Taz11 v Co-Op Enforceable cca ??

[Taz11]

Having now read the link again, I have noticed that the first two letters are merely REQUEST letters for the correct documentation. I'm assuming the N244 Application notice is where it starts to get sticky??, and will envoke court action ??? Still learning I'm afraid

[citizenB]

Hmmm, right.

 

When approached via the CCA request, then a creditor can in fact omit certain things such as signature boxes, although I find that strange.. if the document exists then why not just whack out a copy on the photocopier and send it immediately. That would stop the account holder in their tracks unless there is something seriously dodgy with the agreement in the first place..

 

But it would seem that a lot of older documents have either been lost or shredded. Almost certainly, a lot of the older documents werent up to scratch in the first place.

 

Yes, you are correct in thinking that the CPR route is usually used for requesting documents when a claim has been instigated by the Creditor or whoever. That is CPR18. Mostly ignored by creditors until such times as they are ordered to divvy up by the court.

 

The one Paul has found is before any court action has started. Basically, what you are saying is.. I think there might be something wrong with the document you say you hold, therefore please provide me with a copy in order for me to assess the situation without the need to go to court.

 

If you feel more comfortable taking a less confrontational route first then perhaps something along the lines of:

 

Dear sir/ Madam (or the name of the body on the letter)

 

ACCOUNT NOS

CARD NO 1

CARD NO 2

 

I wrote to you on XX XXXX XXXX requesting copies of agreements for the above accounts under the Consumer Credit Act 1974. The fee of £1.00 was enclosed for each account.

 

Today, I received your response dated 7th January 2009.

 

One sheet of paper, which by it's lack of heading doesnt really tell me very much at all and certainly couldnt be applicable for both accounts, could it?

 

I would also point out there is a noticable absence of prescribed terms and both historic and current terms and conditions. I understand a statement of account should also be provided for each account.

 

I am also puzzled by the notation at the bottom left of the document, which implies that this was a request made under the Data Protection Act 1998 (Subject Access Request), which of course is not correct. Perhaps you can advise

 

I do not consider you have fully complied with my request of XX XXXX XXXX and would ask that you now provide me with the documents I requested for both accounts.

 

I look forward to receiving these within 10 days.

 

Yours faithfully / sincerely

 

you can actually put whatever timescale you want here.. from 7 - 14 is usually acceptable. Make sure you send by Recorded delivery so you can check when received so you know when you can expect to be in possession of the paperwork.

 

There are plenty of letters on the forums which details what a creditor can and cant do in the absence of a compliant agreement.. I think it might be a good game plan to save that until you see what reaction you get from a more gentle nudge that they havent provided what you want.

[citizenB]

Having now read the link again, I have noticed that the first two letters are merely REQUEST letters for the correct documentation. I'm assuming the N244 Application notice is where it starts to get sticky??, and will envoke court action ??? Still learning I'm afraid

 

Yep, you are correct. Dont worry.. there is a lot to take in and it will take several readings to absorb even a tiny bit of the information available to you on the forums.

 

You can subscribe to threads by clicking on the Thread Tool button at the top of each thread page, there is a drop down menu, just hit the subscibe button, you will then get the subscribe to page just click on that and it will be added to your subscribed list. Which you will then find by clicking on User CP at the top left of the screen. If you post on a thread, you will automatically be subscribed to that thread.

[BlueSquirrel]

I have now had a copy of an application form with no prescribed terms and a blurry t & c in response to my CCA request.

[Taz11]

Having sent co-op the letter explaining that what they have sent does not constitute a properly executed copy of my original agreement(s)...i.e no prescribed terms, no heading etc... they have sent me a default notice. Could anyone advise if this is indeed executed correctly.

 

I have requested cca for two separate accounts, and as you can see in my previous post they have tried to combine one agreement with two accounts??? er??? I don't think so!!!!.

 

thanks

 

Taz11

 

[Taz11]

anyone please ??, Is it executed correctly??. If it is, they have sent this whilst the account is still in dispute.

 

 

thanks

 

Taz11

[Taz11]

sorry for obvious bump, but would like to know if the notice is correct and what my reply should be??

 

thanks

Taz11

[ltc1607]

sub

[cosalt]

Hi Taz,

 

In the arrears on the default notice, are there any penalty charges included in the amount?

 

I have a few default notices which do include charges and I am pretty sure this is wrong.

[citizenB]

Hi Taz,

 

SOrry not been around for a few days.

 

Right .. there are just 28 days in February this year and your letter is dated 24th. The remedy date is 10th March therefore your DN is invalid as the remedy date has to be 14 days AFTER service, not from the date of the letter. There should have been a minimum of 2 days for posting more if it was sent by 2nd class post.

 

Cosalt has already asked if there are charges/late payment fees in the balance. You should be able to work this out from the last statement you received from them. That will give you 2 sticks to beat them with

 

Also, if you have a copy of the prescribed terms or the original T&cs which I am pretty sure you dont. You want to make certain that the clause (7.2) they say you have defaulted on is actually correct.

[Taz11]

Hi CB,

 

Good to have you back . Hope you got your broadband sorted

 

Thanks for your input and advising that the DN is invalid. As you rightly suggest I have no T&C's. All they sent was an app with no heading, printed one side...........and according to them it was valid for two accounts......er??? I don't think so.

 

Hope you are ok

 

Taz11

[citizenB]

Hi CB,

 

Good to have you back . Hope you got your broadband sorted

 

Thanks for your input and advising that the DN is invalid. As you rightly suggest I have no T&C's. All they sent was an app with no heading, printed one side...........and according to them it was valid for two accounts......er??? I don't think so.

 

Hope you are ok

 

Taz11

 

Yes, thank you

 

:confused: And we wonder how the financial industry got itself and the country into the mess it is in ???

[Taz11]

Well apparently they have terminated my account, whatever that means ??? passed on/sold ??? I'm not quite sure.

 

Received yesterday;

 

 

 

I am getting rather fed up with this tit for tat letter writing as they seem to ignore everything you send to them.

 

Thanks Taz11

[citizenB]

Well in part this is good news. The default notice invalid and now they have terminated the account on the back of that. I will try and find an excellent summary by BRW and Surfaceagentx20 of the pickle the Coop now find themselves in

 

BRB

[citizenB]

I have put the link, and carried forward the information in that link. You might want to go and have a looksee on that particular thread

 

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

 

The clue is contained within s87(1) of the Act:

 

Quote:

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.

 

If you think this through, the Agreement will require you to Pay them something as it runs, and those Payments are Payable as they fall due. Let's say you are required to Pay them £100 a Month.

 

However, the actual Balance of the Account is not due, as you are busy Paying that off. Let's say that is £5,000.00.

 

If they feel you have ratted on the deal, i.e. you have failed to Pay them the regular amounts expected as they fell due, then the Creditor is allowed to chase you up for these due Payments.

 

To do this, they must follow the required steps as outlined in s87 and s88, and issue you with a Default Notice making it clear what you have done wrong so far, i.e. you've missed the last 3x £100 Monthly Payments for example, so you owe £300.

 

What you owe at that point is just the Arrears of £300, the rest of the Balance is not due at that point, although you do owe it to them, it's just something that is payable in the future (that's assuming you can find £300, kiss and make up, and the Agreement carries on again as if nothing had happened).

 

Thus, the Default Notice is a warning to say what you must do to put things right. It must state what you have done wrong very accurately. It must also be set out in the Prescribed Form. It must also say what you need to do to correct the default, and finally it must give you 14 clear Days from Date of Service to do what they ask. That would be from the Day they hand it to you, or 2 Days after Posting if it's sent via 1st Class Post and they can prove when they sent it.

 

Let's assume now that they want Arrears of £300. If you don't Pay that within the Default Period then, once you go past that, they can Terminate the Agreement, and only then seek early Payment of the rest, i.e. the Arrears and the Balance that was otherwise not due until they Defaulted and Terminated.

 

I believe they must get this right, or else they risk Terminating the Agreement unlawfully, and thus they throw away their Right to ask for early Payment of an amount that was only ever due in the future. Once the Agreement is Terminated, then that should be that. They should not be allowed to turn back time to have another go at getting the Default Notice and Termination right.

 

So, if you follow this, they should not ask for more in the Default than you were required to Pay at the time the Default was issued. That would be the Arrears you have failed to Pay on time, not the Balance still to Pay in the future.

 

Sadly, too many Creditors are using Defaults (the thing that happens after the Default Notice) as a threat, and as an unofficial County Court Judgement.

 

They are using the Threat of a Default as a means to extract Payment. This is clearly not acceptable, because they are abusing the lawful purpose of a Default. Section 87 and s88 make it quite clear what a Default Notice and Default are intended for, and it is plain that these were never intended by Parliament to be used as an arbitrary punishment to replace a proper Hearing in a County Court. A Default Notice and Default are required stages that must be followed should a Regulated Agreement require Lawful Termination once a Consumer is in default of the agreed terms and has been unable to remedy the default to negate the Default Notice. These steps are required to allow the Creditor to seek early Payment of the balance of the alleged Debt, they were never intended to be used as convenient punishments to trash your Credit for 6 Years!

 

I hope this helps.

 

Cheers,

BRW

[citizenB]

This one posted by andyorch

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1604130.html

 

 

In addition:-

 

What might constitute an unenforceable default notice will include any of the following:-

 

Wrong name of debtor, incorrect spelling, no name.

No name of creditor, incorrect spelling.

Wrong address of debtor, incorrect spelling, no address.

Wrong address of creditor, incorrect spelling, no address.

Wrong a/c number, no a/c number.

No date and or the wrong or no prescribed time for compliance with the DN.

An incorrect amount stated to remedy the contractual breach, which for example would include an amount that includes penalty charges.

The specific details of the breach are not explained.

It is not clearly stated that it is a default notice.

 

These are just some examples, there are others concerning layout and content, just as with credit agreements, so everyone should scrutinise DN's very carefully indeed! I don't think I have seen one DN that has been valid and I have seen plenty. They have all been faulty in some way. Given the serious consequences of being defaulted it is vital that the DN is examined for defects.

 

In any Court claim as part of a c/c, damages should be sought for unlawful termination of the contract, where it is found to be faulty in some way.

 

I hope this is useful.

[Taz11]

Hi CB, hope you are well and ok

 

Haven't been on for a couple of days, one of my sons friends was involved in a serious car accident and is critical and another has sadly passed away :(

 

Really shaken my son up, and you don't realise what feelings they really have at 15/16 yrs of age. Been a shock to a lot of people in the area.

 

 

I haven't actually received anything through the post apart from this and one from MBNA.

 

Thanks again

TAZ11

[citizenB]

Here are a few more links for you.

 

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

 

The above link contains a post by BRW.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1910254.html

 

Originally Posted by 42man

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

 

 

Quote:

SCHEDULE 2

FORM OF DEFAULT NOTICE BEFORE A CREDITOR OR OWNER CAN BECOME ENTITLED, BY REASON OF ANY BREACH BY THE

DEBTOR OR HIRER OF A REGULATED AGREEEMENT, TO TERMINATE THE AGREEMENT, DEMAND EARLIER PAYMENT OF ANY

SUM, RECOVER POSSESSION OF ANY GOODS OR LAND, TREAT ANY RIGHT CONFERRED ON THE DEBTOR OR HIRER BY THE

AGREEMENT AS TERMINATED, RESTRICTED OR DEFERRED OR ENFORCE ANY SECURITY

Regulation 2(2)

Details of agreement

 

1

A description of the agreement sufficient to identify it.

 

Parties to agreement

2

(1) The name and a postal address of the creditor or owner.

(2) The name and postal address of the debtor or hirer.

 

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.

 

relevant case law is this too...

 

DEFAULT NOTICE

 

 

The Need for a Default notice

Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the petition.

It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

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

 

Consumer Credit Act (1974) and related Regulations

 

Comments from x20

 

If a default notice is prepared and delivered so as to create a situation where less than 14 days is expressed to be available for the debtor to meet the requirements of the DN, the DN is ineffective. The DN is a powerful tool in the creditor's armoury though it was created within a statutory framework designed to provide consumer protection. As such the DN must pass the requirements of section 88 Consumer Credit Act 1974.

 

The period of 14 days is an express requirement of section 88(2). Once upon a time it said not less than 7 days was required. Then in late 2006 Parliament decided 7 days was insufficient and decided that the period of time should be not less than 14 days. If in 2006 Parliament had thought that 13 days or less was required, Parliament would have said so. When Parliament fixed the period as one which 'must not less than 14 days' that is what it meant and it is impossible to imagine in law that a DN is effective where the period is less than 14 days.

 

I am afraid this smacks of an example of a DJ's ignorance, failure to grasp the law or simply not being directed to the specifics of the statute. He might be on the ball when it comes to Landlord and Tenant work and if that were so I doubt he would, for example say a Landlord's section 21 Housing Act 1988 notice was effective where 6 weeks rather than two calendar months notice was given to the tenant.

 

Wherever a DJ is leaning towards declaring a DN effective where it plainly is not, let him know (as politely and deferentially as humanly possible) that if he carries on leaning that way, you will require him to set out his reasoning as part of his judgment and that you want him to spell out his reasoning so that it forms part of the record for appeal purposes. That should sharpen him up a bit.

 

x20

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1923425.html

 

Need for valid default before termination.

The need for a default notice before termination is specified in Section 87 of the CCA 1974 & the prescribed terms in S88:

 

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,—

(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.

88 Contents and effect of default notice

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

(b) exercisable at will and exercised at any time after his death.

(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.

(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;

 

 

The support to the essential requisite prior to terminating an account was given in Woodchester v Swayne [1998]:

 

'This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage. The contract is likely to be in standard form and relatively complex with a number of detailed provisions. If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take what Mr Gruffyd conveniently referred to as "the next step". '

[Taz11]

Wow !! Lots of info there CB. Would you bother actually answering to this letter or simply give them enough rope .

 

thanks

Taz11

[citizenB]

Hi CB, hope you are well and ok

 

Haven't been on for a couple of days, one of my sons friends was involved in a serious car accident and is critical and another has sadly passed away :(

 

Really shaken my son up, and you don't realise what feelings they really have at 15/16 yrs of age. Been a shock to a lot of people in the area.

 

 

I haven't actually received anything through the post apart from this and one from MBNA.

 

Thanks again

TAZ11

 

 

Sorry to hear about your son's friends, Taz. Yes, at 15/16 years they can be quite vulnerable even though they probably wont want you to see that. All you can do is be there for him, give him a hug now and again. Very sad loss of life.

 

 

Sorry, missed your later post. I personally wouldnt be responding to the Termination Notice TBH, unless you are going to offer to pay the amount demanded then there is little point.

 

They will do one of two things now. Sell the account on to a DCA or start court proceedings.

 

A DCA can soon be seen off once they have been made aware of the situation. It might take a few letters but it can be done.

 

Court proceedings, if they take this route then you have quite a lot to fight with. No documentation originally, Default invalid, termination on the back of a dodgy default notice.

 

As you will see from the links and information provided. Once terminated, the account cannot be reopened. Not unless you agree, and you wouldnt be doing that would you ?

 

One thing I would mention is do not return the cards to them, cut up or otherwise. Shred them or cut them up into little pieces and dispose of them in various bin bags.

Edited March 13, 2009 by citizenB

[Taz11]

Thanks CB,

 

I have no intention of sending anything back, and I can't because they have never sent me any further cards?? (I'd missed some payments a year ago, and resumed payments, but they wouldn't send out further cards)

 

With regards to termination CB ??, If they terminate the account in writing??, you say it can't be re-opened??. Does that mean the account stays with the DCA?? and cannot go back to the OC??. If so, in order for DCA to enforce the debt, they must have the original in court (which is unlikely that they will have it)

 

To summarise, the DCA will have a debt which they can't enforce and can't return to the OC if it is challenged by the debtor because the account cannot be re-opened by the OC. Is that correct??

 

If so, isn't it an ideal situation if the account is terminated and forwarded to a DCA because they have no way to turn. They can't enforce and they can't return to OC. I would be interested to know how this situation works ??. In effect by stating in the letter above they have terminated the account have they shot themselves in the foot.??

 

Thanks

 

Taz11

[citizenB]

Thanks CB,

 

I have no intention of sending anything back, and I can't because they have never sent me any further cards?? (I'd missed some payments a year ago, and resumed payments, but they wouldn't send out further cards)

 

With regards to termination CB ??, If they terminate the account in writing??, you say it can't be re-opened??. Does that mean the account stays with the DCA?? and cannot go back to the OC??. If so, in order for DCA to enforce the debt, they must have the original in court (which is unlikely that they will have it)

 

To summarise, the DCA will have a debt which they can't enforce and can't return to the OC if it is challenged by the debtor because the account cannot be re-opened by the OC. Is that correct??

 

 

If so, isn't it an ideal situation if the account is terminated and forwarded to a DCA because they have no way to turn. They can't enforce and they can't return to OC. I would be interested to know how this situation works ??. In effect by stating in the letter above they have terminated the account have they shot themselves in the foot.??

 

Thanks

 

Taz11

 

That is pretty much my understanding Taz.

[Taz11]

Oh well another bod to play with, received this morning. What a joke, hasn't even got the account details or which account it relates to !!!

 

Think they will be getting a

 

"I'm rather puzzled/bemused.........." letter:D

 

[citizenB]

Taz, I have just read back over your journey with this lot and reminded myself that you had 2 accounts with the Coop.

 

You only ever received one agreement which was incomplete and rubbish anyway.

 

Is all the paperwork they have sent you related to one particular account or have they muddled the account numbers in any way.

 

Almost certainly you should write back to the DCA and advise that the Co-op are in default of your CCA request and you are surprised they have passed this on to Red.

 

I will look out a letter for you.

[citizenB]

Righto, send them the letter in the following link.

 

The Consumer Forums

 

If the link is unsuccessful, then click on the link to the letter templates in my signature and it is letter number 11 that you need.