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M&S Default Following CCA Request - Account Termination

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Although I am in arrears with my account, M&S Money have done very little to date. However, I sent off a CCA request and 11 days after receipt they have defaulted my account...see below.

 

The CCA is due back next week and I would be extremely surpised if they have it as it started life as a store card and then they subsequently upgraded it to a credit card in 2003.

 

So, I have 3 questions...

 

The default arrived 3 days after the date stipulated on the notice and yet it only allows me 14 days...isn't this wrong in itself??

 

Is it ethical to default the account when I am waiting for my CCA?

 

They state that the account is to be terminated within 14 days. What are the implications of this and should I SAR them now or can I still do that at a later date?

 

All advice gratefully received...thanks!!

 

MSDefaultCropped.jpg


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I am pretty sure that this DN is not formatted correctly but I am still a beginner here and learning every day :p so await more comments from more experienced caggers

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I am pretty sure that this DN is not formatted correctly but I am still a beginner here and learning every day :p so await more comments from more experienced caggers

 

Thanks SB...much appreciated:D

 

I always thought that they had to allow 14 clear days for the default to be remedied but can only find reference to 7 days in s88 of CCA 74...does anyone know where I can find this info??


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They do have to allow 14 clear days but I think the lack of definition in the wording is not correct also.

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Hi Welshmam

 

Whats the issue date and the remedy date for the Default Notice they sent you. Also did you keep the enverlope it came in.

 

gaz

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Thanks SB...much appreciated:D

 

I always thought that they had to allow 14 clear days for the default to be remedied but can only find reference to 7 days in s88 of CCA 74...does anyone know where I can find this info??

 

Ok...think I found it as an amendment in 2006 CCA Act....take it this still applies to my account which was taken out circa 1996??

 

14 Default notices

(1) In subsections (2) and (3) of section 88 of the 1974 Act (contents and effect of default notice) for “seven” wherever occurring substitute “14”.

(2) In subsection (4) of that section after “it” insert “and any other

 

So the 74 act states...

 

[88.—(1) The default notice must be in the prescribed form

and specify—

(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;

© if the breach is not capable of remedy, the sum (if any) required to be

paid as compensation for the breach, and the date before which it is to be paid.

 

(2) A date specified under subsection (1) must not be less than seven days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection ( 1)) before those seven days have elapsed.

 

(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes Operative only on breach of some other provision, but i£ the breach of that other provision is not duly remedied or compensation demanded under subsection (I) is not duly paid, or (where no requirement is made under subsection ~1)) if the seven days mentioned in subsection (2) have elapsed, the

creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

 

(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply with it.

 

(5) A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

 

So the date of service is the date that I received the notice (3 days later) and not the date of issue on the letter....yes?!!!!


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Hi Welshmam

 

Whats the issue date and the remedy date for the Default Notice they sent you. Also did you keep the enverlope it came in.

 

gaz

 

Hi Gaz...yes, I have the envelope but it's one of those ones with barcodes on (which I'm not sure mean anything) and the reference under the S in the top right hand corner showing where it was posted I believe.

 

 

No remedy date specified other than the 14 days stated on the notice above.

 

The only date on the letter is 30 March at the top and I received it on 2 April...which is 3 days later.


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[88.—(1) The default notice must be in the prescribed form

 

 

I dont think it is !

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[88.—(1) The default notice must be in the prescribed form

 

 

I dont think it is !

 

Hi SB...thanks again....am searching to see where I can find details of what the prescribed form should be....will post up what I can find as there must be loads on info on this forum...


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I believe it is to do with some of the words HAVE to be in BOLD lettering and/ or underlined

 

Search around the forum for other scanned DNs

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I believe it is to do with some of the words HAVE to be in BOLD lettering and/ or underlined

 

Search around the forum for other scanned DNs

 

Will do SB...found this which FedUp74 posted on another thread...

 

89. The notice fails to include the following statement in the prescribed form as shown below (note the correct use of Bold Text):

 

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH"

 

90. The Default Notice also fails to include the additional statement in the prescribed form as shown below:

 

"IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]"

 

Fed Up says that
The statements referred to in points 89 and 90 are laid out in Schedule 2 of Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561).

 

But I can't find any refeference to bold or underlining so far....

 

Edited by WelshMam2009
Can't find relevant bits...

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Yes I believe that is exactly the correct format.

 

I have looked into this a bit because I have an improperly set out DN also

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lol...did you see what BRW added at the bottom of his post SB...

 

The only answer I don't have for you at the moment, is why some words need to be underlined!

 

 

Guess because they are written as bold in the regs (even this looks a bit iffy to me!!) then that is how they need to be....it's the underlining bit I need to find out more about....


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This is BRW's thread for my reference...any comments please feel free to add...

 

Schedule 2 of Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561):

 

Quote:

(5) Where any statement is required to be in a form specified in a Schedule to these Regulations and is reproduced in the notice, then apart from any heading to the notice, trade names or names of parties to the agreement--

 

(a) the lettering in the statement shall be afforded more prominence (whether by capital letters, underlining, large or bold print or otherwise) than any other lettering in the notice; and

 

(b) where words are both shown in capital letters and underlined in any statement specified in a Schedule to these Regulations, they shall be afforded yet more prominence.

It's the (b) above that kills them on your Notice.

 

THEY HAVE DONE IT LIKE THIS

 

WHEN THEY SHOULD'VE DONE IT LIKE THIS

 

IOW, the way the words should be set out is not explicit in terms of the use of Upper Case and Bold, but there are Prescribed standards that must be followed depending on the use of Bold for example.

 

So, it's reasonable to say that it would be wise to use UPPER CASE for the Prescribed Wording mainly because, to do otherwise, would not make it stand out. For example:

 

THIS STANDS OUT FROM THE BUMF ABOVE, BECAUSE I'VE USED UPPER CASE TO MAKE IT STAND OUT. SO, IF THIS WERE THE PRESCRIBED WORDS, THEN IT WORKS TO MAKE THEM STAND OUT FROM WORDS USING LOWER CASE.

 

I must admit that I need to find where it says how and where underline needs to be use, so I'll come back to that!

 

However, where underline is used with the Prescribed Wording, which is almost certainly in UPPER CASE already or else it won't stand out, then any underlined Prescribed Words should be afforded yet more prominence.

 

About the only way to do that is to use Bold.

 

THUS, IF THE PRESCRIBED WORDS ARE ALREADY IN UPPER CASE, THEN ANY THAT USE UNDERLINE SHOULD ALSO BE IN BOLD, LIKE THIS.

 

However, if they have already used Upper Case and Bold, then the Underlined Prescribed Words must be afforded yet more prominence.

 

If Bold has already been used up as an option, and assuming we can't use Flashing LED Lights, then one way could be to make them bigger:

 

IF THE PRESCRIBED WORDS ARE ALREADY IN UPPER CASE AND BOLD, THEN ANY THAT USE UNDERLINE SHOULD BE GIVEN EVEN GREATER EMPHASIS, PERHAPS LIKE THIS.


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In my case, I reckon M&S may have attempted this by putting the words in italics such as...

 

BEFORE THE DATE SHOWN; NOT;

 

but it's hardly prominent.

 

Also, they keep referring to

BELOW THE DATE SHOWN
but there is no date shown....must they specify a remedy date??

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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.

 

From the same regs as above...surely they should specify a specific date and not within 14 days??


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I am pretty sure they have to give you a specific date

it says ' by the date shown '

but theres no date to remedy on your DN

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OMG I just got very scary mail through the door :eek::eek::eek:

 

Will need some help later

 

Hope you get some good info on these DNs as I am going to need all the info I can get.

 

Have to go take FIL to hospital appt but back later

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OMG I just got very scary mail through the door :eek::eek::eek:

 

Will need some help later

 

Hope you get some good info on these DNs as I am going to need all the info I can get.

 

Have to go take FIL to hospital appt but back later

 

No probs...don't let it bother you SB...post up a link when you get back!! ;)


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Found this thread which seems to be giving some good advice regarding the re-issuing of default notices...seems as if I may be better keeping quiet about it for now and letting them either terminate the account or demand a settlement in full (which effectively terminates).

 

It appears that a replacement default notice cannot be issued after

the account has been terminated.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/165197-default-notice-re-issue.html


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Am going copying and paste mad here...but this seems a brilliant post by Credit Card Mug which seems to outline the defects particular to his case...

 

Here is an extract from my defence re DNs, courtesy of paul, it should answer a few questions, and show how you can put then to strict proof.

 

31. I note that the claimants particulars of claim fail to even acknowledge service a Default notice as required by section 87(1) of the Consumer Credit Act 1974 before the claimant can even consider terminating the agreement or demanding repayment in full

 

32. I refer to the date of the letter as being the 29/11/ 2007; it is denied that the Default notice was received on the 29/11/ 2007 thus not allowing the prescribed time frame required by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which states, Regulation 2(2) schedule 2

 

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.

33. Fourteen days were not allowed between service of the default and the time laid out where the alleged breach needed to be remedied. I therefore put the claimant to strict proof as to the date of service of said document

 

34. In addition to the failure of the default notice to allow the prescribed time frame, I note the Default is also deficient in the following areas

 

35. Section 2 (5) and (6) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 sets out the following

(5) Where any statement is required to be in a form specified in a Schedule to these Regulations and is reproduced in the notice, then apart from any heading to the notice, trade names or names of parties to the agreement-

 

(a) the lettering in the statement shall be afforded more prominence (whether by capital letters, underlining, large or bold print or otherwise) than any other lettering in the notice; and

 

(b) where words are both shown in capital letters and underlined in any statement specified in a Schedule to these Regulations, they shall be afforded yet more prominence.

 

(6) The wording in any such statement shall be reproduced in the notice without any alteration or addition, and in relation to any statement to be contained in the notice the requirements of any note shall be complied with, except that the words "the creditor" may be replaced by the name of the creditor, by the expression by which he is referred to in the agreement or by an appropriate pronoun, and any consequential changes to pronouns and verbs may be used.

36. The notice fails to include the following statement in the form as shown

 

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH

 

37. Also the notice fails to set out the statement as set out below

 

"IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]"

 

 

38. The statements referred to in points 36 & 37 are laid out in schedule 2 of Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)

 

39. For a creditor to be entitled to terminate a regulated credit agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the agreement, a creditor must serve a Default Notice under section 87(1) CCA 1974 which states

(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.

40. I note the opening part of section 88(1), which states

88. Contents and effect of default notice.

 

- (1) The default notice must be in the prescribed form.......

The word must makes it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue

 

 

 

41. I note that the regulations do not allow any variation in the form of these statements and there fore it is suggested that where the statements are not as laid down in the regulations the default notice is rendered invalid as a consequence

 

42. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the court addressed in some detail the issue of the contents of a default notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the default notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the claimant to set out the default notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the default

 

43. I suggest that since the claimant has not complied with the requirements to issue a valid default notice, the claimant should not be bringing this action before the court until the procedure set out for the protection of consumers has been followed. It is noted that the Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561) require strict compliance and clearly indicates in the wording that substantial compliance is not enough.

 

44. I respectfully request the court give consideration to the claimants rights to bring this case while not in compliance with Sections 87,88 & 89 of the Consumer Credit Act 1974 in respect of the default notice and its failure to adhere to Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)

 

 

45. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

 

 

Link here is anyone wants to follow through...

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/153245-default-notice-some-advice-2.html#post1633289


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That is a great defence.

I am starting a new thread as I have just got court papers for the first time in my life

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Hi Welshmam

 

The postage probably 2nd class, which under the guide lines must allow 4 working days to reach you. They generally go from the date on the letter, allowing for postage plus 14 days. But there must be a cut of date to remedy. If not just use it for B..g paper.

 

Gaz

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Hi Welshmam

 

The postage probably 2nd class, which under the guide lines must allow 4 working days to reach you. They generally go from the date on the letter, allowing for postage plus 14 days. But there must be a cut of date to remedy. If not just use it for B..g paper.

 

Gaz

 

The cut off date Gaz is 14 days so they haven't allowed for postage.

Have read so much this morning and my understanding is that it needs to be 14 clear days which starts on the day following receipt.

 

B..g paper it is then!! :grin:


If you feel I've helped then by all means click my star to the left...a simple "thank you" costs nothing! ;)

 

Restons MBNA -v- WelshMam

 

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