RBS/Carter claimform - Mint Card - CCA Is This Enforeable?

[cerberusalert]

They won't know what the DN contained because they do not keep copies.

[MurphyW]

Hi everyone with RBS / Mint problems,

I received a threatening letter from Triton on 12th April saying that they have recommended to Mint to take legal action..

 

I still believe that the defective Default Notice is unlawful and that they are struggling to put a case together.

Has anyone further experience of this please?

My next post shows that they are apparently taking action!

Yours

Murphy

 

Here we go with a letter from Green & Co - apparently Solicitors, but reading other posts on the forum they would seem to be part of RBS.

Is this likely to be a serious threat now as I'm starting to feel that I will need to challenge this?

They gave me 7 days to reply to a letter dated 27th April and only received by me today 5th MAY 2010.

Can't do much about that, but I do need to put a reply together to them.

Here's the letter:

 

I now plan to write to Green & Co with a similar letter as the one I wrote to Triton in December pointing out the illegality of the default notice and also the fact that they have not produced a valid CCA but an application sheet copy with insufficient prescribed terms on it but with accompanying printed sheets of Terms & conditions purportedly relevant at the time of applying.

 

Should I make a complaint to the FSA and FOS to see what their reaction is to this situation?

Any and all help / comments gladly received.

Yours

Murphy

[cerberusalert]

I've just had another look at the Dn and spotted something else; It is dated 20-05-09 which is a Wed, a court assumes that it is sent 2nd class unless they can prove otherwise and you allow 4 working days for service, so you couldn't have received it until the 26th which means according to them you should have remedied by 6th June whereas it should have been the 10th of June.... so it is 4 days short in any case.

 

Then they terminated the agreement on the back of a defective DN which is 'unlawful rescission' and then add the defective CCA which doesn't contain the prescribed terms. You have the hat trick.

[MurphyW]

Hi Cerberus,

Thanks for your quick reply.

So where does that leave me in respect of a challenge please?

Murphy

[cerberusalert]

Any of those three faults would enable you to defend any court action, with all three together you hold all the aces.

 

Below is a defence that has been written specifically for a dodgy default notice.

 

 

Defence

 

 

1. I xxxxxxxxxxxxxxxxxxxxxxxxx xxxx of xxxxxxxxxxxxxxxxxxxxxxxxx xxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxx

 

? ) It is admitted the defendant entered into an agreement with xxxxxx which was regulated by The Consumer Credit Act 1974 (The Act). No admissions are made as to the terms, conditions or other provisions of any agreement and the extent to which the Claimant may have complied therewith and the extent to which the defendant may not have complied therewith.

 

7. Furthermore the Claimant fails to plead that this claim concerns an

agreement regulated by the Consumer Credit Act, 1974. However, the Claimant claims interest pursuant to section 69 of the County Courts Act 1984, which the Claimant should surely know they are not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2(3)(a), which clearly prohibits such

 

an award:

 

 

The general rule

 

2(3) Interest shall not be payable under this Order where the relevant judgment - (a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974;

 

 

 

 

*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 Division3. 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 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 xx xx, namely Wednesday xxxxx, not the 17 calendar days from the date of the letter as stated in the Default notice which would have been xx. (You will need to amend this point to suit your own situation.

 

. 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.

Edited May 5, 2010 by cerberusalert

[MurphyW]

Hi Cerberus,

Wow, you reply quicker than I could think.

That is a great reply which I think I have seen or read bits of on other posts on the forums.

Would you please clarify the second paragraph, that I would be accepting that I had an agreement with RBS although I am not admitting under what terms were applicable to that agreement?

The numbering of the paragraphs seems a bit strange and that second one starts with a ?

Do I reply to Green & Co with this or just keep it up my sleeve for the next move they make?

I feel it would be better to stop them in their tracks now if possible as the best course of action.

Do I copy and paste this into a reply letter (with my own information included) to them and send it recorded delivery?

Thank you for your help again

Yours

Murphy

[cerberusalert]

It didn't copy and paste properly. I posted it to give you an idea of a defence for a defective DN ignore the bit about the CCA.

 

If they ever try for a CCJ I'll move you to the Legal Forum where you'll get help with a defence + templates.

[cerberusalert]

See; http://www.consumeractiongroup.co.uk/forum/show-post/post-2166205.html

[MurphyW]

Hi Cerberus,

Thank you for the additional note re CCJ service and link to BRW's information.

Will await their next move.

Murphy

[MurphyW]

Hi everyone,

I've now been receiving numerous phone calls from a company called Newman & Co requesting that I call them and sort the dispute.

They have now followed the line that Green & Co were taking and have sent me a letter of Notice of Further Action dated 12/06/2010. See Below:

 

I'm not sure who I'm meant to be dealing with now!!

Yours

Murphy:confused:

 

BTW,

The interesting thing is that through all this I still get an e-mail reminder each month to make my monthly payment to Mint!

 

I think I need to unsubscribe from their e-mail alert system.

Murphy

[cerberusalert]

Just ignore for now.

[MurphyW]

Thanks Cerberus,

Will keep things cool.

Await their next move.

Yours

Murphy

P.S. Sorry to hear about Rooster(Bob) . tho' I don't remember having any direct connect with him.

[MurphyW]

Hi Again,

Seems that Newman have given up for the moment and the DCA is now Fredrickson International Ltd.

Here's a copy of their first letter

I have sent them a "do not acknowledge this debt" refer back to lender letter and stop phoning me!

Yours

Murphy

[Dotty50]

Hi Murphy,

 

These are mentioned many times on here, it took me a couple of letters to see them off when they were chasing on behalf of Cap1, so I wouldn't have thought you will have too much of a problem!

[MurphyW]

Cheers Dotty,

I'm happy to work on them too.

We'll see where we get to and keep you up to date.

Yours

Murph

[MurphyW]

Fredrickson International Ltd have ignored my letter informing them that Mint have not provided a correct CCA and failed to issue a default notice properly.

They now feel the power to issue a letter before action with the threat of more charges being added to my alleged debt.

Their letter which would appear to be a standard threat-o-gram is below.

 

I plan to write back and instruct them to provide the written proof that they are entitled to try and collect these monies.

Will be in touch

Yours

Murph

Edited December 2, 2010 by MurphyW
Could see my details on copy of letter

[MurphyW]

Hi Everyone,

Just picking up this thread especially re Fredrickson.

I realised that I didn't send the letter asking them to provide proof of their entitlement to collect an alleged debt.

That may be the next thing for my to do depending upon any replies from the team here.

I am just bringing this thread up to date for anyone else to follow and may be help.

The letter that i sent which Freds ignored was this: -

 

and page 2

 

 

Well, eventually in response to that letter they sent me this with the alleged template of the default notice but no data or actual letter copy which just proves that the template is defective that Mint used I think!!

 

Page 2

 

page 3

 

Their letter seems to indicate that they do not understand the essentials of a Default Notice and how it should be constructed or served.

Murphy

 

So they now in February this year would like me to send them loads of dosh to clear an alleged debt for which they would seem to have no entitlement!!

 

Unfortunately I don't have that sort of money sitting around waiting to send to them anyway so they pass tings on to Bryan Carter Solicitors LLP who send me a new threat to pay within 14 days.

 

I then have written a letter to Bryan Carter with the same info as to Fredrickson originally:

See the next post.

 

I have sent them my letter outlining why the default notice is defective:

 

page 2

 

In the meantime I have now received this from Fredrickson:

 

So at this point I feel the need to ask them to provide proof of their entitlement to collect the alleged debt anyway.

Does anyone have other ideas or observations as to the next action I should take.

Thanks

Murphy

 

I've just put this together and wonder if I should be stating anything in a different way:

 

Any comments will be welcome.

Thanks

Murphy

[MurphyW]

I received this reply from Fredricksons' to say they have referred back to Mint

 

We'll wait and see what they come back with.

Yours

Murphy

[MurphyW]

Bryan Carter have now come back with this: -

 

How should I best reply to this please anyone?

I've left it a few days as I've been away from my computer.

Yours,

Murph

[brokebutnotbeatn]

in dispute letter or ignore. Others with 1st hand experience will no doubt advise.

[MurphyW]

Hi Guys,

Anyone had experience of Bryan Carter?

Yours

Murphy

[MurphyW]

Hi again,

I really need some help now as Bryan Carter has issued me with a court claim in Northampton.

Looking at all the facts I need to put in a counter claim based on the lack of a true CCA, the incorrect default notice issued and passed on to third party collecting agency.

I had sent a new SARN request to Mint on the 4th May 2011 and copied to Fredricksons and Bryan Carter. This crossed in the post with the letter from Bryan Carter advising me that they had moved to apply for a court claim dated 28/05/11 but not posted until 04/05/11 arrived today 06/05/11. Today 06/05/11 the actual court claim arrived too.

Can I ask for the extension to 28 days from 14 days to prepare?

What is going to be my key defense and how should I present it please?

Letters below: -

 

Could a member of the site team please advise me how to proceed with this.

Yours

Murphy

 

Just looking at what they are claiming is that I have not continued to make agreed payments when no actual payments or values have been agreed between Mint and myself.

Is this a valid claim or just trying to test the waters of my case?

Murphy

[the_shadow]

This is a valid claim or at least a real claim... as to the defence, what is your defence?

 

A default notice is required prior to termination however in recent cases its been "thought" that an invalid default notice can be re-issued correctly to enable a creditor to enforce, its yet to be fully stated in proceedings yet tho I believe. If the default notice is invalid due to just the dates being wrong as per the 14 days needed you should be aware of Brandon vs Amex and the counter argument against this.

 

If the agreement sent back in response to a S77/s78 request wasnt the actual agreement you signed you need to be aware of Carey vs HSBC and reconstructed agreements which some judges HAVE accepted as an indication of an agreement between both parties and therefore enforceable.

 

BC normally doesnt like battles and if a good defence is issued he will normally back down.

 

First step is to acknowledge the claim which will give you the extra 14 days.. then to issue a CPR 31.14 letter in regards getting to see the agreement mentioned in the claim.

 

S.

[the_shadow]

Have a read of these:-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?241827-Legal-Action-how-to-start-off.-IMPORTANT-IF-YOURE-BEING-SUED

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?159445-Getting-Them-To-Reveal-Their-Vitals.-Using-CPR-31.14-to-Your-Advantage

[MurphyW]

Thank you for the quick reply Shadow,

I'll read up those things and acknowledge the claim first thing tomorrow.

Then I'll issue the CPR 31.14 letter to BC.

Yours

Murphy