Termination of hire purchase without a Default Notice

[postggj]

Thats Empty Threats

[chez262]

Ok, I received my 2nd Termination Notice today and will therefore be posting them a Subject Access Request tomorrow.

 

I presume this is the only thing I can do right now... oh and wait of course?

 

 

Hi Viscount, if your out there can you please explain why this DN might be in the prescribed form? I thought it looked OK

 

Can anyone else elaborate please, I'm trying to form my defense

 

Thanks.

[Viscount Stair]

Hi again! I am still here.

 

Have a look at Schedule 2 of the attached regulations, which prescribe what a Default Notice should look like - this one doesn't.

6. Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.pdf

[lexis200]

Chez, there is a poster on here called Banker_Rhymes_With who would probably be able to inform you on the payment after the termination (he's pretty into that area), but my view on it would be that once they have terminated a contract it is kaput - null and void, and that's that.

 

The only way they could re-instate it would - IMHO - be if they got a new agreement signed, as once a legal contract has been finished I really don't see how they can decide that actually it is back on, regardless of if you paid or not.

 

Again, only my opinion but after the agreement had been terminated I don't see how they could accept payment? They could have re-instated it and then accepted money towards the arrears, but until that happened, any money you paid would have been towards a dead account.

 

I think there's been a bit of jiggery pokery going on there, and although the form of the DN being incorrect will certainly help, I would try and get more info regarding the termination aspect too.

 

Lexis:)

[chez262]

A quick update on my situation and they just can't stop messing up!

 

They have now terminated for the 3rd time just over a week ago and today I had a voice message on my phone from a guy claiming to be from the creditors 'Asset Collections Department'. He said he'd been to the property to collect the equipment but the property was closed... he wants me to call him back to arrange collection of the item.

 

As kindly suggested above, they need a court order to collect this, right?

 

I sent them a Subject Access Request on the 30/4/09 and still awaiting the response.

 

Can anyone please suggest what I should do now?

 

Thank you

[Viscount Stair]

Yes, they need a court order.

 

Attempting to repossess the goods without either your agreement or a court order is a no no.

 

Out of interest (but it should be irrelevant), did they send a third so-called DN? (I say so-called because the first two weren't actually valid DNs.)

[trooper68]

A quick update on my situation and they just can't stop messing up!

 

They have now terminated for the 3rd time just over a week ago and today I had a voice message on my phone from a guy claiming to be from the creditors 'Asset Collections Department'. He said he'd been to the property to collect the equipment but the property was closed... he wants me to call him back to arrange collection of the item.

 

As kindly suggested above, they need a court order to collect this, right?

 

I sent them a Subject Access Request on the 30/4/09 and still awaiting the response.

 

Can anyone please suggest what I should do now?

 

Thank you

 

The account is in dispute. You will need to send a letter stating that you will only want contact via letter only (registered letter). Phoning or face to face visits without recordings is no good. What you want is a paper trail that you can defend with. They should send you a letter within 14 days, stating that they "looking in to it". Note: you do not need to prove who you are, stalling tactic, do not sign any paperwork with your real signature. Hand print it only.

 

If they call you non-stop send a harassment letter, hang up the phone. Do not do security checks on the phone, you do not need to.

 

They are giving you the run around, take control,use this website, there is loads of info.

 

Trooper68

[chez262]

Hi Viscount,

 

Yes they did, a week or so after the 2nd termination

 

Do I keep quiet until I receive the SAR or tell them to back off? I don't want to put my foot in it at this late stage

[Viscount Stair]

They've already terminated wrongly twice and they can't say you affirmed the second time (even if - repeat, if - they can for the first one).

 

Was the third "DN" right?

 

Even if it was, I would tell to shove off, you have nothing to lose by doing so.

 

And I would remind them - in writing - that they need a court order, which they have no right now to get.

[chez262]

Thanks Viscount, much appreciated.

 

It's been 40 days today since I sent the SAR and I am still awaiting a reply from this. Should I wait until I receive this before I write to them?

 

What sort of things would I put in the letter? I'm sorry, I don't have a clue what to say to them. Do I tell them the account is in dispute or is there a template letter for this?

 

Thanks again everyone for your help!

 

Ok another hitch has arisen... the royal mail do not have receipt of delivery for the SAR!!!

My concern is that they will now proceed to obtain a court order for the goods.

If a send another SAR, does that mean the account is in dispute and therefore put it on hold or do I have to request this in a letter???

 

Please please help...

[Viscount Stair]

First things first:

 

http://www.royalmail.com/portal/rm/content2?catId=69800733&mediaId=80300735

 

That will get an investigation started to track down the SAR.

 

Whether or not an SAR was received is really irrelevant to whether or not an account is in dispute. An SAR is only a request for information.

 

The lack of a valid DN before termination is grounds enough for a dispute.

 

Write to them pointing out that they would require a court order to repossess the goods and that having terminated the contract without having served a valid DN they have repudiated the contract and are precluded from obtaining a court order. Any attempt to seize the goods without a court order will be theft and conversion, exposing them to criminal and civil liability. Continued phone calls will be regarded as harassment, again exposing them to criminal and civil liability.

 

Don't get drawn into issues about affirmation at this stage.

 

Can you scan and post up the 3rd DN for us to look at?

[chez262]

Yes I'll scan it up ASAP, thanks Viscount.

 

My concern is that once I inform them of the fact that they have sent invalid DNs before terminating they will include a fake DN in the SAR as if they corrected the mistake before termination or am I being too sceptical here?

[humbleman]

chez

 

I have just had a quick read through the thread, what is the agreement for i.e. what equipment was this for and was the agreement between a company and them or with you.

[undercovermoles]

yeah I was thinking that was strange too - chez you say it was for your business but it was a consumer credit act agreement?

[chez262]

Hi guys,

 

Yes the agreement was with me as I was in a partnership, not a ltd company hence it being a consumer credit agreement... Thanks for noticing

 

The equipment was to be used in a shop though, however I think this become irrelevant when signing the agreement.

 

They have now sent me the information from the SAR and they have as I thought, terminated the agreement as follow,

 

Payment was due 1st

Reminder sent 5th (to business which couldn't receive mail)

Reminder sent 14th (to business which couldn't receive mail)

Termination letter sent 21st (to home address therefore received)

Reminder, DN, Termination received 3 months later.

Reminder, DN, Termination received another month later.

 

Neither of the DN's were of the correct format either it seems.

 

How do I put this account in dispute?

 

Thanks.

[postggj]

an invalid default notice comes into its own once court action has begun

 

never tip the creditor off about the default notice until its in your defence.

 

its to late for them then

[chez262]

On one of the documents they sent me as part of the SAR which details all contact, it says the account has been passed to a DCA.

 

Do I write to them informing them I don't think I owe anything due to the unlawful termination or just wait until I receive a court order?

 

However saying that, they are trying to contact me to collect the goods via phone without a court order!

[chez262]

Hi All,

 

A quick update on my situation with my HP.

 

I have sent a letter stating I believe I owe the company nothing due to the Termination on January 21st. They have replied with,

 

'we enclose a copy of a the default notice issued on 1 May 09 in line with the CCA, and trust this clarifies matters for you. This letter has now been passsed across to our solicitors and any further correspondance should be sent to them'

 

I'm unsure if I should write to the solicitors in reply to this or leave them to figure it out themselves

 

I presume they will just proceed with court?

 

Many thanks everyone

Edited July 6, 2009 by chez262

[chez262]

Can anyone please help!!!

[lexis200]

Hi Chez

 

I'd be inclined to pen a quick note to the sols asking why they are trying to proceed with a case when your account has been unlawfully terminated by the bank.

 

I'd just be brief and polite - give the facts (dates on letters etc), copies of the letters and possibly a very small chunk of the Act showing why they are in the poo if they continue. I would say that adding in any supporting facts would be more to show you know a bit about what you're saying rather than actually informing them of anything - they should know all of it in the first place. Of course if you don't want them to think you have a grasp of this stuff then you could leave that out.

 

I would also cc the bank though with a short covering letter stating your disappointment that they are apparently unable to grasp your clear questions/points and have felt the need to continue with a case they can not win. This isn't like an enforceable or not agreement - DN's are black and white. If it's wrong it's wrong and that's the end of it. If the judge doesn't agree, as far as I've read on here (bear in mind I have no first hand knowledge of court) you have every right to appeal and to ask them to set out their reasoning for coming to the decision they have made.

[chez262]

Thanks Lexis, I'll do just that

[banker_rhymes_with]

Hello Chez262!

 

Many thanks for the PM.

 

I regret I have little else to add to what has been said above, you are already in very good hands.

 

The first Termination seems to be the key, if no Default was in your SAR that pre-dated that, then they have rather shot themselves in the foot:

 

Payment was due 1st

Reminder sent 5th (to business which couldn't receive mail)

Reminder sent 14th (to business which couldn't receive mail)

Termination letter sent 21st (to home address therefore received)

Reminder, DN, Termination received 3 months later.

Reminder, DN, Termination received another month later.

It would appear they have blown their Rights to enjoy s87.

 

I'd also argue that the Payment you made after the Termination can go towards any Arrears. Thus, what you still owe now should be limited to the difference between the Arrears and the Payment you made.

 

Cheers,

BRW

Edited July 10, 2009 by banker_rhymes_with
Typo

[chez262]

Many thanks for your time responding BRW, much appreciated.

 

I may actually sleep easy tonight, (without the palpitations) thanks again

[chez262]

Hi All,

 

A quick update in regard to this case... I have received Court Claim forms and sent in my Defence to the court disputing all the allegations made in the partitulars of claim.

 

The claimant conveniently failed to include the first termination in the POC which I've built my defence around.

 

Can anyone please help me build a case for the court date on 19th October. Any links to case law would be much appreciated

 

Many thanks in advance,

Chez.

[chez262]

For anyone that is interested... I may have been tripped up here with this case

 

The agreement signed is headed 'Regulated By The Consumer Credit Act 1974', it also has a section titled 'Important - Read This Carefully To Find Out About Your Rights' in which it explains my 'rights' under the CCA 1974 HOWEVER, and it is a big however, underneath the signature box is the following sentence:

NB If you are a body corporate or if the total of the payments which you must make under this agreement exceeds £25,000 (including VAT but excluding any insurance premium) your attention is drawn to Clause 10 overleaf.

 

Clause 10 is conveniently titled Unregulated Agreement.

My total payable amount at start of agreement was over £25,000