm they regarded this as being a default situation on your part, and they Terminated the alleged Agreement because of that. There can therefore be no doubt that this is a default termination, so they cannot use s76 or s98.

 

They must follow s87/s88 and must have issued you with a valid s87(1) Default Notice before Termination.

Note:

 

76

 

(6) Subsection (1) does not apply to a right of enforcement arising by reason of any breach by the debtor or hirer of the regulated agreement.

and...

 

98

 

(6) Subsection (1) does not apply to the termination of a regulated agreement by reason of any breach by the debtor or hirer of the agreement.

Their letters confirm they regarded you as being in breach, so they had no option but to follow s87/s88 if they wanted to Terminate and make you pay the balance that was only otherwise due in the future.

 

No valid Default Notice, then they have blown s87, and have no right to take the next step, and cannot now ask you for early payment of sums otherwise due only in the future.

 

At best, they are limited to the sums that were due before Termination, such as any genuine Arrears. Deduct from the Arrears any Unlawful Charges and missold PPI. If they do not have an Enforceable Agreement, then they are not even entitled to the Arrears.

 

If Judge asks you if you spent the money and/or do you owe it, then say you are not disputing that you had an Account, but you now believe that any Agreement was improperly executed and, in any event, was then Terminated unlawfully due to a defective Default Notice.

 

If the Agreement is considered enforceable, then their Claim is neutered anyway because of the way they defaulted you and Terminated.

 

Cheers,

BRW

[Blue Thunder]

Thanks Both - will post the result on here shortly. Not sure about the DN scenario as I believe they have gone after me on the s87/88 anyway and apart from being two different dates - it would appear that the DN contains the necssary info.

Cheers

Blue

[the_shadow]

Thanks Both - will post the result on here shortly. Not sure about the DN scenario as I believe they have gone after me on the s87/88 anyway and apart from being two different dates - it would appear that the DN contains the necssary info.

Cheers

Blue

 

It may have the necessary info but if there are any unfair charges on this account then that'll make the arrears amount invalid.

 

Also I almost guarantee the dates are wrong... they have to allow service of two working days + 14 days to rectify. If they dont then as BRW states in his post above they cannot claim back more than the arrears on the default notice.

 

S.

[banker_rhymes_with]

Hello BT!

 

Not sure about the DN scenario as I believe they have gone after me on the s87/88 anyway and apart from being two different dates - it would appear that the DN contains the necssary info.

 

Are you sure about that?

 

We've not seen a valid Amex Default Notice yet on CAG, so if yours is OK, it would be a first.

 

If it says something like:

 

...pay up within 14 calendar days from the date of this Notice...

 

Then it's almost certainly defective, i.e. if it was issued when 14 clear Days were required by Parliament. IOW, they never allow for Postage, and that is +2 Working Days if they sent it 1st Class, and +4 Working Days if they sent it via 2nd Class/worse.

 

The Default Notice could be your Ace, so do treble check.

 

Cheers,

BRW

[Cunning Plan]

HI BT,

 

Wishing you all the best. Don't let the AMEX rep railroad the hearing, some of these people could spout forth for GB at the Olympics!

 

CP

[Blue Thunder]

Thanks again guys for all the good wishes and further help. The DN one is new to me and at the 11th hour I'm keen to extract what I can from it.

 

My original DN actually states-

" To remedy this breach the payment due on your account of £xxx must be received within fourteen calendar days from the date of this Default Notice".

 

On the copy they have submitted as evidence it states-

" To remedy this breach the payment due on your account of £xxx must be paid within fourteen calendar days from the date of this Default Notice".

 

Comments are welcome guys - does their change of wording have any significance? and are either of these legally binding and enforceable.

Thanks

Blue

[banker_rhymes_with]

Hello BT!

 

The change of wording and date, proves they have not a clue what they sent you nor when, and they can't claim it was system generated, otherwise how can they differ?

 

Both are defective, as 14 Calendar Days from the date of the Default Notice does not allow you the 14 clear Days that Parliament require that you must be given.

 

If Parliament had wanted it to be 8 Days, or 10.5 Days, or 18 Days, they would've said that. No, they said 14 Days, and that is what you needed to have if the Default Notice was to stand any chance of being valid.

 

To stress, you must lock on to the fact that this is clearly a default situation, there can be no doubt because of the way that they have written to you before Termination and after Termination.

 

Thus, they have no option but to follow s87/s88, if they wanted to enjoy the benefits of s87.

 

They didn't follow the required steps, so s87 went out of the window for them.

 

They have now limited themselves to just those Payments that were due before Termination, and those Payments may well not be valid in any event if they do not have an enforceable Agreement. If they do, you can still deduct Unlawful Charges and any Missold PPI from them, to reduce the amount owed still further.

 

Sorry to labour the point, but the Default Notice issue is the Ace. That has the potential to kill them stone dead, but you must not let them sweep that under the carpet.

 

Read the Thread mentioned above again, and get your head around s87/s88. Print out the sections, and take 3 copies, one for you, one for the Judge and one for the opposition.

 

Make a note of the 14 Days issue too, here is the Statutory Instrument that you need:

 

Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

With Court tomorrow, you don't have time to find that, so here it is:

 

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

1983 No 1561

Consumer Credit

(Enforcement, Default and Termination Notices)

Regulations 1983

Made - - - 24th October 1983

Authority: Consumer Credit Act 1974, ss 76(3), (5), 87(4), 88(1), (4), 98(3), (5), 182(2), 189(1)

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)/1

1

(1) These Regulations may be cited as the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 and shall come into operation on 19th May 1985.

(2) In these Regulations, "the Act" means the Consumer Credit Act 1974.

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)/2

2

(1) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section 76(1) of the Act (which relates to the duty to give notice to the debtor or hirer (non-default cases) before taking certain action to enforce a term of an agreement) shall contain--

(a) a statement that the notice is served under section 76(1) of the Consumer Credit Act 1974;

(b) the information set out in paragraphs 1 to 5 of Schedule 1 to these Regulations; and

© statements in the form specified in paragraphs 6 to 8 of that Schedule.

(2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section 87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section 88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain—

(a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974;

(b) the information set out in paragraphs 1 to 3, 6 and 8 of Schedule 2 to these Regulations; and

© statements in the form specified in paragraphs 4, 5, 7[, 8A] and 9 to 11 of that Schedule.

(3) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section 98(1) of the Act (which relates to the duty to give notice to the debtor or hirer (non-default cases) of termination of an agreement) shall contain—

(a) a statement that the notice is served under section 98(1) of the Consumer Credit Act 1974;

(b) the information set out in paragraphs 1 to 5 of Schedule 3 to these Regulations; and

© statements in the form specified in paragraphs 6 to 8 of that Schedule.

(4) The lettering in any notice given under paragraph (1), (2) or (3) above shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the colour of the paper.

[(4A) Any notice to be given under a provision of these Regulations shall be in writing and given to the debtor or hirer in paper form.]

(5) Where any statement is required to be in a form specified in a Schedule to these Regulations and is reproduced in the notice, then apart from any heading to the notice, trade names or names of parties to the agreement—

(a) the lettering in the statement shall be afforded more prominence (whether by capital letters, underlining, large or bold print or otherwise) than any other lettering in the notice; and

(b) where words are both shown in capital letters and underlined in any statement specified in a Schedule to these Regulations, they shall be afforded yet more prominence.

(6) The wording in any such statement shall be reproduced in the notice without any alteration or addition, and in relation to any statement to be contained in the notice the requirements of any note shall be complied with, except that the words "the creditor" may be replaced by the name of the creditor, by the expression by which he is referred to in the agreement or by an appropriate pronoun, and any consequential changes to pronouns and verbs may be used.

(7) Where any note requires any words to be omitted, those words shall be omitted or deleted.

(8) Where a notice is to be given under sections 76(1) and 98(1) of the Act in relation to a regulated agreement, one notice may be given under the two sections reproducing the combined effect of Schedules 1 and 3 to these Regulations.

(9) Sections 76(1), 87(1) and 98(1) of the Act shall not apply in the case of non-commercial agreements in relation to which no security has been provided.

NOTES

Amendment

Para (2): in sub-para © reference to ", 8A" in square brackets inserted by SI 2007/1167, reg 33(1), (2).

Date in force: 1 October 2008: see SI 2007/1167, reg 1(3).

Para (4A): inserted by SI 2004/3237, regs 2, 3.

Date in force: 31 December 2004: see SI 2004/3237, reg 1.

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)/SCHEDULE 1 Form of Notice to be Given in Non-default Cases Before a Creditor or Owner Can Become Entitled to Enforce a Term of a Regulated Agreement by Demanding Earlier Payment of any Sum, Recovering Possession of any Goods or Land or Treating any Right Conferred on the Debtor or Hirer by the Agreement as

Terminated, Restricted or Deferred

SCHEDULE 1

FORM OF NOTICE TO BE GIVEN IN NON-DEFAULT CASES BEFORE A CREDITOR OR OWNER CAN BECOME ENTITLED TO ENFORCE A TERM OF A REGULATED AGRREMENT BY DEMANDING EARLIER PAYMENT OF ANY SUM, RECOVERING POSSESSION OF ANY GOODS OR LAND OR TREATING ANY RIGHT CONFERRED ON THE DEBTOR OR HIRER BY THE AGREEMENT AS TERMINATED, RESTRICTED OR DEFERRED

Regulation 2(2)

Details of agreement

1

A description of the agreement sufficient to identify it.

Parties to agreement

2

(1) The name and a postal address of the creditor or owner.

(2) The name and a postal address of the debtor or hirer.

Term of agreement to be enforced

3

The term of the agreement to be enforced, or a reference to and a short description of that term.

Action intended to be taken by creditor or owner

4

A clear and unambiguous statement by the creditor or owner indicating--

(a) which (one or more) of the following types of action he intends to take, in order to enforce the term of the agreement,--

(i) to demand earlier payment of any sum;

(ii) to recover possession of any goods or land;

(iii) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred;

(b) the manner and circumstances in which he intends to take such action; and

© the date, being a date not less than seven days after the giving of the notice, on or after which he intends to take such action.

Demanding earlier payment of any sum

5

Where the creditor or owner states that he intends to demand earlier payment of any sum,

(a) the amount of the sum before deducting the amount of any rebate on early settlement;

(b) where any rebate on early settlement is allowable under the agreement or by virtue of section 95 of the Act--

(i) the amount of the rebate allowable calculated on the assumption that early settlement takes place on the date specified in the notice for earlier payment of the sum; and

(ii) the total amount to be paid by the debtor after taking into account the amount of any rebate on early settlement, namely the difference between the amount shown in paragraph (a) above and the amount shown in subparagraph (i).

Time order

6

A statement in the following form indicating that the debtor or hirer is entitled to apply under section 129 of the Act in England and Wales to the county court, in Scotland to the sheriff court or in Northern Ireland to the High Court or the county court for a time order—

"IF YOU HAVE DIFFICULTY IN PAYING ANY SUM OWNING UNDER THE AGREEMENT YOU CAN APPLY TO THE COURT WHICH MAY MAKE AN ORDER ALLOWING YOU OR ANY SURETY MORE TIME".

General

7

A statement in the following form--

"IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE. FOR EXAMPLE YOU SHOULD CONTACT A SOLICITOR, YOUR LOCAL TRADING STANDARDS DEPARTMENT OR YOUR NEAREST CITIZENS' ADVICE BUREAU".

8

A statement in the following form—

"IMPORTANT--YOU SHOULD READ THIS CAREFULLY".

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)/SCHEDULE 2 Form of Default Notice before a Creditor or Owner Can Become Entitled, by Reason of Any Breach by the Debtor or Hirer of a Regulated Agreement, to Terminate the Agreement, Demand Earlier Payment of any Sum, Recover Possession of any Goods or Land, Treat any Right Conferred on the Debtor or Hirer by the Agreement as Terminated, Restricted or Deferred or Enforce any Security

SCHEDULE 2

FORM OF DEFAULT NOTICE BEFORE A CREDITOR OR OWNER CAN BECOME ENTITLED, BY REASON OF ANY BREACH BY THE DEBTOR OR HIRER OF A REGULATED AGREEEMENT, TO TERMINATE THE AGREEMENT, DEMAND EARLIER PAYMENT OF ANY SUM, RECOVER POSSESSION OF ANY GOODS OR LAND, TREAT ANY RIGHT CONFERRED ON THE DEBTOR OR HIRER BY THE

AGREEMENT AS TERMINATED, RESTRICTED OR DEFERRED OR ENFORCE ANY SECURITY

Regulation 2(2)

Details of agreement

1

A description of the agreement sufficient to identify it.

Parties to agreement

2

(1) The name and a postal address of the creditor or owner.

(2) The name and postal address of the debtor or hirer.

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

Action by the creditor or owner to be ineffective if breach remedied or compensation paid

4

Where any action is specified under paragraph 3© or (d) as required to be taken, a statement that the provision for the taking of any action by the creditor or owner such as is mentioned in paragraph 6 will be ineffective if the breach is duly

remedied or the compensation is duly paid in the following form—

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH".

Note:

This statement shall follow the specification under paragraph 3© or (d) of any action required to be taken.

Consequences of failure to comply with default notice

5

Where any action is specified under paragraph 3© or (d) as required to be taken, a statement indicating the consequences of the failure by the debtor or hirer to comply with the default notice in the following form—

"IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]".

Notes:

1. This statement shall be followed by the specification under paragraph 6 of the further action intended to be taken by the creditor or owner.

2. Creditor or owner to omit words in square brackets if there is no specification under paragraph 6(e) of any action intended to be taken to enforce any security.

Action intended to be taken by creditor or owner

6

A clear and unambiguous statement by the creditor or owner indicating, if any action specified under paragraph 3© or (d) as required to be taken is not duly taken or if no such action is required to be taken, the action which he intends to take by reason of the breach by the debtor or hirer of the agreement—

(a) to terminate the agreement;

(b) to demand earlier payment of any sum;

© to recover possession of any goods or land;

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred;

(e) to enforce any security;

(f) to enforce any provision of the agreement which becomes operative only on a breach of another provision of the agreement as specified in the notice, at any time on or after the date specified under paragraph 3© or (d), or, if no action is specified under that paragraph as required to be taken, indicating the date, being a date [not less than fourteen days] after the date of service of the notice, on or after which he intends to take any action indicated in this paragraph.

Retaking of protected hire-purchase etc, goods

[in the case of a hire-purchase or conditional sale agreement relating to goods,

(a) made on or after 19th May 1985, where the property in the goods remains in the creditor; or

(b) made before 19th May 1985, where the debtor has not himself put an end to the agreement by virtue of any right vested in him and where the total amount payable under the agreement does not exceed £7,500, a statement in the following form--]

"BUT IF YOU HAVE PAID AT LEAST ONE-THIRD OF THE TOTAL AMOUNT PAYABLE UNDER THE AGREEMENT SET OUT BELOW (OR ANY INSTALLATION CHARGE PLUS ONE-THIRD OF THE REST OF THE AMOUNT PAYABLE), THE CREDITOR MAY NOT TAKE BACK THE GOODS AGAINST YOUR WISHES UNLESS HE GETS A COURT ORDER, (IN SCOTLAND, HE MAY NEED TO GET A COURT ORDER AT ANY TIME.) IF HE DOES TAKE THEM WITHOUT YOUR CONSENT OR A COURT ORDER, YOU HAVE

THE RIGHT TO GET BACK ALL THE MONEY YOU HAVE PAID UNDER THE AGREEMENT SET OUT BELOW".

Note:

This statement shall follow the specification under paragraph 6 of the further action intended to be taken by the creditor or owner and be followed by—

(a) either

(i) the total amount payable under the agreement, or

(ii) where there is an installation charge, separately, the amount of the installation charge and the rest of the total amount payable under the agreement; and

(b) the total amount that the debtor has paid to the creditor by the giving of the notice.

Requiring earlier payment of any sum

8

Where a sum of money is required to be paid under the notice,

(a) the amount of the sum before deducting the amount of any rebate on early settlement;

(b) where any rebate on early settlement is allowable under the agreement or by virtue of section 95 of the Act--

(i) the amount of the rebate allowable calculated on the assumption that early settlement takes place on the date

specified in the notice for earlier payment of the sum; and

(ii) the total amount to be paid after taking into account the amount of any rebate on early settlement, namely the difference between the amount shown in paragraph (a) above and the amount shown in sub-paragraph (i).

[Ending the agreement

8A

Where the agreement is a hire-purchase or conditional sale agreement, a statement in the following form—

"You [may] [NOTE 1] have the right to end this agreement at any time before the final payment falls due.

Note that this right may be lost if you do not act before the date shown (after which we may take action).

If the date for final payment has not passed and you wish to end this agreement, you should write to the person to whom you make your payments. [You will need to pay [NOTE 2] if you wish to end this agreement by the date shown and we will be entitled to the return of the goods. You will also be liable for costs if you have not taken reasonable care of the goods.] [NOTE 3].Note that if you end this agreement, this will not necessarily terminate any insurance finance agreements that are linked to this agreement. NOTE 1: creditor to omit the word "may" in the case of a hire purchase agreement. NOTE 2: creditor to insert the amount to be paid by the debtor calculated in accordance with the provisions of sections 99(2) and 100 of the Act and on the assumption that the debtor terminates the agreement on the date shown in this notice. NOTE 3: creditor to insert the passage in square brackets where the debtor's right to terminate under section 99 of the Act subsists.".] Time order 9A statement in the following form indicating that the debtor or hirer is entitled to apply under section 129 of the Act in England and Wales to the county court, in Scotland to the sheriff co

[Interest payable after a judgment

9A

Where an agreement makes provision for the charging of post-judgment interest in connection with a judgment sum, a statement in the following form—

"You should be aware that if we take you to court and get a judgment against you requiring you to pay us the money you owe us under the agreement, you may have to pay us both the amount of the judgment and interest under the agreement

on all the sums owed by you at the date of the judgment until you have paid these in full. This means that even if you pay off the whole amount of the judgment, you may still have a further sum to pay.".]urt or in Northern Ireland to the High Court or the county court for a time order—

"IF YOU HAVE DIFFICULTY IN PAYING ANY SUM OWING UNDER THE AGREEMENT OR TAKING ANY OTHER ACTION REQUIRED BY THIS NOTICE, YOU CAN APPLY TO THE COURT WHICH MAY MAKE AN ORDER ALLOWING YOU OR ANY SURETY MORE TIME".

General

10

A statement in the following form--

"IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE. FOR EXAMPLE YOU SHOULD CONTACT A SOLICITOR, YOUR LOCAL TRADING STANDARDS DEPARTMENT OR YOUR NEAREST CITIZENS' ADVICE BUREAU".

[10A

A statement in the following form--

"This notice should include a copy of the current Office of Fair Trading information sheet on default. This contains important information about your rights and where to go for support and advice. If it is not included, you should contact us to get one.".]

11

A statement in the following form--

"IMPORTANT--YOU SHOULD READ THIS CAREFULLY".

NOTES

Amendment

Para 3: in sub-paras ©, (d) words "not less than fourteen days" in square brackets substituted by SI 2006/3094, regs 2, 3.

Date in force: 19 December 2006: see SI 2006/3094, reg 1.

Para 6: words "not less than fourteen days" in square brackets substituted by SI 2006/3094, regs 2, 3.

Date in force: 19 December 2006: see SI 2006/3094, reg 1.

Para 7: words from "In the case" to "the following form--" in square brackets substituted by SI 1984/1109, reg 2.

Para 8A: inserted by SI 2007/1167, reg 33(1), (3)(a).

Date in force: 1 October 2008: see SI 2007/1167, reg 1(3).

Para 9A: inserted by SI 2007/1167, reg 33(1), (3)(b).

Date in force: 1 October 2008: see SI 2007/1167, reg 1(3).

Para 10A: inserted by SI 2007/1167, reg 33(1), (3)©.

Date in force: 1 October 2008: see SI 2007/1167, reg 1(3).

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)/SCHEDULE 3 Form of Notice to be Given in Non-Default Cases Before a Creditor or Owner Can Become Entitled to Terminate a Regulated Agreement

SCHEDULE 3

FORM OF NOTICE TO BE GIVEN IN NON-DEFAULT CASES BEFORE A CREDITOR OR OWNER CAN BECOME ENTITLED TO TERMINATE A REGULATED AGREEMENT

Regulation 2(3)

Details of agreement

1

A description of the agreement sufficient to identify it.

Parties to agreement

2

(1) The name and a postal address of the creditor or owner.

(2) The name and a postal address of the debtor or hirer.

Term of the agreement providing for termination

3

The term of the agreement providing for termination of the agreement by the creditor or owner, or a reference to and a short description of that term.

Action to terminate the agreement

4

A clear and unambiguous statement by the creditor or owner--

(a) indicating that by the giving of the notice he is terminating the agreement and indicating any steps that he intends to take to effect the termination or, as the case may be, indicating the manner and circumstances in which he intends to take action to terminate the agreement; and

(b) indicating the date, being a date not less than seven days after the giving of the notice, of the termination or, as the case may be, the date on or after which he intends to take action to terminate the agreement.

Rights and liabilities arising by reason of the termination of the agreement

5

Any right or liability that will arise by reason of the termination of the agreement and the date by which the right or liability will arise, including—

(a) the amount of any sum payable by the debtor or hirer before deducting the amount of any rebate on early settlement;

(b) where any rebate on early settlement is allowable under the agreement or by virtue of section 95 of the Act—

(i) the amount of the rebate allowable calculated on the assumption that early settlement takes place on the date specified in the notice for earlier payment of the sum; and

(ii) the total amount to be paid by the debtor after taking into account the amount of any rebate on early settlement, namely the difference between the amount shown in paragraph (a) above and the amount shown in subparagraph (i).

Time order

6

A statement in the following form indicating that the debtor or hirer is entitled to apply under section 129 of the Act in England and Wales to the county court, in Scotland to the sheriff court or in Northern Ireland to the High Court or the

county court for a time order—

"IF YOU HAVE DIFFICULTY IN PAYING ANY SUM OWING UNDER THE AGREEMENT, YOU CAN APPLY TO THE COURT WHICH MAY MAKE AN ORDER ALLOWING YOU OR ANY SURETY MORE TIME".

General

7

A statement in the following form—

"IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE. FOR EXAMPLE YOU SHOULD CONTACT A SOLICITOR, YOU LOCAL TRADING STANDARDS DEPARTMENT OR YOUR NEAREST CITIZENS' ADVICE BUREAU".

8

A statement in the following form—

"IMPORTANT-YOU SHOULD READ THIS CAREFULLY".

 

I hope this helps.

 

Cheers,

BRW

[the_shadow]

BT,

 

There was a case where the judge didnt recognise the need for service days as he'd never heard of the regulation quoted from "Interpretation Act 1978"...

 

HOWEVER its also encased in the CPR rules and that he/she wont be able to ignore.. I've highlighted the key bit.

 

This is taken from a defence against Amex.....

 

a) Schedule 2 (3) © and (d) of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) (as amended) requires a default notice to specify a date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

 

b) Section 7 of the Interpretation Act 1978 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."

 

c) In addition to (b) above, CPR 6.26 stated that for a first class post (or other service which provides for delivery on the next business day), a document is deemed to be served on the second day after it was posted provided that day is a business day or if not, the next business day after that day. Business day means any day except Saturday, Sunday, a bank holiday, Good Friday or Christmas day.

 

Hope this helps

 

S.

[Blue Thunder]

BRW and The Shadow,

I cant thank you enough for your support, help and guidance. It really is quite unexpected but deeply appreciated.

I will do my best in court - I am on my own - but in a strange way - looking forward to the fight.

Thanks again

Blue

[smouk]

Subbed! I feel I'm about to have a little fun with these morons myself!

 

Good luck Blue BTW!

[banker_rhymes_with]

Hello BT!

 

Until you've been in Court, it is hard to get across to people how troublesome it can be, and how the system is geared to the legal profession.

 

The main problem at County Court level is what Caggers call the Judge Lottery. Sadly, many Judges are very poor, often very arrogant too, and often pretty clueless on the Law. They can and will ignore many issues to come to a decision that just happens to suit their own bias.

 

That said, you may get one of the good ones.

 

Remember that you are a Litigant in Person, so the Judge is obliged to cut you some slack.

 

I'm not sure where to start, so these are just off the cuff points to consider:

 

(1) Take Pens and Pad, and write down everything the opposition says. Do not be afraid to ask them to explain any points you did not understand. Tell the Judge you did not understand a point, and get that sorted before you respond.

 

(2) Once the opposition has said what it wants to say, and you have noted down the key issues and had them explained, only then respond. Do not let anyone disrupt your chance to speak, and keep to your list of points like a dog with a bone.

 

(3) Do not let the opposition present anything new at the Hearing. If they come up with any Case History or Bundle of notes, ask for an Adjournment to be allowed time to consider the material.

 

(4) Your key points are the dubious Agreement, where is the original? Plus the defective Default Notice, which questions what you are even doing in Court, as the Claimant had no right to take the next step once they had trashed s87 for themselves.

 

(5) The Judge may allow the opposition to speak more than once, so make more notes, and hit them back on every point once they have been allowed to speak.

 

(6) Things will happen fast, so don't be phased. Jot down all that you can, and do not hesitate to ask for explanations if anything is unclear...you will only get a limited amount of time to speak, so do not waste it, and do not miss an opportunity to press your own points.

 

(7) If it means staying up all night, go through everything, and make sure what you are taking with you is 2nd nature. Use Post-It Notes, bits of paper sticking out stuck on with sticky tape, whatever, but make sure you can find what you need FAST on the day. Scribble Page Numbers at the last stage, and make sure any copies for Judge/Enemy has the same page numbers, but don't waste time adding tabs to their copies...just make sure you can find what you want in yours.

 

Finally, do not worry. It is daunting, but they are just people, and the Judge is meant to help you understand the issues...it is their job, despite how many of them behave.

 

All being well, the opposition will be over confident, and will be caught on the hop when you show that your ORIGINAL COPY of the defective Default Notice differs to the nonsense the enemy have produced.

 

You have an ORIGINAL, whereas they have some Mickey Mouse attempt at re-creating a copy of yours. If they can't get that right, what else have they done wrong?

 

Good luck, give'em hell.

 

Cheers,

BRW

[Patma]

Good luck Blue Thunder. I'll be thinking of you all day and can't wait to hear all about it.

[Blue Thunder]

Thanks again BRW - I am pretty well clued up I believe now with sec 87/88 and also the CCR 1983 with the DN.

It's scary when you hear of how judges can give their own interpretation of the law.

If they have a True original then I could be stuffed - I dont think they have - because the front refers to something that isnt on the so-called reverse side. My fear is that the judge dismisses that and plays it that I signed something (whatever it was) if he/she can play with the law as you suggest - then what's to stop them?

Should it go t**s up and I lose with a CCJ against me (which is the one thing I have vehemently fought against here) do I have a right of appeal? What could be the next step and would I need to do something there and then - so as I did not miss the boat.

Regards

Blue

[Blue Thunder]

Good luck Blue Thunder. I'll be thinking of you all day and can't wait to hear all about it.

 

 

Thanks for the support Patma!

 

regards

Blue

[banker_rhymes_with]

Hello BT!

 

Just fight them on the key issues:

 

- The making of the Agreement (improperly executed, no Prescribed Terms, so not compliant with s61(1)(a). That is key, as that is the section that makes it clear the Prescribed Terms must be contained within the four corners of the Agreement. Contained is the key word. It means the Prescribed Terms cannot be found in another document. That makes the Agreement unenforceable by virtue of s127(3) which stops a Court from being able to enforce.

 

- Unlawful Charges during the Agreement. You want them back, and they also make the Default Notice defective on that basis too, as the default total they asked for was inaccurate and overstated and not a de minimis issue (significant enough not to be dismissed).

 

- s78(1) Request. Did they respond to that correctly? Amex usually do not send out a Statement, so blow s78(1) on that point, making them constrained via s78(6) from taking any further action until they do comply.

 

- The Ending of the Agreement. Defective Default Notice and near immediate Termination, when they clearly accepted they were doing this in what they regarded as a default situation on your part.

 

The making issue could win the day and, if not, then the ending issue should.

 

If you get a bad Judge, then you can Appeal. Ask for permission to Appeal straight away, and you have 21 days to get that organised. An Appeal would be worth doing because the defective Default Notice is one a Court should not overlook.

 

If you need to Appeal, come back and you'll get all the help you need.

 

Good luck.

 

Cheers,

BRW

[the_shadow]

Best of luck for today BT, fingers crossed will be crossed you get a good judge and a fair crack of the whip.

 

S.

[Blue Thunder]

Well.....................................

 

What a day that was! Bottom line is that Case is adjourned for a period of 4/6 weeks.

I dont want to say too much in open view because I'm not sure if the enemy read this and gain valuable info from it.

 

Basically, they produced an 'original' agreement in all its coloured glory and even though the front para related to something on the back that didnt exist, the Judge allowed it to stand as the original, as MY intimation that it was NOT the document I signed, inferred fraudulent activity on behalf of the Claimant and 'how could such an upstanding International Organisation be accused of such a thing'. So the doc as seen earlier in the thread was allowed to stand.

THEN the coup de gras! The DN was ruled ( after a recess and hurried checking from Judge and Enemy solicitor) to be defective.

Judge invites the enemy to reissue a DN, in its correct form. Enemy maintains that they will still sue for costs as in original claim. Judge bemused a little by that and asks both of us to construct arguments for and against.

I need to read the 'dodgy DN thread again' now and get up to speed on next step.

 

IF IT hadnt been for the advice given on here regarding the DN I would have been screwed I believe - so a great big thanks in particular to BRW and The Shadow for their 11th hour assistance.

It was never about the original debt which I have never denied - it was about the charges and tactics applied.

I still dont trust the enemy and assume they will come back with something. BUT you know what - I have suffered for TWO whole years with a dodgy Credit File brought about by something that was actually defective. Any suggestions as to my entitlement to Litigant in Person Costs and damages???

Cheers

BT

[the_shadow]

Well.....................................

 

What a day that was! Bottom line is that Case is adjourned for a period of 4/6 weeks.

I dont want to say too much in open view because I'm not sure if the enemy read this and gain valuable info from it.

 

Basically, they produced an 'original' agreement in all its coloured glory and even though the front para related to something on the back that didnt exist, the Judge allowed it to stand as the original, as MY intimation that it was NOT the document I signed, inferred fraudulent activity on behalf of the Claimant and 'how could such an upstanding International Organisation be accused of such a thing'. So the doc as seen earlier in the thread was allowed to stand.

THEN the coup de gras! The DN was ruled ( after a recess and hurried checking from Judge and Enemy solicitor) to be defective.

Judge invites the enemy to reissue a DN, in its correct form. Enemy maintains that they will still sue for costs as in original claim. Judge bemused a little by that and asks both of us to construct arguments for and against.

I need to read the 'dodgy DN thread again' now and get up to speed on next step.

 

IF IT hadnt been for the advice given on here regarding the DN I would have been screwed I believe - so a great big thanks in particular to BRW and The Shadow for their 11th hour assistance.

It was never about the original debt which I have never denied - it was about the charges and tactics applied.

I still dont trust the enemy and assume they will come back with something. BUT you know what - I have suffered for TWO whole years with a dodgy Credit File brought about by something that was actually defective. Any suggestions as to my entitlement to Litigant in Person Costs and damages???

Cheers

BT

 

Hi BT, well done for getting through it. In theory you could have asked for an adjournment as they introduced evidence without you seeing it first but thats by the by now.

 

Did they ever issue a termination notice, if they did then they CANT produce another DN as their is no longer an agreement that can be defaulted on.

 

As to costs, LIP can claim £9.25 (I think) an hour plus usual costs for parking/mileage stationary etc. Damages I think are harder unless you can prove their actions caused direct problems.

 

S.

[banker_rhymes_with]

Hello BT!

 

Excellent, well done.

 

The Judge has misdirected things to invite the enemy to re-issue a valid Default Notice, as they had that chance and blew it. There is no 2nd chance to re-issue a valid Default Notice once the Agreement has been Terminated...indeed, all as The Shadow has just said.

 

Firstly, have a beer and chill out. You deserve it.

 

Secondly, start looking for the letter of Termination/Cancellation, just to show that Amex ended the Agreement shortly after the end of their defective deadline.

 

The act of taking you to Court to demand the whole balance, i.e. sums not otherwise due had the Agreement been live, is final confirmation that the Agreement is most definitely Terminated. That act is not in keeping with the Agreement, so confirms that Amex regard it as being over.

 

Surfaceagentx20 put this rather well when he said...

 

An ineffective default notice will prohibit the Claimant recovering all those things on which the service of an effective default notice is dependant. In short, the claim will be reduced to just the arrears, See Woodchester v Swayne.

 

By when proceedings have commenced the Claimant will have terminated the agreement. The language of a default notice is framed on the basis there is a current agreement. That language is prescribed. If the Claimant terminated the agreement, to deliver an effective default notice will involve the fiction the agreement is current and never terminated. It would also involve the Claimant reinstating unilaterally. The debtor would be unlikely to agree to reinstatement if to do so would cure the Claimant's difficulties.

 

x20

Right, next issue is the hassle they have caused you...possible defamation issues. You need to have a good read of this case:

 

RICHARD DURKIN v. DGS RETAIL LIMITED+HFC BANK PLC, 26 March 2008, Sheriff J K Tierney

 

The next hearing will be crucial, and I know you will get plenty of help to make sure you nail Amex to the floor.

 

Cheers,

BRW