StayingCalm vs Abbey with no CCA**WON**

[supasnooper]

Hi SC,

 

I must say what a fabulous letter !

 

I can see my dealings with Restons going down the same path as yours so I'll be watching this thread intently.

 

Good luck and keep on going .

[sansho]

Subbing, as usual they never learn to settle early and pay less..

[atwozee]

Can I just clarify something in this thread please?

In post number 24 pt2537 refers to a default notice and states that it must be in the following format –

55. Also the notice fails to set out the statement as set out below

 

"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]"

The third word ‘DO’ is in bold and underlined. Is this correct because in other examples I’ve seen the word ‘DO’ is not required to be in bold or underlined.

Can anyone clarify please?

[StayingCalm]

Hi atwozee

 

Not sure about the 'DO' being underlined, but the main problem with the DN is it not allowing 14 days after it was served (serving is deemed on the 2nd day)

 

sc

[surfaceagentx20]

Indeed, yet according to the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 available on this site and expressed to be up to date to include the modifications coming into effect tomorrow, 1 October 2008, none of the prescribed Schedule 2 words receive underlining.

 

x20

[StayingCalm]

Hi x20

 

If this is the case do 'the words' as above have to be in capitals, or would bold type be sufficient?

 

sc

[surfaceagentx20]

Capital letters. 'The words' may not be written in lower case.

 

x20

[atwozee]

Sorry but now I am confused!

 

I got the following statement from here: http://www.studentlawjournal.com/articles/2007/consumer/ccdfn07.htm

i. a statement saying: if the action required by this notice is taken before the date shown no further enforcement action will be taken in respect of that breach

ii. a statement saying: 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

Have they just incorrectly quoted the format?

 

Also x20 – you picked up on the wording of the default notice in pt’s post but pt was adamant that there could be no deviation and stated such in post 97.

 

I’ve had a default notice issued to me and I would really like clarification on this if possible.

 

Should it be this:

 

"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]"

 

This:

 

"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]"

 

This:

 

"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]"

 

Or this:

 

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

 

Or is any version acceptable?

[StayingCalm]

While we are on Default Notices, a few more questions.

 

 

Days for serving....Are the following correct?

 

 

If dated and posted 1st class on a Thursday - Count from Saturday.

 

If dated and posted 1st class on a Friday - Count from Monday.

 

If dated and posted 1st class on a Saturday - Count from Tuesday.

 

If not posted on the same day as dated - count from the day posted if this is visible from the envelope.

 

What if it is posted 2nd class?

 

 

As the DN states 'BEFORE THE DATE SHOWN' does this mean that the date shown should allow 15 days from serving, otherwise if it was 14 days, the 'BEFORE' would result in less than 14 days?

 

However, the information higher up on a DN seems to vary between 'before' 'on' or 'by' a certain date. Does this make any difference?

 

 

Regards

sc

[atwozee]

Your default notice is dated the 25-03-2008 and the date to remedy the breach is 08/04/2008 so that’s exactly 14 days – fact is they haven’t allowed any days for postage. So if served means date of default notice then they are correct if it doesn’t then they are not.

I always thought served meant 2 days after posting regardless of method unless it is hand served and backed up by a sworn affidavit.

Can anyone confirm for the record?

[creditcardmug]

Your default notice is dated the 25-03-2008 and the date to remedy the breach is 08/04/2008 so that’s exactly 14 days – fact is they haven’t allowed any days for postage. So if served means date of default notice then they are correct if it doesn’t then they are not.

 

I always thought served meant 2 days after posting regardless of method unless it is hand served and backed up by a sworn affidavit.

 

Can anyone confirm for the record?

 

As far as i know you are correct, the bottom line in this case is that if sent by post it couldn't possibly have arrived the same day, so its invalid.

[surfaceagentx20]

Interpretation Act 1978 section 7 (unhelpfully) says:

 

7. References to service by post.

Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “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 been effected at the time at which the letter would be delivered in the ordinary course of post.

 

In the field of civil proceedings and in the context of the Rules of The Supreme Court as they then were, the uncertainty of section 7 was codified in a Practice Direction issued by the Senior Master in 1985 directing as follows:

 

1 Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

 

2 To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected

 

(a) in the case of first class mail, on the second working day after posting;

 

(b) in the case of second class mail, on the fourth working day after posting.

 

"Working days" are Monday to Friday, excluding any band holiday.

 

This somewhat altered in the intervenig 23 years but first class mail is still deemed served on the 2nd day after the letter was posted. The difference was that 'working days' had gone so that deemed postal service could in fact take place on say a Sunday. However as of tomorrow 1 October 2008, a new CPR Part 6 kicks in where service will only be deemed to occur on a business day, ie any day except Saturdays, Sundays, a bank holiday, Good Friday or Christmas day.

 

Check new CPR 6 out here.

 

x20

[atwozee]

So not enough time allowed by them then – good news for you staying calm.

Could just do with clarification on the wording of the default notice now which was a couple of posts back. Especially as it’s in the statement of defence and if that gets looked over at the hearing it needs to be correct. Can anyone get pt2537 to clarify his original post?

[pt2537]

So not enough time allowed by them then – good news for you staying calm.

 

Could just do with clarification on the wording of the default notice now which was a couple of posts back. Especially as it’s in the statement of defence and if that gets looked over at the hearing it needs to be correct. Can anyone get pt2537 to clarify his original post?

which post would you like me to clarify:)

[atwozee]

Hi pt - thanks for looking in. Have a look at my post 183 and your post 97.

 

It's just to do with the form and layout of the default notice. You bolded and underlined DO earlier in the thread in the defence statement - is that how it should be?

[The GodMother]

hang on i thought the working days was still in effect as it is still used when requesting a CCA.

[StayingCalm]

Hi x20

 

Thanks for the info on the effective date of service by post.

 

Please could you advise if the new CPR 6 applies retrospectively?

 

 

 

 

 

The following letter was received and signed for by Restons on 25th September, and as yet I have not received a reply.

 

The Case Management Conference is set for the 6th November.

 

What would you advise as the best course of action now?

 

 

 

How about this as a reply:

 

Thank you for your letter dated (date).

 

For the avoidance of doubt, I maintain the bank has an obligation to provide a true copy of the agreement within the meaning of Regulation 3 of Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 and which obliges your client to provide a ‘true’ copy of the executed agreement to me.

 

I accept that there are savings in regard to this obligation and of the kind set out in Regulation 3(2) to include under regulation 3(2)(b) an ability to provide a true copy without the same bearing signatures.. However, it is clear from the evidence given by your client’s witness, that the witness would be unable to say under cross examination that the document purporting to be a true copy minus signatures has ever been compared with the original and is in consequence a true copy of it. On the contrary, it is clear that the witness seeks to comply with the obligation imposed under regulation 3 by means of a re-construction exercise without any first hand, direct knowledge of the appearance of the original agreement. The witness merely surmises. Further it is evident that for reasons which have not been explained, the original document is and has for some time, been unavailable for comparison purposes and it is therefore perverse to maintain as fact that a document is a true copy of another document if neither the original nor a genuine reproduction of that other document can be produced to substantiate the evidence of the witness.

 

Moreover, the savings under regulation 3(2)(b) in relation to the production to me of a true copy relate only to my request under section 78(1) of The Consumer Credit Act 1974. They have no wider application. The savings could not for example, be relied upon to excuse a failure to bring the original agreement into court.

 

I am well aware that in Woodchester v Swayne the court limited the claimant’s recovery to just the correct amount of arrears set out in the default notice. However, I beg to differ with your suggestion that my comments in relation to the default notice do not operate as a defence. The delivery of the default notice in circumstances where your client was in breach of its obligation to deliver a true copy of the agreement following a request under section 78(1) of the Act served to prohibit your client from enforcing the agreement for so long as it neglected to comply with the request. Your client can not rely on the default notice if, as was the case, your client was in default of its obligation to comply with my request under section 78(1). The default notice was clearly a step taken to enforce the agreement. It incorporated the words ‘enforce’ and informed me that if I failed to comply ‘further enforcement’ would follow.

 

I further beg to differ with your suggestion that your client might subsequently deliver a second default notice. Apart from its continuing failure to comply with my section 78(1) request, your client has now terminated the agreement and it is evident from both the default notice leading to termination and the proceedings that your client has already evinced an intention to recover what it says is the full outstanding balance. Your client may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when as we both know, it was terminated by your client long ago.

 

You appear to recognize that within the current proceedings your client’s position at best is that it will recover only arrears stated on the default notice. That best case scenario is advanced without regard for the provisions of section 78(6) of the Act. Rather than demonstrating the existence of a valid claim, your letter serves only to reinforce that at the date of the commencement of this case your client had no immediate right to be paid any of the sums it now claims.

 

y/f

 

x20

[Pathway]

Good luck with your case - watching with intererst!

[StayingCalm]

Hi all,

 

Just got home now and a letter waiting for me from Restons!!!!

 

Give me a few minutes and I will post details.

[pt2537]

ooooh, the suspense is killing me, what did the letter say?

[StayingCalm]

Deleted

Edited October 8, 2008 by StayingCalm
Deleted - duplicated in next post

[StayingCalm]

Edited October 8, 2008 by StayingCalm

[StayingCalm]

Sorry for delay, not to confident with scanning and photbucket etc!!!!!

[AndyOrch]

Reading between the contents of the letter which is really smoke screen and bluff in response to X20 excellent letter they are looking for a settlement.

 

Regards

 

Andy

[surfaceagentx20]

A suggested letter in answer (if you can be bothered)

 

Dear Sir,

 

Thank you for your letter of 7 October.

 

I have made my points and we shall have to agree to disagree but for the avoidance of doubt I contend as follows:

 

Your position in relation to the 1983 Regulations is rejected and likewise that the Regulations would be redundant in the circumstances I contend for. It is precisely owing to the Regulations that the copy supplied has to be true to the original where 'true' infers a genuine reproduction of the original which might fairly be achieved by photocopying the original. 'True' does not equate with 'of a type' and neither does the unqualified production 'of a type' satisfy the requirements of The Regulations. I am confident non-compliance will be demonstrated and I fully intend to test the veracity of your client's evidence in this regard when your client's witness comes to be cross-examined by me.

 

The default notice was a step towards enforcement. The words prescribed by the Regulations and incorporated in your client's default notice are clear and there for all to see. I observe that in this regard you place great store in the judgment of Simon Brown QC in Rankine, a decision widely regarded as out of step with academic thinking though understandable owing in no small measure to the way in which Mr and Mrs Rankine conducted themselves and to amateur, ill-informed representation. Indeed it is telling and informative to observe the complete absence of what would amount to enforcement in Simon Brown's judgment and I notice that you are similarly silent on this point.

 

It is trite law to pretend a second default notice may be served post-termination for the reasons I explained in my previous letter. Your case is brought post-termination and your argument in support of the notion a second default notice may be served seems to hinge on the belief that if a creditor terminates an agreement in a way not envisaged by section 87 and which therefore was not to its advantage or in its best interests, consumer protection law wil rush to the creditor's aid in order that he may undo all his irregularities and regain all the advantages the law would have provided to him but for the irregularities. Far from my presenting a circular argument, it has as its terminus the undeniable truth of termination of the agreement by your client in circumstances which then prohibited it from enjoying the benefits of section 87.

 

Finally and in regard to your final paragraph, I would first refer you to the contents of CPR PD 16 paragraph 7.3 and seocnd, so that any necessary amendments to the case can be occasioned swiftly, would ask that you let me know by return whether it is your client's intention to deliver a second default notice.

 

y/f

 

x20