Need clarification on Capital One Default Notice

[Dipply75]

Hi all

 

Have been sent a Capital One DN that just say the arrears must reach my account within 28 days of the date of the letter.

 

No date is specified, the only date anywhere on the letter is the date they posted it...but as they said 28 days (obviously giving 14 days to pay), is that now valid?

 

(the arrears listed may actually be wrong lol, still checking!

 

Any clever bods opinions would be grand!

 

Thanks

[cerberusalert]

Can you scan it remove identifying details and post it up?

 

There are two types of default notices now, the old style one which must contain a remedy date & must be sent prior to rescission of the a/c...and the new one which they have to send out warning you that you're a/c is in default (which isn't a DN as such).

[Dipply75]

So sorry for the delay...hooking up my scanner is a pain in the hoohaa!

 

Cap1DNa.jpg picture by Dipply75 - Photobucket

 

Cap1DNb.jpg picture by Dipply75 - Photobucket

 

Any opinions?

 

Thanks again

[diddydicky]

arrears apart it looks sound to me

[havinastella]

arrears apart it looks sound to me

 

 

Absolute rubbish! (The DN,not your advise DD)

 

ANY default notice must specify the date the arrears must be paid by. (PT has posted this on so many threads, but I cannot find it on my new PC)

 

THEY cannot just say 14 days or 28 days.

 

It also has to be set out in a proper and correct manner (which again it fails)

 

It's the same rubbish that CRAPONE always send out. Just wait for the termination of the account. Then all you will be liable for for is the amount stated on the 'INCORRECTLY' sent default notice.

 

Jogs

Edited July 25, 2009 by havinastella

[diddydicky]

Absolute rubbish! (The DN,not your advise DD)

 

ANY default notice must specify the date the arrears must be paid by. (PT has posted this on so many threads, but I cannot find it on my new PC)

 

THEY cannot just say 14 days or 28 days.

 

It also has to be set out in a proper and correct manner (which again it fails)

 

It's the same rubbish that CRAPONE always send out. Just wait for the termination of the account. Then all you will be liable for for is the amount stated on the 'INCORRECTLY' sent default notice.

 

Jogs

 

 

If it fails in the way it is set out then i missed it- apologies but do remind me

 

i would be really pleased if it were the case (regarding the way the date is specified) that you were right but i don't think you are

 

The act refers to "the date specified in the default notice" - (meaning the date that is given in the DN ) must allow 14 clear days- it does not say "the date in the DN must be "specified" only as a specific date rather than a number of days.

 

 

even if it did it is my opinion (common sense not legal advice) that the judge would take the view that if the LIP was savvy enough to detect all these faults and failings in the creditors documentation and know all his rights- then he probably is able to calculate a date by adding a certain number of days to a pre given date.

 

I really do genuinely believe that anyone allowing the matter to run to court on the this as a sole reason to down the DN is going to be sorely dissapointed

 

Assuming that the number of days which are expressed in this way do in fact allow at least 14 clear days from the date of servive- then i need anyone of those who are advocating that this point alone is sufficient for a court to rule the DN defective to please point me to a case where a court has so ruled

 

Please don't take this as a challenge (we are all on the same side) but i do worry that some caggers MAY have taken this to be an absolute fact and in the absence of any evidence to prove it i think that newbie posters may be led to believe that this is a magic bullet to defeat a DN

 

it may well be that i can be pointed to a ruling which i have missed in my extensive reading of the forum threads and if this is the case i will happily apologise for doubting you and check off another item on my list

[cerberusalert]

What would you think if you received a letter from your dentist to say you had an appointment at 10am 32 days from the date of the letter? It would be total nonsense wouldn't it?

 

Also, to use your argument that it is acceptable to use the number of days from the date of the letter, who is to say the letter hasn't been pre-dated before it was even posted?

[diddydicky]

What would you think if you received a letter from your dentist to say you had an appointment at 10am 32 days from the date of the letter? It would be total nonsense wouldn't it?

 

Also, to use your argument that it is acceptable to use the number of days from the date of the letter, who is to say the letter hasn't been pre-dated before it was even posted?

 

a/ but if you had an argument with your dentist because you didn't turn up for the appoiintment and lost it you would nt be left with a ccj and a legal costs order!!

 

many caggers lose sight of the difference between what SHOULD be straightforward rules and the way judges actually enforce them, i have seen no evidence on this site where any cagger has previously challenged this practise in court and got a ruling on it from a judge

 

are you going to sit next to a judge and tell him that you did not have sufficient brain cells to work out that 28 days from the date of the letter gave you more than 14 clear days to rectify the breach , and then in the next breath tell him (as you hand him his copy of the detailed defence that you a a LIP are going to use to defend against the creditors action), that you do however have sufficient brainpower to have picked up no end of faults with underlining in DN.s wrong font types in relation to other text, arrears amounts that contain unlawful charges, CCA's that are not worded correctly or are missing certain prescribed terms, etc etc and of course you are also going to have to hope against hope that the other side does not produce one of YOUR letters to them in which you have used exactly the same terminology yourself when inviting them to respond to you (how about the one where you said they failed to produce the cca within 12 +2 working days ? )

 

If judges interpreted the rules correctly then of course the advice to a newbie to "do nothing and then wave this DN at the judge like a magic bullet " and that all will be well would be sound

 

but the reality is (especially in the lower courts) that judges DO use their common sense and DO just like the rest of us, make judgements as to the competence and honesty of people appearing before them and they can usually tell when someone is "extracting the urine"

 

all i am asking for is for someone to show me that this argument has been run and won!

 

Also, to use your argument that it is acceptable to use the number of days from the date of the letter, who is to say the letter hasn't been pre-dated before it was even posted?[/

 

well Given the amount of time that OC's and DCAs "waste" batting letters back and forth,sometimes for months on end- what possible reason do they have to backdate a letter by a few days to get a 14 clear day remedy date into a letter when they can just as easily make it 21 or 28 days and not have the hassle? How do they rope their low paid staff in the mail rooms into the conspiracy?

 

conspiracy theories only really work if there is a dire and overwhelming need or reason to go to the lengths of creating the conspiracy in the first place!!

[cerberusalert]

Nothing in this world is black and white, of course judges interpret legislation as they see fit & many times get it wrong that is why there is an appeals process. There is sufficient case law to back up the contention that if a DN is defective and that when an a/c is terminated an unlawful rescission of the agreement has occured.

 

Looking at your posts in total it seems that you are intent on causing as much disruption and argument as possible, but I will not be raising to the bait. I am going to treat you with the contempt you deserve and totally ignore you inane posts.

[pedross]

This is a post I made in response to a similar poster, although I had one person thank me it generally passed without comment. I still believe it has merit.

 

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

 

The 7 days (14 now) start the day after you receive it (2 or 4 days after posting) so you receive it on 1st then you must settle by 8th.

 

I am also interested in the above point on '17 days' and I have tried to debate it before without success. The act clearly states 'a date specified' and although it could be argued that it is sufficient to just add 17 days to the date of the letter, although you then arrive at a date, it is actually a date you have calculated and not a date specified.

 

The question is - Is the date clearly defined or identified and the answer is - No. To identify the date you must do a mathematical calculation even if it is a fairly simple one to most people. I know for a fact that when it passes a month end, even with a calender to hand, and a good understanding of maths an additional check is normally required to be sure of the date intended. Therefore, it stands to reason that a person with a lesser ability to calculate the date could easily miscalculate. In addition, a person without a calender to hand could also make a mistake.

 

Therefore, I do not believe that the act intended to allow large corporations, to choose upon themselves, to avoid the obligations of the act and to substitute non specific terms into default notices.

 

To further my point I will put all readers to an immediate test and the only rules are you must know the answer immediately. without thought or calculation. What is the specific date in 17 days time? Too late you have failed.

 

I do realise that it depends what date you do the test but you cannot say the notice is defective if you receive it towards the end of the month but ok if you receive it at the beginning. It must be clear to everyone all of the time. You should not have to work out how many days there are in the month and start counting on your fingers, to arrive at a number, which is then legally binding as 'the date specified'.

 

I do not know if anyone has tested this theory in court to date, but I believe it makes sense, so as they say: use at your own risk!

 

Pedross

Edited July 27, 2009 by pedross
Add disclaimer in case Diddy meant me

[Dipply75]

umm, I seem to have caused a slight disagreement

 

C'mon guys, alls fair in love and 'educating' the banks!

 

Every opinion helps debate the issues, but what is now clear is that this particular question is a big issue and needs clarification and testing. Again, this ain't the largest CC bill ever (maxed though it is ) as I managed to sort my big scary debts a few years ago and its only life and rotten luck that's kicked me back down a bit.

 

So am not nearly as scared, snowed under or powerless as I once was (thanks to the CAG) - and if I test this and fail it will be an absolute b@gger but not a disaster.

[Dipply75]

Now, to business. While trying to check if the arrears are correct I noticed I simply cannot at the moment. When my a/c fell into arrears they blocked access to my online a/c......so I've not actually had a statement for months - no idea what my balance was, what minimum payement was due or when - nothing!

 

So there's a question.....of you opt out of paper statements (be green or whatever) and only get online statements, when they block you online access as your a/c is in arrears etc are they not breaking a major rule? (note to self to read up on the requirements for running account credit!)

 

Cap one simply list a number to phone and they refuse you access unless you pay money there and then! If you are unable? Tough - no statements.

 

Opinions/comments on THAT anyone please?

[gezwee]

Dipply

 

Its possible they have already terminated your account and ceased monthly billing cycle. Its difficult to tell in your situation as you opted for the enviro friendly web based accounts. Even Vodafone have started knocking online access on the head as soon as you run to +30 days on an account.

 

You didnt mention if you are already paying them something or ceased altogether?

 

I believe once an account is terminated they are only obliged to issue statement every 6 months, read that somewhere but not sure exactly how that fits in with the CCA.

 

If its not causing you any probs at the moment I'd be inclined to carry on doing what your doing and wait for a statement to hit the doormat. If nothing within say the next 3 months and theres no real financial encumbrance to you I'd be inclined to SAR them and see what comes to light.

 

You could of course CCA them now and request up to date statement of account at the same time, costs a quid and (if they respond) gets you the info you are looking for in the shortest time possible.

 

Gezwee

[Dipply75]

Hi gezwee, I think I will have to SAR them anyway.

 

I haven't paid them anything since March (finances went haywire!) - I was still getting the e-mail notification that my 'e-statement' was now available every month but everytime I tried to log in I was refused - an error message appears in red saying that I am blocked due to the status of the a/c and to phone them.

 

They are a blooming nightmare on the phone and I can hold my own....brick wall. Pay us something, right now I can't, make a payment, I really can't but....cuts me off and says if you can't pay today we can't go any further.

 

That sums up the calls really! I did write and ask for the 60 days 'breather' they agreed to give to folk in trouble but no reply.

[Dipply75]

Found it.....Section 78 (4) of the CCA is:

(4) Where running-account credit is provided under a regulated agreement, the creditor shall give the debtor statements in the prescribed form, and with the prescribed contents—

(a) showing according to the information to which it is practicable for him to refer, the state of the account at regular intervals of not more than twelve months, and

(b) where the agreement provides, in relation to specified periods, for the making of payments by the debtor, or the charging against him of interest or any other sum, showing according to the information to which it is practicable for him to refer the state of the account at the end of each of those periods during which there is any movement in the account.

(5) A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates.

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement;

 

They actually blocked my access so not only could I not tell what my payments should have been but they breached section 4b by the action of blocking. They were not even entitled to enforce the agreement so DN applied wrongly.........no? (biting lip nervously!)

[diddydicky]

Nothing in this world is black and white, of course judges interpret legislation as they see fit & many times get it wrong that is why there is an appeals process. There is sufficient case law to back up the contention that if a DN is defective and that when an a/c is terminated an unlawful rescission of the agreement has occured.

 

Looking at your posts in total it seems that you are intent on causing as much disruption and argument as possible, but I will not be raising to the bait. I am going to treat you with the contempt you deserve and totally ignore you inane posts.

 

Argument - yes guilty - i thought that was what the forum was for - to argue to pros and cons - how else are we to learn or even change our opinion or views if not by someone else pursuading us by their arguments that we have got things wrong. personally i have learned lots and changed many of my views by accepting other peoples arguments as being more persuasive or authoritative than my own

 

 

Disruption - I believe that i should also contribute to the forum as well as take from it, and my involvement in this particular thread was because of advice given by another poster to a newbie who raised this DN date question which i thought was potentially misleading and could be harmful to the poster if he followed the advice blindly

 

The advice which i disagreed with was that based solely on the way the date was written on the DN - he should just ignore the DN and wait until he gets taken to court (by which time he would have been terminated) and that all he had to do was show the judge the way in which the date was written and he judge would deem it defective

 

Are you suggesting that when i or anyone else believes that someone may be being misled that we should not say so and give alternative advice.

 

My definition of “disruption of a thread is when one poster runs out of argument or gets frustrated that their own viewpoint is not being accepted and then starts to make personal insults

 

You give some very sound advice but like everyone else you can also be wrong and by way of example never more so than your totally incorrect interpretation of the definition of theft as given on the thread mackenzie Hall - do you know any of them? and which if i had not corrected would have led someone to believe that which is not correct,

 

I mention this solely to try and show you that you are not an authority on everything and it is as well to remember that we can all be wrong

 

It would be a pity if you felt that you could not debate issues or learn anything from me simply because you wrongly assume that I argue for some ulterior motive,

 

My aim, as it clearly says on my profile is to offer what i believe to be common sense advice .as I am not qualified to give legal advice . I do so because I very quickly realised that in some threads posters can get carried away and misinformed by other posters and that an injection of common sense does no harm .

 

To the points you make in your post prior to telling me you were going to ignore me I would say:-

 

You admit yourself that things are never Black and white and that is precisely the point IU have been labouring in my posts

 

Your comment that “that’s what the appeal process is there for” in fact goes to the very heart of what I have been arguing

 

The fact is that well over 99% of the people on this forum can only “aspire” to be able to afford to use the appeal process My arguments have been predicated on the basis that most caggers will only get the “One shot” and that we should not be “ sending them off to court on half chances and hopeful punts at establishing new authority “

 

Your final point that there is sufficient case law to back up arguments against defective DN’s misses the point, there is NOT sufficient (or even any) case law that I am aware of that sets a precedent for this particular argument and that is what I have been asking someone to refer me to>

 

I don’t want to “fall out” with you or anyone else but WILL state my case and argue my corner

 

 

finally with regard to the highlighted text at the foot of your post

 

If you have even the faintest shred of evidence that i might be the lacky or tool of a DCA, OC or other opposition to caggers on this forum or that i have any sort of agenda or intention to do anything other than help and support other caggers on this forum, then i would be grateful if you would make the accusation outright and show what evidence you have to support that view or otherwise apologise

 

You may of course think that it is "clever" to have included this text to your post and i presume it would be your intention to suggest that the highlighted quotation is pure co incidence!

 

what i think it shows is the exact same sort of subtle innuendo and threat that DCA's include in their threatograms to little old ladies to frigthen them into paying them money

 

If you have something to accuse me of then be a man not a DCA and spit it out

 

 

 

"

Edited July 27, 2009 by diddydicky

[cab1ne]

'A date specified under subsection (1) must not be less than 14 days after the date of service of the default notice,'

 

IMO:

must not be less than 14 days after the date of service of the default notice,'

It is down to the DN to be correct at issue “CREDITOR RESPONSIBILTY”

 

'A date specified under subsection (1)

Must Be The End Date To Which You Have To Rectify The Default. Not “Before” A Date Of Issue / Service Or Then Say Any Amount Of Days.

Edited July 28, 2009 by cab1ne
shouting

[diddydicky]

'A date specified under subsection (1) must not be less than 14 days after the date of service of the default notice,'

IMO:

must not be less than 14 days after the date of service of the default notice,'

It is down to the DN to be correct at issue “CREDITOR RESPONSIBILTY”

'A date specified under subsection (1)

MUST BE THE END DATE TO WHICH YOU HAVE TO RECTIFY THE DEFAULT. NOT “BEFORE” A DATE OF ISSUE / SERVICE OR THEN SAY ANY AMOUNT OF DAYS.

 

no need to shout- i understand, really!

 

what you FAIL to grasp is that i have never said that the date should not be specified as a date as the act intended

 

The advice i was and am trying to get over is that i believe that if you go into court and fight a DN as defective ON THAT POINT ALONE- you may get a nasty surprise- because the judge may well apply a "common sense" interpretation.

 

Yes,he should not perhaps do so, yes you could appeal but alas NO in many cases you cannot AFFORD to

 

Hence my advice to be careful of going into court on this point alone - as the first time is usually also the last time for most cagers

 

I am pleased to see that someone is actually going to do just that- if she manages to get the DN ruled defective on that point then ill be the first to eat humble pie

 

what the act "says " should mean- and what (some) judges " interpret" it to mean is often different as can be seen in some decisions reported on this site

[cab1ne]

no need to shout- i understand, really!

 

what you FAIL to grasp is that i have never said that the date should not be specified as a date as the act intended "not saying you have"

 

The advice i was and am trying to get over is that i believe that if you go into court and fight a DN as defective ON THAT POINT ALONE- you may get a nasty surprise- because the judge may well apply a "common sense" interpretation. "unfortunately imo judges seem even more so now to be using to much interpretation and creating his/her personal cca"

 

Yes,he should not perhaps do so, yes you could appeal but alas NO in many cases you cannot AFFORD to "being one of the main problems"

 

Hence my advice to be careful of going into court on this point alone - as the first time is usually also the last time for most cagers "careful and caution is good advice at anytime"

 

I am pleased to see that someone is actually going to do just that- if she manages to get the DN ruled defective on that point then ill be the first to eat humble pie "not being nasty in anyway" i hope humble pie tastes good for you then i will know my chances in the future could be a little easier"

 

what the act "says " should mean- and what (some) judges " interpret" it to mean is often different as can be seen in some decisions reported on this site. "i think this problem will never go away"[/quote]

 

do accept my apoligies,shouting not intended, but as for my post @ #17 it is purely only an opinion and had nothing to do with any of your previous posts, and if in some way i have lead you to believe it was intended to contradict or discriminate your opinion i apoligise for that to.

 

cab

Edited July 28, 2009 by cab1ne

[pedross]

 

I am pleased to see that someone is actually going to do just that- if she manages to get the DN ruled defective on that point then ill be the first to eat humble pie

 

Hi Diddy

 

I think I have missed something important here.

 

Can you clarify the above point please.

 

Pedross

[diddydicky]

Hi Diddy

 

I think I have missed something important here.

 

Can you clarify the above point please.

 

Pedross

 

yes, certainly

 

one of the caggers is going to run the date argument in court to get the DN defeated (Idont know yet if it is the ONLY argument or if there are others)

 

clearly if it is a 14 day one then the DN is defective anyway-since no posted DN giving 14 days can ever be correct.

 

but if it is a 17 or ( now increasingly common 28 days) like one i got this morning, then the outcome will be interesting

[pedross]

Thanks Diddy

 

As you know I have strong thoughts on this is there a thread i can follow?

 

Pedross

[diddydicky]

i think it was pinky 69