Marlin/phoenix - Credit Card - N1 Received ** DISCONTINUED **

[Craftygirl42]

had a thought about it and think this is probably more like it

 

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Enforcement, Default and Termination Notices)

Regulations 1983 (SI 1983/1561)

1983 No 1561

Consumer Credit (Enforcement, Default and Termination Notices) Regulations

1983

Made - - - 24th October 1983

Authority: Consumer Credit Act 1974, ss 76(3), (5), 87(4), 88(1), (4), 98(3), (5), 182(2), 189(1)

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Enforcement, Default and Termination Notices)

Regulations 1983 (SI 1983/1561)/1Creditor or owner to omit words in square brackets if there is no specification under paragraph 6(e) of any action intended to be taken to enforce any security.

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

Regulation 2(2)

Details of agreement

1

A description of the agreement sufficient to identify it.

Parties to agreement

2

(1) The name and a postal address of the creditor or owner.

(2) The name and postal address of the debtor or hirer.

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than

fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

Action by the creditor or owner to be ineffective if breach remedied or compensation paid

4

Where any action is specified under paragraph 3© or (d) as required to be taken, a statement that the provision for the taking of any action by the creditor or owner such as is mentioned in paragraph 6 will be ineffective if the breach is duly remedied or the compensation is duly paid in the following form—

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH".

Note:

This statement shall follow the specification under paragraph 3© or (d) of any action required to be taken.

Consequences of failure to comply with default notice

5

Where any action is specified under paragraph 3© or (d) as required to be taken, a statement indicating the consequences of the failure by the debtor or hirer to comply with the default notice in the following form—

"IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]".

Notes:

1. This statement shall be followed by the specification under paragraph 6 of the further action intended to be taken by the creditor or owner.

Action intended to be taken by creditor or owner

6

A clear and unambiguous statement by the creditor or owner indicating, if any action specified under paragraph 3© or (d) as required to be taken is not duly taken or if no such action is required to be taken, the action which he intends to take by reason of the breach by the debtor or hirer of the agreement—

(a) to terminate the agreement;

(b) to demand earlier payment of any sum;

© to recover possession of any goods or land;

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

(e) to enforce any security;

(f) to enforce any provision of the agreement which becomes operative only on a breach of another provision of the agreement as specified in the notice,

at any time on or after the date specified under paragraph 3© or (d), or, if no action is specified under that paragraph as required to be taken, indicating the date, being a date [not less than fourteen days] after the date of service of the notice, on or after which he intends to take any action indicated in this paragraph.

[Craftygirl42]

Comments please, just want to get it right

[lilly white]

Default Notices

Section 87(1) of the 1974 Act allows the creditor to send you a default notice giving you fourteen days from the date you receive it to pay the arrears. The default notice must contain all of the necessary information under the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 ('the 1983 Regulations'), which includes

a statement saying the notice is a default notice served under section 87(1) of the 1974 Act

a description of the agreement

the name and address of both the debtor and the creditor

details of the breach (i.e. late payment) and, if the breach can be remedied, the date by which it must be remedied or, if the breach is not capable of remedy, the amount required to be paid after the expiry of the specified date;

a statement saying: if the action required by this notice is taken before the date shown no further enforcement action will be taken in respect of that breach

a statement saying: if you do not take the action required by this notice before the date shown then the further action set out below may be taken against you

a clear and unambiguous statement saying that if the action is not taken by the date specified, what it will do (for example, if will it terminate the agreement and recovery possession of the motor vehicle)

 

Consumer Credit: Default Notices

[citizenB]

CG, yes that is correct.

 

Here is the link. Schedule 2 is toward the bottom

 

6. Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.pdf (63.5 KB, 236 views)

[Craftygirl42]

Thank you Lilly and CB, I think I am sorted now.

 

Waves to my guest...come and join us, we dont bit and if you are legite you get lots of help here

[Craftygirl42]

Surprise Surprise, no witness statement from Marlin was received on xmas Eve. Still that was good for me so I didnt have to worry about it over the weekend.

[Craftygirl42]

Still no witness statement from Marlins. I was wondering what my next step should be.

 

I was thinking about writing a letter to the Court pointing out it hasnt been received or should I wait until I have to do my pre trial checklist

 

Opinions would be appreciated.

 

Thank you and a Happy New Year to all who have helped me so far

[MAGDA]

Hi CG, I would check with the court whether they have received anything first - if they haven't, then wait and see if anything turns up tomorrow. If you still don't receive anything then you could write in to the court advising them that in accordance with their order of xxxxxx your own WS was sent to the claimant on xxxxxx however, you have not received any response from them. I would then state that you request the further direction of the court in order to allow this matter to proceed.

 

The judge will then probably give the claimant a date on which to comply by or their claim will be struck out. If you specifically request that the claim be struck out, the judge will still give them more time, and you would need to submit an N244 and pay the fee.

 

I found in my own case with Link, by wording it as I have above that although I didn't specifically ask for a strike out, the judge had no option other than to order them to comply or that would be the consequence and Link's claim was struck out eventually (and it didn't cost me anything:))

 

Hope this helps, happy New Year.

 

Magda

[Craftygirl42]

Thanks Magda, the judge did order an unless order when they kept kicking their heels over filing their AQ, it did make them do it otherwise it would have been struck out. I will ring the court in the morning and see if anything has been received after our post has arrived and if not, pop a letter through the courts door over the weekend.

[Craftygirl42]

Right I sent the letter stating they hadnt complied with the order, just rang the court and they have a backlog and postal collections/deliveries havent been happening here.

 

But apparently Marlin have agreed to a stay cos I have been paying. Their last payment was October!!!! I didnt request a stay, just sent my WS to them.

 

All very confusing. I dont want this case stayed, I want it to carry on, and get sorted. The Court lady seemed as confused as me, and said to complete my pre trial check list and send in with directions. No letter as of yet re any orders etc.

 

Help please

[Craftygirl42]

Draft Order for Directions

 

 

 

 

The Claimant shall within 14 days of service of this order file and serve the following:

 

 

 

 

 

1) Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended.

 

2) Copies of any statement or other document relied upon including proof of the amount of the debt and how it was accrued.

 

3) The Deed of Assignment in order to establish the authenticity of any alleged assignment of this debt.

 

4) A witness statement that the Claimant intends to rely on in Court

 

 

5) If the Claimant fails to comply with this order, or any specific direction/disclosure, the claim will be struck out pursuant to CPR 3.4.2 ©

 

 

The Defendant shall within 14 days thereafter file and serve the following:

 

 

6) An amended defence sufficiently particularised in response to the documents supplied by the claimant.

 

I dont want to mess this up at this stage, thoughts please on the directions. Also I dont want this stay either and didnt request one.

[MAGDA]

Hi CG, I would write into the court anyway, as you still haven't received any WS from Marlin - is that correct (after all, you managed to get yours off to them) - if the court has a backlog that isn't your problem. That way, the judge may order the claimant's claim to be struck out.

 

The draft directions look fine by the way.

 

Magda

[MAGDA]

I see you have mentioned the WS on your draft directions anyway, didn't notice that - but don't think you have anything to lose by writing to the court anyway. I would definitely give it a shot.

 

Magda

[Craftygirl42]

I did write last week, but the Court said they havent received it yet or its not been dealt with. I know some of our post boxes locally havent been collected, but funny that Marlins gets through or perhaps they faxed. This stay has just come out of the blue, I told Marlins on the telephone that I wasnt going to sign their Consent Order as they rang me when they received my Witness Statement. I think the last payment to Marlin was October

 

They did receive the letter from Marlins on Friday re a stay....I dont want this, I want it sorted. The court told me to continue with the pre trial check list. Just wish I wasnt so confused

[Craftygirl42]

I see you have mentioned the WS on your draft directions anyway, didn't notice that - but don't think you have anything to lose by writing to the court anyway. I would definitely give it a shot.

 

Magda

 

 

I sent a letter to the court last week based on PT's stickied non-compliance of orders letter requesting the claim was struck out or for the file to be put before the DJ.

 

I will wait a couple of days, give the court time to catch up on post, and to see if anything comes through the post and then ring them. I got all confused, cos I wasnt expecting a stay. Will write down what I want to say, re this.

 

If there is any advice on adding anything to the Directions, please let me know, I need to get this sorted by the end of the week ready for the pre-trial thing

[MAGDA]

Well the best thing you can do then, if the court says they haven't received your letter yet, is to ring and ask if you can email a copy (or fax if you have access to a fax machine) and ask that it be placed urgently before the judge as you require clarification on this. Mark it for the attention of whoever you are speaking to. If Marlins haven't done their WS, it seems to me they don't intend to go ahead with this.

 

Magda

[citizenB]

Well the best thing you can do then, if the court says they haven't received your letter yet, is to ring and ask if you can email a copy (or fax if you have access to a fax machine) and ask that it be placed urgently before the judge as you require clarification on this. Mark it for the attention of whoever you are speaking to. If Marlins haven't done their WS, it seems to me they don't intend to go ahead with this.

 

Magda

 

This would be my advice as well. Do continue with your pre trial check list and instructions as though this stay hadnt been mentioned.

 

I fail to see why they have asked for one at this late stage, unless they havent got their act together ??

[Craftygirl42]

Hubby is going to Fax the letter I sent last week tomorrow for me. I am also going to fax a letter stating that I understand that Marlin has consented to a stay and that I dont understand why and that I wish to proceed with the case.

[Craftygirl42]

Is it agreed that the directions I posted would be ok for the pre trial checklist, or should I be putting something else

[lilly white]

may i ask i may have miss it where is the cca why are we not asking for it

[Craftygirl42]

I have got the CCA, just no default, problem with the assignment and now no witness statement

[hunterandthehunted]

CG,

 

I also wrote to the judge and asked for a strike out because of non compliance of order from the court producing WS etc....

it was just put on the file and i was basically told by the court that an application with the fee is the only garauntee to get

it in front of the judge.

 

it sounds like they are buying some time and as the shadow said to me,its up to the likes of us to drive the strike out through

and at the very least the judge would order an unless order.

[Craftygirl42]

My judge is pretty good and did issue an unless order when I last sent a letter. My case manager has said each time, try a letter rather than a N244.

 

I rang yesterday and its before the Judge. I think thats on the basis if the letter I sent when we had the snow, but at the weekend, I put copies of everything that had been posted, along with a letter stating I hadnt requested a stay, so how could Marlin have consented to one and also put my pre trial questionaire in. So waiting for a response after the Judge had read it all

[humbleman]

don't know if you have been following my thread

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/242653-have-you-lost-phoenix.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/130101-humbleman-hfc-weightmans-court-41.html

[Craftygirl42]

I have been and posted on the phoenix one