MBNA Default Notice/CCA

[tinkerbell20]

Hi Fred.

 

I see no reason why a creditor could not withdraw its DN at any time up to the day on which the creditor terminates the agreement.

 

Another way of looking at this is to ask the flip of the question: 'Can the creditor be compelled to do the things it says it will do in the DN if the debtor defaults on it?'

 

People with rights can not be forced to exercise them. Such people may exercise them as they choose. Thus, I do not take the view a creditor can be compelled by the debtor to enforce its rights under s 87(1) where the DN meets the requirements of s88 and the debtor has not complied with; even less so where it does not meet the requirements of s88 wherefore the creditor has no rights.

 

So important therefore to stay mum.

 

x20

 

 

Why then if that is the case do the courts allow the Claimant to "cure" a defective DN during court proceedings?:-?

[tinkerbell20]

Thanks x20, just the obvious question, does this DN count from the day they posted it or the day I received it?

 

Regards.

 

Fred

Two days after posting - postal rule

[surfaceagentx20]

Why then if that is the case do the courts allow the Claimant to "cure" a defective DN during court proceedings?:-?

 

That's very interesting Tinkerbell. Can you quote a decided case where the court permitted a Claimant to cure a defective DN during the course of proceedings?

 

I don't know of one and in the absence of having a decided case on this point brought to my attention, I have held to the view that if the facility to cure was available, why then did the Claimant in Woodchester v Swayne never once seek this remedy?

 

x20

[Fred Bassett]

Just one question on this: does the creditor actually have to correspond that they have terminated the agreement or does this happen automatically at the date specified in the default notice?

 

Regards.

 

Fred

[tinkerbell20]

That's very interesting Tinkerbell. Can you quote a decided case where the court permitted a Claimant to cure a defective DN during the course of proceedings?

 

I don't know of one and in the absence of having a decided case on this point brought to my attention, I have held to the view that if the facility to cure was available, why then did the Claimant in Woodchester v Swayne never once seek this remedy?

 

x20

 

 

There have been several cases on here where the DJ has allowed the Creditor to n"cure" the default and then the Cagger has gone on to lose the case. I don't understand it though because surely if the Cagger is given a fresh DN notice while proceedinga are ongoing shouldn't they get the requisite 14 days plus service to remedy the default and shouldn'yt the amount being claimed by the Creditor be the arrears to that date and not the whole balance?

[tinkerbell20]

Just one question on this: does the creditor actually have to correspond that they have terminated the agreement or does this happen automatically at the date specified in the default notice?

 

Regards.

 

Fred

 

 

The have to serve you Notice of Termination - often don't but tell the Court that the template letter they produced is what they allegedly sent:eek:

[Fred Bassett]

The have to serve you Notice of Termination - often don't but tell the Court that the template letter they produced is what they allegedly sent:eek:

 

Tinkerbell, I have a similar situation with Halifax http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/86614-fred-bassett-halifax.html#post1699779, but they haven't sent me a termination notice. Does this therefore mean that I can't rely on the improperly-served default notice?

 

Regards.

 

Fred

[tinkerbell20]

Tinkerbell, I have a similar situation with Halifax http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/86614-fred-bassett-halifax.html#post1699779, but they haven't sent me a termination notice. Does this therefore mean that I can't rely on the improperly-served default notice?

 

Regards.

 

Fred

 

 

If the Creditor is claiming the full amount of the agreement then they have to have terminated it because otherwise they can only sue for the arrears. If they have not terminated in the prescribed manner then it is recission of contract and I'm pretty sure that all they can claim is the arrears to the date of termination or at the point of issue of the deffective DN. The rest of the debt would be cancelled because they had terminated the agreemnet but not in the prescribed manner.

[postggj]

hi all

what happens then on an account which has been sold to a dca.

if the default notice is invalid, i take it the dca has to pass it back

[tinkerbell20]

hi all

what happens then on an account which has been sold to a dca.

if the default notice is invalid, i take it the dca has to pass it back

 

 

Yes but as surfaceagentx20 says I wouldn't draw the attention to the invalid default notice I would be wanting them to take me to court b efore they can rectify it by issuing you with a fresh DN:eek:

[postggj]

thanks tinkerbell

 

say a dca takes you to court

you mention about the default notice

the dca withdraw

what is stopping the dca issuing you a fresh default notice, being the new owners of the account, then taking you to court again.

its my understanding that a creditor can not take you to court again if its been struck out.

but if they withdraw there claim, what is stopping them issuing a fresh one now knowing there short falls

[postggj]

sorry missed the point

the default would be the arears up to the default being issued

then what happens to the agreement

you pay the arears, no default

so as the company has terminated the account, before sending to a dca, can they re activate the account again

[tinkerbell20]

thanks tinkerbell

 

say a dca takes you to court

you mention about the default notice

the dca withdraw

what is stopping the dca issuing you a fresh default notice, being the new owners of the account, then taking you to court again.

its my understanding that a creditor can not take you to court again if its been struck out.

but if they withdraw there claim, what is stopping them issuing a fresh one now knowing there short falls

 

 

If they discontinue the claim AFTER you have filed your defence that the was a invalid DN then they would have to get the permission of the court to recommence court action. However they would be in doop doo dah because the actual FACT of having issued court proceedings for the full sum would show that they had terminated the agreement and once the agreement has been terminated the crrditor cannot lawfully issue a fresh DN. Without terminating the account in the prescribed manner the most the creditor could then sue for would be athe actual arrears NOT the full amount. (if at all).

[postggj]

thanks tinkerbell

 

thats a very good piece of info to remember

learn something new every day

[Fred Bassett]

If MBNA terminate my agreement having served the default notice improperly leaving them only able to collect the arrears, would I still be able to reclaim bank charges, or would that effectively mean admitting to the whole debt again?

 

Fred

[banker_rhymes_with]

Hello Fred!

 

If MBNA terminate my agreement having served the default notice improperly leaving them only able to collect the arrears, would I still be able to reclaim bank charges, or would that effectively mean admitting to the whole debt again?

 

As I understand it, if they issue a defective Default Notice and then go ahead to Terminate the Account on the back of that invalid Default Notice, then they have blasted themselves in both feet.

 

I do not think you then need to worry about admitting a Debt, as that is almost irrelevant apart from the potential claim they can make for just the Arrears. I do not think they can Enforce the main Debt, by virtue of their own-goal actions when cocking up the Default Notice and Termination.

 

A Terminated Account is closed. It can't be Defaulted again, as it's no longer an active Account. It can't be re-opened to make it Active again, as that would need your Consent to enter into a New Credit Agreement. I doubt you would be too keen to give that Consent!

 

That should leave you with an almost clear run to go for a full Refund of Unlawful Charges on the now Terminated Account.

 

However, best check first if they can still claim for Arrears. Then check if the Arrears are greater than, or lesser than, your own Refund Claim for Unlawful Charges.

 

If your Claim is greater than the Arrears then it ought to be safe to go ahead and Claim for the lot plus Interest. They may try to deduct the Arrears from any Payment...or they could get hissy and try to deduct the Refund from the Terminated Account Final Balance.

 

But, if you threaten Court, they may not be so keen if they wake up to the fact that they'll be asked to explain all of this to a Judge, including the Unlawful Rescission of Contract issues.

 

Perhaps another tactic could be to seek compensation for the Unlawful Rescission of Contract itself, and then add an additional Claim for Unlawful Charges to that, and maybe throw in a Harassment Compensation Claim too just to make things tidy (as the bankers are so fond of saying):

 

EFFECT OF FAILURE TO DEFAULT AND TERMINATE AN AGREEMENT CORRECTLY

 

Failure of a Default or Termination Notice to be accurate not only invalidates such Notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998 ), but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt (Wilson v First County Trust Ltd [2003] UKHL 40, Wilson v Robertsons (London) Ltd [2006] EWCA Civ 1088, Wilson v Pawnbrokers [2005] EWCA Civ 147) but would also give the Claimant a claim for damages in the sum of £1,000 (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

Cheers,

BRW

[supasnooper]

I must say this thread is brilliant for my situation

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/160395-restons-court-action.html[url=http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/160395-restons-court-action.html][/url]

[empowered]

MBNA must realise they are on a loosing wicket - today have received letter from Debt Clear Recoveries who have been passed the account for collection.... letter winging its way to them regarding lack of unenforceable agreement etc etc.

[muscat329]

With reference to "date of service" for DNs, several posters in this thread have said it is second day after posting for first class post.

 

Without wishing to be pedantic, is it not the second "business day" after posting?

 

I have 2 DNs dated on a Friday, surely the date of service is not the Sunday, but the Tuesday following?

 

Also would any public/bank holiday days delay the date of service as well?

 

regards,

 

Muscat

[banker_rhymes_with]

Hello Muscat!

 

With reference to "date of service" for DNs, several posters in this thread have said it is second day after posting for first class post.

 

Without wishing to be pedantic, is it not the second "business day" after posting?

 

That is a good question.

 

I could also do with knowing. The following is all that I managed to find on this, which may be of interest to this Thread.

 

I think the Date of Service was based on the following Legislation:

 

Interpretation Act 1978

 

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.

 

I'm not sure where the 2 days after Posting came from with regard to 1st Class Post, so perhaps someone can enlighten me on this?

 

The following may also be of interest:

 

The Orders for the Delivery of Documents (Procedure) Regulations 2000

 

This relates to inbound Letters to the Commissioners of Inland Revenue (i.e. "the Board"). But does mention timescales for the Service of Documents, as follows:

 

(3) Where documents are sent to an officer of the Board at the address specified in the relevant order by post, they shall be treated, unless the contrary is proved, as having been produced to the officer -

 

(a) if first class post is used, on the second working day after posting;

 

(b) if second class post is used, on the fourth working day after posting. (note this bit Fred!)

 

I appreciate this is not direct Legislation applicable to the Service of Default Notices, but it's good background. It could be argued that what is good enough for the Inland Revenue has to be good enough for us mere Consumers!

 

However, I believe the Service of Documents has been mentioned recently in the following which I think came into effect on 15/08/2008:

 

The Civil Procedure (Amendment) Rules 2008

 

Schedule 1 covers the Service of Documents, and 6.14 covers Deemed Service in relation to Claim Forms.

 

Deemed service

 

6.14. A claim form served in accordance with this Part is deemed to be served on the second business day after completion of the relevant step under rule 7.5(1).

 

The Insolvency Rules also have a section that covers the Service of Documents, I mention this because this does mention 1st and 2nd Class Post:

 

19.86 Service by first class post

 

Where first class post is used, the document is treated as served on the second business day after it was posted, unless the contrary is shown.

 

19.87 Service by second class post

 

Where second class post is used, the document is treated as served on the fourth business day after the date of posting, unless the contrary is shown. Either form of postage may be used, unless under a particular insolvency rule a specific form of post is expressly required, e.g. the sealed and endorsed notice of disclaimer to the liquidator/trustee must be sent by the court by first class post (if it cannot be sent in a number of other ways). (note this bit too Fred!)

 

I have a Default Notice that has been sent via 2nd Class Post, so I could do with knowing when the Date of Service is for that!

 

If anyone knows, please do correct me and/or state the actual Legislation that applies to us in relation to the Date of Service of things like Default Notices. Plus when did this change if Weekends are no longer included.

 

Cheers,

BRW

Edited November 30, 2008 by banker_rhymes_with
Grammar Mangling!

[Fred Bassett]

Thanks BRW.

 

To be honest, it might all be a bit irrelevant for me because MBNA do not have an enforceable agreement. They've now passed this on to IQOR who are currently 'referring back to their client'. It would be useful though if by some miracle MBNA decided to put all this in front of a Court, but I think that's unlikely.

 

All very useful stuff though and maybe relevant to a couple of other battles I've got going on at the moment.

 

Regards.

 

Fred

[shakespeare62]

With reference to "date of service" for DNs, several posters in this thread have said it is second day after posting for first class post.

 

Without wishing to be pedantic, is it not the second "business day" after posting?

 

I have 2 DNs dated on a Friday, surely the date of service is not the Sunday, but the Tuesday following?

 

Also would any public/bank holiday days delay the date of service as well?

 

regards,

 

Muscat

 

 

I believe Date of service is the 2nd day after date of posting, and that if that second day is not a business day ...then its the next business day.

 

See CPR Rules Part 6 Service of documents section 6.26

PART 6 - SERVICE OF DOCUMENTS

 

quote:-

 

Deemed Service

 

6.26

 

A document, other than a claim form, served in accordance with these Rules or any relevant practice direction is deemed to be served on the day shown in the following table –

 

Method of service Deemed date of service 1. First class post (or other service which provides for delivery on the next business day) The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that day.

 

 

Now ...thats Date of service. The 14 days starts on the day after date of service. In your case I think this would be Monday. Definitely not Sunday.

 

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

 

 

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.

[StayingCalm]

Hi Muscat, BRW, Fred

 

 

Re dates of service by post:

 

 

On 1st October 2008 a new CPR part 6 came into force.

 

Service by post is deemed to occur (subject to proof to the contrary) only on a business day, as follows:

 

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

 

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

 

A "business day" is any day except Saturday, Sunday, a bank holiday, Good Friday or Christmas day.

 

 

 

 

Before 1st October 2008 the deemed day of service could have been any day of the week 2 (or 4) days after posting (ie including Sundays etc).

 

 

 

This is a summary of post number 187 on my thread written by ‘surfaceagentx20’.

The last paragraph says it all.

 

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/145452-stayingcalm-abbey-no-cca-10.html#post1739301

 

 

 

 

BRW

 

I have just noticed this from your post number 41 on this thread:

 

 

Perhaps another tactic could be to seek compensation for the Unlawful Rescission of Contract itself, and then add an additional Claim for Unlawful Charges to that, and maybe throw in a Harassment Compensation Claim too just to make things tidy (as the bankers are so fond of saying):

Quote:

EFFECT OF FAILURE TO DEFAULT AND TERMINATE AN AGREEMENT CORRECTLY

 

Failure of a Default or Termination Notice to be accurate not only invalidates such Notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998 ), but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt (Wilson v First County Trust Ltd [2003] UKHL 40, Wilson v Robertsons (London) Ltd [2006] EWCA Civ 1088, Wilson v Pawnbrokers [2005] EWCA Civ 147) but would also give the Claimant a claim for damages in the sum of £1,000 (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

Cheers,

BRW

 

 

 

BRW, I know you have been following my thread, do you think this is a possibility for me to claim from MBNA?? I could sure use £1000!!

 

Regards

sc

[banker_rhymes_with]

Hello StayingCalm!

 

Many thanks, that was what I remembered reading, but could not think where! Here is x20's #187 Post from StayingCalm's Thread:

 

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 bank holiday.

 

This somewhat altered in the intervening 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

 

However, I've read the now CPR 6, and I must say I cannot see where it covers the Working Days issue, and nor any mention of 2nd Class Post.

 

I could do with a Reference to any Act that pins down Date of Service from 1985 to 01/10/2008. x20 seems to say that Working Day was somehow toned down after 1985 to mean any Day including Weekends, but is anyone aware of a Reference to this as it would be good to know in order to quote this.

 

Likewise, I can't see the Working Day clarification in the above CPR 6, nor any specific mention of 2nd Class Post. x20's Link goes to a Restricted Access Web Site, but when there, there is a link to CPR 6.

 

If anyone else can wake me up and spot these areas within CPR 6, i.e. clarification of Working Day and 2nd Class Post timescales, please do say so!

 

BRW, I know you have been following my thread, do you think this is a possibility for me to claim from MBNA?? I could sure use £1000!!

 

I don't see why not, but I think best to run that past PT2537 or Surfaceagentx20 first. I think it would be good to investigate that issue fully, as it is worth adding it to any Defence as a Counter-Claim if they have Terminated an Agreement on the back of an invalid Default Notice.

 

Cheers,

BRW

[surfaceagentx20]

Insolvency proceedings, including statutory demands are covered by the Insolvency Rules 1986. IR 12.10 says:

 

Service by post

(1) For a document to be properly served by post, it must be contained in an envelope addressed to the person on whom service is to be effected, and pre-paid for either first or second class post.

 

(1A) A document to be served by post may be sent to the last known address of the person to be served.

 

(2) Where first class post is used, the document is treated as served on the second business day after the date of posting, unless the contrary is shown.

 

(3) Where second class post is used, the document is treated as served on the fourth business day after the date of posting, unless the contrary is shown.

 

(4) The date of posting is presumed, unless the contrary is shown, to be the date shown in the post-mark on the envelope in which the document is contained.

 

IR 12.11 says:

Subject to Rule 12.10 and Rule 12.12, CPR Part 6 (service of documents) applies as regards any matter relating to the service of documents and the giving of notice in insolvency proceedings.

 

Please note the above rule is a general rule and does not override the requirements of IR 6.3 and 6.11, so that there is no ordinary provision for service of a statutory demand to be deemed to occur where service is by post. For more on the postal delivery of SDs by post, read here.

 

The webpage I linked to in some thread a month or so ago and referred to by BRW was concerned with new CPR Part 6 and as far as I recollect was concerned with changes to CPR 6 in relation to the service of Claim Forms.

Before 1 October 2008, CPR 6.7 dealt with deemed service in the following way.

 

6.7 Deemed service

(1) A document which is served in accordance with these rules or any relevant practice direction shall be deemed to be served on the day shown in the following table

 

Method of service: First class post (or an alternative service which provides for delivery on the next working day) - Deemed day of service: The second day after it was posted.

 

(2) If a document is served personally-

(a) after 5 p.m., on a business day; or

(b) at any time on a Saturday, Sunday or a Bank Holiday,

it will be treated as being served on the next business day.

 

(3) In this rule-

“business day” means any day except Saturday, Sunday or a bank holiday; and

“bank holiday” includes Christmas Day and Good Friday.

 

Thus under old CPR 6, a document posted on a Friday would be deemed served on the second day after it was posted. The rule in such a scenario provided that the deemed date of service was a Sunday. It lead to the ridiculous situation that a document posted on a Friday was deemed served on a Sunday, but where it was personally handed to the recipient on a Sunday, it was not deemed served until the day following, ie, on the Monday. The rule was reinforced by the decision of the Court of Appeal in Anderton v Clwyd County Council [2002].

 

This has now changed. The following parts of CPR 6 are relevant to the topics under discussion as follows:

 

6.2 Interpretation

In this part

(a) 'bank holiday' means a bank holiday under the Banking and Financial Dealings Act 1971 in the part of the UK where service is to take place

(b) 'business day' means any day except, Saturday, Sunday, a bnk holiday Good Friday or Christma Day.

 

6.14 Deemed Service of the Claim Form

A claim form served in accordance with this Part is deemed to be served on the second business day after completion of the relevant step under rule 7.5(1).

 

In regard to postal delivery, CPR 7.5(1) says:

First class post ..or other service which provides for delivery on the next business day - Step required: Posting ..

 

6.26 Deemed Service

A document other than a claim form, served in acordance with these Rules or any relevant practice direction is deemed to be served on the day shown in the following table

 

Method of service: First class post (or other service which provides for delivery on the next business day) - Deemed date of service: The second day after it was posted .. provided that day is a business day; or if not, the next business day after that day.

 

As for second class post, CPR 6 deals with all the permissable methods of service of documents including claim forms. It is silent as to service by second class post and therefore service by second class post is not a permissable method of service.

 

As for the position on service between 1985 and 1 October 2008, the single most influential factor on the rules regarding the service of documents in civil proceedings has been the introduction of the CPR on 26 April 1999. In the post I made earlier and referred to by BRW, whilst I began that post with the Interpretation Act 1978 and the 1985 Practice Direction, in light of the fact that it is almost ten years since the CPR was introduced I can't see any practical purpose in dealing with the situation of service as it was prior to April 1999 save to say that in those days, service was governed by Rules of the Supreme Court Order 10 which out of interest provided that delivery of a writ by first class post was deemed served 'unless the contrary is shown', on the seventh day after the date on which it was sent with weekends, Christma, Good Friday and bank holidays taken out of the equation.

 

For the rule concerning the computation of time, see CPR 2.8.

 

x20