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HFC / Marbles - valid D Notice?


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no scanner so bear with me.

 

I wrote to them stating I would be out of country for 4 weeks and I come back to find a Default Notice needing £x by 18th. I had sent them payment but this cheque bounced unfortunately which is why i guess they sent the DN. They make no mention that I was abroad.

 

Anyhow here's the contents - please bear with me - no scanner as I said.

 

Their corporate address

My address

Dated 1 August

Addressed to me

 

Rest says as below layout:

 

IMPORTANT - YOU SHOULD READ THIS CAREFULLY

 

This is a DEFAULT NOTICE served under S 87(1) of the Consumer Credit Act 1974, relating to your marbles Card Agreement dated 2nd November 1999 under marbles card number xxxxxxxxxxxxxxxxxxxxxxxxxx and made between you and HFC Bank Ltd (HFC).

 

1. Provision of Agreement breached:

(a) Payment of the minimum monthly repayments on the payment dates.

 

2. Nature of Breach:

(a) You have failed to pay the minimum monthly repayments totalling £XXX

 

3. Action required to remedy:

Payment of the total arrears of £XXX by 18 August 2008.

 

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.

 

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.

 

continued...

 

(Other side of same page)

 

4. Further Action:

 

HFC Bank Ltd will:

 

(a) Terminate the Agreement in the date shown

(b) Require the immediate repayment on the date shown of the entire outstanding balance of £xxxxx

© If the whole or any part of such sum is not then received, issue proceedings on or after the date shown for recovery of the entire outstanding debit balance on the account, together with accrued interest and costs.

 

 

IF YOU HAVE ANY 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.

 

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.

 

Yours sincerely

 

 

 

Card services

HFC Bank Ltd

 

 

I would appreciate advice regarding this actual Default Notice and whether it is valid or not. I get paid end of the month so should be able to pay them but not by the 18th! Is there anything in this DN that I can state invalidates it at all?

 

I have previously asked for charges (£12 units) to which they very recently gave me their final statement aka 'no'. This amount I was / am claiming is about 40% of the total they want in this Default Notice by the 18th. I have not yet sent an official complaint to FOS. I have also sent the Information Commissioners Office a complaint that HFC have not complied with my Data Protection Act request (for all data).

 

I am starting to digress- advice needed please on this Default Notice. As far as I know I have managed to always (just) comply with Default Notices and have not yet got a 'default' as such... if that makes sense? Confuses me anyway. If I do not pay - which I cannot - by the date they state I assume I will be defaulted and the heavens will tumble down on me.............

 

HELP please :(

Edited by willtheywontthey
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Hi, have read of this, as it shows how the wording i.e. bold/underlined should be , thats all i can see wrong with it at the mo.

 

35. Section 2 (5) and (6) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 sets out the following

(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.

36. The notice fails to include the following statement in the form as shown

 

"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

 

37. 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]"

 

 

38. The statements referred to in points 36 & 37 are laid out in schedule 2 of Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)

 

39. For a creditor to be entitled to terminate a regulated credit agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the agreement, a creditor must serve a Default Notice under section 87(1) CCA 1974 which states

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a "default notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,-

(a) to terminate the agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

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

 

(e)to enforce any security.

40. I note the opening part of section 88(1), which states

88. Contents and effect of default notice.

 

- (1) The default notice must be in the prescribed form.......

The word must makes it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue

 

 

Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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thanks... I had forgotten to underline two of the 'BEFORE DATES SHOWN'

 

If this is written up in valid form is there anything else that can invalidate it.. whether you have written to complain, written to say I was overseas and not 'home' for 4 weeks - they knew this but still sent the DN - came back yesterday so even if I had the funds I would not be able to transfer money online in time.

 

If 40%+ of this is made of penalty charges which I have disputed can this invalidate a Default Notice?

 

Trying to stall at least until end of month when I can pay them.....

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Forgot to mention... had a letter sent 2 weeks after they sent the D Notice in response to my complaint about the way they handled my account recently - they deny any fault of course - but in this letter they do not mention the Default Notice at all just that the payment (same as on DN by the way) is required for 21 August (the DN mentions 18th?!!) - they then state in this letter that this would cease any future Collections activity... (whatever that means??)

 

No mention at all why no compliance with my SAR request,.....

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Unlawful charges in a DN will invalidate it as the total figure is incorrect.... you will have to challenge this though as part of a formal complaint.

 

Sounds like they're too quick in issuing these things in the hope of pursuing court action against people who're experiencing problems.:rolleyes:

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If they are in bold and underlined, then i cant see anything wrong with it, the fact you were out of the country wont make any difference im afraid.

If the amount on the DN is paid by the date shown, then, in law the DN never happened as it were, and you are back to where you were before.

 

The fact that some of the amount is made up of chages would help you to defend any court claim however IMO.

Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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thanks. I'm going to try to stall them by writing back to the complaints person mentioning the penalty charges amount.... anybody got links to the legal jargon and regs for this particular suggestion?

 

Can they be flexible once a DN issued??

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If you already know the balance of unlawful charges on the account, you could write; stating that you want this figure removed.... that you've not yet heard from them in relation to your complaint dated xx/xx/xx... and that since the charges formed a part of the recent DN that you received.... that the DN is unlawful and will be challenged legally for stating an incorrect balance, should this prove to be necessary.

 

Something like that....

 

Send by rec. delivery or they'll probably ignore you.

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If you are happy to pay anyway then why not send a post-dated cheque payable at the end of the month/pay day stating that it is sent on the understanding that the DN is not enforced as you have settled in full.

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