Can anybody blow a hole in this advantage finance CCA

[moonhead]

Hi all,

 

Following this thread with interest. I am in the same boat and have been unable to find the answer.

 

I made about 1k payments over a year for a vehicle that cost about 6k. I couldn't keep up with the payments and so they defaulted me and whipped away the car! this was back in 2005 ish...

 

Anyway, Direct Legal and Collections are the holders of a lovely debt of about 5.5k!!! i've been paying a pound a month all this time..it does seem unfair that they are collecting all that..when they've sold the car..and had the deposit + payments i made already!!!! i only had it for about a year maybe..

 

I spoke to the national debt people who have a template letter on their website which asks for a statement of account and cca in one hit...this will then hopefully check that this amount is at least correct as i have no idea how much they sold the car for...

 

but yeah..gutted they want 5k, plus they've had the car back...sucks!!!

 

planning on sending a letter on tuesday..so will let you know as and when i find out more details

[underdog13]

How was the DN delivered?

 

If it was sent by post, CPR 6 applies - service is deemed to take place 2 working after it was posted if sent by first class post and 4 working days after it was posted if sent by second class post. Business days are Monday to Friday, excluding bank holidays, Good Friday and Christmas day.

 

If they haven't allowed 14 clear days after service for you to rectify the default, then I believe the DN is invalid and they are guilty of unlawful recission of contract.

 

Have you read surfaceagentx20's thread 'A Tale of A dodgy DN'?

[danukindebt]

hi underdog

 

Would you say my default notice is INVALID ??

 

Are you saying they should have given me 16 days total to rectify??

 

Can you point me to where in the consumer credit act this is stated

 

I am going to court this month and need some words to this affect if my DN is invalid.

 

I was going to use this statement to the judge(faulty DN sounds better tho)

 

"The figure stated by ***** finance for the balance outstanding exc interest as £1764.88 which is false, as this includes the interest for the full term of the agreement which was never reached.

 

The remaining sum asked for by ****** finance is including the interest for the full term of the loan, which ****** terminated 16 months early and as such are not entitled to claim for."

[postggj]

as i explained earlier

 

its 14 days to rectify the default and two days for service if sent by 1st class post

 

total

 

16 days

[danukindebt]

yes postggj I credit you for that info, so would you say my Default notice is invalid as they did not allow the prescribed 16 days, even though they allowed 21 days before sending a termination notice?

 

Also postggj which section of the consumer credit act do I need to look at as I need something to quote in court

[postggj]

a default notice is issued first, that is a sort of termination notice.

ignore that notice and the creditor can place a default on your credit file and then send you another letter saying the account has been termnated.

next step is a court claim or dca.

 

the 14 days start from the date of the letter,

so its two days from letter then 14 more days

 

ill dig out the relevent info

[underdog13]

Service times are stated in CPR 6;

 

Part 6 rules about service apply generally

6.1

 

This Part applies to the service of documents, except where –

 

(a) another Part, any other enactment or a practice direction makes different provision; or

 

(b) the court orders otherwise.

(Other Parts, for example, Part 54 (Judicial Review) and Part 55 (Possession Claims) contain specific provisions about service.)

 

Interpretation

 

6.2

 

In this Part –

 

(a) ‘bank holiday’ means a bank holiday under the Banking and Financial Dealings Act 19711 in the part of the United Kingdom where service is to take place;

 

(b) ‘business day’ means any day except Saturday, Sunday, a bank holiday, Good Friday or Christmas Day;

[postggj]

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

 

 

this will answer all questions

[danukindebt]

Sounds good,

I have to go to court, date is 22nd april 2009 so only have a few days to prepare and will post outcome here good or bad

[postggj]

read and digest that link

 

its the bible on default notices

[danukindebt]

okay read it

 

So I am going to court saying my default notice is invalid as it did not allow 16 days to rectify and so I did not know precisely what I had to do in order to comply with it and was consequently disadvantaged

 

No second default notice can be issued without my permission

 

and finally they owe me a grand compo

 

Sound about right?? any advance on this with terminology wise

I will be clutching a copy of surfaceagentx20 post no11

 

Still not sure where this 16days is stated and what is CPR 6

 

thanks guys

[underdog13]

CPR is civil procedure rules. Part 6 deals with service of docs.

[underdog13]

PART 6 - SERVICE OF DOCUMENTS - Ministry of Justice

[danukindebt]

thanks underdog13 you re a star

 

although I cant see the wood for the trees:cool:

 

6. ????? I see there is 50 points to 6 but on searching for 14 days +2 days service i find nothing, you still there please advise

[underdog13]

A DN must allow 14 clear days to comply. They must also allow time for service of the DN; otherwise they could take 13 days to post it to you, leaving you no time to comply, if you get my drift.

 

Most DNs are sent by post nowadays. CPR 6 deals with service of documents. This states the length of time a document is deemed to be served on; ie 2 business days for first class post, etc.

 

I know it's a lot to take in at first - keep ploughing through it and you'll get there:)

[postggj]

i think ill bookmark this thread

 

meny thanks underdog

 

answers a lot of questions

[danukindebt]

Thanks for advice will get my plough out first thing in morning.

 

...................O-o\............CPR................

 

good night and thankyou

[underdog13]

You're welcome:)

[danukindebt]

okay deep breath heres what I will say in court, feel free to shoot me down.

 

Dear Sir

 

I am requesting the CCJ be removed and outstanding claims written off because:

The Default Notice is defective for failing to conform to the prescribed terms, of the Consumer Credit Act 1974 (88.2) and I have been consequently disadvantaged.

The default Notice dated 1st March 2007 states a remedy date of 15th March 2007 and does not allow 14 days + 2 days service as per Civil Procedure rules Part 6.

This fact cannot be ignored and I quote the case

per Kennedy LJ 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"

Failure of a Default Notice to be accurate not only invalidates such Notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998 ), but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt (Wilson v First County Trust Ltd [2003] UKHL 40, Wilson v Robertsons (London) Ltd [2006] EWCA Civ 1088, Wilson v Pawnbrokers [2005] EWCA Civ 147) but would also give the Claimant a claim for damages in the sum of £1,000 (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

I am claiming damages to the sum of £15000 to cover damage to my credit file and loss of equity in my property as have been unable to sell due to the CCJ on my file.

[postggj]

morning

 

i think you might be jumping the gun to begin with,

 

the first thing that needs to be done is getting the judgement set asside

 

i believe thats an n244 form from memory but confirm with the court,

it will cost 75 quid

 

claiming damages comes later as a ccj has allready been granted,

you are trying to get it set asside to prior judgement

 

it looks ok but dont request damages yet, that comes later

 

by the way

 

any damages to your credit standing has to be proven in black and white,

the 500 quid extra, that is

[danukindebt]

Good Morning

 

Not got time to apply for n244, court day is 22nd april so will ask on the day to set CCJ aside because it should never have been issued in first place.

 

Also I was after 15K damages:eek: for equity loss this is easily proved in current climate, but will leave that bit out like you suggest.

 

Will keep you posted on what happens on the day.

 

thanks

dan

[underdog13]

best of luck with it, Dan:)

[moonhead]

Hi, did anyone find out if they can charge you the full amount of interest for the full term if it was terminated by them early?

 

also, on my credit agreement, the cash price of the car is 200 bucks more than it says on the actual sales invoice i got at the time...is there anything i can do with that?

[danukindebt]

hi

 

No I did not get an answer to this, but after posting my docs online people spotted the default notice was invalid, going to give it a shot in court.

 

I recommend you start a thread and post your docs online, if you re lucky the good guys on here normally have a look for you.

[danukindebt]

Well i went to court and the original judge was not their mmmmmm?

 

Judge I saw said I needed to do a N244 to get the ccj set aside (spot on postggj)

He gave the charging order even though I threw every possible reason at him, so my only hope is to get the CCJ set aside which costs 75 quid to try.

Thing is will I be wasting my money????????????????????????

The judge did say the "the point was valid" about not getting the 14 days+2 days service on the default notice. He also asked why I said nothing before and I replied not aware, is this okay?

 

What do you guys think, 75 pounds is alot of cash to me.

 

cheers

dan