cupcake68 Vs Amex

[cupcake68]

Hi Could someone please have a look at this reply to a cca request that I received today?

 

AJC Amex pictures by cupcake62 - Photobucket

 

I'm new to this but I would say it is not enforceable because because the smallprint is unreadable, they haven't signed the agreement, it looks like an application form and they do not state the necessary terms.

 

Am I correct on all counts or have I missed something?

 

Could someone suggest a reply please.

 

Thanks:)

[citizenB]

esile, I have moved your thread to the Amex forum. This question isnt a legal issue:)

[supasnooper]

Hi there,

 

You are correct in your observations, let them know you can't read it and neither would a judge.

[cupcake68]

Hi Supasnooper.

 

I'm learning!!

 

Thanks for your advice again. Is there a template letter for unreadable agreements?

 

Am I right in thinking that small box of unreadable smallprint couldn't possibly contain all the necessary terms to make it enforceable?

 

Thanks again

[supasnooper]

Just adapt the unenforceable letter to suit......that's all you need.

 

If a judge can't read it then it isn't worth the paper it's written on.

[cupcake68]

Evening!

 

We have received this letter today Amex reply rec 070509 pictures by cupcake62 - Photobucket

 

Can someone please advise me what I should do next?

 

Do I reply or do I ignore?

 

Many thanks

 

Esile

[supasnooper]

Write back telling them you cannot read it and neither would anyone with 20\20 vision (i.e. A Judge)

[cupcake68]

Cheers SS!

 

Any chance you could look at my Nationwide thread http://www.consumeractiongroup.co.uk/forum/nationwide/198120-esile-nationwide-10-a.html

 

please.

 

I have had a letter today saying they are sending someone to "visit me at my home" because I haven't paid!!!

 

Thanks Esile

[cupcake68]

Hi

 

I've had a default notice from amex today. What should I do with it?

 

Thanks

Esile

[smouk]

Can you post it up? It may not be valid.

[cupcake68]

Here it is. Amex default 130509 pictures by cupcake62 - Photobucket

 

I didn't realise current defaults were possibly invalid. I always assumed that was to do with old defaults!

 

Think I need to do some more research!

 

Esile

[banker_rhymes_with]

Hello Esile172!

 

The Default Notice is defective, as they have not allowed for Postage.

 

It says you must remedy the alleged default within 14 Calendar Days from the date of the Notice.

 

Parliament demands that you are allowed 14 clear/whole days, i.e. from Date of Service.

 

Date of Service would be at least +2 Working Days from the day they Posted it, so there is no way you were given the time allowed.

 

Don't tell them, now sit back and wait for them to Cancel/Terminate.

 

Cheers,

BRW

[smouk]

Parliament demands that you are allowed 14 clear/whole days, i.e. from Date of Service.

 

Date of Service would be at least +2 Working Days from the day they Posted it, so there is no way you were given the time allowed.

Hi BR - can you clarify where this is stated? Same problem here.

[cupcake68]

Hi BRW

 

What happens once they cancel/terminate?

 

Sorry if it's a silly question but getting a bit overwhelmed by it all at the moment!!

 

Thanks

 

Esile:eek:

[banker_rhymes_with]

Hello Esile172!

 

The Termination is key, because it means they cannot then fix the defective Default Notice, as by then there is no longer a live Agreement capable of having a Default Notice issued upon it.

 

Termination just means the ending of the Agreement, so can take a variety of forms. Amex will probably send a letter, assuming they have not done so already (search your home for that letter if you think they have already sent it), and the letter will say the Agreement is cancelled.

 

Cancel/Terminate/End...all mean the same thing.

 

Likewise, they can also Terminate by doing something that is not in keeping with there being a live Agreement. For example, if you had a Balance of £10k and had £500 of Arrears, then if they demand the full £10k Balance rather than just Arrears, then that is Termination. It is a clear signal that they regard the Agreement has ended, because the demand for the whole Balance shows they no longer regard you as having the Agreement benefit of being able to pay off the Balance stretching out into the future.

 

This is important because s87/88 of The Consumer Credit Act 1974 sets out what a Creditor must do if they wish to Terminate a Regulated Agreement when the Consumer is in default of that Agreement (i.e. in Arrears or has done, or not done something the Agreement required).

 

Read s87 and s88, and you will see what a Default Notice means, and why a Creditor must have a valid one before Termination if they wish to enjoy the benefits of s87...those being the right to take the next step, Terminate and/or demand early repayment of a sum only otherwise due in the future.

 

If they fail to do the Default Notice and Termination stages correctly, then they blow their right to enjoy s87. That then limits them to claiming only what was actually due before Termination, such as the Arrears. Even then, the Arrears are only due if they have an original properly executed Regulated Credit Agreement. No Agreement, then even the Arrears cannot be claimed.

 

Read the first page or two of this Thread to get a feel for how the Default Notice and Termination issues work:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html#post1837307

 

To answer the questions raised by smouk:

 

Originally Posted by banker_rhymes_with

Parliament demands that you are allowed 14 clear/whole days, i.e. from Date of Service.

 

Date of Service would be at least +2 Working Days from the day they Posted it, so there is no way you were given the time allowed.

 

Hi BR - can you clarify where this is stated?

The time that Parliament require that must be allowed by a Default Notice is stated in the following Statutory Instrument, which also sets out the Prescribed Wording and how it should be presented:

 

Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 SI 1983-1561

 

It's a hard one to find and read, so I've created the following Text copy of it, to help people read it and cut/paste the bits they need:

 

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

1983 No 1561

 

Consumer Credit

(Enforcement, Default and Termination Notices)

Regulations 1983

 

Made - - - 24th October 1983

 

Authority: Consumer Credit Act 1974, ss 76(3), (5), 87(4), 88(1), (4), 98(3), (5), 182(2), 189(1)

 

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)/1

 

1

 

(1) These Regulations may be cited as the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 and shall come into operation on 19th May 1985.

 

(2) In these Regulations, "the Act" means the Consumer Credit Act 1974.

 

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)/2

 

2

 

(1) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section 76(1) of the Act (which relates to the duty to give notice to the debtor or hirer (non-default cases) before taking certain action to enforce a term of an agreement) shall contain--

 

(a) a statement that the notice is served under section 76(1) of the Consumer Credit Act 1974;

 

(b) the information set out in paragraphs 1 to 5 of Schedule 1 to these Regulations; and

 

© statements in the form specified in paragraphs 6 to 8 of that Schedule.

 

(2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section 87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section 88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain—

 

(a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974;

 

(b) the information set out in paragraphs 1 to 3, 6 and 8 of Schedule 2 to these Regulations; and

 

© statements in the form specified in paragraphs 4, 5, 7[, 8A] and 9 to 11 of that Schedule.

 

(3) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section 98(1) of the Act (which relates to the duty to give notice to the debtor or hirer (non-default cases) of termination of an agreement) shall contain—

 

(a) a statement that the notice is served under section 98(1) of the Consumer Credit Act 1974;

 

(b) the information set out in paragraphs 1 to 5 of Schedule 3 to these Regulations; and

 

© statements in the form specified in paragraphs 6 to 8 of that Schedule.

 

(4) The lettering in any notice given under paragraph (1), (2) or (3) above shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the colour of the paper.

 

[(4A) Any notice to be given under a provision of these Regulations shall be in writing and given to the debtor or hirer in paper form.]

 

(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.

 

(7) Where any note requires any words to be omitted, those words shall be omitted or deleted.

 

(8) Where a notice is to be given under sections 76(1) and 98(1) of the Act in relation to a regulated agreement, one notice may be given under the two sections reproducing the combined effect of Schedules 1 and 3 to these Regulations.

 

(9) Sections 76(1), 87(1) and 98(1) of the Act shall not apply in the case of non-commercial agreements in relation to which no security has been provided.

 

 

NOTES

 

Amendment

 

Para (2): in sub-para © reference to ", 8A" in square brackets inserted by SI 2007/1167, reg 33(1), (2).

 

Date in force: 1 October 2008: see SI 2007/1167, reg 1(3).

 

Para (4A): inserted by SI 2004/3237, regs 2, 3.

 

Date in force: 31 December 2004: see SI 2004/3237, reg 1.

 

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)/SCHEDULE 1 Form of Notice to be Given in Non-default Cases Before a Creditor or Owner Can Become Entitled to Enforce a Term of a Regulated Agreement by Demanding Earlier Payment of any Sum, Recovering Possession of any Goods or Land or Treating any Right Conferred on the Debtor or Hirer by the Agreement as

Terminated, Restricted or Deferred

 

 

 

SCHEDULE 1

 

 

FORM OF NOTICE TO BE GIVEN IN NON-DEFAULT CASES BEFORE A CREDITOR OR OWNER CAN BECOME ENTITLED TO ENFORCE A TERM OF A REGULATED AGRREMENT BY DEMANDING EARLIER PAYMENT OF ANY SUM, RECOVERING POSSESSION OF ANY GOODS OR LAND OR TREATING ANY RIGHT CONFERRED ON THE DEBTOR OR HIRER BY THE AGREEMENT AS TERMINATED, RESTRICTED OR DEFERRED

 

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 a postal address of the debtor or hirer.

 

 

Term of agreement to be enforced

 

3

 

The term of the agreement to be enforced, or a reference to and a short description of that term.

 

 

Action intended to be taken by creditor or owner

 

 

4

 

A clear and unambiguous statement by the creditor or owner indicating--

 

(a) which (one or more) of the following types of action he intends to take, in order to enforce the term of the agreement,--

 

(i) to demand earlier payment of any sum;

 

(ii) to recover possession of any goods or land;

 

(iii) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred;

 

(b) the manner and circumstances in which he intends to take such action; and

 

© the date, being a date not less than seven days after the giving of the notice, on or after which he intends to take such action.

 

 

Demanding earlier payment of any sum

 

5

 

Where the creditor or owner states that he intends to demand earlier payment of any sum,

 

(a) the amount of the sum before deducting the amount of any rebate on early settlement;

 

(b) where any rebate on early settlement is allowable under the agreement or by virtue of section 95 of the Act--

 

(i) the amount of the rebate allowable calculated on the assumption that early settlement takes place on the date specified in the notice for earlier payment of the sum; and

 

(ii) the total amount to be paid by the debtor after taking into account the amount of any rebate on early settlement, namely the difference between the amount shown in paragraph (a) above and the amount shown in subparagraph (i).

 

 

Time order

 

6

 

A statement in the following form indicating that the debtor or hirer is entitled to apply under section 129 of the Act in England and Wales to the county court, in Scotland to the sheriff court or in Northern Ireland to the High Court or the county court for a time order—

 

"IF YOU HAVE DIFFICULTY IN PAYING ANY SUM OWNING UNDER THE AGREEMENT YOU CAN APPLY TO THE COURT WHICH MAY MAKE AN ORDER ALLOWING YOU OR ANY SURETY MORE TIME".

 

 

General

 

7

 

A statement in the following form--

 

"IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE. FOR EXAMPLE YOU SHOULD CONTACT A SOLICITOR, YOUR LOCAL TRADING STANDARDS DEPARTMENT OR YOUR NEAREST CITIZENS' ADVICE BUREAU".

 

8

 

A statement in the following form—

 

"IMPORTANT--YOU SHOULD READ THIS CAREFULLY".

 

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)/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 Agreement, 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

 

 

 

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.

 

Action by the creditor or owner to be ineffective if breach remedied or compensation paid

 

4

 

Where any action is specified under paragraph 3© or (d) as required to be taken, a statement that the provision for the taking of any action by the creditor or owner such as is mentioned in paragraph 6 will be ineffective if the breach is duly

remedied or the compensation is duly paid in the following form—

 

"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".

 

Note:

 

This statement shall follow the specification under paragraph 3© or (d) of any action required to be taken.

 

 

Consequences of failure to comply with default notice

 

5

 

Where any action is specified under paragraph 3© or (d) as required to be taken, a statement indicating the consequences of the failure by the debtor or hirer to comply with the default notice in the following form—

 

"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]".

 

Notes:

 

1. This statement shall be followed by the specification under paragraph 6 of the further action intended to be taken by the creditor or owner.

 

2. Creditor or owner to omit words in square brackets if there is no specification under paragraph 6(e) of any action intended to be taken to enforce any security.

 

 

Action intended to be taken by creditor or owner

 

6

 

A clear and unambiguous statement by the creditor or owner indicating, if any action specified under paragraph 3© or (d) as required to be taken is not duly taken or if no such action is required to be taken, the action which he intends to take by reason of the breach by the debtor or hirer of the agreement—

 

(a) to terminate the agreement;

 

(b) to demand earlier payment of any sum;

 

© to recover possession of any goods or land;

 

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred;

 

(e) to enforce any security;

 

(f) to enforce any provision of the agreement which becomes operative only on a breach of another provision of the agreement as specified in the notice, at any time on or after the date specified under paragraph 3© or (d), or, if no action is specified under that paragraph as required to be taken, indicating the date, being a date [not less than fourteen days] after the date of service of the notice, on or after which he intends to take any action indicated in this paragraph.

 

 

Retaking of protected hire-purchase etc, goods

 

[in the case of a hire-purchase or conditional sale agreement relating to goods,

 

(a) made on or after 19th May 1985, where the property in the goods remains in the creditor; or

 

(b) made before 19th May 1985, where the debtor has not himself put an end to the agreement by virtue of any right vested in him and where the total amount payable under the agreement does not exceed £7,500, a statement in the following form--]

 

"BUT IF YOU HAVE PAID AT LEAST ONE-THIRD OF THE TOTAL AMOUNT PAYABLE UNDER THE AGREEMENT SET OUT BELOW (OR ANY INSTALLATION CHARGE PLUS ONE-THIRD OF THE REST OF THE AMOUNT PAYABLE), THE CREDITOR MAY NOT TAKE BACK THE GOODS AGAINST YOUR WISHES UNLESS HE GETS A COURT ORDER, (IN SCOTLAND, HE MAY NEED TO GET A COURT ORDER AT ANY TIME.) IF HE DOES TAKE THEM WITHOUT YOUR CONSENT OR A COURT ORDER, YOU HAVE

THE RIGHT TO GET BACK ALL THE MONEY YOU HAVE PAID UNDER THE AGREEMENT SET OUT BELOW".

 

Note:

 

This statement shall follow the specification under paragraph 6 of the further action intended to be taken by the creditor or owner and be followed by—

 

(a) either

 

(i) the total amount payable under the agreement, or

 

(ii) where there is an installation charge, separately, the amount of the installation charge and the rest of the total amount payable under the agreement; and

 

(b) the total amount that the debtor has paid to the creditor by the giving of the notice.

 

 

Requiring earlier payment of any sum

 

8

 

Where a sum of money is required to be paid under the notice,

 

(a) the amount of the sum before deducting the amount of any rebate on early settlement;

 

(b) where any rebate on early settlement is allowable under the agreement or by virtue of section 95 of the Act--

 

(i) the amount of the rebate allowable calculated on the assumption that early settlement takes place on the date

specified in the notice for earlier payment of the sum; and

 

(ii) the total amount to be paid after taking into account the amount of any rebate on early settlement, namely the difference between the amount shown in paragraph (a) above and the amount shown in sub-paragraph (i).

 

 

[Ending the agreement

8A

 

Where the agreement is a hire-purchase or conditional sale agreement, a statement in the following form—

 

"You [may] [NOTE 1] have the right to end this agreement at any time before the final payment falls due.

 

Note that this right may be lost if you do not act before the date shown (after which we may take action).

 

If the date for final payment has not passed and you wish to end this agreement, you should write to the person to whom you make your payments. [You will need to pay [NOTE 2] if you wish to end this agreement by the date shown and we will be entitled to the return of the goods. You will also be liable for costs if you have not taken reasonable care of the goods.] [NOTE 3].Note that if you end this agreement, this will not necessarily terminate any insurance finance agreements that are linked to this agreement. NOTE 1: creditor to omit the word "may" in the case of a hire purchase agreement. NOTE 2: creditor to insert the amount to be paid by the debtor calculated in accordance with the provisions of sections 99(2) and 100 of the Act and on the assumption that the debtor terminates the agreement on the date shown in this notice. NOTE 3: creditor to insert the passage in square brackets where the debtor's right to terminate under section 99 of the Act subsists.".] Time order 9A statement in the following form indicating that the debtor or hirer is entitled to apply under section 129 of the Act in England and Wales to the county court, in Scotland to the sheriff co

 

 

[Interest payable after a judgment

 

9A

 

Where an agreement makes provision for the charging of post-judgment interest in connection with a judgment sum, a statement in the following form—

 

"You should be aware that if we take you to court and get a judgment against you requiring you to pay us the money you owe us under the agreement, you may have to pay us both the amount of the judgment and interest under the agreement

on all the sums owed by you at the date of the judgment until you have paid these in full. This means that even if you pay off the whole amount of the judgment, you may still have a further sum to pay.".]urt or in Northern Ireland to the High Court or the county court for a time order—

 

"IF YOU HAVE DIFFICULTY IN PAYING ANY SUM OWING UNDER THE AGREEMENT OR TAKING ANY OTHER ACTION REQUIRED BY THIS NOTICE, YOU CAN APPLY TO THE COURT WHICH MAY MAKE AN ORDER ALLOWING YOU OR ANY SURETY MORE TIME".

 

 

General

 

10

 

A statement in the following form--

 

"IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE. FOR EXAMPLE YOU SHOULD CONTACT A SOLICITOR, YOUR LOCAL TRADING STANDARDS DEPARTMENT OR YOUR NEAREST CITIZENS' ADVICE BUREAU".

 

[10A

 

A statement in the following form--

 

"This notice should include a copy of the current Office of Fair Trading information sheet on default. This contains important information about your rights and where to go for support and advice. If it is not included, you should contact us to get one.".]

 

 

11

 

A statement in the following form--

 

"IMPORTANT--YOU SHOULD READ THIS CAREFULLY".

 

 

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.

 

Para 6: 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.

Para 7: words from "In the case" to "the following form--" in square brackets substituted by SI 1984/1109, reg 2.

 

Para 8A: inserted by SI 2007/1167, reg 33(1), (3)(a).

 

Date in force: 1 October 2008: see SI 2007/1167, reg 1(3).

 

Para 9A: inserted by SI 2007/1167, reg 33(1), (3)(b).

 

Date in force: 1 October 2008: see SI 2007/1167, reg 1(3).

 

Para 10A: inserted by SI 2007/1167, reg 33(1), (3)©.

 

Date in force: 1 October 2008: see SI 2007/1167, reg 1(3).

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)/SCHEDULE 3 Form of Notice to be Given in Non-Default Cases Before a Creditor or Owner Can Become Entitled to Terminate a Regulated Agreement

 

 

SCHEDULE 3

 

FORM OF NOTICE TO BE GIVEN IN NON-DEFAULT CASES BEFORE A CREDITOR OR OWNER CAN BECOME ENTITLED TO TERMINATE A REGULATED AGREEMENT

 

Regulation 2(3)

 

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 a postal address of the debtor or hirer.

 

 

Term of the agreement providing for termination

 

3

 

The term of the agreement providing for termination of the agreement by the creditor or owner, or a reference to and a short description of that term.

 

 

Action to terminate the agreement

 

4

 

A clear and unambiguous statement by the creditor or owner--

 

(a) indicating that by the giving of the notice he is terminating the agreement and indicating any steps that he intends to take to effect the termination or, as the case may be, indicating the manner and circumstances in which he intends to take action to terminate the agreement; and

 

(b) indicating the date, being a date not less than seven days after the giving of the notice, of the termination or, as the case may be, the date on or after which he intends to take action to terminate the agreement.

 

 

 

 

Rights and liabilities arising by reason of the termination of the agreement

 

5

 

Any right or liability that will arise by reason of the termination of the agreement and the date by which the right or liability will arise, including—

 

(a) the amount of any sum payable by the debtor or hirer before deducting the amount of any rebate on early settlement;

 

(b) where any rebate on early settlement is allowable under the agreement or by virtue of section 95 of the Act—

 

(i) the amount of the rebate allowable calculated on the assumption that early settlement takes place on the date specified in the notice for earlier payment of the sum; and

 

(ii) the total amount to be paid by the debtor after taking into account the amount of any rebate on early settlement, namely the difference between the amount shown in paragraph (a) above and the amount shown in subparagraph (i).

 

 

Time order

6

 

A statement in the following form indicating that the debtor or hirer is entitled to apply under section 129 of the Act in England and Wales to the county court, in Scotland to the sheriff court or in Northern Ireland to the High Court or the

county court for a time order—

 

"IF YOU HAVE DIFFICULTY IN PAYING ANY SUM OWING UNDER THE AGREEMENT, YOU CAN APPLY TO THE COURT WHICH MAY MAKE AN ORDER ALLOWING YOU OR ANY SURETY MORE TIME".

 

 

General

 

7

 

A statement in the following form—

 

"IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE. FOR EXAMPLE YOU SHOULD CONTACT A SOLICITOR, YOU LOCAL TRADING STANDARDS DEPARTMENT OR YOUR NEAREST CITIZENS' ADVICE BUREAU".

 

8

 

A statement in the following form—

 

"IMPORTANT-YOU SHOULD READ THIS CAREFULLY".

The Service by Post issue is covered by The Interpretation Act 1978, but that was clarified by the Senior Master in a Practice Direction in 1985:

 

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

 

Finally, in case anyone wonders what links The Consumer Credit Act 1974 and The Interpretation Act 1978, it is s176 of the CCA. I'll repeat that below in full, with notes to show how the act of sending a s87(1) Default Notice via Post causes The Interpretation Act 1978 to kick into action:

 

PART XII

SUPPLEMENTAL

 

Part XII Service of documents

 

176. Service of documents

 

(1.) A document to be served under this Act by one person ('the server') on another person ('the subject') is to be treated as properly served on the subject if dealt with as mentioned in the following subsections.

 

(2.) The document may be delivered or sent by post to the subject, or addressed to him by name and left at his proper address.

 

(3.) For the purposes of this Act, a document sent by post to, or left at, the address last known to the server as the address of a person shall be treated as sent by post to, or left at, his proper address.

 

(4.) Where the document is to be served on the subject as being the person having any interest in land, and is not practicable after reasonable inquiry to ascertain the subject's name or address, the document may be served by-

 

(a) addressing it to the subject by the description of the person having that interest in the land (naming it), and

 

(b) delivering the document to some responsible person on the land or affixing it, or a copy of it, in a conspicuous position on the land.

 

(5.) Where a document to be served on the subject as being a debtor, hirer or surety, or as having any other capacity relevant for the purposes of this Act, is served at any time on another person who-

 

(a) is the person last known to the server as having that capacity, but

 

(b) before that time had ceased to have it, the document shall be treated as having been served at that time on the subject.

 

(6.) Anything done to a document in relation to a person who (whether to the knowledge of the server or not) has died shall be treated for the purposes of sub-section (5) as service of the document on that person if it would have been so treated had he not died.

 

(7.) Neither of the following enactments (which provide for the vesting of the estate of an intestate in the probate Judge) shall be construed as authorising service on the Probate Judge of any document which is to be served under this Act-

 

section 9 of the Administration of Estates Act 1925;

 

section 3 of the Administration of Estates Act (Northern Ireland) 1955.

 

(8.) References in the preceding subsections to the serving of a document on a person include the giving of the document to that person.

 

Commencement 31 July 1974 (see Sch 3, note).

 

General effect

 

The section makes general provision relating to the service of documents under this Act. Compliance with this section means that a statutory notice will have been duly 'served' on 'the subject' for the purposes of the Act. The section is not exhaustive, however, in the sense that 'proper service' does not, per se, constitute effective service; for example, a notice of withdrawal under s57 or of rescission under s102 will be properly served if posted to a 'subject' specified in those sections, but it does not follow that the notice thereupon takes effect (see note to sub-s (2), below).

 

Serve, served, service.

 

To 'serve on' means, for the purposes of the Act, to deliver, or send by post, to the subject: see s 189(1).

 

'Delivery'

 

includes personal delivery, and references to 'serving' a document therefore include giving the document to the subject: sub-s (8 ).

 

Person

 

See note to s7

 

Sent by post.

 

The effect of sub-s (2) is that provisions of this Act which require or authorise service of a document also authorise the service of that document by post, bringing into operation the Interpretation Act 1978 s7 (48 Halsbury's Statutes (3rd Edition) 1300) by which service is deemed to be effected by properly addressing, prepaying and posting a letter containing the document. Unless the contrary is proved, service will be deemed to have been effected at the time when the letter would be delivered in the ordinary course of post. This provision will, accordingly, govern the efficacy of posted notices served under this Act except where it is excluded: see s69(7).

 

For decisions on the Interpretation Act 1889, s26 which was to a similar effect as s7 of the 1978 Act, see:

 

Sharpley v Manby [1942]1 KB 217, [1942]1 All ER 66

Sandland v Neale [1956]1 QB 214, [1955] 3 All ER 571

R v County of London Quarter Sessions Appeals Committee, ex p Rossi [1956] 1 QB 682, [1956] 1 All ER 670

Beer v Davies [1958]2QB 187

Stylo Shoes Ltd V Prices Tailors Ltd[1960] Ch396, [1959] 3 All ER 901

Moody v Godstone RDC [1966] 2 All ER 696, [1966] I WLR 1085

White v Weston [1968] 2 QB 647, [1968] 2 All ER 842

Cooper v Scott-Farnell [1969] 1 AII ER I 781 , [1969]1 WLR 120

Hewitt v Leicester City Council [1969] 2 All ER 802, [1969] I WLR 855

Maltglade Ltd v St Albans RDC [1972] 3 All ER 129, [1972] I WLR 1230

Saga of Bond Street Ltd v Avalon Promotions Ltd [1972] 2 QB 325n [1972] 2 AII ER 545n

A/S Cathrineholm v Norequipment Trading Ltd [1972] 2 QB 314

Thomas Bishop Ltd v Helmville Ltd [1972] I QB 464, [1972] 1 All ER 365

Migwain Ltd (in liquidation) v Transport and General Worker's Union [1979] ICR 597.

 

Interest in land See the note 'Land' to s 189(1) A person who has died The effect of sub-s (5) is to facilitate service of a notice by service to the subject's address in the normal way even though he has (whether to the server's knowledge or not) died intestate and, at the time of service, no letters of administration have been granted Administration of Estates Act 1925, s 9 See 13 Halsbury's Statutes (3rd Edn) 46 Administration of Estates Act (Northern Ireland) 1955 1955 c 24 (Nl)

 

Definitions

 

Debtor, give, hirer, land, serve, surety: s189(1).

 

I hope this helps.

 

Cheers,

BRW

Edited April 7, 2010 by banker_rhymes_with
Added URL plus s176 CCA

[banker_rhymes_with]

Hello Folks!

 

Just to add to the above KEEP ALL ENVELOPES!

 

No matter what a bank or DCA sends you, always, always, always keep the envelope they sent it in.

 

An envelope can provide the vital proof you need to show that, say, a Default Notice was posted late and/or was posted via 2nd Class or worse, such as Business Post. If you have a full library of letters and envelopes, then you can more or less prove how the bank/DCA communicates, and that will add weight to the envelope as being key evidence.

 

If the bank or DCA's logo or Postal Licence is on the envelope, all the better. Likewise, there may be Barcodes that can further prove where the envelope was sent from and when...further nailing the slippery toads to the Courtroom floor when the time comes.

 

Did I mention KEEP ALL BLURDY ENVELOPES!

 

Cheers,

BRW

[the_shadow]

Just to add weight to the service bit of the default notice, its also stated in CPR rules.

 

I mention this as there was one case where the judge hadnt heard of it and dismissed the Interpretation act, CPR rules are something the judge cannot ignore

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

S.

[cupcake68]

WOW!

 

I need to read that a few more times to get my round it but I think I like the sound of it!!

 

Thanks for all the advice. I will look out for their next letter hoping they terminate and post it on here as soon as it arrives.

 

Esile;)

[smouk]

Cheers BRW! I will toast your health tonight!

 

I tried to load your scales with gold bullion but it would only let me click on 'em so don't put a downpayment on the villa yet.

[banker_rhymes_with]

Hello Smouk!

 

...so don't put a down payment on the villa yet!

 

I wish!

 

Busy counting the pennies to see if we can shop for food this week!

 

The dull greedy bankers and even more greedy politicians have a great deal to answer for.

 

Cheers,

BRW

[cupcake68]

So!

 

Can I just ask a question to make sure I have it clear?

 

I have had another default sent to us today (m and s) and it too is dated 11th May and says we have 14 days to pay up.

 

So if I don't pay and they send me a termination etc they will not be able to chase for any more than the amount in arears?

 

What if they don't terminated on the 14th day? If they give me an extra 2 days on top of the 14 before sending the notice of termination have they got out of it?

 

Sorry if I'm slow on the uptake but I find this all very confusing!!

[banker_rhymes_with]

Hello Esile172!

 

I have had another default sent to us today (m and s) and it too is dated 11th May and says we have 14 days to pay up.

 

So if I don't pay and they send me a termination etc they will not be able to chase for any more than the amount in arrears?

Yes, that's about how it works. It's their job to get these things right but, many bankers don't bother, because they can't be bothered. Same goes for the Agreement, they were far too busy touting their nasty expensive Cards to concern themselves with getting things right in terms of the Act. If the Agreement is rubbish, then you owe them nothing, not even Arrears.

 

Remember that the whole issue is one great big banking trick anyway, as the banks create the Debt out of nothing, you create it in effect, and they sit back and claw in the real money they earn when you pay them, real money you had to earn in the real world, not the invisible number money they invent out of thin air.

 

Once you incur the Debt, the bank probably sells it straight away (Securitisation), and they get it back so they can lend that straight out again, and multiply up the benefit yet again, and again, and again. Each new Card is Securitised, and investors buy slices of your future debts and the key re-payments you'll be making on them.

 

But that's another story.

 

What if they don't terminated on the 14th day? If they give me an extra 2 days on top of the 14 before sending the notice of termination have they got out of it?

The Default Notice has to allow you 14 clear Days from Date of Service in order to remedy the default. So, if it doesn't, then it is the piece of paper that is defective. Thus, it does not serve as a valid Default Notice for the purpose that it was created.

 

It is the piece of paper that is wrong and, once printed and wrong, it stays wrong. It can't give you more time, as the time it allowed was fixed when they PRINTED the Default Notice. They can't fix the Notice by giving you more time, as they can't amend the Notice to let the Notice give you that time.

 

What they can do, if they spot the mistake, is to issue another Default Notice before Termination, i.e. one that allows, say, 30 days from issue, so allows for Postage and gives you at least 14 clear days.

 

What they can't do if they spot the mistake, is issue another Default Notice after Termination. That would be a bit like saying a dead shot rabbit is not really dead. Stand it up, pretend it's alive, give it a 2nd Default Notice, and then shoot it again so it can become dead a second time.

 

Dead means dead. Terminated means terminated!

 

Cheers,

BRW

[cupcake68]

Cheers BRW!

 

I am getting it now!

 

Off to check if I've missed any other default notices!

 

Esile

[cupcake68]

One more question (re m and s)

 

Is it not also against the rules to issue a default/termination if they haven't complied with my cca request?

 

I cca'd them in March 09, not heard from them since except for chasing payment!

 

Esile

[banker_rhymes_with]

Hello Esile172!

 

Is it not also against the rules to issue a default/termination if they haven't complied with my cca request?

 

I cca'd them in March 09, not heard from them since except for chasing payment!

Remember that banks are a dubious crowd, and will slither and slide to bend things how they think things should apply to them...i.e. had they been given the chance to draft The Consumer Credit Act 1974.

 

Just to clarify again, default sum, Default Notice, Default and Termination are four different things.

 

default sum = the amount due that has not been paid that they say you owe.

 

Default Notice = the s87(1) Notice they must send to warn you that if you don't pay the default sum within 14 clear days from the Date of Service of the Notice, s87 then gives them the right to do various things, ranging from Terminating the Agreement, to taking you to Court to demanding early payment of sums only otherwise due in the future.

 

Default = the registering of your breach of the Agreement with the Credit Reference Agencies. The banks use these as a form of County Court Judgment without County, Court or Judge! It's a black mark that has about the same effect on your ability to get Credit as a CCJ, so it is not a nice thing. However, it depends on your situation. If you don't want Credit, it has zero effect.

 

Termination: the ending of the Agreement, either by letter, or by an action on the Creditor's part that confirms the Agreement has ended, such as demanding payment of a sum not yet due, or by taking you to Court to demand the same thing.

 

Going back to your question, the CCA Request is indeed key, because if they have not responded to your s78(1) Request - I'm assuming here it is a Credit Card, so you would quote s78, if a loan, then it would be s77 - then they are constrained by the Act because of s78(6).

 

This is what s78(6) says:

 

78

 

(6) If the creditor under an agreement fails to comply with subsection (1)-

 

(a) he is not entitled, while the default continues, to enforce the agreement; and

 

(b) if the default continues for one month he commits an offence. Forget (b) as that no longer applies.

 

The (a) part is key. It means they can do squat while they themselves are in default of your s78(1) request. The word default in this context just means something they have not done. Sadly, you can't issue a Notice or anything like that!

 

If they have gone ahead and Terminated, ending the Agreement without either responding to your s78(1) or by sending you a s87(1) Default Notice, then they have shot themselves in both fat feet. They have pushed ahead whilst they were constrained by s78(6).

 

Finally, the most annoying issue is the banks and DCAs will do more or less whatever they feel like doing, so will happily add a Default to your CRA Data. The CRAs are run by the same Debt Industry cretins that run the banks, so they are all in league with each other.

 

Getting a Default removed is very hard work, but can be done. Unfortunately, it is something that is probably best left to sort out until last, i.e. when the bank has made a complete mess of the issues, and has Terminated and has also dragged you into Court and lost.

 

Once that stage has been reached, getting the Default removed is much easier, indeed, if you beat them in Court, as the Judge to make them remove any adverse Data. In the interim, it is hard to achieve while in the middle of an argument/battle over the Agreement and Termination. The CRAs will just ignore you, as the situation is fluid and changing so, it is hard to pin the CRA down...not impossible, but hard while still in the heat of battle as it were.

 

Cheers,

BRW