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    • Thank you for that "read me", It's a lot to digest, lots of legal procedure. There was one thing that I was going to mention to you,  but in one of the conversations in that thread it was mentioned that there may be spies on the Forum,  this is something that I've read quite some time ago in a previous thread. What I had in mind was to wait for the thirty days after their reply to my CCA request and then send the unenforceable letter. I was hoping that an absence of signature could be the Silver Bullet but it seems that there are lot of layers to peel on this Onion.  
    • love the extra £1000 charge for confidentialy there BF   Also OP even if they don't offer OOC it doesn't mean your claim isn't good. I had 3 against EVRi that were heard over the last 3 weeks. They sent me emails asking me to discontinue as I wouldn't win. Went infront of a judge and won all 3.    Just remember the law is on your side. The judges will be aware of this.   Where you can its important to try to point out at the hearing the specific part of the contract they breached. I found this was very helpful and the Judge made reference to it when they gave their judgements and it seemed this was pretty important as once you have identified a specific breach the matter turns straight to liability. From there its a case of pointing out the unlawfullness of their insurance and then that should be it.
    • I know dx and thanks again for yours and others help. I was 99.999% certain last payment was over six years ago if not longer.  👍
    • Paragraph 23 – "standard industry practice" – put this in bold type. They are stupid to rely on this and we might as well carry on emphasising how stupid they are. I wonder why they could even have begun to think some kind of compelling argument – "the other boys do it so I do it as well…" Same with paragraph 26   Paragraph 45 – The Defendants have so far been unable to produce any judgements at any level which disagree with the three judgements…  …court, but I would respectfully request…   Just the few amendments above – and I think it's fine. I think you should stick to the format that you are using. This has been used lots of times and has even been applauded by judges for being meticulous and clear. You aren't a professional. Nobody is expecting professional standards and although it's important that you understand exactly what you are doing – you don't really want to come over to the judge that you have done this kind of thing before. As a litigant in person you get a certain licence/leeway from judges and that is helpful to you – especially if you are facing a professional advocate. The way this is laid out is far clearer than the mess that you will get from EVRi. Quite frankly they undermine their own credibility by trying to say that they should win simply because it is "standard industry practice". It wouldn't at all surprise me if EVRi make you a last moment offer of the entire value of your claim partly to avoid judgement and also partly to avoid the embarrassment of having this kind of rubbish exposed in court. If they do happen to do that, then you should make sure that they pay everything. If they suddenly make you an out-of-court offer and this means that they are worried that they are going to lose and so you must make sure that you get every penny – interest, costs – everything you claimed. Finally, if they do make you an out-of-court offer they will try to sign you up to a confidentiality agreement. The answer to that is absolutely – No. It's not part of the claim and if they want to settle then they settle the claim as it stands and don't try add anything on. If they want confidentiality then that will cost an extra £1000. If they don't like it then they can go do the other thing. Once you have made the amendments suggested above – it should be the final version. court,. I don't think we are going to make any more changes. Your next job good to make sure that you are completely familiar with it all. That you understand the arguments. Have you made a court familiarisation visit?
    • just type no need to keep hitting quote... as has already been said, they use their own criteria. if a person is not stated as linked to you on your file then no cant hurt you. not all creditors use every CRA provider, there are only 3 main credit file providers mind, the rest are just 3rd party data sharers. if you already have revolving credit on your file there is no need to apply for anything just 'because' you need to show you can handle money. if you have bank account(s) and a mortgage which you are servicing (paying) then nothing more can improve your score, despite what these 'scam' sites claiml  its all a CON!!  
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      The judge's reasoning is very useful and will certainly be helpful in any other cases relating to third-party rights where the customer has contracted with the courier company by using a broker.
      This is generally speaking the problem with using PackLink who are domiciled in Spain and very conveniently out of reach of the British justice system.

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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)

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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.

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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.

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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.

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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.

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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.

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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?

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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

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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 :)

MJC 007.5 :cool:

 

Advice or opinions offered by mjc 007.5 are personal, offered in good faith and without prejudice or liability. Your decisions and actions are your own and should you be in any doubt then please seek the opinion of a fully qualified and insured professional

 

:) If you think I have helped you please feel free to click on my scales :)

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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

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