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Urgent Comment Invited - Trading Standards Opinnion Incorrect?

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Dear All,

 

I hope I have posted this in the correct section of the CAG.

 

I would be very grateful if the Learned Members of the CAG could provide comment on the following responses I received from Trading Standards in Milton Keynes when I contacted them with regards to issues I have with NatWest.

 

My original thread: http://www.consumeractiongroup.co.uk/forum/natwest-bank/172280-ihpj-natwest-cards-cca.html#post1858648.

 

The Default Notice: http://www.consumeractiongroup.co.uk/forum/natwest-bank/172280-ihpj-natwest-cards-cca-2.html#post2003531.

 

 

First, the initial response from Trading Standards:

 

http://www.frontiers.plus.com/natwest_ts_1a.jpg

http://www.frontiers.plus.com/natwest_ts_1b.jpg

Edited by ihpj

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My response (taken from other Contributors on the CAG):

 

----------

 

Dear

 

RE: Consumer Credit Act 1974 – Consumer Credit Issues

 

I write with regards to you letter dated 10th July 2009.

 

I am grateful that you were in a position to meet with me and discuss my concerns in person, now that I have your reply in writing, I find myself a little mystified by your response and would seek urgent clarification on the points you have commented upon.

 

*Default Notice

I contended that the Default Notice (DN) served on me by NatWest Card Services was defective not least because the regulations require them to give me 14 (fourteen) clear days after service to rectify the breach, but they have given me less than the required minimum. This can be demonstrated by referencing section (88 ) of the Consumer Credit Act 1974, where it deals with the contents and effect of a default notice:

 

(2) A date specified under subsection (1) must not be less than fourteen 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.

 

But this is not all. As for when the Notice can be deemed as being served, this is dealt with by Section 7 of the Interpretation Act 1978 which states that any document served by post (properly addressed, prepaid and posted) will be deemed to have been served at the time at which the letter would be delivered in the usual way by post, unless proved otherwise:

 

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."

 

...but we must ask ourselves what is considered ordinary course of post? This too has been further clarifies by Practice Direction (Service of Documents) - First and Second Class Mail as follows:

 

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

 

So, to summarise, for a DN to be effective the Creditor must give the debtor a period of not less than 14 clear days that, very importantly, cannot take into account days for service – as that would lessen the minimum required period to rectify the breach. We are therefore in effect looking at a period of 14 days plus an appropriate number of days taking into account the method used for service.

 

In my case, there is no way I can be deemed to have received the DN on the date it was issued (Friday 20th February 2009) as the earliest it can be considered as served, would be Tuesday 24th February 2009 – because they sent it by first class regular post. Surely then, my 14 clear day period must start on Wednesday 25th February 2009. So if you take the required 14 day period from then (with 25th February being the first day of my 14 days) we reach Tuesday 10th March 2009. I therefore contend that the first day of any enforcement action is Wednesday 11th March 2009; yet my DN gives me…no later than 17 days after the date of this Notice shown above to comply. NatWest have failed to take into account service days and taking 17 days after the date of the Notice is Monday 9th March 2009; thus rendering the DN defective because it gives me less than the required minimum of 14 days to rectify the breach.

 

What gives me cause for concern is that you appear to have taken a very simplistic view of the ‘14 day rule’ and do not appear to have considered the service days aspect which is a key requirement when talking about DNs. You appear to suggest that just because NatWest have given me 17 days to rectify the breach, this is in some way compatible and in accordance with the relevant legislation. I therefore find your position worryingly at odds with mine and am curious to understand how you have arrived at your decision and what legislation you have relied upon when formulating your response.

 

For my part, I have laid out clearly my thoughts and welcome your reply.

 

* Format of Statements

Another reason why I felt the NatWest DN was rendered defective because they have not set the Notice out in the prescribed manner.

In essence it is my contention that the words underlined should be given greater emphasis than the words either side of them. The Legislation doesn't say how that should be done exactly, but the intent seems to be clear:

 

Schedule 2 of Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561):

(5) Where any statement is required to be in a form specified in a Schedule to these Regulations and is reproduced in the notice, then apart from any heading to the notice, trade names or names of parties to the agreement—

(a) the lettering in the statement shall be afforded more prominence (whether by capital letters, underlining, large or bold print or otherwise) than any other lettering in the notice; and

(b) where words are both shown in capital letters and underlined in any statement specified in a Schedule to these Regulations, they shall be afforded yet more prominence.

 

I contend that it is sub-section (b) [above] that kills them because...

 

They have DONE IT LIKE THIS

 

...when they should have DONE IT LIKE THIS

 

 

To put it another way, the manner in which words should be set out is not explicit in terms of the use of UPPER CASE and BOLD, but there are prescribed standards that must be followed depending on the use of BOLD lettering. So, it's reasonable to say that it would be wise to use UPPER CASE for the prescribed wording mainly because to do otherwise would not make it stand out, and use another technique to afford yet more prominence. For example:

 

THEY HAVE DONE IT LIKE THIS

OR THEY MAY HAVE DONE IT LIKE THIS

 

WHEN THEY SHOULD HAVE DONE IT LIKE THIS

OR THEY SHOULD HAVE DONE IT LIKE THIS

 

(note that on the latter two I have given the underlined words greater emphasis)

 

Again we appear to be at odds in opinion of compliance; and I am mystified by your interpretation of the above schedule given the wording used by NatWest.

 

 

*Triton Credit Services

How can Triton Credit Services be acting within their rights in pursuing a debt when the account has fallen into dispute because the original creditor (NatWest) has failed to comply with a statutory request that was made correctly and in accordance with relevant legislation?

 

The default cannot be legitimate when the Consumer Credit Act 1974 s(78 )(6) states that:

 

If the creditor fails to comply with Subsection (1)

(a) He is not entitled, while the default continues, to enforce the agreement. And

(b) If the default continues for one month he commits an offence.

Therefore, while the account remains in dispute:

• They may not demand any payment on this account, nor am I obliged to offer any payment to you.

• They may not add any further interest or charges to this account.

• They may not pass this account to any third party.

• They may not register any information in respect of this account with any of the credit reference agencies.

• They may not issue a default notice related to this account.

 

Yet, NatWest feel able to enforce their rights and obligations under the Consumer Credit Act 1974 while denying me my own. The reason I am in arrears with them is because they have failed in their duty to provide the relevant information.

 

On this occasion, I am disappointed in your position on this matter, because you appear to suggest the enforceability of this Act is only one way – that the Creditor can behave as they wish while the Consumer gets trampled underfoot.

 

Although I am not satisfied with your response, I do believe we are moving in the right direction. Should you feel it would be appropriate, then I would be more than happy to meet with you in person to discuss these matters of difference in opinion and to determine a constructive and informed way forward.

 

 

Yours sincerely,

 

----------

Edited by ihpj
Type formatting - bold, italic, underline etc.

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...and finally their response which is...interesting to me as Trading Standards appear to be using the word 'service' in its plainest and ordinary interpretation but with no regard to the manner of 'service' - anyhoo... here is their reply:

 

http://www.frontiers.plus.com/natwest_ts_1a.jpg

http://www.frontiers.plus.com/natwest_ts_2b.jpg

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ihpj

 

The problem with local TS departments is that they are not lawyers. They also can't count. The CCA requires that there has to be 14 clear days between service of the DN and the action then taken. The date of service is also defined both within statute and the court's rules. Normally, service is deemed to be 2 days after the date of posting if 1st class post is used. But they are business days, ie Sat & Sun do not count for service. Therefore service was at the earliest deemed effective on TUESDAY 24 February. The 14 days then starts from Weds 25 February, meaning the earliest date that should be there is Weds 11 March. Snag for NW is that 17 days from 20 Feb is Monday 9 March. Normally 17 days would be enough but at the weekends, you need longer. Tough on Nat West but I suggest it is a defecive DN. Close though.


Arrow Global/MBNA - Discontinued and paid costs

HFO/Morgan Stanley (Barclays) - Discontinued and paid costs

HSBC - Discontinued and paid costs

Nationwide - Ran for cover of stay pending OFT case 3 yrs ago

RBS/Mint - Nothing for 4 yrs after S78 request

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ihpj

 

The problem with local TS departments is that they are not lawyers. They also can't count. The CCA requires that there has to be 14 clear days between service of the DN and the action then taken. The date of service is also defined both within statute and the court's rules. Normally, service is deemed to be 2 days after the date of posting if 1st class post is used. But they are business days, ie Sat & Sun do not count for service. Therefore service was at the earliest deemed effective on TUESDAY 24 February. The 14 days then starts from Weds 25 February, meaning the earliest date that should be there is Weds 11 March. Snag for NW is that 17 days from 20 Feb is Monday 9 March. Normally 17 days would be enough but at the weekends, you need longer. Tough on Nat West but I suggest it is a defecive DN. Close though.

 

You'd be surprised what it takes to qualify for T.S. and some are lawyers and legal execs.

 

past exams and reports - Trading Standards Institute

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Appreciate the replies thus far, but they do not answer my questions fully.

 

I know on the CAG we have offered up and discussed our own interpretations but from what I can see, the prescribed format of a Default Notice, no where does it show within the legislation, that the wording in CAPS should also be underlined.

 

From what I can see, it only stipulates that the wording should all be in CAPS; must be copied word-for-word in any Notice and that this should be given more prominence than any other wording or phrases used in the Notice. But no where does it show any use of underlining - the only thing I can think of is that the legislation I have is an early one and subsequently it has been amended?

 

In any event, if I am to successfully argue that the wording is not in the prescribed format, I must show why this is the case; and at this time I cannot...

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OK had a look through your DN and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and IMHO they fall foul of the following

 

Sch 2 sub section 9A requires this statement

You should be aware that if we take you to court and get a judgment against you requiring you to pay us the money you

owe us under the agreement, you may have to pay us both the amount of the judgment and interest under the agreement

on all the sums owed by you at the date of the judgment until you have paid these in full. This means that even if you pay

off the whole amount of the judgment, you may still have a further sum to pay

 

Although your DN has it it is not underlined.

 

Schedule 2 sub section 10A requires this

This notice should include a copy of the current Office of Fair Trading information sheet on default. This contains

important information about your rights and where to go for support and advice. If it is not included, you should contact

us to get one

 

again your DN contains this but it is not underlined.

 

Regulation 6 is pretty clear viz

 

(6) The wording in any such statement shall be reproduced in the notice without any alteration or addition, and in

relation to any statement to be contained in the notice the requirements of any note shall be complied with, except that the

words "the creditor" may be replaced by the name of the creditor, by the expression by which he is referred to in the

agreement or by an appropriate pronoun, and any consequential changes to pronouns and verbs may be used

 

 

Gonna take a lot to convince a judge though that the DN is defective

 

Hope it helps

 

Copy of the Regs attached

Consumer Credit Enforcement Default and Termination NoticesRegulations 1983[1].pdf

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Gonna take a lot to convince a judge though that the DN is defective...

 

Well I thought it gave me less than the required 14 clear days to remedy the breach - this is the key flaw in the Default Notice. As for the wording aspect, I think there may be some confusion within these forums relating to which wording needs to be UNDERLINED and BOLD - as from what you have suggested, it is not what I thought but the statements as you describe in Schedule 2 relating to 9(a) and 10(a).

 

I wish I could get some clarification on this. Must do some more reading!

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You could try something like this in your defence

 

"

Default Notice

1. According to the Particulars of Claim a document entitled “Default Notice” was sent to the Defendant on xx XXX 200X. This purported to be a default notice under s 87(1) of the Act.

2. It is also inferred that this document was posted to the Defendant on xx XXX 200X. By S7 of the Interpretation Act 1978, a posted document is deemed to have been served at the time when it would be delivered in the ordinary course of post.

3. A default notice is a required by S 87(1) of the Act before a creditor can become entitled to take any action in respect of a regulated credit agreement.

4. Furthermore s 88(1) of the Act requires that a default notice must be in the prescribed form. The prescribed format for a default notice 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).

5. By Regulation 2(2) of these regulations, any Default Notice must include both a description of the agreement sufficient to identify it and the name and a postal address of the creditor or owner.

6. By S88 (1)© of the Act, the date before which any breach can be remedied or compensation paid, must be stated in the Default Notice. By S 88 (2) of the Act, as amended by s14(1) of the Consumer Credit Act 2006 as from 1 October 2006, the specified date must not be less than 14 days after the date of service of the default notice. The 14 day period was also required by paragraph 3© of Schedule 2 of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended.

7. By case law, the 14 days in the section means 14 ‘clear days’, excluding the day on which the notice was served and the day on which the Claimant proposed to take the steps specified in the notice.

8. The date given by which the default could be remedied was less than the 14 days required. Accordingly the ‘default notice’ was invalid and failure of a default notice to be accurate invalidates the default notice [Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255] which would prevent the court enforcing any alleged debt,


Arrow Global/MBNA - Discontinued and paid costs

HFO/Morgan Stanley (Barclays) - Discontinued and paid costs

HSBC - Discontinued and paid costs

Nationwide - Ran for cover of stay pending OFT case 3 yrs ago

RBS/Mint - Nothing for 4 yrs after S78 request

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