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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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Restons MBNA -v- WelshMam

 

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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??

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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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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??

 

Quote
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...

 

Quote
[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?!!!!

 

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

 

Quote
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

Quote
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 reference to bold or underlining so far....

 

 

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

 

Quote
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....

 

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

 

Quote
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.

 

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

 

Quote
BEFORE THE DATE SHOWN; NOT;

 

but it's hardly prominent.

 

Also, they keep referring to

Quote
BELOW THE DATE SHOWN

but there is no date shown....must they specify a remedy date??

 

Quote
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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Restons MBNA -v- WelshMam

 

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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

 

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

 

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

 

this seems a brilliant post by Credit Card Mug which seems to outline the defects particular to his case...

 

Link here is anyone wants to follow through...

 

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

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

 

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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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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!! 😁

 

Fab...glad it helps SB...post up details of your thread here, when ready, and we can all take a look.

 

Can imagine the papers came as a shock but you have to remember that the creditors will just keep pushing to test your breaking point.

 

Don't get upset by it...just get angry :evil: I find that works best for me!! 😁

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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  • 2 weeks later...

hiya welshmam

 

only just come across your thread and im subbing if i may

 

me too got ms on my radar lol

 

i too got the similar dn,,, i do hope they terminate us cos i think then we would only owe the arrears on a deffective dn,,,,so keep that to yourself dont alert them to that

 

creditcardmug helped me when i got my bos dn and termination letters so very helpful

 

anyway we must just keep learning - this site is so addictive i forget to eat lol

 

anyway i have to scan up my cca that i got later stay in touch

 

laters angel x

Im happy to help with support and my own thoughts, but if I offer any thoughts to your problems please take it as from my life experience only and not of any legal standing. Always take further advice from the legal experts in your final action.:)

 

my new motto is,,,",Taking back control of your life and home - such peace is priceless"

 

This is all due to truecall device , have a serious peek at this you will be thankful like I am x laters angel :D

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Hi again Angel :D

 

Yes, lots of battles to be fought!! Am going to send off a letter to M&S on Monday as Elg has had acknolwedgments whereas I've heard nothing from them.

 

There is so much too learn on this site and I spend hours reading when I should be doing other things 😉

 

Anyway, my M&S was a store card that was switched so I think there may be some issues regarding that. I do actually still have a copy of the switch over letter from 2003 which I'll have to post up sometime to see if anyone has any comments on it.

 

Best wishes WM :p

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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Good news guys...post was really late today but have just had a letter from M&S saying that they can't find my agreement!!:D:D:D

 

Will post up later as have to dash out...

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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Ok, this is the letter that I received...need to go back to them disputing account and also pursuing DPA in respect of challenging them about sharing my info but am not hopeful about this. Also, they have already defaulted the account so, the threat to do so is somewhat irrelevant!

 

Any suggestions regarding a response also appreciated!!

 

 

 

MandSCCACROPPED.jpg

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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