OH v Cap 1 & Rob Way *** WIN ***

[cymruambyth]

Thinking about my defence .

1. Short application form = no CCA

2. They have not supplied a dn, mine is defective

3. NOA is obviously fresh off the printing press, I have the letter sent a day later than the one they allege is correct.

4. s.69 interest

I know I need to beef it out a bit , but is there anything I should specifically say about the NOA?

[cymruambyth]

Ok,

 

Right, what have you sent so far ?. you can only really respond to the pleadings they have made so far. Will have a think on this.

 

Hi cb thanks for you support. All I have sent is an attempted (and failed) SJ, no defence has been entered.

[angry cat]

As you are no doubt already aware, the NoA is not sufficient, (especially a knocked-up template job)

You must obtain sight of the Deed of Assignment and Deed of Sale!!!

 

Moving on to your DN, in my experience Cap 1 did not keep copies of DN's nor proof or service of same.

 

I have actually had sight of a template C1 DN circa 2004, which was totally ineffective, interestingly enough C1 confirmed that it was an exact copy of the original that they claim was sent!?

 

Caution here though because, unless the account was terminated, the ineffective DN can be rectified;

However, they will not be able to rectify unless they cease court proceedings, as that would be an abuse of process.

[citizenB]

Hi does anyone have an update on the assignment please?

 

Reading through some threads it says a witness statement must be received by the court 7 days before the hearing. Is this the case only if you are defending, not if you have made the application? (Panic mode again )

When the 7 days arrive, is it ok to phone court, due to postal strike;)

 

Did you attach a witness statement to your SJ in support of it ? Or is that what the Judge is suggesting was all the defence ?

 

Back to stupid question time

 

I'm preparing everything for my SJ hearing, I have copies of the following, is this too much?

2 defective dn and letter terminating a/c from Cap1

letters from RW saying have providd CCA and don't ned to have more contact.

short applicn form

t&c from a different document

a letter stating they are wholly responsible for administering a/c (2 yrs after payments started to them) NO noa

copies od cpr 16.2, 16.4, 24.2, CCA 87, 60, 65 and 127,

copy of 31.14

other letters pointing out that it is a cc, not b/ac and needs cca

So back to my original question, is this too much information and would it help them in their attack if I fail?

Thank you, C

 

Okey dokey, most of the above is still pretty much usable. The DN and TN.. what are the dates please.

 

 

Hi yes I agree it was a partial victory. The only part I didn't like that he wouldn't list the CCA in the poc, just the date it was signed 'if there is a date then that must be when you signed it'

 

This is still ridiculous. They cant just turn up and say, the agreement cant be found but they signed it around the time of the Magna Carta.. ??

[cymruambyth]

Hi ac and cb.

I have the original dn from 2003 which gave '10 days of the date at the top of this letter' to remedy this breach.

20 days later I have a letter which states that the account 'is now officially in default' 'Capital One has terminated your right to credit under the agreement with you and you have permanently lost all spending privileges and right to credit with your card' Surely this should be a TN.

RW were collecting from 2003 ish. Letter in 2006 stated

'Please note we have purchased and are now wholly responsible for administering your account noted above. ll future payment etc to Rob Way etc.

Please phone....

We accept debit credit cards....' The noa sent is dated 1 day before this letter and contains current contact details, not those of 2006!!!!.

[citizenB]

You need to check the date on the DN with a calendar from that time. If it was a Friday then you can knock 2 days off straight away. Then if it was 2nd class mailing (which is typical of Cap 1) then that is 4 working days off.

 

So you will be putting them to strict proof of both sending and method of posting.

 

If the DN says that the account will be terminated if you dont do the remedy bit then you, as a reasonable person, would expect that this is what they would do. You then get a letter which actually mentions termination in it and that they have taken away all your rights under the agreement other than repayment. So, yep, I would personally be assuming that was a Termination Notice.

 

Did it ask for the full balance at that time ?

[cymruambyth]

The dn was dated a Sunday and requested payment for the amount over the credit limit in 10 days of date at top of letter.

The tn stated that had defaulted by full amount and didn't give the option for remedy, just listed their actions.

[citizenB]

The dn was dated a Sunday and requested payment for the amount over the credit limit in 10 days of date at top of letter.

The tn stated that had defaulted by full amount and didn't give the option for remedy, just listed their actions.

 

Then it couldnt have even been posted until the Monday, which at 1st class post would have meant you couldnt have received it until the Wednesday. So that is 4 days off. If they sent it 2nd class that is 6 days off:D

 

And the other is a demand for all payment and mentions Termination. Ooops !

[angry cat]

88 Contents and effect of default notice

 

 

 

(1) The default notice must be in the prescribed form and specify—

 

 

 

(a) the nature of the alleged breach;

 

 

 

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

 

 

 

© if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

 

 

 

 

(2) A date specified under subsection (1) must not be less than seven days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those seven days have elapsed.

 

 

 

(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the seven days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

 

 

 

(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply with it.

 

 

 

(5) A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

 

 

 

 

 

89 Compliance with default notice

 

 

 

If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or © the breach shall be treated as not having occurred."

 

Please note:

 

(2) A date specified under subsection (1) must not be less than seven days after the date of service of the default notice.

 

Seven plus four is eleven, therefore a judge may view the one day de minimus.

 

What about the remedy required;

was the amount correct?

were there any penalty charges included in the required remedy amount?

Edited November 22, 2009 by angry cat
error

[cymruambyth]

Yes I have proof of charges, so in theory, if dj knows the law and the sum is in the right position in the sky................

[angry cat]

If the remedy required is stated incorrectly, the DN will be ineffective.

However, the disputed amount must not be; de minimus.

 

IMO, the agreement doesn't appear to have been terminated, more like they just wanted to claim the oustanding balance.

 

For completeness:

 

"87 Need for default notice

 

 

 

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

 

 

 

(a) to terminate the agreement, or

 

 

 

(b) to demand earlier payment of any sum, or

 

 

 

© to recover possession of any goods or land, or

 

 

 

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

 

 

 

(e) to enforce any security.

 

 

 

 

 

(2) Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective.

 

 

 

(3) The doing of an act by which a floating charge becomes fixed is not enforcement of a security.

 

 

 

(4) Regulations may provide that subsection (1) is not to apply to agreements described by the regulations."

 

 

:

'Capital One has terminated your right to credit under the agreement with you and you have permanently lost all spending privileges and right to credit with your card'.

 

***(b) to demand earlier payment of any sum ***

 

However, as stated prior, they will not be able to correct the ineffective DN, unless they discontinue proceedings, in order to correct, as this would be an 'abuse of process'!

 

Also, please bear in mind that, the Deed of Assignment and Deed of Sale will reveal much; you must obtain sight of plus copies of these.

Edited November 22, 2009 by angry cat

[cymruambyth]

Thank you for your help. I will ensure that I request sight of these, with originals at the hearing. DJ was very keen for proof of NOA.

[citizenB]

In addition to my bump.....I have just found the default notice

 

'You must pay the amount that you are over on your credit limit within 10 days of the date on the top of this letter'

 

I also have a letter dated 3 weeks later saying that 'Cap 1 has terminated your right to credit under the agreement'.

 

 

 

Hi Cmyru....if you have had a claim through then yes definitely send off the CPR31.14 line with the POC's...however with a dodgy default notice you might find these useful.....

 

I would like to suggest that, as a matter of course, we advise the user to go for a strike out under CPR 3.4(2)(a) in these cases.

 

The reasoning is simple:

 

Section 87(1) of the CCA 1974 says:

 

87.--(1) Service of a notice on the debtor or hirer in accordance with section 88 (a default notice) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,--

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum....

 

Section 88 says that the DN must be in the prescribed form and the associated regulation say what that form is.

 

Thus, if the DN is not in the prescribed form, it is invalid and, under s87, the lender has no right of action.

 

CPR3.4(2)(a) says that the court may strike out a statement of case if it appears to the court –

 

(a) that the statement of case discloses no reasonable grounds for bringing ... the claim

 

THe user should submit a defence based on the same argument but then ask for a strike out with the AQ.

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it 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

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

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.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

6. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

 

STRIKE OUT IDEA....

 

The Claimant respectfully requests that an order may be made as follows:

 

1. That the Claimant's statement of case is struck out pursuant to rule 3.4(2)(a) of the Civil Procedure Rules

 

as the Calimant's statement of case discloses no reasonable grounds for bringing the claim.

 

The claim is for the early repayment (ie before the full term of the allleged agreement between the Claimant and the Defendant) of a sum of money consequent on a breach of the alleged agreement by the Defendant. The Claimant is only entitled to file such a claim after first having served a defeult noitice under section 87(1) of the Consumer Credit Act 1974 and in accordance with s88 of the Act.

 

Inter alia, the regulations made by the Sectratary of State related to s88 concerning default notices require that a period of 14 clear days be given to the Defendant to remedy the default before enforcement action (including filing a claim) may be started.

 

The default notice supplied by the Claimant in response to the order of the Court dated date is dated Friday 3 August 2008 and says "To remedy this breach, payment due on your account of £xxx must be received within fourteen calendar days from the date of this default notice", ie by Wendesday 17 August. Under CPR Part 6.2, a letter is deemed served on the second day after it was posted, provided that day is a business day. That means that a default notice posted on Friday 3 August would be deemed served on Tuesday 7 August and 14 clear days from then is Tuesday 21 August. Therefore the default notice does not comply with the regulations in respect of giving the Defendant the statutory length of time to remedy the default.

The failure of the default notice to comply with the regulations made by the Secretary of State invalidates the default notice (Woodchester Lease management Services Ltd v Swain and Co - [2001] GCCR 2255), is an unlawful rescission of contract and prevents the Court from enforcing any alleged debt (Kpohraror v Woolwich Building Society [1996] 4 All ER 119).

 

The invalidity of the default notice means that the Claimant has no right of action in this case. On this basis, I respectfully ask the Court to strike out the Claimant's statement of case.

 

Right, well it appears we wouldnt be able to use a fair bit of the above in that the DN was issued prior to the new regulations which allowed for 7 days. I am trying to find the regulations that applied at that time.

[citizenB]

Just dumping this here so I know where to find it again.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1940698.html

 

 

Looks as though BRW has come to the rescue again.

[cymruambyth]

THank you for all your help, just on a lunch break.

[cymruambyth]

Hi folks, can someone please clarify if this constitutes a NOA?

Robinson, Way & Company Limited etc, correct headed paper

Name & address Datexx/xx/2006

Dear Reference No.xxxx

Due to Capital One Amount Due £xxxxx

Account No. xxxxxxxxxx Name XXXX

YOUR ACCOUNT WITH CAPITAL ONE

Please note we have purchased and are now wholly responsible for administering your account noted above. All future payments and correspondence must be sent to us, Robinson, way & Company Ltd at London Sottish House, Carolina way, Quays Reach, Salford, M50 2ZY.

If you already have a paymeny plan set up with us please continue to pay us as normal, if not you need to contact us immediately to discuss how you are going to repay this account on xxxxxx.

Please note we accept debit/credit card payments on the above telephone number.

Yours faithfully

Collections Manager

[car2403]

Not if it's from the DCA it isn't...

 

s.136 Law of Property Act 1925 - they've had plenty of time to get this right, you'll notice

[cymruambyth]

THank you ........ what a shame

[cymruambyth]

If the remedy required is stated incorrectly, the DN will be ineffective.

However, the disputed amount must not be; de minimus.

 

IMO, the agreement doesn't appear to have been terminated, more like they just wanted to claim the oustanding balance.

 

Also, please bear in mind that, the Deed of Assignment and Deed of Sale will reveal much; you must obtain sight of plus copies of these.

 

If you do not consider this as a termination, could selling the account on be constituted a termination? Otherwise I have read on a couple of threads that court action is a termination.

Thank you in advance of any help.

[citizenB]

This is a copy of a notice of assignment I received from one of my creditors. HTH

 

Edited November 24, 2009 by citizenB

[citizenB]

IMHO, if the account was either sold or assigned then it was most certainly terminated with the original creditor. Otherwise the account is just being "managed" by RW.

 

I guess you will need to ask to see the Deed of Assignment or Bill of purchase:lol:

[citizenB]

http://www.consumeractiongroup.co.uk/forum/legal-issues/173676-assignment-questions.html

 

Useful thread re assignments

[cymruambyth]

Thank you, again

[angry cat]

IMHO, if the account was either sold or assigned then it was most certainly terminated with the original creditor. Otherwise the account is just being "managed" by RW.

 

I guess you will need to ask to see the Deed of Assignment or Bill of purchase:lol:

 

This is always the $64,000 dollar question:

Equitable or;

Absolute Assignment?

 

The Deed of Assignment and;

Deed of Sale, will reveal all...

 

Capital One and RW will not want you see these documents though! Therefore, you will really have to put the pressure on, in order that you obtain disclosure of these vital documents!

[babybear39]

A judge could order them to supply them.