Invalid Default Notices

[diddydicky]

if the loan was for business purposes - and can be proven to have been used for such - i believe it would still be deemed unregulated

 

i am not 100% on that but sure i read that recently

[patrickq1]

i have the documents one for the loan made out in favour of me and my wife and the assignment in both out names both are by what is written supposed to be covered by the 1974 act as it states this clearly and several parts...no mention of the business is anywhere on the documents,saying that would they still be out of time ie 12 years as it was in 1993 when we had our disagreement and they terminated due to gross interferance in the bussiness

and libel (admitted libel that is)

[diddydicky]

i have the documents one for the loan made out in favour of me and my wife and the assignment in both out names both are by what is written supposed to be covered by the 1974 act as it states this clearly and several parts...no mention of the business is anywhere on the documents,saying that would they still be out of time ie 12 years as it was in 1993 when we had our disagreement and they terminated due to gross interferance in the bussiness

and libel (admitted libel that is)

 

i think you yourself said this was a business loan but in your personal name (apologies if i misread that) my question was- what was the money used for- personal use or did it go through the companies books and get used for company business? (irrespective of what was on the loan documents)

[diddydicky]

Exemption relating to businessesBefore section 17 of the 1974 Act insert—

“16BExemption relating to businesses

(1)This Act does not regulate—

(a)a consumer credit agreement by which the creditor provides the debtor with credit exceeding £25,000, or

(b)a consumer hire agreement that requires the hirer to make payments exceeding £25,000,if the agreement is entered into by the debtor or hirer wholly or predominantly for the purposes of a business carried on, or intended to be carried on, by him.

(2)If an agreement includes a declaration made by the debtor or hirer to the effect that the agreement is entered into by him wholly or predominantly for the purposes of a business carried on, or intended to be carried on, by him, the agreement shall be presumed to have been entered into by him wholly or predominantly for such purposes.

(3)But that presumption does not apply if, when the agreement is entered into—

(a)the creditor or owner, or

(b)any person who has acted on his behalf in connection with the entering into of the agreement,knows, or has reasonable cause to suspect, that the agreement is not entered into by the debtor or hirer wholly or predominantly for the purposes of a business carried on, or intended to be carried on, by him.

(4)The Secretary of State may by order make provision about the form, content and signing of declarations for the purposes of subsection (2).

(5)Where an agreement has two or more creditors or owners, in subsection (3) references to the creditor or owner are references to any one or more of them.

(6)Nothing in this section affects the application of sections 140A to 140C.”

5Consequential amendments relating to ss. 1 to 4

 

this would be the area in which you would need to satisfy the cca

 

so if the creditor states that this was intended as a business loan- you might have a hard time claiming otherwise i think

[basa48]

if the loan was for business purposes - and can be proven to have been used for such - i believe it would still be deemed unregulated

 

i am not 100% on that but sure i read that recently

 

If the agreement was between a lender and an individual then it is regulated whatever its purpose.

 

If it is a business loan then the agreement is generally individually negotiated (although of course the lender will have set terms and will have the upper hand in any negotiations) and is unregulated.

[diddydicky]

not according to the above

 

the act clearly anticipated that a company director or owner may want/have to make finance arrangements in his own name (perhaps for instance because the company has not traded long enough to be credit rated)

 

and it would appear to me to be making provision for that eventuality by saying that even if the purpose of the loan is not mentioned in the documentation- if it can be shown that the real purpose of the loan-was for the business and not personal- it would be treated as a business loan

 

if the creditor wants to ensure that the loan does not come under the regulations- and he has evidence-perhaps in the initial loan application , correspondence or phone calls that this was for the purposes of the business then clearly he is going to present that evidence to support that proposition

 

 

I have owned./ do own several companies and have been/am a company director and all the loans i have ever arranged on a personal level for company use have been treated for all purposes- including taxation as company finance and not personal finance

 

if however the CCA is saying something different then i am open to persuasion

 

which is why i asked if the funds had gone into the company accounts- which would kinda put the lid on it!!

Edited March 10, 2010 by diddydicky

[patrickq1]

the bank made a payment of an overdraft with another bank then i got the rest i banked with the bank some 10,000 so part business and rest personal

[diddydicky]

the bank made a payment of an overdraft with another bank then i got the rest i banked with the bank some 10,000 so part business and rest personal

 

and there's me thinking you were going to make it simple:D

 

Dont know the answer to that one for sure but i am confident that if some of that money went through the companies books- it will be regarded as a business loan so presumably may be split for the purposes of regulation- but i think you might need the advice of your company accountant on that one

[loring]

Hi

I have a Default Notice issued 19th May 2005 to be rectified by 02 June 2005, which at best would be 10 Days after taking away 4 days 1st Class postage and the May Bank Holiday. I was hoping this was defective but I have read somewhere that prior to 2006 the time allowed for rectification of defaults was only 7 days. Could someone clarify the situation for me. Thanks

 

Loring

[diddydicky]

correct- and it is deemed delivered on the second working day after posting not the fourth for first class posting - sorry

[exchange]

i don't think there is such a thing as a "prescribed form" of termination notice is there!!

 

The DN will usually be a termination notice (advance notice of) as will any demand for you to cough up the entire balance of the account

 

a court summons for the full amount is a pretty clear signal that they intend to terminate

 

i think you are clutching at straws on that one

 

as for the SAR it depends when you made the request

 

as it takes up to 40 working days for them to comply - you cannot expect proceedings to be put on hold whilst you wait for it

 

DD, a slip of the keyboard I believe as it is 40 calender days for a SAR, not working days.

 

Think you should edit to avoid confusion for less experienced Caggers!

 

Hope you don't mind my correcting you.

 

Exchange

[oilyrag]

All of this is a very grey area. We had company credit cards with our limited company. Each card bore the name of the company and our personal name as well. On checking our files following this discussion, it has to be said that despite the CC co claiming that these are NOT covered by the CCA 1974 just about every piece of paperwork we have on this subject from them is actually headed :

 

"THIS IS AN AGREEMENT REGULATED BY THE CONSUMER CREDIT ACT 1974"

 

Now what is certain is that both scenarios cannot be correct. Either the agreement is regulated by the CCA1974 or it is not. If it is not then serious misselling was done at the time and if it is then certain sections of the CCA1974 have been usurped.

 

We are still trying to get this sorted out and remarkably(?) all has gone quiet on the Western Front for some while now.

 

regards

oilyrag.

[oilyrag]

Oh and just a quick question DD, I have checked all of our correspondence from Mercers/Calders. We log each document with the "received date". we do keep the envelopes but there is now never a postmark just that orange barcode mark adjacent to the clear address box. Envelopes are printed with the "UKMAIL" logo. Every item arrived four days after the date of the letter, hence making every item defective by one or two days, but how would we prove (or others) with the way their mail is sent that it is actually defective on this point. We know they are defective for other reasons.

 

regards

oilyrag.

[vint1954]

The best delivery that ukmail offer is 3 days, I beleive, unless it is express. There is an extra day for it to get into the RM system.

 

The orange bar codes are PO codes, normally giving the address.

 

If not RM 1st class, then it must be deemed 2nd class.

[oilyrag]

Hi Vint,

 

Thanks for that, settles my own query and I am sure others will now be able to work out the defects more easily.

 

regards

oilyrag.

[Bigdebtor]

The best delivery that ukmail offer is 3 days, I beleive, unless it is express. There is an extra day for it to get into the RM system.

 

The orange bar codes are PO codes, normally giving the address.

 

If not RM 1st class, then it must be deemed 2nd class.

 

Vint

 

Can you point to evidence re UKmail service levels (e.g. UKmail's T&C's, web site etc.) - in case this becomes the crucial part of the jigsaw to scupper them?

 

BD

[vint1954]

If you google ukmail, you can see for yourself.

 

Mail

UK Mail is the UK’s leading alternative mail services provider, handling more than 12 million items every day.

 

We offer a range of service options suitable for any company sending bulk mail of more than 250 items. Mail is collected, sorted, consolidated and tracked as it moves through our network until the point of handover to the local postman for last mile delivery. We offer a Business Class, two day definite delivery service, or you can choose our Economy three day definite option..

 

Our brand new imail service has revolutionalised the mail industry. We are the first company in the UK to enable letters to be sent direct from your pc to our mail Sort Centres ready for print, distribution and nationwide delivery the very next working day.

 

What’s in it for you?

 

• Significant cost savings
  
• Easy despatch preparation
  
• Late flexible collections times
  
• No need to frank mail or take a trip to the post office
  
• Day definite delivery
  
• Mail tracking to the point of delivery
  
• Dedicated account management
  
• Detailed invoicing
  
• Easy payment by direct debit or credit card
  

Ukmail is generally received 3-4 days after post date, or longer.

 

You will note that they collect mail batches over 250 items. If they don't have 250 items that day, maybe that is why they arrive so late, as they are not collected until there is 250 items?

 

For the potage times, you need to look at the Interpretation act. It mentions first and second class mail. If not first class, it must be second!

 

Quote:

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.

 

[diddydicky]

Oh and just a quick question DD, I have checked all of our correspondence from Mercers/Calders. We log each document with the "received date". we do keep the envelopes but there is now never a postmark just that orange barcode mark adjacent to the clear address box. Envelopes are printed with the "UKMAIL" logo. Every item arrived four days after the date of the letter, hence making every item defective by one or two days, but how would we prove (or others) with the way their mail is sent that it is actually defective on this point. We know they are defective for other reasons.

 

regards

oilyrag.

 

UK MAIL does not collect mail from their clients on weekends or bank holidays- it is also known that the mail from them normally enters the royal mail chain a day after they collect it- hence it being regarded as 2nd class

 

i think it would pay to go on their website and download what they say to their clients about guarantees of delivery in case you might need it later

 

the barcodes on the envelopes do contain the information you need but no one yet has managed to source a barcode reader for these which i beleive run into hundreds

[diddydicky]

DD, a slip of the keyboard I believe as it is 40 calender days for a SAR, not working days.

 

Think you should edit to avoid confusion for less experienced Caggers!

 

Hope you don't mind my correcting you.

 

Exchange

 

thanks, happy to correct my mistake

 

and no, it wasn't a slip of the keyboard- i was wrong

[InformedSearcher]

I think there are 2 main points that I seem to understand and wonder why after many years banks seem to fail on. I say this because they hassle you for things, often with untrained staff talking to you as well in distant countries.

 

1. Issuing a DN has not closed the account until the Termination Notice is received - sometimes never. This allows supposed adjustments.

 

2. Timings/Dates - These things are done with bespoke software so either there's a problem with staff entering them or their software is not perfect.

 

Having said this (above) I think because I'm sure of it, that a bank will issue a defective DN knowing that if you take them to court you have more chance of losing. Whereas they can just not bother taking you to court because they know the DN is as bad on a CRA as a CCJ and that you have a better chance of winning.

 

Michael

[diddydicky]

I think there are 2 main points that I seem to understand and wonder why after many years banks seem to fail on. I say this because they hassle you for things, often with untrained staff talking to you as well in distant countries.

 

1. Issuing a DN has not closed the account until the Termination Notice is received - sometimes never. This allows supposed adjustments.

 

2. Timings/Dates - These things are done with bespoke software so either there's a problem with staff entering them or their software is not perfect.

 

Having said this (above) I think because I'm sure of it, that a bank will issue a defective DN knowing that if you take them to court you have more chance of losing. Whereas they can just not bother taking you to court because they know the DN is as bad on a CRA as a CCJ and that you have a better chance of winning.

 

Michael

 

it can be argued (with a high degree of success) that the DN is in fact also a termination notice

 

this is a prescribed document- the content clearly conveys in most cases that if the debtor does not comply the creditor WILL terminate and demand payment of the balance of the account in full

 

a creditor is bound by his words in this document

 

the debtor, (let us not forget the difference between the sophisticated international banker and the man in the street which the act was designed to protect, is entitled to "take the creditor at his word"

 

therefore the debtor is fully entitled to beleive that having not remedied the alleged default by the date stated in the DN that the creditor has/will therefore terminate the agreement

 

there is really no NEED to wait for the "termination letter" because it was Already contained within the default notice

 

it will be argued by some, that some DN;s state that the creditor MAY terminate the agreement - i say that is nonsence

 

the intent and purpose of a default notice is to enable to creditor to lawfully terminate the agreement and demand sums that were otherwise not yet due, provided that it first gave the debtor the opportunity to remedy the alleged default

 

in other words a dual role

 

it is NOT the inention of the CCA to allow the creditor to "use" a DN as a debt collection "threatogram" and IMO the creditor would be held to have meant that MAY means WILL in this context

[Worsteve]

i don't think there is such a thing as a "prescribed form" of termination notice is there!!

 

The DN will usually be a termination notice (advance notice of) as will any demand for you to cough up the entire balance of the account

 

a court summons for the full amount is a pretty clear signal that they intend to terminate

 

i think you are clutching at straws on that one

 

as for the SAR it depends when you made the request

 

as it takes up to 40 working days for them to comply - you cannot expect proceedings to be put on hold whilst you wait for it

 

The issue I have with the bank is this. My claims company had put in an SAR on 250909, and they did not respond to it....for spurious reasons. The claims company put in another request on the 14th jan 2010..and the bank waited until 8th March(letter dated April 10th) or 53 days to respond with another letter saying they could not find the proof of ID after both me and my wife had been into the bank and given them our passports and a contact name + fax to send it to. I have re-issued the SAR and given them only 5 days to respond. I have faulty DN's to go in with as well. All the way along the bank has been very difficult with giving up the information requested.

 

I will go into court. State my case. If the judge chooses to rule in favour of the lender....then so be it. I will hold my head up high and state clearly that the bank did not lend me any money......my signature created it.

[diddydicky]

make a complaint- the fine is up to 5000 for non compliance within 40 days

[diddydicky]

there are many sites giving the lowdown

 

try this one for instance

 

 

Subject Access Request

[Worsteve]

make a complaint- the fine is up to 5000 for non compliance within 40 days

 

Then a complaint is going in. Fight Fire with Fire eh?! It might not get me where I want to be, but it will give the bankers a further headache to play with. Still, all they have to do is create some more money with a signature eh?!;-)

 

Thanks for that. I am all over these SAR's. A little more education might help me. Thanks for everything here. Court date is Wednesday next week. I will keep you all informed.