PlumFairy v Uncle Buck

[PlumFairy]

Right. Defaulted with these about a month ago. Had the usual letters from them and a default notice, which looks ok to me.

 

I have been e-mailing them, and they have agreed to £50 for three months and then review after then. I haven't yet responded to this, but may agree if I can pay by SO. I have now got a new account and they a are not getting my new details

 

However I have had a letter through from them today saying that my agreement is terminated and that if i don't pay in full then they will take me to court etc and in 7 days my account will be passed to Meritforce.

 

I wonder if I should wait until Meritforce contact me, or agree to the £50 IF they agree to SO (which I doubt they will)

[sillygirl1]

Meritforce are doorstep collectors, part of the Mackenzie Hall group, they are fairly easily put off, write to them again and say you want to clear this up without involving expensive third parties, then you have strong evidence of you offering to pay should they decided to issue court forms.

 

These companies really need to be brought under the Ministry of Justice to make them 'toe the line' rather than ignore correspondence from customers wanting to pay their debts off in a slightly different manner than keep having to pay their stupid 'rollover' fees as well as 'the debt in full' and letting them have 'access to your bank account' whever they feel like it.

[PlumFairy]

Meritforce are doorstep collectors, part of the Mackenzie Hall group, they are fairly easily put off, write to them again and say you want to clear this up without involving expensive third parties, then you have strong evidence of you offering to pay should they decided to issue court forms.

 

These companies really need to be brought under the Ministry of Justice to make them 'toe the line' rather than ignore correspondence from customers wanting to pay their debts off in a slightly different manner than keep having to pay their stupid 'rollover' fees as well as 'the debt in full' and letting them have 'access to your bank account' whever they feel like it.

 

 

Thank you.

 

I have e-mailed them back and they have agreed to my three month terms and by standing order!!!! (I'm shocked) Just going to confirm that the intrest is being frozen aswell.

[42man]

Did they send you a default notice ? Was it compliant (you said it looked ok) ? Can you post it up here (minus the personal details) but leave dates on ?

[PlumFairy]

Did they send you a default notice ? Was it compliant ?

 

Yes they did and as far as I can see it is.... Unlike the one I've had from Wages Today which just gives the date to rectify as ASAP

[PlumFairy]

Did they send you a default notice ? Was it compliant (you said it looked ok) ? Can you post it up here (minus the personal details) but leave dates on ?

 

 

No problem. I will do it tomorrow.

 

They have agreed to hold the interest, but call my cynical. I have a feeling this isn't the end.

[LateLearner]

Hi

 

Here is a copy of the default notice that I recieved

[42man]

Bit small....have you tried using www.photobucket.com ? (free)

[PlumFairy]

Hope this is better

 

Also PC had a fit and logged me in under my old user name.......... It is me

20091001141422.pdf

Edited October 1, 2009 by PlumFairy

[42man]

Good news the Default notice is DUFF....

[42man]

Have they terminated the agreement ?

[PlumFairy]

Have they terminated the agreement ?

 

Yep they have

[42man]

As will be confirmed I hope by others, unless they hand delivered the letter on the day they typed it, then they haven't given you 14 days to remedy....they haven't allowed for service of the letter.....did they terminate within the 14 days too ? They certainly can't issue another default notice as there is no longer an agreement in place and it would be pure fiction....it's an unlawful recission of contract !!

 

Have a read of this -

 

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.

[42man]

And they have to include a date and not state 14 days have a read -

 

SCHEDULE 2

FORM OF DEFAULT NOTICE BEFORE A CREDITOR OR OWNER CAN BECOME ENTITLED, BY REASON OF ANY BREACH BY THE

DEBTOR OR HIRER OF A REGULATED AGREEEMENT, TO TERMINATE THE AGREEMENT, DEMAND EARLIER PAYMENT OF ANY

SUM, RECOVER POSSESSION OF ANY GOODS OR LAND, TREAT ANY RIGHT CONFERRED ON THE DEBTOR OR HIRER BY THE

AGREEMENT AS TERMINATED, RESTRICTED OR DEFERRED OR ENFORCE ANY SECURITY

 

Regulation 2(2)

 

Details of agreement

 

 

1

A description of the agreement sufficient to identify it.

 

 

Parties to agreement

 

2

(1) The name and a postal address of the creditor or owner.

(2) The name and postal address of the debtor or hirer.

 

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

 

3

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than

fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and

the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

[42man]

You could possibly write back to them stating their error and how do they propose to compensate you for an unlawful recission of contract !!!

[PlumFairy]

Thank you

 

I will check the dates and have a good read

[PlumFairy]

You could possibly write back to them stating their error and how do they propose to compensate you for an unlawful recission of contract !!!

 

Now there is an idea

[42man]

I think you had better delete your address and also the ref number too !!! ASAP

[PlumFairy]

I think you had better delete your address and also the ref number too !!! ASAP

 

Thanks. I've deleted the number - the address is theirs

[PlumFairy]

Had a read and it's certainly interesting.

 

I've checked the dates and if, for example the default was issued on the 9th January the letter of termination was dated on the 23rd January. Which is 14 days if the date on the default is the 1st day. If it's not and the clock starts ticking from the 10th then it isn't 14 days?

[ALFIE1978]

I thought that when a default notice is served it is deemed to be received 2 days after posting(1st class post) and so the 14 days start ticking the date on letter +2 days +14days?

See what Ubuck say on there website?IMHO

[mjc007.5]

Hiya,

 

On the posting issue, I have used what follows below which appears to be current accepted standard:

 

 

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.

 

8 March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

You have a clear case of termination (hope you have this in writing) on the back of a dodgy DN. Excellent post below from the accquired reading of surfaceagent 20:

 

"An ineffective default notice will prohibit the Claimant recovering all those things on which the service of an effective default notice is dependant. In short, the claim will be reduced to just the arrears, See Woodchester v Swayne.

 

By when proceedings have commenced the Claimant will have terminated the agreement. The language of a default notice is framed on the basis there is a current agreement. That language is prescribed. If the Claimant terminated the agreement, to deliver an effective defalt notice will involve the fiction the agreement is current and never terminated. It would also involve the Claimant reinstating unilaterally. The debtor would be unlikely to agree to reinstatement if to do so would cure the Claimant's difficulties"

 

and further in another post here by the same Cagger:

 

In Golden Strait Corporation v Nippon Yusen Kubishka Kaisha [2007], Lord Bingham said:

 

'The repudiation of a contract by one party ("the repudiator"), if accepted by the other ("the injured party"), brings the contract to an end and releases both parties from their primary obligations under the contract. The injured party is thereupon entitled to recover damages against the repudiator to compensate him for such financial loss as the repudiator's breach has caused him to suffer. This is elementary law.

 

The damages recoverable by the injured party are such sum as will put him in the same financial position as if the contract had been performed.'

 

There is a whole load more relevant posting and research on the CAG site about this by far more experienced and learned souls than me. What I am trying to show with these examples is that you could try them with a letter accepting their repudiatory breach of contract, possibly offer to pay any "arrears" to be technically accurate (not sure where this would be with this type of loan) and tell them you consider the matter closed. This is a calculated risk (in that it may draw further legal action) but has worked well for me (with the advice of the good folk of CAG) in one case within the "mainstream" so probably worth a go given what you have on these people and in this market place!

 

Whatever you decide, best of luck and keep posting

[PlumFairy]

Hiya,

 

On the posting issue, I have used what follows below which appears to be current accepted standard:

 

 

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.

 

8 March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

You have a clear case of termination (hope you have this in writing) on the back of a dodgy DN. Excellent post below from the accquired reading of surfaceagent 20:

 

"An ineffective default notice will prohibit the Claimant recovering all those things on which the service of an effective default notice is dependant. In short, the claim will be reduced to just the arrears, See Woodchester v Swayne.

 

By when proceedings have commenced the Claimant will have terminated the agreement. The language of a default notice is framed on the basis there is a current agreement. That language is prescribed. If the Claimant terminated the agreement, to deliver an effective defalt notice will involve the fiction the agreement is current and never terminated. It would also involve the Claimant reinstating unilaterally. The debtor would be unlikely to agree to reinstatement if to do so would cure the Claimant's difficulties"

 

and further in another post here by the same Cagger:

 

In Golden Strait Corporation v Nippon Yusen Kubishka Kaisha [2007], Lord Bingham said:

 

'The repudiation of a contract by one party ("the repudiator"), if accepted by the other ("the injured party"), brings the contract to an end and releases both parties from their primary obligations under the contract. The injured party is thereupon entitled to recover damages against the repudiator to compensate him for such financial loss as the repudiator's breach has caused him to suffer. This is elementary law.

 

The damages recoverable by the injured party are such sum as will put him in the same financial position as if the contract had been performed.'

 

There is a whole load more relevant posting and research on the CAG site about this by far more experienced and learned souls than me. What I am trying to show with these examples is that you could try them with a letter accepting their repudiatory breach of contract, possibly offer to pay any "arrears" to be technically accurate (not sure where this would be with this type of loan) and tell them you consider the matter closed. This is a calculated risk (in that it may draw further legal action) but has worked well for me (with the advice of the good folk of CAG) in one case within the "mainstream" so probably worth a go given what you have on these people and in this market place!

 

Whatever you decide, best of luck and keep posting

 

 

Thank you Some great arguements there. I will storre them up my sleeve whilst I plan my next move.

 

They have agreed my payment plan forvthe time being, although I'm not convinced they will stick to it!

 

I'll have a good read around and see what I can put together.

 

Everything is in writing. I refuse to talk to any of them on the 'phone. No matter how desperate they are to talk to me. Awwe to be so popular! lol