CCa 1974 and credit cards

[jayjay11]

Can someone advise what might happen next when i do not pay them the £35 by 1st june? they have not replied to my CPR 31.16 will they just be chasing the £35 ? and should i write and tell them again no cpr or wait and see what happens? I am a bit worried cus im away on hol from 5th to 28 June that something might happen while im away and i cant respond!!

HELP PLEASE

[citizenB]

Default Notice dated 12th May, remedy date 1st June.

 

I would say they have allowed sufficient time to remedy there must be 14 clear days.

 

Have you received a copy of your agreement ? is the account number the same on the application/agreement form as on the default notice. When you signed the application/agreement form was it for a Platinum account which is what they show on the Default Notice.

 

Does the sum they are claiming include penalties/charges ?. These are the things you should be looking for.

 

HTH

 

Question I forgot to ask, did they send the DN by 1st or 2nd class or UK Mail service?

 

If you dont respond by 1st June, they they will likely up the phone calls or threatograms. They might send a termination notice which will be for the WHOLE balance but should give you 7 days to respond to . They might send a formal demand from their solicitors which is the same as a termination notice and again will also give you 7 days to respond to. Or pass the account over to a DCA. There is also the possibility that at least 2 of the above will happen.

 

 

 

All the things you pointed out are present and yes includes late payment fees They sent an ureadable copy of an application form and t&c,s not linked to the application on seperate sheet headed 'bank copy' in reply to my S78 request but nothing from my CPR requests

 

If the DN includes late payment charges then that would make it incorrect.

 

IMHO, you should write to them one last time but with the heading OFFICIAL COMPLAINT, ACCOUNT IN DISPUTE and send it to :

 

LTSB

Customer Concerns Unit

3 City Park

The Droveway

Hove

East SusseX

BN3 7UA

 

Just a covering letter saying that you have made a request under CPR 31.16 which appears to have been ignored. Copy the letters you have sent in this respect for their attention.

 

It should give you enough breathing space to go away and enjoy your holiday

Edited May 27, 2009 by citizenB
cant spell

[jayjay11]

Thanks I'll send the letter before going on hols They sent DN by UK MAIL no post mark or date on env..

[jayjay11]

Post just arrived they have sent a letter 'Final responce' stating they have complied fully and enclosed the t&C's as they would have been and another readable copy of my application form this time with the conditions headed 'bank copy on the back of an a4 sheet but i can see no clear link between them i think a cut and paste job i will scan and post it for coments

[citizenB]

Thanks I'll send the letter before going on hols They sent DN by UK MAIL no post mark or date on env..

 

Sadly, that is classified as 2nd class post and leaves EXACTLY 14 days to comply by my reckoning.

[jayjay11]

Here is what was sent ...

IMG]http://i375.photobucket.com/albums/oo194/jayjay1105_2008/TSBAG1.jpg[/img]

 

This is the same as sent before but 1, readable and 2, on one sheet

my thoughts .. it says 'bank copy' on back is there a bank copy of an application form? and why then is the box marked 'credit score' not completed on their copy?? Please have a look and coment Thanks

Edited May 27, 2009 by jayjay11
typo

[citizenB]

TBH, I really dont know.. I have just had a look at a copy of mine from a different date and it does say....

 

The full conditions are set out in the attached document headed "Lloyds TSB Bank Credit Card Agreement Conditions- Customer copy"

 

So I guess there could be a bank copy !

[jayjay11]

looks like i may be stuffed then !!! would a judge take this as enforceable??? opinions please ???

[citizenB]

I think there should be a little box with comparisons of credit

 

I cant explain it too well so will go and see if I can find an example for you. BRB

[citizenB]

Right this link is for an MBNA card however, the principle is the same. Over on the right hand side you will see a list of applicable interest rates under 3 example sums. £1,000, £3,000 and £5,000. It is my understanding that this example with the rates applicable to YOUR particular credit limit should be present and within the 4 corners of the document (this could be a double sided page). You need to click on the link to enlarge.

 

[jayjay11]

thanks so i could defend a cliam made by them as all terms not present in your opinion ? shall i post on 'is my agreement enforceable'

[citizenB]

TBH, I really dont know the answer to your question. Perhaps wait until you receive a few more replies.

 

On the front of the agreement, lower left hand side it says" December 2002"

 

On the top of your card conditions it says "Effective from 1st December 2002"

 

However, it also says bank copy therefore.. were those particular Terms and conditions on the back of the original application form ?

 

Because the front doesnt have "Bank copy" on it does it ? Also if you look very carefully at the left edge of the Application form, then you will see tiny little ridges as though something has been torn off. Can you remember if this was one of those mailer application forms which were folded and sealed round the outside edge and returned ?. If so, then all that could have been on the back of your form would have been the return address.

 

Then again, there is text that says something about full conditions being overleaf. I really, dont know.

[jayjay11]

yes from what i can remember it was a mailed part pre filled form where you ripped it off and returned it In section 2 was my name and adress and my bank sort code and a/c number pre printed

 

If you look it says in section 5 : "If your application is accepted by our signature above and we send you a card then this will form the agreement"

No signature above either so was the agreement formed??

Edited May 27, 2009 by jayjay11
edit text

[citizenB]

Strangely enough the absence of a signature from the company can be remedied at any time. However, if yours was missing that would be a different matter.

 

Yes, it does say that there is details on the back on how they are going to use your data.

 

That does not confirm that the Terms and conditions they have sent were on the back of that form. If you print both pages back to back, then fold them into 3 then chances are some of the back will be visible to the postman ??, thereby advertising the liklihood of personal financial information enclosed. Not for one moment am I suggesting anything untoward re the postman.. however mail does go missing and delivered to wrong addresses... !!

[jayjay11]

OFFICIAL COMPLAINT, ACCOUNT IN DISPUTE

Dear Sirs,

Despite several letters (copies enclosed) my request under the Civil Procedure Rules (Pre action protocols, Part 31.16) appears to have been ignored.

You have also issued a Default Notice on the alleged account. As you are no doubt aware the original properly executed agreement, containing all the proscribed terms as stated under The consumer credit act 1974, would have to be produced to a court should you take action to try to enforce an agreement you allege is in existence.

I can therefore conclude that you have this document to hand and would have no trouble complying with my request. Should you further ignore my legal request for disclosure and choose to take court action I will bring all the correspondence to the attention of the judge to demonstrate my efforts to obtaining disclosure in order for this matter to be dealt with without court action and costs involved. As previously stated I would be willing to inspect the original document at my local branch, and then I will be able to make an assessment of my position in relation to this matter without using court time and incurring unnecessary costs.

Please inform me in writing as to when and where I can inspect the document referred to above.

yours jayjay11

 

 

i am thinking of sending above letter before going away as a final attempt to see the original agreement. coments please

[citizenB]

Sounds ok to me.

[citizenB]

POST 71

 

 

 

Originally Posted by jayjay11

Got this letter today . have not had a reply to my Subject Access Request and no reply to letters asking to see origonal agreement at local branch also had loads of calls dispite a letter re harrasment Is there a reply or just leave it HELP PLEASE"SCM 1 picture by jayjay1105_2008 - Photobucket"

 

 

 

 

 

POST 98

Got this default today could someone look it over please, still nothing ref CPR just a letter saying they have already written and complied with S78 !!

tsb default 1 picture by jayjay1105_2008 - Photobucket"

 

Tsb default 2 picture by jayjay1105_2008 - Photobucket

 

Thanks JJ11

 

 

 

 

 

Ok, I have had a reread of your thread and I think something isnt quite right and must have been overlooked.

 

In post 71, you received a letter from Sechiari, Clark & Mitchell.

 

It states quite clearly in the 1st sentence that "despite several reminders and the issue of a Default Notice served, etc.... your account still remains out of order"

 

Then goes on to say they are now making a FORMAL demand for the full amount outstanding.

 

To ensure you dont miss the fact they are making a FORMAL demand, they have pasted a paragraph to the bottom of the letter in bold and capitals .

 

This to me, assumes they have "terminated" the account.

 

However, in post 98 you receive a Default Notice dated 12th May 2009.

 

This is interesting, because.. they have said in their letter of 21st January that they have issued a Default Notice already, they then go on to make a Formal Demand/Terminate the account.

 

They then issue a SECOND Default notice. Unfortunately that cant happen. How can you default a terminated account. You cant and this is why......

 

The first link will take you to a single post by BRW

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1775455.html

 

The 2nd will take you to a thread by surfaceagentx20

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

 

 

In a nutshell, it would appear that LTSB had already issued a Default Notice, one that you havent seen. On the other hand, the letter that **** sent you could have been a bluff on the DN issue, however they have terminated the account and asked for repayment of the full balance, which they are not allowed to do without a valid DN.

 

If there never was a DN as they assert then by Terminating the account and THEN issuing a DN dated 21st May, they have gone around it the wrong way and it is I think unlawful recission of contract.

 

You might now need to wait for others to advise where you go from here.

Edited May 28, 2009 by citizenB

[citizenB]

Further, the issue of the agreement/application.

 

It is very likely that the front page is a true copy. The 2nd page however, is probably not what was attached to the back a) because it says bank copy and b) because we now know this was a mailer application form and on the back would have been... an address to return the document.

[jayjay11]

Thanks for your time CB I take it all on board sometimes when doing these things "in bits" over a period you forget to go back on all thats happened Thank you for taking the time to review it I hope now someone can give an opinion on what to do next ... This is an excellent site and you people do lots to help the likes of me, for which i am very greatful ...

[citizenB]

Give it a little while longer, to see if anyone else is able to help out. Site team appear to be well and truly outnumbered today

[lexis200]

I think CB is dead on there. They've terminated before issuing an effective DN, so they've gone and lost rights to claim the balance. In addition,

I think it's unlawful rescission of contract and you would possibly be able to claim for damages. I have no idea how that works though so you'd need to ask someone in the know:)

 

I haven't read your thread yet (only the posts on this page) as I'm being hounded to do some hama bead stuff with the kids (as you do:)), but have you SAR'd them?

 

This should show if they issued a DN before the termination letter that you didn't receive (unlikely but possible), or if they really have been so silly as to terminate months before defaulting you.

 

Like I said though, I think CB is once again spot on with the info given and has found a great bit of ammo for you there!

 

Lexis:)

[jayjay11]

Yep i SAR'd them and they replied 30 Jan No DN in there **** letter terminating dated 21st Jan so If they had issued DN would have been at least 14 days before 21st if im right and would be included in SAR and as the bal of the account is fairly substantial i could be in luck!!

Edited May 28, 2009 by jayjay11
add text

[N.P]

Evening all,

 

jayjay11, here is the sections of the CCA regarding Default Notices.

 

You will note Section 87 (1) states they must issue one before they are entitled to anything.

 

Now, I can`t see anything which states what happens if they don`t issue a DN, and start Legal Action.

 

I have read that once they start any Legal Action, then your account is closed, and without issuing a DN are not entitled to anything, as they forefit their rights to any claim.

 

On the other hand, you go to Court, they say they issued you one, but don`t have any proof, yet a Judge might/will probably take their word for it.

 

If on the other hand, the Judge decides they should have issued a DN, could they then come back and issue one, and then start the claom all over again? I don`t know, because there is nothing regarding that.

 

Perhaps a Legal mind can put our minds at rest on this scenario?

 

 

 

Consumer Credit Act 1974

 

Default and Termination -Default notices

 

Section 87. Need for default notice.

 

(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.

 

(2) Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective.

 

(3) The doing of an act by which a floating charge becomes fixed is not enforcement of a security.

 

(4) Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.

 

Section 88. Contents and effect of default notice.

 

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

 

(a) the nature of the alleged breach;

 

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

 

© if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

(2) A date specified under subsection (1) must not be less than [F1 14] days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those [F1 14] days have elapsed.

 

(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the [F1 14] days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

 

(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply with it [F2 and any other prescribed matters relating to the agreement].

 

(5) A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

Annotations:

Amendments (Textual)

F1

Words in s. 88(2)(3) substituted (1.10.2006) by Consumer Credit Act 2006 (c. 14), ss. 14(1) , 71(2) (with Sch. 3 para. 10); S.I. 2006/1508, art. 3(2) , Sch. 2

F2

Words in s. 88(4) inserted (16.6.2006) by Consumer Credit Act 2006 (c. 14), ss. 14(2) , 71(2) (with Sch. 3 para. 10); S.I. 2006/1508, art. 3(1) , Sch. 1

 

Section 89. Compliance with default notice.

 

If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or © the breach shall be treated as not having occurred.

 

 

 

Hope this helps.

 

 

N.P

[citizenB]

NP, Jay... read the post linked below. This will tell you what they stand to lose if they DO NOT follow the Default / Termination Process correctly.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2166205.html

[lexis200]

Surely if they have no record of issuing one (which should have shown up in the SAR information - either as a copy of a letter or a note on the account), then they would have a hard time proving they did?

 

If a judge did however accept their claim with no proof behind it whatsoever, would you be able to question their decision/make them detail their reasons for it?