Halifax - dodgy default - agreement now terninated, help!

[mikexlr8]

Original thread is here but wanted to start a new one for this purpose: http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/210295-halifax-default-notice.html#post2302601

 

So story is this:

 

Halifax sent me a default notice dated July 15 for arrears of around 80.00 on a debt of 4K. I received the letter on July 18 and they demanded payment by July 25.

 

I made several attempts to arrange reduced payments but haven't actually paid them a penny since they issued the default. Of course they ignored most of my letters.

 

Today I recevied a letter from J&J Collections on behalf of Halifax.

 

Letter states Halifax has now terminated the agreement and J&J are seeking full payment of the outstanding balance.

 

What now?

 

Do I write acknowledging they canceled the agreement? Who is the expert here when it comes to dodgy defaults?

 

My understanding is that they can only now chase me for the 80.00?

 

Any help appreciated with this - template letters etc.

Edited September 5, 2009 by mikexlr8
date correction

[vic synex]

I'm in the same position as you, Halifax sent me a faulty DN then terminated. All went quiet till a few weeks ago when Blair Oliver and Scott got in touch demanding payment.

I politely pointed out the error of their ways and made reference to the defective DN and termination and, fingers crossed, haven't heard from them since

[Pinky69]

Tell JJ that Halifax terminated the alleged agreement without issuing a law DN, in breach of Section 87 (1) of the Consumer Credit Act, and in doing so they unlawfully rescinded the alleged account. That being the case the alleged account no longer exists and this will be your only correspondence to them on this matter. Then ignore them.

[DonkeyB]

They have only given you ten days to rectify the default. They must give you 14 days + 3 days for service etc. They have fallen at the first hurdle! Have Halifax sent you a letter to terminate the agreement? J&J Collections are in no position to do that themselves. This termination, because the DN was faulty, will be an unlawful rescission of contract, which means they can't collect anything.

 

More advice from those with better knowledge than me will clarify this, I'm sure, but I think you need to keep your tinder dry, get a CCA request in to J&J, and wait for a response.

[DonkeyB]

Sorry Pinky, same advice but threads crossed!

[Pinky69]

I forgot to say send your letter to their Complaints Department at the address you have for them otherwise it will be ignored

[mikexlr8]

Thanks you for the responses.

 

Please can you clarify the best move.

[mikexlr8]

Letter from from JJ saying their client being Halifax has terminated the agreement.

[Pinky69]

You don't need a copy of the agreement. Just tell them the alleged account was rescinded by Halifax.

[DonkeyB]

Pinky, does mikexlr8 need some evidence of the termination? As yet he has nothing in writing, I think, from Halifax and I'm sure JJ can't do this on their behalf. They might change their minds and find it was an 'admin error'.

[mikexlr8]

Are you sure JJ saying Halifax terminated is enough?

[DonkeyB]

Are you sure JJ saying Halifax terminated is enough?

 

Have just googled J&J and it looks like they may be in-house for Halifax, along with Castle and Albion - may be fair enough to say, then, that the account is terminated if that is the case! They'd be hard pushed to claim that as an admin error when it's their own people saying so.

[joemay]

Hi mikexlr8

 

OH has had a similar situation, dodgy DN. Sent a CCA request of to them, they returned a copy of an unenforceable "application form" with a cover letter stating that the agreement has ended, which in my eyes is confirming they have terminated the agreement.

 

I have had some great advise from caggers and have acted by making a complaint to helifax, even pointed out that they have unlawfully rescinded the agreement their response: they can't find any record/confirmation on their file??? Take a look here it's a little long winded but may be of interest to you.

 

All the best.

Joemay

[mikexlr8]

I'm in the same position as you, Halifax sent me a faulty DN then terminated. All went quiet till a few weeks ago when Blair Oliver and Scott got in touch demanding payment.

I politely pointed out the error of their ways and made reference to the defective DN and termination and, fingers crossed, haven't heard from them since

 

How long ago was that?

[mikexlr8]

I think I should write to Halifax saying I recevied a letter from JJ and ask them to confirm the agreement was terminated and that they are sekking full payment of the account.

 

Any thought for or against this?

 

Thanks!

[lickthewallfatboy]

from what I have read,an account terminated on the back of a dodgy default notice,is gone

 

bye bye Halifax,you silly bankers

[angry cat]

In order that a Default Notice under s87 CCA be effective, the amount of remedy must be correctly stated and;

the Creditor must allow the debtor, a full 14 days after receipt to remedy the breach.

 

As you were only given 10 days to remedy the breach;

said Default would be viewed as, ineffective.

 

The Creditor, then proceeded to Terminate the agreement on the back of an ineffective Default Notice.

 

Thus, you have a defence against any action that, Halifax may bring.

 

AC

[mikexlr8]

Angry Cat - Thanks!

 

Would it do any harm to write to Halifax saying that JJ wrote to me and ask them to confirm they are in fact acting on behalf of Halifax that the account was terminated and that they are seeking full payment, before I corraspond back with JJ?

[Undercover-Elsa]

Hi Mikexlr8

All good advice above.

If you want the belt and braces approach and solid proof of termination from Halifax, maybe as you suggest you could write a disingenuous letter to Hx saying you have been contacted by JJ stating that the account has been terminated and they are seeking the full balance, but as you have never heard of this firm before or had any notification from Halifax can they please confirm if this is genuine and correct before you respond to JJ.

Its generally accepted that demanding the full balance is tantamount to termination anyway, but the more proof you have the better, in my book, so they can't lie and squirm their way out of it.

For background info, Search for threads by Banker_Rhymes_With and SurfaceagentX20 on default notices

Best wishes,

Elsa x

[mikexlr8]

Thanks Elsa - Another question is can JJ keep adding charges? Their letter stated a £50 admin fee for them taking over the terminated account. It's also my understanding that every time I answer the phone to them they add on £10...

[Pinky69]

They cannot add any charges whatsoever - chancers!

[mikexlr8]

Not even the £50 "admin" charge stated in the termination notice?

 

Started to get more educated in these forums by the day!

[42man]

In my opinion, and from what I have learnt from variuous threads on here....having a faulty DN and then a termination means they have committed a potentially unlawful recission of contract.....once terminated then they cannot simply 'create' another default as it would be pure fiction.....there is a good thread here to help in understanding this - http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html and this information below when it comes to court claims and default notices.....but in this situation you'd need to explain this to a judge who potentially doesn't know an awful lot about CCA1974...

 

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 Division

 

3. 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 3rd August, 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 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. 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.

------------

The Claimant respectfully requests that an order may be made as follows:

 

1. That the Claimant's statement of case is struck out pursuant to rule 3.4(2)(a) of the Civil Procedure Rules

as the Calimant's statement of case discloses no reasonable grounds for bringing the claim.

 

The claim is for the early repayment (ie before the full term of the allleged agreement between the Claimant and the Defendant) of a sum of money consequent on a breach of the alleged agreement by the Defendant. The Claimant is only entitled to file such a claim after first having served a defeult noitice under section 87(1) of the Consumer Credit Act 1974 and in accordance with s88 of the Act.

 

Inter alia, the regulations made by the Sectratary of State related to s88 concerning default notices require that a period of 14 clear days be given to the Defendant to remedy the default before enforcement action (including filing a claim) may be started.

The default notice supplied by the Claimant in response to the order of the Court dated date is dated Friday 3 August 2008 and says "To remedy this breach, payment due on your account of £xxx must be received within fourteen calendar days from the date of this default notice", ie by Wendesday 17 August. Under CPR Part 6.2, a letter is deemed served on the second day after it was posted, provided that day is a business day. That means that a default notice posted on Friday 3 August would be deemed served on Tuesday 7 August and 14 clear days from then is Tuesday 21 August. Therefore the default notice does not comply with the regulations in respect of giving the Defendant the statutory length of time to remedy the default.

The failure of the default notice to comply with the regulations made by the Secretary of State invalidates the default notice (Woodchester Lease management Services Ltd v Swain and Co - [2001] GCCR 2255), is an unlawful rescission of contract and prevents the Court from enforcing any alleged debt (Kpohraror v Woolwich Building Society [1996] 4 All ER 119).

The invalidity of the default notice means that the Claimant has no right of action in this case. On this basis, I respectfully ask the Court to strike out the Claimant's statement of case.

 

--------------

 

The reasoning is simple:

 

Section 87(1) of the CCA 1974 says:

 

87.--(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....

 

Section 88 says that the DN must be in the prescribed form and the associated regulation say what that form is.

 

Thus, if the DN is not in the prescribed form, it is invalid and, under s87, the lender has no right of action.

 

CPR3.4(2)(a) says that the court may strike out a statement of case if it appears to the court –

 

(a) that the statement of case discloses no reasonable grounds for bringing ... the claim

 

THe user should submit a defence based on the same argument but then ask for a strike out with the AQ. That way, there is no need to make an appliaction and shell out £40

[DonkeyB]

Brilliant stuff 42 man. In the meantime, the only way a DCA or anyone can add charges like this to an account is if there's a clause allowing it in the original signed contract... what contract? CCA would sort that out, but, as 42man and others of us have said, they've burnt their bridges.

[mikexlr8]

Awesome post 42man!

 

Has this argument been upheld in court yet from any one on here?

 

Also, does anyone know of a template letter I can send back to JJ regarding the invalid default notice and subsequent termination of the agreement, thus making the agreement unenforceable?