VG - Vs Northen Rock - Charging Order

[Von Greenbach]

it seems you've been stuffed by CCCS, who basically work for the banks anyway...but that's another story

 

im not sure whether CCCS handling it would be sufficient

I'm at the stage where I'd rather NOT CCCS become involved with my current legal situation anymore.

[creditcardmug]

I'm at the stage where I'd rather NOT CCCS become involved with my current legal situation anymore.

 

Good for you...you can do everything yourself, with help on here;)

[Von Greenbach]

you can do everything yourself, with help on here;)

The problem I have is understanding all the legal bits and pieces.

[creditcardmug]

It takes time, were all still learning, myself included

[Von Greenbach]

I'm starting to understand, albeit slowly

 

This is the DN I've received

http://i372.photobucket.com/albums/oo166/WhatsUp_bucket/NR.jpg

 

There is NO DATE UNDERLINED on it when a) it must be remedied by & b) no specified date:

 

The Act says there must be, as in....

details of the breach (i.e. late payment) and, if the breach can be remedied, the date by which it must be remedied or, if the breach is not capable of remedy, the amount required to be paid after the expiry of the specified date;

 

My question, is it a winnable case if I ask for it to be dismissed / set aside?

 

I just checked on OFT site at this:

 

6 DEFAULT AND ENFORCEMENT NOTICES

 

6.2 The requirements are set out in the Consumer Credit (Enforcement,

Default and Termination Notices) Regulations 1983.49 In particular, the

default notice must indicate:50

• a statement indicating the debtor's right to apply to the court for a

time order, giving more time to repay the debt

 

The above bullet part is missing of my DN

 

Does that matter?

Edited December 6, 2008 by Von Greenbach
Paragraph Added

[SteveH2508]

Paragraph 8 of the DN you posted covers the Time Order statement.

 

"... YOU CAN APPLY TO THE COURT WHICH MAY MAKE AN ORDER ALLOWING YOU OR ANY SURETY MORE TIME"

 

The lack of a specific date to remedy by might be an angle to pursue - it would need some careful research/discussion.

[Von Greenbach]

The lack of a specific date to remedy by might be an angle to pursue - it would need some careful research/discussion.

I'm hoping someone with more knowledge than me to give their opinion.

[Von Greenbach]

I would consider a complaint to NR and your MP, especially in light of the pressure being put upon other 'nationalised' banks.

At this stage, I've not made an official complaint to NR, is it worth me drafting up a complaint letter?

 

Although I did visit my MP last night, surfice to say, he didn't even know what a CO was, let alone the action being taken, not sure there is anything he can do, as he only commented on the new rules introduced by the PM on Wednesday about some 2 year thingy or other, I think he's referring to the mortgage business, I tried to explain that an unsecured debt was being turned into a secured debt, I guess it's something he has no idea about, or the effect it's having on me.

[Von Greenbach]

Over the last few days I’ve done a lot of research on here in preparation for a defense with the above, I now feel ready to begin.

OK, firstly, I’ve requested my CCA from NR, the 12+2 days expire the end of this week, should I wait and see if they reply to my CCA request or send a CPR of now?

I have a DN, but that in itself is questionable

Is the CPR the one published by 42Man?

[banker_rhymes_with]

Hello VG!

 

I'm hoping someone with more knowledge than me to give their opinion.

 

I think the bottom line must be that they must have allowed you 14 Clear Days from the Date of Service.

 

That should be the killer for them, so stating an actual Date or stating that you must remedy the default within x Days of the Notice, say the same thing in effect.

 

The question to ask has to be...have they allowed you the Statutory time of 14 Clear Days (as your Default Notice was issued since the 7 Days were increased to 14 Days).

 

If they have said you must remedy within 14 Days of the Notice, then however you look at it, that cannot allow 14 Days if the Notice was sent to you via Post.

 

They have not allowed for Postage.

 

To further complicate the issue for them, Postage is based on when the Notice was sent and how. It is not based on the Date of the Notice, although that is probably what the Court will use in the absence of any other evidence...such as the Enevlope the Notice was sent in, for example!

 

So, KEEP ALL ENVELOPES!

 

If the Notice was indeed Posted on the same Day that it was Dated, and if it was sent via 1st Class Post, then the Date of Service is based on that. Likewise 2nd Class Post.

 

1st Class Post = 2 Working Days after Posting.

 

2nd Class Post = 4 Working Days after Posting.

 

Surfaceagentx20 suggests the following is the best reference to quote to pin down the above:

 

Click here to read the full details.

 

Council Tax Manual - Section 3 - Appendix 3.6 - Service of documents by post

 

Appendix 3.6 - Service of documents by post

 

All Text Amended

 

1. Interpretation Act 1978, Section 7

 

This states:-

 

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

 

2. Practice Direction

 

Service of Documents - First and Second Class Mail

 

"With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

 

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.

 

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

 

4. This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8 March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

This is why keeping the Envelopes can prove vital, especially if they used 2nd Class Post!

 

I hope this helps.

 

Cheers,

BRW

[banker_rhymes_with]

Hello VG!

 

Just to let you know I've Posted some additional details about your Default Notice on your other Thread:

 

Re: Is this default notice correct

 

Cheers,

BRW

[Von Greenbach]

Hi BWR

 

Thanks, did you see my post in the Amex thread further down the list?

[banker_rhymes_with]

Hello VG!

 

If you mean the Thread below, then yes, see my response there:

 

Amex Default Notice / Cancellation Help Please

 

Cheers,

BRW

[banker_rhymes_with]

Hello VG!

 

Thanks for the Click, and further to your question, I think your Default Notice is invalid.

 

A Default Notice issued in 2008 has to allow 14 Clear Days from the Date of Service, and they have not allowed that.

 

The next issues to examine are how they have set out the Notice, and if they used the Prescribed wording. I haven't had a close look, but it looks OK at first glance.

 

Then the other issue to examine is the Arrears Total, is that accurate, does it include any Unlawful Charges or mis-sold PPI for example, or did the main Balance include them and were the Monthly Payments/Arrears inaccurate as a result because they are based on a percentage of an inaccurate main Balance.

 

Any one of the above issues should render a Default Notice invalid, but pick any two or any three, and they cannot argue.

 

In your case, the 14 Days is the main issue, but always try to find other issues to support that, just to help make it clear the Notice is flawed.

 

Cheers,

BRW

[Von Greenbach]

I'm learning from your help advice here.

Then the other issue to examine is the Arrears Total, is that accurate, does it include any Unlawful Charges or mis-sold PPI for example, or did the main Balance include them and were the Monthly Payments/Arrears inaccurate as a result because they are based on a percentage of an inaccurate main Balance.

It just has an amount on the DN, the anount is not broke down.

 

I do have arrears because I'm on a DMP

[banker_rhymes_with]

Hello VG!

 

Further to your question on the other Amex Thread, I'll answer that here, to keep this together for you:

 

OK, couple of things:

 

I've not had a termination letter

 

That DN does not state they will terminate my agreement

 

I'm not bothered about court action, however, I'm am desperate to stop them obtaining a CO

 

Based on that DN, would they be able to continue with their court process in applying for a CO?

 

I regret I'm not fully up to speed on your position, but the Termination is key, because until they Terminate, they could have the option to issue a valid Default Notice. Technically, the Agreement is still live and has not ended, so there is probably nothing to stop them issuing a valid Default Notice.

 

However, Termination can take the form of a Letter telling you this, or a move on their part to ask you for the main Balance. If the main Balance was not otherwise due, and they suddenly ask for it, then that is clear evidence that they regard the Agreement as ended.

 

While the Agreement was live, you had the Right to Pay off the Balance via Monthly Payments...stretching out into time. They did not have the Right to ask for the full Balance whilst the Agreement was live.

 

Thus, asking for a sum that was not otherwise due, such as the main Balance, is confirmation that the Agreement, at least from their point of view, is ended. IOW, it has been Terminated.

 

If it has been Terminated, and all they have is an invalid Default Notice, then they have thrown away any entitlement to enjoy the benefits of s87. That being the Right to ask you to Pay the main Balance that was not otherwise due.

 

Cheers,

BRW

[Von Greenbach]

However, Termination can take the form of a Letter telling you this, or a move on their part to ask you for the main Balance. If the main Balance was not otherwise due, and they suddenly ask for it, then that is clear evidence that they regard the Agreement as ended.

Brilliant

 

OK, at the top of the DN = Balance - they've quoted the full amount

 

Further down the DN = arrears = they've quoted the arrears.

[Von Greenbach]

I just checked my DN and is states

 

“You are required within 14 days of this notice to remit direct to NR PLC the full arrears amount stated”

 

So, it looks like they’re only asking for the arrears

 

If so, why are they requesting a CO for a small amount?

 

Which means, the DN could be valid.

[banker_rhymes_with]

Hello VG!

 

It just has an amount on the DN, the amount is not broke down.

 

I do have arrears because I'm on a DMP

 

I regret this is where you need to get a handle on the figures, and see if you can analyse the Debt yourself.

 

To do that, you would need all of your Statements, and a Spreadsheet or Home Accounts Package would be useful.

 

The key is to get a handle on every Transaction, and give each a Category so that you can see how the big numbers stack up.

 

This may help, it's something I've said to a few people to help them get a handle on what, if anything, they owe:

 

Now, take a step back. Think back to when you first signed up for that Card. Did you approach them totally out of the blue? Did you have to hunt and hunt to find them? No, they will have made it all too easy for you to Apply for that Card.

 

Soon enough, you had that Card in your hot little hands, and then you were off Spending that Limit.

 

You were also Paying it back too, every Month.

 

I bet they raised your Limit a few times?

 

I also bet they raised your Interest Rates a few times?

 

Have a good look at your Card Statements, and start to add up the big numbers:

 

A = Total Purchases (not including Interest, Penalty Charges and Fees).

 

B = Total Interest.

 

C = Total Penalties.

 

D = Total Fees and other Charges like Credit Card Cheque Handling Fees.

 

E = Total Repayments.

 

Take a look at A and E. I bet you have Paid them more than you have Spent. If so, then they have their Money back already.

 

Now add up B+C+D. Add that to A, and then take away E. The figure is the outstanding Debt on your Card.

 

In most people's case, that Debt is made up almost totally of charges.

 

So, you've spent a lot of money, and you've probably Paid back at least as much. And yet you want to go back and Pay them all of that Interest and all of those Charges?

 

If you have the detailed figures available, then you can start to see how your Arrears were made up. If you were late Paying them, or over-limit, then it's likely they would've added Charges to your Account.

 

The key is to work out what they come to, so that you can see how and by how much they affected the Monthly Payments they wanted. If those Charges made it harder and harder for you to Pay the Monthly Payments, then you would end up missing some, and those would become Arrears.

 

Eventually, they'd issue you with a Default Notice to warn you what they wanted you to Pay to catch up, and that should be the Arrears Amount they stated on the Notice (and they may also show the Balance too, but they are usually not asking for that on the Notice).

 

For the Default Notice to be valid, that Arrears Amount has to be accurate...at least to a reasonable degree. A few pence out won't matter, but beyond that, it could invalidate the Notice if the Arrears Amount is a long way from what you actually owed in Arrears.

 

In Woodchester v Swayne and Co 1998 the Default Notice Arrears were mistated by 38.71%, rendering it invalid. So, any Notice that is out by that amount will be regarded as Invalid based on that Case History.

 

The question then remains how far out does a Notice need to be? There is no easy answer, but I'd think a few pence would not count, although it could be argued that a bank should know the Arrears down to the last Penny.

 

I hope the above helps.

 

Cheers,

BRW

Edited December 7, 2008 by banker_rhymes_with
Clarity

[Von Greenbach]

OK thanks

I regret this is where you need to get a handle on the figures, and see if you can analyse the Debt yourself.

 

To do that, you would need all of your Statements, and a Spreadsheet or Home Accounts Package would be useful.

 

To do that, should I send a CPR or SAR?

 

SAR is against me, my hearing is January

[banker_rhymes_with]

Hello VG!

 

So, it looks like they’re only asking for the arrears

 

Yes, the Default Notice states the Balance, but they are only asking for the Arrears stated on the Notice.

 

The Notice is not asking for the main Balance, so is not Termination.

 

If so, why are they requesting a CO for a small amount?

No idea, I'd have thought they'd be asking for a Charging Order based on the whole outstanding Balance.

 

Which means, the DN could be valid.

 

No, asking for a Charging Order doesn't say anything about the validity of the Default Notice. Although it may be saying they think the Default Notice is valid. I stress think, they probably do not yet know that it is invalid.

 

So, do not tell them it is invalid until they Terminate. You need a Letter saying they have Cancelled/Terminated the Agreement, or you need a Request from them to Pay the whole Balance, which would be the same thing.

 

To do that, should I send a CPR or Subject Access Request?

 

Subject Access Request is against me, my hearing is January

 

If they have started Court proceedings, i.e. you have a Claim against you, then you should be able to use CPR.

 

If not, then send them £10 and go for this information via Subject Access Request.

 

Cheers,

BRW

Edited December 7, 2008 by banker_rhymes_with
Space removal

[Von Greenbach]

If they have started Court proceedings, i.e. you have a Claim against you, then you should be able to use CPR.

Yes they have, do I send the CPR to Eversheds (Solicitors) or NR?

[banker_rhymes_with]

Hello VG!

 

Yes they have, do I send the CPR to Eversheds (Solicitors) or NR?

 

If Eversheds are the Solicitors acting for NR, then send your CPR Request to them.

 

I regret although I've heard of Eversheds, I am not that familiar with them, so don't know if they are real Solicitors or just a DCA pretending to be Solicitors.

 

But if the Claim was made by them on behalf of NR, then it's likely they are indeed the Lawyers handling the Claim for NR, so just deal with them directly.

 

Cheers,

BRW

[Von Greenbach]

Thanks BRW

 

Can someone with experience with DN please clarify this, the DN states balance = £20K+ - arrears state £500.

 

It seems very, very strange to me that NR are pursuing a CO for such a small amout £500, the DN clearly states they are only chasing the arrears here it is again http://i372.photobucket.com/albums/oo166/WhatsUp_bucket/NR.jpg

 

Could this be another error within the DN, or is it common practice to obtain a CO for £500.00?

 

How can a DJ grant a CO for such a small amount?

[banker_rhymes_with]

Hello VG!

 

Please understand that the Default Notice is the step they need to take to become entitled to the benefits of s87. Click the following to read what any Section actually says:

 

Consumer Credit Act 1974

 

Once they think they have issued a valid Default Notice and you have not Paid the Arrears they wanted, then they'll think they can enjoy the benefits of s87 and push on to ask for absolutely everything. That is why they mention the Balance.

 

The usual is after a week or so from the Deadline stated in the Default Notice, they will make moves to grab the lot.

 

The Default Notice should not be relied upon as saying they only want the Arrears.

 

The point is they can only ask for the Arrears in the Default Notice. After the expiry of the Deadline, they can then ask for everything.

 

They need you to blow the request for those Arrears so that they can move on to grab the lot, because s87 then allows them to do so.

 

The Charging Order Claim should state what they are after, which I would think would be the Total Balance, i.e. the Balance which will include the Arrears.

 

To stress, before Termination, they can only chase you for the Arrears, but after lawful Termination, due to s87, they can then chase you for the lot.

 

The Default Notice is just a stepping stone towards a greater goal for them. Once you fail to pay the Arrears demanded, then they can and will move in for the lot.

 

However, this is also the problem for them, because they have issued an invalid Default Notice.

 

If they have Terminated, then they have lept out of the Agreement leaving behind any Right to ask you for the main Balance. The benefits of s87 are now denied to them.

 

The key is now Termination. If they have not Terminated, then they could, in theory, just issue a valid Default Notice.

 

If they have Terminated, then all they can run with is the Default Notice they have, and that is invalid. They can bend over and kiss goodbye to s87 in that case.

 

In summary, the Default Notice is a stepping stone. Just because it says they only want the Arrears, does not mean they will only ask for that after the Deadline has passed. They will want the lot.

 

Your Defence to that is the Default Notice is invalid, so they are now only able to ask for the Arrears. Indeed, to ask for the Arrears means they must have an Enforceable Agreement in the first place. Without that, they cannot even ask for the Arrears.

 

Your task now is to outline the Charging Order Claim, and set out exactly what they have sent you, so that a Defence to this can be discussed and prepared. My guess is they'll be after a Charging Order for the full balance.

 

Cheers,

BRW