Help with a definition of a term within the CCA 1974

[vitruvius]

I need help with a term within the CCA 1974, namely:

 

Section 88 (2)

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

 

Chapter 14 of the 2006 act adds:

 

In subsections (2) and (3) of the 1974 act for 'seven' wherever occurring substitute 'fourteen'

 

I need to define what a 'day' is.

 

The terms within the 1974 act determine a 'working day' as any day other than a Saturday or Sunday, a bank holiday, Christmas Day or Good Friday.

 

I need to determine whether section 88 refers to:

 

a. a working day (a day excluding weekends or bank holidays)

b. a 'day' that includes holidays or weekends

 

Any advice where I might be able to find an exact guidance would be very helpful.

[the_shadow]

I need help with a term within the CCA 1974, namely:

 

Section 88 (2)

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

 

Chapter 14 of the 2006 act adds:

 

In subsections (2) and (3) of the 1974 act for 'seven' wherever occurring substitute 'fourteen'

 

I need to define what a 'day' is.

 

The terms within the 1974 act determine a 'working day' as any day other than a Saturday or Sunday, a bank holiday, Christmas Day or Good Friday.

 

I need to determine whether section 88 refers to:

 

a. a working day (a day excluding weekends or bank holidays)

b. a 'day' that includes holidays or weekends

 

Any advice where I might be able to find an exact guidance would be very helpful.

 

Not everything is defined, some things in the act are open to interpretation, however I dont think so in this case. I think you can take it as read that if the act doesnt specifically state a working day then its a general day as in Mon-Sun.

 

S.

[robcag]

Hi vitruvius

 

If you're not too sure about the validity of a Default Notice you have received, then if you can scan it and post it up here after removing your personal details (using a third party image hosting service such as photobucket), others will be able to examine it for you. Make sure you leave the dates etc on though.

 

Cheers

Rob

[vitruvius]

Thanks for the responses.

 

The dates are subject to a defence of court action.

 

The default notice (credit card) that this refers to was dated 22 December 2008 and was marked for settlement by the 13th January. The credit card company immediately issued court proceedings after that date.

 

Due to a mixture of panic, naivety and not knowing this site I issued a defence which is irrelevant, so I wrote to the court and asked to change my defence.

 

I defended based on the dates of the default notice, basically stating that between service (working on service dated the 24th December) and the breach there were only 12 working days.

 

The case was in court, and the Judge accepted my request to change my defence. The matter was discussed and then adjourned as neither myself or the claimants solicitor could prove whether 'days' in this case were working or not. My instructions from the Judge were that if I could prove the CC company should have offered 14 working days then I would win the case as a matter of course. However, she warned that if I could not prove they are working days then I would lose.

 

Really, I'm looking for anyone that can prove either way what the ruling is or can point me in the right direction. I've got to decide whether to continue to fight either way by the end of the week, so time is of the essence.

[the_shadow]

Thanks for the responses.

 

The dates are subject to a defence of court action.

 

Really, I'm looking for anyone that can prove either way what the ruling is or can point me in the right direction. I've got to decide whether to continue to fight either way by the end of the week, so time is of the essence.

 

I'm sorry to say that as I understand the CCA its 14 days for remedy with the addition of 2 working days for service (1st class) 4 for second class at the start of the calculation. Even if they had sent it 2nd class my calculations still make it correct sorry!

 

Sent Mon 22nd, 4 days service takes you to Tuesday 30th for service, 14 days takes you to 12th Jan.

 

Other opinions may vary.

 

S.

[robcag]

I'm sorry to say that as I understand the CCA its 14 days for remedy with the addition of 2 working days for service (1st class) 4 for second class at the start of the calculation. Even if they had sent it 2nd class my calculations still make it correct sorry!

 

Sent Mon 22nd, 4 days service takes you to Tuesday 30th for service, 14 days takes you to 12th Jan.

 

Other opinions may vary.

 

S.

 

Hi the_shadow

 

Just my opinion, whilst I agree with your good advice about days allowed for service etc., and if the notice was posted 2nd class then I agree it would have been deemed served on Tues 30th. But, IMHO, 14 clear days from the 30th, ie start counting the 14 days from and including the 31st takes you to the 13th Jan. - probably just a minor niggle in this case as unfortunately for vitruvius that was the date s/he was given.

 

However there may be a chance there was something else wrong with the DN such as the wording or the amounts being inaccurate. I've also seen posts on here where people have mentioned that the wording of the DN has said that the default must be remedied "before the date shown", thereby giving the possibility of arguing that 14 days were not actually given - just trying to give vitruvius a bit of hope.

 

vitruvius - is there any chance you could scan the document for us to look at? And I don't suppose you have kept the envelope in which the DN was delivered as there have been cases of DNs being 'backdated' or not being posted for several days after the date they are produced.

 

Cheers

Rob

[vitruvius]

Hi Rob

 

Here is the default notice:

 

DSC01147.jpg picture by ChillD_photo - Photobucket

[vitruvius]

Rob

 

I should add that we don't have the original envelope. I think for clarity's sake we have to consider service as the 24th

[robcag]

Hi Rob

 

Here is the default notice:

 

 

Thanks for posting that, I hope you don't mind but I've updated your link in my reply so that the image appears directly in your thread, to make it quicker and easier for people to view it.

 

Rob

 

I should add that we don't have the original envelope. I think for clarity's sake we have to consider service as the 24th

 

But you could put MBNA to 'strict proof' of when the letter was posted if necessary which they probably wouldn't be able to do.

 

Have you ever requested a copy of your original agreement (this is important)? There are many MBNA threads on the forum where MBNA have quoted a breach of 'clause 8' (sometimes they say a breach of 'clause 3' if my memory serves me correctly). When people have checked their alleged agreements, which so far have mainly been unenforceable application forms, there is no such clause shown!

 

Another point is MBNA have said in the DN that they will terminate the agreement. I have seen it argued on here in several threads that once the agreement has been terminated then all they can chase you for is the amount of the arrears on the DN, but I'm not entirely sure if that only applies to cases where the agreement has been unlawfully terminated, ie via an invalid DN. Perhaps someone with a better understanding of that aspect would like to give an opinion if they read this.

 

Anyway, back to the agreement - if you have received a copy is it enforceable? If you're not sure post it up here with your details obscured for an opinion or three.

 

Cheers

Rob

[vitruvius]

Hi Rob

 

No, don't have the CCA, the default notice came out of the blue when I wasn't expecting it and they pursued court action very quickly afterwards. Due to the adjournment on the court case I don't really have the time to request it now.

[robcag]

Hi Rob

 

No, don't have the CCA, the default notice came out of the blue when I wasn't expecting it and they pursued court action very quickly afterwards. Due to the adjournment on the court case I don't really have the time to request it now.

 

I think that you need to put in a request for a copy of the agreement as a matter of urgency. This would probably be best done under one of the CPR (Civil Procedure Rules) if legal proceedings have already started (no need to go through the CCA s.78 route). About 18-20 months ago I was in what I can only imagine is a similar predicament to what you find yourself in now. I don't know how much you know about what is going on with your case or what happens at the various stages, but in my case I knew nothing until I found CAG and received excellent advice.

 

You haven't told us what has happened so far with your case so to have the best chance of receiving help and guidance I think you should post up a full account (no pun intended) of events and dates (and including the date the credit card account was opened as this could well be very important) and no doubt many knowledgeable people will jump in to help. I'll try and help where I can but I'm right in the middle of preparing a fairly urgent set aside application for a CCJ which I collected before I found CAG.

 

Just to re-emphasise the agreement, the whole crux of the matter is the agreement. If there isn't one, or it is unenforceable, then the claimant cannot win.

 

Cheers

Rob

Edited July 13, 2009 by robcag
unjumbled some words

[robcag]

 

Just to re-emphasise the agreement, the whole crux of the matter is the agreement. If there isn't one, or it is unenforceable, then the claimant cannot win.

 

Cheers

Rob

 

PS

 

I should probably add a little proviso/qualifier to the above statement.

 

The claimant cannot win if the agreement was entered into before certain relevant provisions of the CCA2006 took effect, which I think was April 2007, when s.127(3) of the CCA1974 was repealed.

 

Cheers

Rob

Edited July 13, 2009 by robcag
corrected s.127 to s 127(3)

[popeye1]

DN including the 25/26th Dec and the 1st Jan cannot be right as little can be done on these days ,i would think?

[robcag]

 

You haven't told us what has happened so far with your case so to have the best chance of receiving help and guidance I think you should post up a full account (no pun intended) of events and dates (and including the date the credit card account was opened as this could well be very important) and no doubt many knowledgeable people will jump in to help. I'll try and help where I can but I'm right in the middle of preparing a fairly urgent set aside application for a CCJ which I collected before I found CAG.

 

 

Hi vitruvius

 

Apologies, but I missed some of what you said in your post #4 above, so you have given some idea of what has happened so far .

 

OK, so you submitted an ineffective defence and you were granted permission to change it.

 

How long has the court given you to submit your new defence?

 

If this time is almost up then you might need to make a further application to the court for more time to give you a chance to check the agreement (if any), I'm not entirely sure how you would go about this.

 

IMHO, as you have not had sight of an agreement relating to this debt, you need to quickly put in a CPR request for further information and documents from the claimant.

 

When was this agreement taken out? This could have a bearing on the chances of winning the case as I tried to explain further up. Agreements which were taken out before Apr 2007 (I think that is the correct date) which do not contain the prescribed terms are not enforceable due to s127©, whereas this is not the case with newer agreements (although there may be other failings in the agreement).

 

Sorry if I sound a bit vague, but I'm not very good at explaining things sometimes, but just trying to be helpful.

 

As it seems that some urgency is required here, it would be worth clicking the little red triangle at the bottom of the panel at the left of the post window (below your username) which will bring the thread to the attention of the site team who will be able to offer more expert advice (than me ). Don't worry, that's what the red triangle is there for, so just do it!

 

Cheers

Rob

[robcag]

PS

 

I'm not trying to blow my own trumpet because I definitely couldn't have done so without the help I received from CAG members, especially pt2537, but I went on to win my case which I referred to above, see;

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/124572-hfc-no-agreement-amended.html

 

Just one of many winning cases you can read at;

 

DCA Legal Successes - The Consumer Forums

 

Cheers

Rob

[citizenB]

I'm sorry to say that as I understand the CCA its 14 days for remedy with the addition of 2 working days for service (1st class) 4 for second class at the start of the calculation. Even if they had sent it 2nd class my calculations still make it correct sorry!

 

Sent Mon 22nd, 4 days service takes you to Tuesday 30th for service, 14 days takes you to 12th Jan.

 

Other opinions may vary.

 

S.

 

Rob

 

I should add that we don't have the original envelope. I think for clarity's sake we have to consider service as the 24th

 

I think in the absence of the original envelope you should put the claimant (MBNA) to strict proof that this was posted 1st class. They do not usually use the swifter of the two Royal Mail postal service. Apart from which this was the christmas period.. chances of you having received it within 2 days are very remote.. so you could definitely put forward a good argument that the DN wasnt received until AFTER christmas.

 

DN including the 25/26th Dec and the 1st Jan cannot be right as little can be done on these days ,i would think?

 

The Postal regs only come into play in respect of the posting of the document ie.. if it was posted on a Friday .. then the first working day wold be the following Monday.

 

Council Tax Manual - Section 3 - Appendix 3.6 - Service of documents by post

 

Appendix 3.6 - Service of documents by post

 

All Text Amended

1. Interpretation Act 1978, Section 7

This states:-

"7. 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 band 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.

8 March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

[popeye1]

Yes i think i get that ,but if the DN is supposed to give you 14 days to put something right and some of the 14 days are main bank hols when most are closed down,it limits your chances of remedy,maybe?So not a full 14 days.

[pedross]

The correct calculation for the default notice is post 6 which is the 13 January so I do believe this is a non starter. The danger of claiming that it is working days, which you cannot prove, is that although they probably cannot prove otherwise, if they are well prepared they will probably have the best argument.

 

Therefore, I believe that your best chance is to play on the default notice, because you have got leave to challenge it. Claim that it cannot be valid because it refers to an agreement which has not been provided in evidence. The lack of a valid agreement is already the subject of case law and the claimants case would be bound to fail.

 

V - You need some more help here. You need to make it clear how far this has gone and the full situation so far. If no agreement has been included in evidence you could win now or gain extra time to get more help.

 

You need to get it right because they will be better prepared next time.

 

Pedross

[paying4ever]

PS

 

I'm not trying to blow my own trumpet because I definitely couldn't have done so without the help I received from CAG members, especially pt2537, but I went on to win my case which I referred to above, see;

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/124572-hfc-no-agreement-amended.html

 

Just one of many winning cases you can read at;

 

DCA Legal Successes - The Consumer Forums

 

Cheers

Rob

 

Rob, what was the final outcome with that case? Your last post on that thread (#419) basically said matters were on hold. Have you finally won?