VG - Vs Northen Rock - Charging Order

[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

[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

[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

[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

[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

[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

[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

[banker_rhymes_with]

Hello VG!

 

I've checked on the POC and it states

 

"The account is regulated by the CCA 1974 and a DN has been served in accordance with s87 of the act and has not been complied with"

 

Gotya (I think)

 

Yes, that's it in a nutshell.

 

The DN is issued under s87 and must be compliant with s88 if they want to enjoy the benefits of s87.

 

s88 is now 14 Days, by the way, not 7. That they have not allowed, making the DN invalid.

 

If the Claim is asking for the Full Balance, then they regard the Agreement as ended/Terminated, because they know they can only ask for the whole lot if they have ended the Agreement lawfully.

 

What they have yet to find out is they have ended the Agreement unlawfully. But don't tell them just yet, they can find that out when you file your Defence (and Counter-Claim, see below).

 

Indeed, you may be entitled to compensation for Unlawful Rescission of Contract, see below for example:

 

112. Furthermore, the 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 an unlawful rescission of contract which would not only prevent the Court from enforcing any alleged debt that was otherwise only payable in the future, but would give me a right to Counter-Claim for damages, see Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

113. The figure of £5,500 awarded to an individual in Kpohraror v Woolwich Building Society 1996 4 All ER 119 was not interfered with by the Court of Appeal in 1996 and, in today's figures, would be worth substantially more.

 

 

What that means in Plain English: the Agreement was a two sided issue, a two sided Contract that was Regulated by the Consumer Credit Act 1974. That Agreement binds them every bit as much as it binds you.

 

If they elect to pull out of the Agreement without following the clear steps outlined in s87/s88, then they have done so unlawfully. It's a breach of the Regulated Agreement or Contract in other words. That they are not allowed to do, and they are big enough, old enough and ugly enough to know better.

 

That's one to add to the end of your Defence as a Counter-Claim!

 

Cheers,

BRW

Edited December 7, 2008 by banker_rhymes_with
Clarity.

[banker_rhymes_with]

Hello VG!

 

One question, as they have now terminated the agreement by requesting the full amount, albeit under a dodgy DN, can they still issue a correct DN?

 

No, that's the key issue about Termination, as by ending the Agreement, they cannot then issue a fresh Default Notice.

 

The quote below from Surfaceagentx20 put's it very nicely indeed, in far fewer words than I could manage:

 

An ineffective default notice will prohibit the Claimant recovering all those things on which the service of an effective default notice is dependant. In short, the claim will be reduced to just the arrears, See Woodchester v Swayne.

 

By when proceedings have commenced the Claimant will have terminated the agreement. The language of a default notice is framed on the basis there is a current agreement. That language is prescribed. If the Claimant terminated the agreement, to deliver an effective defalt notice will involve the fiction the agreement is current and never terminated. It would also involve the Claimant reinstating unilaterally. The debtor would be unlikely to agree to reinstatement if to do so would cure the Claimant's difficulties.

 

x20

Once the Agreement has ended, the only way they can go back and issue a new Default Notice would be to re-activate the Agreement.

 

They can't do that by themselves, they'd need you to Agree to this, i.e. an Agreement.

 

Unless you wanted to help them fix the mess they have made for themselves, I somehow doubt you would be too keen to Agree to that!

 

However, the tables have turned, and I'm now starting to enjoy this, and looking forward to the day.

Excellent, that's what CAG is all about.

 

If you get the chance, please pass on your own understanding of these issues when you see someone else on CAG struggling with the same problems.

 

People helped me when I needed help, I then helped you in turn and, all being well, you can now help others too.

 

Cheers,

BRW

[banker_rhymes_with]

Hello VB!

 

Which part is incorrect, is it the DN by not allowing 14 days or is it the termination letter?

 

The DN is invalid if it has not allowed you 14 Clear days.

 

The Termination letter cannot really be invalid as such, because it's just a letter to say they have Terminated. In effect, it's just a statement to say they have ended the Agreement. However, that doesn't alter the fact that the Agreement has been ended by them. It's their problem if they have ended the Agreement in a situation that is not ideal for them.

 

Whatever you do, don't ever say the Termination isn't valid! That is just a statement, like being Pregnant. Someone is either Pregnant or they are not, they can't be half Pregnant.

 

They have either Terminated or they have not, a letter is sufficient to say they have and there is no going back from that.

 

Quick summary:

 

With a valid Agreement, and with a valid Default Notice (that you failed to remedy), then any Termination by them would be Lawful. They can then enjoy the benefits of s87.

 

With a valid Agreement, and without a valid Default Notice, then the Termination by them would be Unlawful. They then lose any of the entitlements outlined in s87 because they need a valid Default Notice to enjoy them.

 

Without a valid Agreement, the Default and Termination are irrelevant because there is no Agreement that can be defaulted and there is no Agreement to Terminate...s87 is irrelevent!

 

And how do I get which part they've done wrong over to the judge

 

See the above! Plus my other Posts! The answers to all of this are in my other Posts to you, so it may be an idea to go back and re-read them because you must get the issues clear otherwise you'll have trouble getting them over to a Judge on the day.

 

Cheers,

BRW

[banker_rhymes_with]

Hello VB!

 

OK thanks for that, I did state within my defence that termination was unlawful which I'll now amend.

 

The Termination was Unlawful if they failed to Serve you with a valid Default Notice before they Terminated.

 

I think you may be thinking of Unlawful and Invalid as being the same thing.

 

Don't use the word Invalid when it comes to the Termination, as that suggests it was a mistake and so never happened.

 

You want it to have happened.

 

You can use the word Unlawful, because that doesn't affect the validity of the Termination.

 

It's the same as my Car analogy...just because the speed limit says 70mph, that does not mean someone cannot do 150mph.

 

70mph = lawful

 

150mph = unlawful

 

Both are valid speeds. Doing 150mph cannot be invalid just because it is unlawful. The Car can still do 150mph.

 

In this case, your Lender Terminated, but Unlawfully at 150mph instead of lawfully at 70mph. That's their tough beans.

 

I hope that makes sense!

 

Cheers,

BRW

[banker_rhymes_with]

Hello VG!

 

Sounds OK...maybe spell it out in tiny tot language so the Judge doesn't miss anything:

 

The default letter was issued on xxx, the Formal Demand” / termination letter was issued xxxxx.[Exhibit xxx]. Thus, between the Default Notice issue and termination letter issue exactly 14 calender days elapsed. From this evidence it is quite clear that absolutely no allowance had been made for postal delivery of either letter. The alleged Agreement was therefore terminated less than 14 Days after the Date of Service of the Default Notice, rendering the Default Notice invalid and the termination unlawful. The net effect being that the Claimant cannot now enjoy the benefits of s87.

 

Cheers,

BRW

Edited January 12, 2009 by banker_rhymes_with
Typo!

[banker_rhymes_with]

Hello AA99!

 

I regret have no time at the moment, as will be busy with Accountant now until next week.

 

But s88 sets out how a Default Notice must be set out etc.

 

Am working on a Post that'll try to give you all the best summary I can...i.e. rather than keep spreading my opinions around CAG like confetti!

 

Aim is to keep them in one Post/Thread and then edit in the light of further feedback and understanding.

 

Cheers,

BRW

[banker_rhymes_with]

Hello AA!

 

Don't worry, it changed to 14 Days from 19/12/2006...see below:

 

See: Consumer Credit Act (1974) and related Regulations

 

The PDF you want is Post #4 of the above Sticky Thread, and it's PDF number 6...

 

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.

 

Then look further down to the notes towards the bottom...

NOTES

 

Amendment

 

Para 3: in sub-paras ©, (d) words "not less than fourteen days" in square brackets substituted by SI 2006/3094, regs 2, 3.

 

Date in force: 19 December 2006: see SI 2006/3094, reg 1.

 

I hope this helps.

 

Cheers,

BRW