Invalid Default Notices

[middenmess]

I sent Vanquis an Unlawful Recission letter on 30 March 2010 after discovering my DN was faulty. Yesterday I received a letter from Vanquis stating that they had sold the debt to Lowell.

 

Looks like Lowell have bought a pup!:grin:

[means2anend]

I received the same DN letter from them. I subsequently made a SAR which I received and the time for receiving any subsequently information is Monday, when the 40 days ran out.

 

Unless I receive anything before then I made the conclusion from the info received that they have only computer records, they DO NOT KEEP paper copies, meaning there is no record of any signed credit agreement. They received a CCA request from me together with a number of letters to provide the signed credit agreement, in which they also failed to provide it.

 

I think that good be useful information for anyone dealing with them.

 

I do have a question though; what to do next? Should I write to them requesting the “missing” information as well as a request that they tell me they do not have the “missing” information?

 

My take on the fact that they failed to provide the signed agreement after a SAR is (please correct me if I am wrong):

 

Should they actually have the signed agreement (and should it be enforceable) they can still take me to court and could be able to succeed and I can only prosecute them for failure to comply with the DPA.

 

BUT

 

By taking me to court they then ADMIT they breached the DPA.

 

The question is then? Say they argue they did send it when I requested the SAR, how can I proof them wrong?

 

 

You ought simply request a copy of the ''executed'' agreement....if they provide you only with a copy of the ''original'' agreement this is not the same thing.

 

If they provide you with a copy of the ''original'' they must tell you that the orignal ''executed'' agreement does not exist otherwise they are falling foul of CPUTR 2008 and the advice given by Susan Edwards Head of Enforcement Investigations OFT..

 

An ''executed'' agreement is defined in s189(1) as THE agreement that was signed by BOTH the debtor AND creditor.

 

IT IS FROM THAT agreement that an TRUE HONEST and ACCURATE copy can only be SATISFIED as per HHJ Waksman (Carey v HSBC).

 

If they write back ''bluffing you'' that it IS a copy of the ''executed'' agreement you should proceed to inquire into the process.archiving and any witnessess that can testify that it was so...

 

Therefore any information missing or misstated in that original ''executed'' information MUST in order to satisy the test above either reflect that by it's inclusion in subsequent copies or by their exclusion in subsequent copies.

 

Any ''filling in'' of information as an afterthought or attempt to remedy what was originally a wothless piece of paper and pass it off as True Honest and Accurate bodes serious consequences for the Lender.

 

Rgds

 

m2ae

[Duffers Mum]

Quick question..2 dodgy DN's received, 8 months apart, neither giving the correct amount of days to pay the arrears, I did not receive a termination notice but I did receive a letter of Blair Oliver and Stupid headed something like precourt action and stating they were going to start proceedings to collect the full outstanding balance...so does that mean I could claim UR? Or does the fact that I was making toke payments mean that I've missed out?

 

thank you

[lexis200]

mmmm....

 

I seem to remember that I was hijacking this thread...

 

Surely not??!! Who would have suggested such a thing??

[the_shadow]

Re: couple of pages back about data protection/ico complaints etc etc...

 

Just posted this about the EU Commission telling UK to sort out its Data Protection rules in line with the EU's

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/267096-data-protection-law-changes.html

 

S.

[chris60]

Hi can someone have a look at this default notice and letter from our friends at welcome and give me some advice please.

 

Thanks

 

have received both a letter and default notice from welcome.

 

This account has been in dispute with them since January 2010.

 

links for documents

 

biccy60 :: welcome default letter july 2010 picture by TammyTheTiger - Photobucket

 

biccy60 :: welcome default july 2010 picture by TammyTheTiger - Photobucket

 

2 things, there is no postmark or date on the envelope just some numbers

it says on the back if unable to deliver please return to:

Welcome financial services

returned mail centre

Doncaster DN55 1WP.

 

any suggestions of what I do now.

 

I know i read somewhere previously that they should specify a date, not just a time period for a default and secondly it is now the 10th and the date on the letter and default notice are the 2nd, which gives me 4 days to come up with 18,000 got to laugh at their cheek. They are also adding interest to it, which they are not allowed to do, as the account is in dispute.

 

This all began when they were to repay me my missold PPI. It went to the fos and welcome agreed they had missold all my ppi ( i had about 4 loans with them) They agreed to repay me all the money +!00 pounds compensation. I wanted copies of all my loans to find out how much they should repay me as they tried £38. I did receive £2000 but wrote to them saying i was accepting it as an iterim payment while i worked out what they owed me.

Sent Subject access request and cca to find out and since then nothing, apart from calls etc, although even they have stopped recently. Account put into dispute in Jan this year.

 

Are they still trading or have all the offices closed? Anyone know?

 

Any suggestions on a suitable letter. will have a look in the templates and in others peoples postings.

[lord_tiger_putin]

Received DNs from them myself and they give 14 days, not a date. This alone is enough to make it invalid.

 

I did read read in another thread that they have apparently useless credit agreements. If no one else answer about the agreements and I do find something, then I will post it.

[middenmess]

Hi Chris

 

No documents posted!!

[chris60]

Hi sorry about that I had posted on another thread and didnt realise the links hadn't copied

 

biccy60 :: welcome default letter july 2010 picture by TammyTheTiger - Photobucket

 

biccy60 :: welcome default july 2010 picture by TammyTheTiger - Photobucket

 

links for documents

[means2anend]

Hi sorry about that I had posted on another thread and didnt realise the links hadn't copied

 

biccy60 :: welcome default letter july 2010 picture by TammyTheTiger - Photobucket

 

biccy60 :: welcome default july 2010 picture by TammyTheTiger - Photobucket

 

links for documents

 

 

It appears as though there has not been ''a date specified'' ...

 

They have said 14 days from the ''date of the notice''...

 

But the date of that notice may have not taken into acccount the postal service period.

 

The Law states ''service is deemed effected in the ordinary course of post''

 

SO...

 

If sent(On any working day) 1st class...service is deemed to have taken place the day after the second day

 

.......If sent 2nd Class then substitute 2 for 4

Weekends and bank holidays are NOT counted towards Postal Services

 

Example

''Service Deemed Effective''

 

Posted Sat/Sun=Effected Wednesday..when posted over weekends include 1 day for entry into postal system

 

PostedMon=Effected Thursday etc...

PostedTues=Effected Friday

14 Days Countdown starts from Thurs or Fri respectively....14 straight calender days

 

The ''Date specified'' in the notice is the date 14 days countsdown from AFTER taking into account delays above for postal service.

 

It is a statutory requirement to specify a date

 

In other words you must have 14 clear days after service has been deemed effected to remedy whatever you are required to remedy.The nature of the breach itself must be in the notice

 

m2ae

Edited July 11, 2010 by means2anend

[means2anend]

I have also JUST noticed that the letter attached to the notice SUGGESTS that you must do whatever is required of you within 14 days from the date of the letter

 

The letter is dated 2 July 2010...but this is irrelevant...it should be the the date IN THE NOTICE

 

Even if it referred to a date in the notice...''within 14 days'' is a phrase insufficient for you to receive the prescribed statutory 14 CLEAR DAYS for the reasons above

 

''FURTHER ACTION''

 

In the notice they have further stated that ''ON or after the 14th day''....they will take action....this strenghtens your case even more that they have not actually given you the clear 14 days you are entitled to.

 

m2ae

Edited July 11, 2010 by means2anend
substitute ''states'' for ''suggests''

[beachcomber60]

Morning fellow Caggers.

 

Looking for some advice before I go off on the offensive against an OC & now a dca that has come crawling out of the woodwork, knowing how they 'operate' I' d like to get the upper hand from the start.

 

Very briefly, I was served with a DN dated 5th November '08 giving me until 'before' the 19th November '08 to remedy (sent by UKMAIL and received 12th November).

 

Received a Notice of Default on the 23rd November '08 (again by UKMAIL and received 29th November '08 ) giving seven days to pay the arrears or they will start the usual threat machine working.

 

Account is in serious dispute ie PPI mis selling and after the agreement was checked it was found to be fatally flawed & unenforceable, after exhausting their 'complaints procedures' I ceased all payments.

 

Made a SAR last June and it was not fully compiled with (didnt chase it further as I/we had bigger problems to deal with & in any case its unenforceable, however after viewing the account statement, just received from the dca) I notice that they used the statutory £10 fee as a credit to the account).

 

Now a dca has got hold of it (I have not acknowledged them in any way), their NoA (?) came by normal mail in a big yellow envelope marked 'Credit Active' (now you know who the dca is ), they made a search of Land Registry & found that we are homeowners and have expressed an interest (still didnt respond) have now received a further letter 'In reply to my request' (? never made any request to them) they have sent the cca, DN, Charges Statement (interestingly as the OC waived the charges & credited the account) Account statement & copy of Termination Notice.

 

As far as the termination Notice is concerned it was dated 22nd November '08 - the day before the OC sent the Notice of Default ( I have never received this TN before and it was a surprise to get a copy from the dca.

 

Am I too late to except UR with the OC?

 

Complaint going off to the ICO today, not sure whether to hit thedca or ignore & go after the OC for UR?

 

beachy

[pumpytums]

Hi BC,

as you ceased payments after receiving their unlawful termination letter as the DN was invalid. I would say that they have committed a repudiatory breach of agreement (Thanks Elsa), which you have accepted and thus the agreement is rescinded (at the point of breach). The UR letters is simply belt and braces, if any judge ever asked "How did accept the recession of agreement?" You could simply state I ceased payments. I would keep your UR letter in your files with the relevant dates when you accepted. Their is no need to send it you simply have to accept the UR.

 

If the DCA gets shirty simply state that you accepted the OC's UR on DATE. If they ask for the DN simply state that you should request a copy from the OC, if any creativity should occur you have the original. You could also point them in the direction of s87 CCA 1974.

 

(pinced bits from Elsa's excellent post earlier for breachs)

 

Pumpytums

Edited July 12, 2010 by pumpytums
corrected for breach info

[beachcomber60]

Thanks pumpytums,

 

The awkward bit is that the Termination Notice (although dated 22nd Nov '08 ) has only just turned up via the dca.

 

Although the DN & NoD were issued in Nov '08 I was only making token payments while my ppi complaint was being dealt with, then following the problems with the flawed agreement I ceased payments completely in Feb 09 after they refused to admit defeat on the agreement issues.

 

The actual 'last' payment was July 09 when they used they used the SAR £10 fee towards the account.

 

Beachy

[egg-sterminator]

I have also JUST noticed that the letter attached to the notice SUGGESTS that you must do whatever is required of you within 14 days from the date of the letter

 

The letter is dated 2 July 2010...but this is irrelevant...it should be the the date IN THE NOTICE

 

Even if it referred to a date in the notice...''within 14 days'' is a phrase insufficient for you to receive the prescribed statutory 14 CLEAR DAYS for the reasons above

 

''FURTHER ACTION''

 

In the notice they have further stated that ''ON or after the 14th day''....they will take action....this strenghtens your case even more that they have not actually given you the clear 14 days you are entitled to.

 

m2ae

The regualations state clearly "the date being a date" and it should be 14 days from date of service not 14 days from date on letter . if they dont allow for postage [4 days second class] they would not have allowed 14 days . More knowledgable people than i will be along to help i'm sure Diddy Dicky, pinky69 ,elsa post up DN minus personals and i'm sure you will be helped .

[rockwell304]

Apologies for jumping in but would appreciate a comment on this please!

 

Following receipt of a defective DN (13 days) from Mercers, received a further letter from Mercers stating full account balance only (no mention of arrears) and advising they would hand over to a local debt collector who would call at my house to collect full outstanding balance. Following on from this both Calders and Debt Managers have tried their luck to no avail.

 

Is this sufficient grounds for me to accept UR? no termination letter ever received. Should also mention copy agreement received from Barclaycard is badly cut & pasted.

 

Thanks, R

[pumpytums]

As you have stated, your were not aware of the termination until recently. The OC could have issued a new DN prior to the TN but they did not.

The simple fact remains that you have accepted it. As you have said the continued token payments were just to keep avenues of discussion open.

 

Pumpytums

[Undercover-Elsa]

....and to offset the genuine arrears at the point of the breach. The injured party as a layman can only act upon the repudiation when he becomes aware of the significance and his right to accept and rescind..be it immediately or at a later date, upon taking advice.

 

Thanks for the kind words, Pumpytums

[beachcomber60]

Thanks everyone,

 

Letter ready to go off to the dca & put them in their place. (Should I cc the original creditor also?)

 

Have found proof this morning that the DN was received 7 days after date on DN, which left just 5 days to remedy.

 

Have spoken to ICO and as it is over a year since the OC failed to fully comply, the ICO wont investigate my complaint, weren't to bothered about the OC using the fee against the balance either. (Not to worry, think I've got enough to work on)

 

beachy

[nks22]

Have found proof this morning that the DN was received 7 days after date on DN, which left just 5 days to remedy.

 

That's probably not relevant. It's the date of service, as defined in the Interpretation Act, that matters, not the date of delivery. (I imagine it'll still be well short of the required time, though.)

[Undercover-Elsa]

The date of service is the date received, ifyou can prove it. Otherwise it's the day it is assumed to be received, in normal course of post, as below.

Interpretation Act.

7.

References to service by post.

Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “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 been effected at the time at which the letter would be delivered in the ordinary course of post.

 

Elsa x

[Undercover-Elsa]

In my view, if the beggars send a legally vital, time sensitive document by casually chucking it in the normal second class Business Post, they deserve all they get.

[beachcomber60]

In my view, if the beggars send a legally vital, time sensitive document by casually chucking it in the normal second class Business Post, they deserve all they get.

 

 

Thanks Elsa,

 

Yes, have proof that it was received 7 days after date on the DN, it was sent via UKMAIL, I even filed a complaint with them over how long it took to arrive and that there was no way I could remedy the breach - they had the opportunity to reissue but didnt

 

DN dated 5th Nov. arrived 12th via UKMAIL, giving to the 19th to remedy

 

TN dated 22nd November

 

Notice of Default dated 23rd Nov. arrived via UKMAIL 29th Nov. (pay within seven days of notice)

 

Not sure whether to continue to ignore dca and send letter to the OC just to 'remind them' of the invalid DN or write to both.

 

Beachy

 

PS Bleedin' 'eck 26 Guests

Edited July 12, 2010 by beachcomber60
PS added

[Undercover-Elsa]

Faulty DN's are the new black, I suspect

 

Maybe just write to the DCA stating in the light of facts revealed in the recent docs they supplied, you are taking issue directly with the OC. CC them the letter if you wish..or keep them guessing. Your choice.

[Undercover-Elsa]

Don't forget the correct terminology....their unlawful termination constitutes repudiatory breach, which you elect to accept, therefore the agreement is rescinded.