meerkatsmimm Vs. Nationwide CC - Default Notice missing terms??

[meerkatsmimm]

Hello Folks,

 

Im going through my accounts one by one with my husband and thankfully starting to feel like we are making some headway getting it all up on the forum! Getting some great advice already which is wonderful, so hope those in the know can help here too please.

 

I have two overdrafts, both in default with DN notices, will post them up later. This is my own personal Nationwide CC.

 

They wont accept reduced payments of £1 on any account, stating £10 is the minimum they will accept on one overdraft and thanks to the good people at Child Benefit, they continued to put this money into my other account even though I had set up a new bank account with NatWest (and supplied them with new bank account details), so they dont currently view that as being in default - Although, they have sent me a DN for the Account anyway!!!

 

No flexibility with regards the circumstances we are in, even after SOA them and Financial statements from CCCS. Will be sending the Payplan letter we got in the hope this has some effect.

 

This DN I am listing doesnt have any end date listed, just to say it gives me 14 days from the date of issue. This seems strange as all my other DN's have an end date and as I understand it they have to put a finishing date otherwise the DN is invalid.

 

Im not 100% sure about this, so would appreciate advice from you all.

 

DN below, thanks again x.

 

 

Edited May 12, 2009 by meerkatsmimm

[meerkatsmimm]

Any advice?

[meerkatsmimm]

Folks, ive looked back through my paperwork for my Nationwide CC and it appears they have already issued me with a default notice on 23rd feb 09.

 

Having looked at this DN, they have stated again that I must rectify the situation 'within 14 days' but not specified a date, and not allowed me the legal amount of time for the DN to be resolved. The cover letter that came with both DN is dated the same day as the DN.

 

As has been said elsewhere, surely this renders the DN unenforcable as unless they hand delivered the letter to me on 1st day I did not even get the fully allowed time limits to rectify the situation and also not having the 'action by date' as with other DN like my EGG card?

 

I have attached the 1st page with the DN above and also the earlier DN from Feb that Ive just came across. It just shows you that when they bombard you with copies and copies of the same docs, its easy to loose track of whats important!

 

I will need to start a seperate thread for my Natiownide Overdrafts, but they have done the same thing with only allowing me 14 days exactly, although on these they have specified a start and end date. However, they have not mentioned the figure to be paid anywhere on the DN, simply that my Overdrafts must be paid for in full.

 

Also, in all cases they dont have my correct address printed anywhere, even though I have supplied them with this several times.

 

Please find the scans below, I would really appreciate it if someone could have a look at these for me as I am starting to get a bit desperate to know if they have messed up here. Many thanks all x

 

 

Edited April 11, 2009 by meerkatsmimm

[citizenB]

You are correct, neither Default notice is valid in that they say

 

14 days from the date of this letter.

 

Nope, the regulations state 14 clear days allowing for 2 (working) days for 1st class and 4 working) days for 2nd class mail.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2036335.html

 

1. Interpretation Act 1978, Section 7

 

This states:-

 

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.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

HTH:D

[meerkatsmimm]

Hey CitizenB,

 

That is great news, many thanks for clarifying that for me.

 

Are they allowed to serve me two default notices for the same account?

 

What do I have to do now, as obviously I want them to terminate the account so that I can make it clear to them that I just owe them the arrears?

 

Dont suppose you would mind checking out my Nationwide Overdrafts thread to see if these are also unenforcable?

 

Many thanks again, great to know they are messing up!

[meerkatsmimm]

hi folks

 

feeling a little down tonight and wonder if its worth the hassle?

 

thinking of just filing for bankruptcy and letting them have it all! I'm stressed, OH is mega-stressed and all we see before us is 16 court cases - all taking up more time than we can afford if we want to keep the house and bring up our daughter!

 

Has anyone won against NW with regards unenforceable agreements and/or dodgy default notices?

 

Thanks--

[citizenB]

In the link below "legal successes", I am sure you will find some Nationwide "Wins". You might have to look inside the threads to see if they are nationwide if it isnt obvious from the titles

 

DCA Legal Successes - The Consumer Forums

 

Your question "Are they allowed to issue 2 default notices". They can issue as many as they like until such times as they TERMINATE. However, it would be wise of them to get it right before they do. As already stated, they cannot just say "14 days from date of this letter".. that is incorrect.

 

 

HTH

[meerkatsmimm]

Thank you Citizen B, just having one of those days....

 

Cant believe we struggled paying these for so many years and now just reading that it could be possible that even unenforceable agreements could be upheld in court, depending on the judge on the day. I hadnt thought that was the case - I had thought an unenforceable agreement couldnt be enforced, not even by a court.

 

It just puts doubt in my mind, which is not nice when you are trying to be positve and strong!

[meerkatsmimm]

Hey Folks,

 

An update on this today. Ive posted it up under debt collection section as I am been contacted by KPR on this account also.

 

Having ignored my CCA request and follow up letter and having paid the £1 CCA payment against my account (even though it was written as to be a CCA payment!), I finally sent a letter at end of April with my SAR and CPR 31.16 request.

 

Today I get a letter referring back to my letter of the end of April, and telling me they enclose a true copy of my agreement, together with a seperate booklet with current T&C's.

 

However, they have sent a CCA S.78 response to a CPR request.

 

Here is the document in question:

 

 

1 page, 1-sided, no prescribed terms, infact, no terms at all. No mention of Credit limit, no mention of APR, no box to be able to cancel the agreement upon (although it mentions I can cancel but how and when will be sent by Nationwide under seperate cover - when and how exactly??), and countless references to this being an application - compounded by the large APPROVED stamped over their own wordings.

 

I also never remember ticking a box for PPi, although its strange that any new application for PPi had to be signed beside the tick box - feel free to correct me if im wrong.

 

Strangely, along with this letter came a second letter from KPR, offering me the opportunity to get a substantial reduction in the balance if I contact them to pay within the next 7 days!

 

Can those who know have a look over this for me please and offer some advice as to the next move.

 

My own thoughts are that I thank them for acknowledging this as being a true copy of my 'agreement', thank them for providing this as a response to my CPR request (with all of my original letters enclosed) and offer them 5% of the balance to p*** off, otherwise Ill see them in court.

 

Or am I cooking my goose with this? Advice as always much appreciated.

 

Meerkat x

[citizenB]

Yu say you dont recall ticking the PPI box.

 

Would this cover have been of any benefit to you ? (ie do you have an existing medical condition, self employed, not employed. )

 

In fact did they discuss this requirement with you at all ?

 

If no to either of above, then you could try for a mis sell on that.

 

There certainly doesnt appear to be any prescribed terms and you really want a copy of the historic Terms and conditions.

[meerkatsmimm]

Thanks CB,

 

I was working at the time, but I never ticked these boxes, so assume it was done by the agent at the time of application. As you can see there is no signature box beside it, so how can they prove it was me who agreed and or ticked the box?

 

It wasnt explained to me and at the time, probably niavely, I wasnt thinking about payment protection plans, as it added to the amount I needed to pay back each month.

 

Whats my next move on this? Do I allow them the other few days to supply under CPR 31.16 and then hit them up with CPR letter 2, or as this letter from them in is direct response to my CPR letter 1 to them, do I send a Letter Before Action offering them the chance to settle the debt for 5% of the balance?

 

Obviously they are threatening me with all sorts (well, KPR are doing that) and they sent a letter in yesterday with this, offering me a substantial discount if I wished to settle within the next 7 days. Dont have a large amount of money, but could just about raise the 5% from family if needed.

 

In terms of clarity (for myself more than anything else)....

 

If they have ignored my Original CCA request,

 

If they have ignored my further letter about my CCA request,

 

And in response to my CPR request, they supply this document,

 

Is this what they are stating they intend to rely upon if it went to court?

 

My letter to them was very clear that this wasnt a S.78 request any longer, but a CPR 31.16 request - and in their letter back to me, they reference my CPR letter by date ("thank you for you letter dated to us BLAH-BLAH of April 2009")

 

So is this what they will rely upon in court, and if they were to produce something different in front of a court, would this be seen in a dim light?

 

Thanks as ever x

[citizenB]

Thanks CB,

 

I was working at the time, but I never ticked these boxes, so assume it was done by the agent at the time of application. As you can see there is no signature box beside it, so how can they prove it was me who agreed and or ticked the box?

 

It wasnt explained to me and at the time, probably niavely, I wasnt thinking about payment protection plans, as it added to the amount I needed to pay back each month.

 

Whats my next move on this? Do I allow them the other few days to supply under CPR 31.16 and then hit them up with CPR letter 2, or as this letter from them in is direct response to my CPR letter 1 to them, do I send a Letter Before Action offering them the chance to settle the debt for 5% of the balance?

 

Obviously they are threatening me with all sorts (well, KPR are doing that) and they sent a letter in yesterday with this, offering me a substantial discount if I wished to settle within the next 7 days. Dont have a large amount of money, but could just about raise the 5% from family if needed.

 

In terms of clarity (for myself more than anything else)....

 

If they have ignored my Original CCA request,

 

If they have ignored my further letter about my CCA request,

 

And in response to my CPR request, they supply this document,

 

Is this what they are stating they intend to rely upon if it went to court?

 

My letter to them was very clear that this wasnt a S.78 request any longer, but a CPR 31.16 request - and in their letter back to me, they reference my CPR letter by date ("thank you for you letter dated to us BLAH-BLAH of April 2009")

 

So is this what they will rely upon in court, and if they were to produce something different in front of a court, would this be seen in a dim light?

 

Thanks as ever x

 

Have you sent a Subject Access Request to Nationwide ?. This is one way of finding out about the PPI. Obviously you will require statements from the inception of the account to the current time.

 

You will also need to ask for any documents relating to the PPI.

 

You say the agent could have ticked it at the time. This implies you had a face to face when applying for this account. In which case, you need also to see the Means and Recommendation sheet that the agent would have been required to complete, this would show or should do.. what they said to you about the PPI.

 

Armed with this information, then you can make an application for mis selling of the PPI. They were not allowed just to add it. If you were under the impression this was obligatory then that was wrong and mis sold.

 

Chances are you could offset the PPI against any outstanding balance.

 

You could also ask again for a copy of the agreement and other supporting documents ie historic T&cs.

[meerkatsmimm]

Thanks CB,

 

It was a face to face although I dont remember this being on my statements, certainly no recent ones, so I assume I cancelled this a while back - I just cant remember!

 

I have SAR'd Nationwide. They are being very difficult as I have said on my other NW threads about supplying this info, because they have refused to acknowledge my new address.

 

I went in branch yesterday with a change of address form with my name written across a box of x's as has been said elsewhere on the forum and the staff member refused to accept it saying while she could see a signature, it was illegible and why would anybody do that in the first place!

 

So im stuck. My next thoughts are to ask for this to be sent to my old address as I still have a re-direction set up.

 

But they have acknowledged my new address on a phone call during security questions, so they are being very odd with this.

 

Do I send another CPR 1 letter, or a letter 2 and add in the request for historic T&C's? Do the T&C's not need to be part of the same document to be enforceable?

 

Do you have any idea in terms of my question about whether they would rely upon this in court or if they turned up with a different document, how they would proceed in front of a judge?

 

Thanks x

[citizenB]

Yes, I remember you saying about your SAR in another thread. I would be putting in a complaint to the ICO now regarding the non compliance. I think they are being obstructive.

 

I really do not know the answer to your question re the CPR.

 

Yes, the historic T&Cs do need to be provided because any variations made later are supposedly changing original clauses.

 

They could try to rely on the document they have and depending on the DJ is whether they will get away with it. They shouldnt ................. read this post by skemdosser

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2163905.html

 

 

Have you seen this thread.............

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/165349-smt37-morgan-stanley-goldfish.html

 

HTH

[meerkatsmimm]

Thanks CB,

 

Yes following PT's massive thread and also SMT, I hope that BC dont get away with the nonsense about an old application, it just shouldnt be allowed.

 

Ill read the other thread asap.

 

Think I will give them a ring and ask them to either send to my old address which I will pick up by way of re-direction, otherwise I will make an official complaint for non-compliance as you state.

 

They have had numerous 'signed' letters from me at my home address and yet they still carry this on. KPR are the same, just wonder were they will send their hencemen should the day arise!

[meerkatsmimm]

well hers a new one...

 

currently on hold with nw, they have changed my hubbys name and address on a joint account - but not mine!!!!!!!!!!!!!!!!

 

no explanation from the person who answered the call, off to talk with the change of address team.

 

Suggestions of what to say CB if you are around!

[citizenB]

well hers a new one...

 

currently on hold with nw, they have changed my hubbys name and address on a joint account - but not mine!!!!!!!!!!!!!!!!

 

no explanation from the person who answered the call, off to talk with the change of address team.

 

Suggestions of what to say CB if you are around!

 

Plonkers !!!

 

What in heavens name are they up to.

 

I think all you can do is write and ask them exactly what their game plan is. This is beyond bizarre isnt it ?

 

IMHO, I would make this an official complaint see where that takes you.. apart from the funny farm:rolleyes:

[diddydicky]

You are correct, neither Default notice is valid in that they say

 

14 days from the date of this letter.

 

Nope, the regulations state 14 clear days allowing for 2 (working) days for 1st class and 4 working) days for 2nd class mail.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2036335.html

 

1. Interpretation Act 1978, Section 7

 

This states:-

 

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.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

HTH:D

 

is a demand for payment of the full amount of the account a termination notice? all these DN's(mine included) are NOT asking for the arrears but the full amount of the account and confirming that the card is to be returned

 

surely that is termination!

[meerkatsmimm]

thats my understanding as well dd

[citizenB]

is a demand for payment of the full amount of the account a termination notice? all these DN's(mine included) are NOT asking for the arrears but the full amount of the account and confirming that the card is to be returned

 

surely that is termination!

 

 

This is what the regulations say....

 

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

As that particular statement is included along with termination, I too understand a Formal Demand of any kind that includes the requirement of the debtor repay the WHOLE amount (of sums not actually due) to be a form of termination.

I am sure someone will correct me if I am wrong.

[diddydicky]

This is what the regulations say....

 

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

As that particular statement is included along with termination, I too understand a Formal Demand of any kind that includes the requirement of the debtor repay the WHOLE amount (of sums not actually due) to be a form of termination.

I am sure someone will correct me if I am wrong.

 

thanks thats what i thunk! they have in effect managed a very clever stunt of defecting the DN and at the same time turning the DN into a TN and an unfair recission!!

 

bless!