Proof Of Sending Default Notices

[thescorpion]

URGENT

 

I have a hearing this Wed at a County Court in relation to a small claim action I have taken out against a credit card company as far back as January. The main thrust is that they said they sent a default notice which I did not respond to and then sent a statement of default notice which I did receive. They have previously made an offer to settle which did not include the reinstatement of my account, but they did offer to remove the default notice. I did not accept this offer as they did not send the default notice which I would have definitely have responded to. I want to keep my account/card with them and am going back to court on Wednesday. I recently quoted to them for the first time the Consumer Credit Act that my agreement with them falls within this Act and for the first time after all this time, and knowing that the crux of this matter lies in the default notice issue (although my claim also includes for damages for the incessant calls) have recently sent to me a copy of this default notice and statement of default notice. Why didn't they send this to me before now? Their letters says:

#

"I refer to your recent email correspondence and in particular to your letter of the 19 August 2009. Having conducted a further search of your account and our records, I am able to enclose a copy of the original default notice sent to you dated 6 October 2008, together with a copy of the original statement of default sent to you on 9 November 2008.

 

I also enclose a copy of a screen print of your account, which details that both a default notice and statement of default were issued to you. These records are generated once a default notice and statement of default are issued. If such notices are not issued, then these records would not have been kept. We are confident therefore that the notices were posted to your home address which you should have received.

 

A further note on your account indicates that you had a conversation with an associate on 9 November 09 (the same day the statement of detault was issued but before you received it) that you had received certain letters regarding your account but that you would wait for the statement of default tobe received.

 

I rang as a result of having received the statement of DN and waited for a copy of the DN. Is there a legal basis for insisting that they must prove (in a small claims court) that the DN was sent, and can I ask for details of this "associate" they mention and a transcript of the telephone conversation? The application for this card was made on line and wonder if there is a signed agreement. I would like to insist at the hearing that they must either provide proof of sending this DN or start the default process again. Also, send me a transcript of the phone call as well as the name of this "associate", and same for the calls received by me up to 10 a day.

 

I would be obliged for anyone's assistance.

 

Thank you

thescorpion

[cymruambyth]

Bump

[thescorpion]

Bump

[thescorpion]

Hi cymruambyth, you told me to type in 'bump', but where? Also, can you help with a reply. You seem to be well-informed. Thank you.

[cymruambyth]

Can you post a copy of the DN, minus personal detail to see if it complies? Photobucket can help http://www.consumeractiongroup.co.uk/forum/bear-garden/165941-photobucket-video-tutorial.html

[thescorpion]

Hello Cymruambyth

 

I don't think I will succeed in doing that. Not computer-literate. Could I just type it on the forum?

[cymruambyth]

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/196312-invalid-default-notices.html

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/111211-defaults-background-removal-methods.html

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/200901-anatomy-default-notice.html

Hi these 3 links all cover dns, which may help. I feel a bit of a phoney as I gon't feel well informed!

What I do know, or think, is that if there are any issues over payment you can be defaulted and a company can chose to withdraw their credit whenever they want.

As for proof that a DN was sent, I believe a screenshot showing that it was sent is sufficient, I'm not sure or can't remember the technicalities on proof of postage/delivery.

If you fail to receive any further help, you can press the red triangle and ask the site team if they can either help or ask an expert to advise you. Good luck C

[Mydogsawestie]

In my experiece you usually get a DN first then next can come a court claim form (altho understand you said you never got your DN!)

 

Did you acknowledge the Court form with a defence before it got to this stage with an embarrassed defence to which the paperwork of the Patic of Claim relied on were not in your possession at that time?

 

Did you ever send off a CPR31.14 letter requesting these documents? I'm just concerned for you that time is running out and your court date looms and there is no sequence of events before this mentioned :-?

 

It sounds like you have now the DN sent to you (them leaving it last min!). If you can post it up for experienced caggers to look at (photobucket) then we can see if its a defective one to help in your defence.

[r&b]

hi scorpion,

how come its u taking the action? can u elaborate on the build up to this point?

[thescorpion]

Cymruambyth - thank you for your reply. I received with their recent letter, for the first time, the scanned image that you mention. I don't believe that this confirms postage or delivery. I will look into the threads that you have kindly posted.

 

mydogsawestie - Thank you for your reply. I am actually the claimant. I applied for this card on line and I don't remember seeing or signing an agreement. If none was sent can I refer to the Consumer Credit Act 1974 which requires a signed agreement? Also, on this site there is a lot of abbreviated terminology that I don't understand and can only try to guess. Such as CCA - I presume this does mean Consumer Credit Act 1974. I have a feeling that the copy DN sent to me recently will be a more up to date version of the one that would have been in force at the time I applied for the card. I don't know. I'll try to post it but am not very good on such things.

 

r&B - thank you for your reply. This is the second claim I have made against them although inextricably-linked. First time around no DN had been sent and they offered so many things, plus a bit extra for myself, and all was well. Initially this first claim had to do with charges added to my account. Second time around, they again offered to settle but adamantly refused to (a) remove the default and (b) reinstate my account, and the reason for this is because I have taken legal action against them - twice. This is not a defence but I feel that the allegation the DN was delivered to my address is bogus. At the last hearing (this week will be the second), a bog-standard witness statement was sent to me by recorded delivery. A DN is far more vital and ruinous if sent to the reference agencies and that should be sent by recorded delivery, or at the very least, obtain a certificate of proof of postage. A witness statement can be easily copied to be used on the day of a hearing, or the one being used by their legal rep could be shared. This is not vital, but a DN is everything and can ruin our credit standing.

 

If you can help with any ideas, I would be most grateful. I'm now going to start to put together a witness statement for this week's hearing.

 

Thank you

thescorpion

[thescorpion]

Haggis1984 - thank you for pointing me in the right direction re navigating the site. Very helpful.

 

Further to my previous postings, is there anyone out there who lives in or around London who would be able to come with me to the hearing on Wednesday for moral support.

 

thescorpion

[supasnooper]

You will have to put the Credit Card company to strict proof as to the composition of the Default Notice and the method of postage used.

[thescorpion]

You will have to put the Credit Card company to strict proof as to the composition of the Default Notice and the method of postage used.

 

Thank you supasnooper. Could you please explain what you mean about putting them to strict proof as to the composition of the DN? Do you mean the one they allege was sent last year or the copy they recently sent? I think the Court will ask me this question. Thank you.

[Mydogsawestie]

I would imagine we would still need to see this DN via photobucket to see if its defective in your case or not.

 

Also from my experience (day in court) when I got served copies of my supposedly orig DN's I mentioned that if that was a true copy of the default notice (in my case incorrect acct no's on it) it breached the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as it failed to set out the name and a postal address of the creditor or owner as laid out in schedule 2 of the regulations, regulation 2(2) paragraph 2.

 

My copy DN from Restons was missing the MBNA's bits on the top & reg no etc (like the original had) so this meant it had breached the companies act, as it did not bear the companies registered address and registration number on it so was not a representation then. The judge asked the solicitor what he had to say in response to this to which his reply was along the lines of he thought it did have the details on it. The judge then corrected him by telling him it didn't as he had a copy of there DN from me in front of him

I dont know if any of this info will help you having not seen your copy DN but hope it may be something to add to your defence if your DN is missing this information too.

 

As for your credit card agreement or application form, have you requested your copy before it got to this court stage (in order that you can state it not meeting the prescribed legal requirements to enforce the debt? They should also need to bring the orig to court (should one exist?) so ask them for this.

Consumer Credit Agreements - a guide to enforceability

 

 

 

[thescorpion]

I would imagine we would still need to see this DN via photobucket to see if its defective in your case or not.

 

Also from my experience (day in court) when I got served copies of my supposedly orig DN's I mentioned that if that was a true copy of the default notice (in my case incorrect acct no's on it) it breached the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as it failed to set out the name and a postal address of the creditor or owner as laid out in schedule 2 of the regulations, regulation 2(2) paragraph 2.

 

My copy DN from Restons was missing the MBNA's bits on the top & reg no etc (like the original had) so this meant it had breached the companies act, as it did not bear the companies registered address and registration number on it so was not a representation then. The judge asked the solicitor what he had to say in response to this to which his reply was along the lines of he thought it did have the details on it. The judge then corrected him by telling him it didn't as he had a copy of there DN from me in front of him

 

I dont know if any of this info will help you having not seen your copy DN but hope it may be something to add to your defence if your DN is missing this information too.

 

As for your credit card agreement or application form, have you requested your copy before it got to this court stage (in order that you can state it not meeting the prescribed legal requirements to enforce the debt? They should also need to bring the orig to court (should one exist?) so ask them for this.

Consumer Credit Agreements - a guide to enforceability

 

 

 

 

Thank you for this very helpful reply. I have looked at the copy DN sent recently and it does not contain their registered address. It does mention the name of the credit card company at the top and its operating address, but I know their registered office is somewhere else. It starts off my telling me that I am in breach of my (name of company) Credit Card Agreement by going over my credit limit as described in clause 4 of the agreement. I deny being over the limit and therefore I am not in breach of the agreement.

 

I'll try and post the DN.

 

Thank you again.

[Mydogsawestie]

which ccard company is this?

[thescorpion]

which ccard company is this?

 

Capitalone.

[thescorpion]

Capitalone.

 

Hello, mydogsawestie, may I know why you asked this question? And does it make any difference? Thank you.

[Mydogsawestie]

Did you ever send off a CPR31.14 letter requesting these documents as mentioned in my posting #8? As you are the claimant you need to be ready with the knowledge of the legality of it all before you go into court tomorrow. I trust you have your bundles ready & have read up on all the relevant acts?

 

When I was in court I had to put them to strict proof that my DN was suppose to have been served 1st class because as far as I remember it was 2nd!!!!!! DJ asked them for proof of this from MBNA & nodded when I stated perhaps they should have sent such important documentation recorded or special delivery as in my case having received my DN 2nd class it meant that it hadnt given me 14 clear days to remedy my breach. In your case having not received it full stop maybe you can ask for them to provide you with some proof?

 

As your court date is tomorrow perhaps you can post up your copy DN and what defence you have stated so far for caggers to help you with asap.

[Mydogsawestie]

Hello, mydogsawestie, may I know why you asked this question? And does it make any difference? Thank you.

 

I am just wondering why you seem to be so cagey in your circumstance as people with there own knowledge on certain CCcompanies will be able to assist you better!

[thescorpion]

I am just wondering why you seem to be so cagey in your circumstance as people with there own knowledge on certain CCcompanies will be able to assist you better!

 

I was just being cautious as the hearing is due and they might be reading this forum and I did read somewhere that I shouldn't post such details as some company reads this forum. I would definitely upload the DN if I knew how to but first I would, as advised on this forum, have to remove any personal details, and then work out how to upload. I now have limited time in which to put together a statement. What you told me about the judge nodding his head in agreement at the method of postage is very useful because I believe that this is pivotal to the issuance of any serious document, which a DN is. As mentioned before, for the last hearing I was sent by recorded delivery a witness statement, a copy of which I could have easily obtained if necessary, yet they send out DNs by normal post.

 

A member of the site team has told me that I must put them to strict proof of the composition of the DN. I'm not quite sure what that means. Do you have any idea?

 

Thank you for your help.

[Mydogsawestie]

 

A member of the site team has told me that I must put them to strict proof of the composition of the DN. I'm not quite sure what that means. Do you have any idea?

 

Thank you for your help.

 

Composition should you google it is the the act of combining parts or elements to form a whole. Until we see the DN to which a video tutorial of photobucket in an earlier posting has been suggested to you then we are progressing in the dark now. We really need to see how its been constructed as a document in order to see where you stand on it.

 

I shouldnt worry about posts being read by these companies as its common for us all to be in this situation. I must say though if you want the help and advice of others then its an essential part of the process that you need to post for this advice with you being a Litigant in Person as you are not after all trained in these areas.

[r&b]

try doing a search on Banker_Rhymes_With, i seem to remember him sorting this issue out in several posts a while back, in more laymans terms as opposed to the statutes.

[cymruambyth]

Hi if you do want to try and upload your DN this link explains photobucket, which is easy to hide info on as well. http://www.consumeractiongroup.co.uk/forum/bear-garden/165941-photobucket-video-tutorial.html

Edited October 6, 2009 by cymruambyth
Forgot the link!!!!

[cymruambyth]

http://www.consumeractiongroup.co.uk/forum/show-post/post-2166205.html

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/200901-anatomy-default-notice.html

Have you looked at these? Some interesting points and links which may help.

Sorry see I have already sent the second link, if you work through this and follow the links there is help there.