lowells again

[bazaar]

Silver I Just flagged it on red triangle

[silverfox1961]

Thank you so much. I've only been here 5 months. you would think I'd get the hang of it by now

[42man]

I would change 'demand' to requests.....

 

By virtue of the fact that they sent you a default notice to the wrong address (and you have proof from your SAR that you supplied them with your new address) i'd pretty much say they were in a spot of bother !!

[42man]

A sentence outlining that they are obliged by law to comply with the CPR too....

[42man]

Not sure if you want to include this too...

 

• Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974
  

Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

[silverfox1961]

Not sure if you want to include this too...

 

• Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974
  

Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

 

42man, thanks for that. I will certainly include the above and the extra info in your previous post.

 

fox

[42man]

I do not consider this an unreasonable demand given that supplying me with the documents requested will allow me to assess if my case has merit and help resolve matters without the need to involve the court and obviously save costs on both sides.

 

 

Might be worth deleting this as it isn't a case of being 'reasonable' it is a LEGAL request.....in fact change 'demand' to 'legal request'

[42man]

Please confirm if you still hold a copy of any signed agreement and that you will provide me with this document and any other document you seek to rely on should court action become necessary.

 

As you haven't issued a court claim as yet, you can't ask them for this....

[42man]

Top of the page write REQUEST FOR INFORMATION - Civil Procedure Rules 31.16

[silverfox1961]

Top of the page write REQUEST FOR INFORMATION - Civil Procedure Rules 31.16

 

 

Now I'm confused.

 

should i replace "Letter Before Action" with the above or include it under the main heading??

[Dorabell]

subbing:)

[lunar jim]

Like it, I'll sub to this as it might apply to me when my SAR bundle arrives

[silverfox1961]

Sorry to anyone who reads any of my previous posts. I deleted them to avoid confusion.

 

This is the latest draft after a hell of a lot of input from 42man( got to spread the rep before I can click you again )

 

 

 

LETTER BEFORE ACTION

 

 

REQUEST FOR INFORMATION- CIVIL PROCEDURE RULES 31.16

 

 

Dear Sir/Madam

I am in receipt of your letter dated *th February 2009. The contents are noted. In your letter you state that this was your final response. It may be your final response but it isn't mine.

 

 

In your letter dated **th December 2008 you state that a Notice of Assignment dated ** February 2007(which in a letter dated **rd December I informed you I had not received), was sent to me in accordance with section 136 of the Law of Property Act 1925 and as you are relying on the Act to enforce debts you should also be aware of section 196 which I reproduce verbatim below,

 

 

196 Regulations respecting notices

 

 

 

1. 
   


1. 
   
   1. Any notice required or authorised to be served or given by this Act shall be in writing.
      
   2. Any notice required or authorised by this Act to be served on a lessee or mortgagor shall be sufficient, although only addressed to the lessee or mortgagor by that designation, without his name, or generally to the persons interested, without any name, and notwithstanding that any person to be affected by the notice is absent, under disability, unborn, or unascertained.
      
   3. Any notice required or authorised by this Act to be served shall be sufficiently served if it is left at the last-known place of abode or business in the United Kingdom of the lessee, lessor, mortgagee, mortgagor, or other person to be served, or, in case of a notice required or authorised to be served on a lessee or mortgagor, is affixed or left for him on the land or house or building comprised in the lease or mortgage, or, in the case of a mining lease, is left for the lessee at the office or counting-house of the mine.
      
   4. Any notice required or authorised by this Act to be served shall be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.
      
   5. The provisions of this section shall extend to notices required to be served by any instrument affecting property executed or coming into operation after the commencement of this Act unless a contrary intention appears.
      
   6. This section does not apply to notices served in proceedings in the court.
      

    

    

   (Crown copyright)

    

    

   I specifically refer you to subsection 4 of the above section where it states letters are to be sent by registered post. In your letter dated **th January you stated that the Letter of Assignment was sent to me by second class post. Your own acts render this Letter of Assignment invalid and as such, you had no lawful right to be collecting on the alleged debt. I put you to strict proof the letter was actually sent. By re-sending a Notice of Assignment by registered post does not make a previously unlawful notice, lawful.

    

    

   I refer you to your letter dated **th January 2009 where you state that the default notice was sent to me at (an address I lived at) dated **th May 2004 and also that Capital One did not appear to have received my letter telling them I had moved to( another address). I recently sent Capital One a Subject Access Request under the Data Protection Act 1998 and received back various documents including the letter I sent them dated **th February 2004, stating (that address).(copy of letter enclosed) The letter also included a correspondence address (copy enclosed) which Capital One chose not to use apart from one letter dated **th March 2004 which I could not respond to as I had moved again

   Due to Capital One sending a default notice to an address they knew I wasn't at invalidates that notice and makes it unlawful.

    

    

   Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974

   Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

    

    

    

   This repudiates your claims in paragraph one of your letter. Therefore you have no lawful reason to be processing my data and my previous demands that you remove and destroy ALL data about me stands. This request is made under section 10 of the Data Protection Act.

    

    

   I make this request pursuant to Civil Procedure Rules 31.16 (pre-action protocols) of you to supply me with a “true copy” of any agreement I signed as I have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed. This request is NOT being made pursuant to sections 77/79 of the Consumer Credit Act 1974 and therefore an unsigned copy OR application form will not suffice, only a copy of the original contract in its unaltered form will suffice in these circumstances. You are legally obliged to comply with the Civil Procedure Rules.

    

   I have already complained to the Information commissioner and the Financial Ombudsman and I shall be forwarding copies of this letter to them and to Trading standards, The Office of Fair Trading and my MP.

    

    

   It is reasonable, under Civil Procedure rules(pre-action protocols), to give you twenty one days to respond to these requests. Should you choose not to comply, then I will make a copy of this letter to the court to demonstrate my attempts at resolution before commencing litigation.

    

    

    

    

   Yours Faithfully

    

    

    

    

    

    

    

    

    

    

    

    

   how's it look so far. I'm going to keep researching over the weekend and then send it on Monday

    

   fox

   
   

Edited February 20, 2009 by silverfox1961
Abridged it slightly. easier to read???

[MARTIN3030]

Its still a little long winded-particularly the last bits.

There are 2 paragraphs that you can address simply by saying that Under Civil Procedure Rules (pre action protocols),that you consider such requests to be appropriate.Should they choose not to comply,then you will be making a copy of this letter available to the Court,to demonstrate your early attempts at resolution before commencing litigation.

[silverfox1961]

Thanks for your input Martin.

I do have this nasty habit of using 100 words when 50 will do. I'll take on board your recommendations and see if I can abridge it slightly. I just want to make sure I get my message across.

 

fox

[silverfox1961]

I have edited post 263 above a little after listening to Martin. I hope it is a bit better now :-|

[ODC]

You could always send the ODC condensed version.

 

Dear Cretins

 

NOA not properly served.

 

You shouldnt be processing my data

 

Youre stuffed

 

Pay Up

 

Yours etc

[silverfox1961]

You could always send the ODC condensed version.

 

Dear Cretins

 

NOA not properly served.

 

You shouldnt be processing my data

 

Youre stuffed

 

Pay Up

 

Yours etc

 

 

Ahh ODC,

I can always rely on you to be succinct and to the point

If only it was that easy.

It's so very hard trying to find words of one or two syllables that our friends in Leeds understand.

[volvo]

Only subbin

[silverfox1961]

Good afternoon to all and sundry and especially those that have helped me with the above letter.

 

Unless anyone else has any comments about the letter (post 263) I'm going to send it( with one or two minor adjustments) tomorrow.

 

I keep reading it and each time I do it boosts my confidence. Wierd?

 

Thanks everyone

 

fox

[silverfox1961]

Morning everyone.

 

Letter sent half an hour ago. Lets see what they come back with.

 

On to other stuff.

In the covering letter from Cap1 re: my SAR they state that they are continuing to process my data. As they have sold my account to the Leeds losers, Cap1 shouldn't be doing more to the account.

 

They also sent me a statement summary which shows activity from 2000 to March 04 but then it restarts from April 2008 right up until the beginning of this month. What's going on here.

 

After reading the screenshots of my account it states returned mail on 29th May 05 yet the default notice that was sent to the wrong address is dated 28th May 05. I'm wondering if it is the default notice that was returned as they haven't included it in my bundle. if that is the case, was the DN improperly served by virtue of it being returned as well as being sent to the wrong address.

 

This also raises another question. If the default notice was dated 28th May 05 it would take a couple of days to get there so how could it be returned on the 29th. They haven't included any other letter which could relate to any date before that.

 

I think another letter to Ellie is in order.

 

I hate being confused:(

 

fox

[bazaar]

Hi Silver,

Maybe you need to hold off sending them anything that would give them a heads up.

Far better to refute any claims with real facts later on, Its not your job to prove them wrong.

[silverfox1961]

Hi Silver,

Maybe you need to hold off sending them anything that would give them a heads up.

Far better to refute any claims with real facts later on, Its not your job to prove them wrong.

 

Fair point.

 

I wasn't going to send Cap1 anything until Lowells got back to me (should have worded it better)

 

If the letter I sent Lowells has the desired effect then I won't need to do anything else.

 

fox

[fiftypence]

Morning everyone.

 

Letter sent half an hour ago. Lets see what they come back with.

 

On to other stuff.

In the covering letter from Cap1 re: my SAR they state that they are continuing to process my data. As they have sold my account to the Leeds losers, Cap1 shouldn't be doing more to the account.

 

They also sent me a statement summary which shows activity from 2000 to March 04 but then it restarts from April 2008 right up until the beginning of this month. What's going on here.

 

After reading the screenshots of my account it states returned mail on 29th May 05 yet the default notice that was sent to the wrong address is dated 28th May 05. I'm wondering if it is the default notice that was returned as they haven't included it in my bundle. if that is the case, was the DN improperly served by virtue of it being returned as well as being sent to the wrong address.

 

This also raises another question. If the default notice was dated 28th May 05 it would take a couple of days to get there so how could it be returned on the 29th. They haven't included any other letter which could relate to any date before that.

 

I think another letter to Ellie is in order.

 

I hate being confused:(

 

fox

 

I would think that is a text book version of how to fail at serving a DN

[silverfox1961]

hi fiftypence,

I'm going to wait until I get a reply from Lowells (if at all) before I attack Cap1 again. I suspect they haven't sent me all the paperwork.

 

Mind you, reading the screenshots needed a magnifying glass as they put two on each page. Deliberately small?? still trying to understand all of the codes even with the booklet of terms supplied