Default & termination Notice Question

[bobj70]

Hi,

 

I have posted before and had great help so am trying again with a new problem.

 

 

A friend has a joint finance agreement, but no paperwork so have requested under CCA and DPA, some has been provided.

 

The agreement is there, signed and looks ok with right address, BUT the default,termination notices and other letters are addressed somewhere she has never lived, the claim and judgment then jump back to correct agreement address.

 

This i think is due to when they split, husband took car, payments briefly stopped then he carried on paying for a few months.The address on her notices is a house he owns and rents out so could only of been given by him, although his judgement and claim are addressed to his fathers address which he has lived at and has access too.

 

Because these notices are wrongly addressed so not received is this reason to have the CCJ set aside even though right address appears later and what defence could be used to cancel this out ?

 

Thanks

[Pinky69]

It's a bit confusing because of the joint nature of the finance. She would have to ask her husband the addresses he used in correspondence as the addresses on the notices could be legitimate if these are the addresses he gave in correspondence.

[bobj70]

Thanks for the reply.

 

I would have thought they are obliged to serve on agreement address unless informed it is wrong or someone requests it to be changed, which he may have done later for him after split, but why would her claim and judgment swop back and his then be in a completely different one again ?

 

Surely as she is not going to change the address they are both on voting register at and she still lives at to one she has no connection with, and if a violent ex does this how can she know or be held liable for that and not receiving the notices?

 

 

Can someone please tell me what i need to look for in agreement, notices etc to make sure they comply with the CCA please ?

 

Cheers

again

[Pinky69]

Because they can chase one or other of the parties for a debt that is held jointly and they seem to have been given various addresses for correspondence. They don't care about violent exes - all they care about is getting the money.

 

To find out everything they have on file, send a SAR. It costs £10 and they have 40 days to reply.

 

Subject Access Request - Debt & DCA

 

To check the validity of agreements and DN's, scan them and post them onto here - cover over the personal details - and we will take a look at them and advise you.

[bobj70]

I have included main documents, but i do have others, your views are appreciated.

 

 

IMG_0015.pdf[/ATTACH][/ATTACH][/ATTACH][/ATTACH]

IMG.pdf

IMG_0001.pdf

IMG_0003.pdf

IMG_0014.pdf

[bobj70]

A solicitor who was acting for them had a SAR months ago, got no reply so dealt direct, they now confirmed i have all letters on file, which aren't many.

 

Thanks

[Pinky69]

Well I haven't checked th figures but they cannot add a Document Fee or an Option to Buy fee on to the loan because these are one-off payments.

 

Wilson v First County

 

The Wilson case is interesting in that it involved a loan of £5,000 from moneylenders who charged Mrs Wilson a fee of £250 for putting the loan together. Mrs Wilson did not have the money and therefore it was added to the loan. By virtue of regulation 4 of the Consumer Credit (Total Charge for Credit) Regulations 1980, the £250 should not have been added to the amount of credit (and therefore should not have had interest charged on it) and by so doing the agreement was rendered irredeemably unenforceable. That meant she got her car back, did not have to make any further monthly payments and no longer had to pay back the remainder of the £5000 borrowed !

 

 

Secondly, if they have the wrong address on the DN it renders the DN unlawful and if they have since terminated the agreement, they have unlawfully rescinded it ie it puts you back where you were before there was any agreement.

 

 

And at 40.9% interest it serves the barstwards right!!

[robcag]

 

Secondly, if they have the wrong address on the DN it renders the DN unlawful and if they have since terminated the agreement, they have unlawfully rescinded it ie it puts you back where you were before there was any agreement.

 

 

And to top it off regarding the DN, they have failed to give the statutory 14 clear days to rectify the default.

 

Cheers

Rob

[bobj70]

Thank you for your reply.

 

Not questioning what you have said for a moment, because i dont know but the way the form is written, which doesn't make it right seems to say to do that, total credit charges box 8 = 5+6+7.just trying to find Reg 4 you mention,can give me a link please?

 

Also just looked at all key letters and dates

 

2/8/06 agreement date right address

 

26/8/07 payments stop they split he took car

 

28/9/07 payment start hubby must contact them, change her address ?

 

payments stop for a month or so

 

2/11/07 default notice wrong address to her only ?

 

16/11/07 payments start again by him

20/11/07 termination notice wrong addy to her while payments carried on until 3/08

 

can they issue termination notice while payments still being made, all be it by him ?

 

25/6/08 claim form right addy but never got it

 

28/7/08 ccj given due to no defence right addy but never had it

 

 

In between this and more to point he sold car without anyones consent in 10/08, still shown today with finance on it, which has to cancel the joint and several card anyway ?

 

Cheers

again.

[bobj70]

Very sorry Rob,

 

thats me not had enough space to load all papers

DN was 2 pages, it is dated 2/11, but first page does say 14 days to clear, so is that ok with termination dated 20/11 ?

[robcag]

Very sorry Rob,

 

thats me not had enough space to load all papers

DN was 2 pages, it is dated 2/11, but first page does say 14 days to clear, so is that ok with termination dated 20/11 ?

 

Unfortunately for the enemy, what they said, what they might have meant to say, and what is required are completely different animals.

 

They are required to give at least 14 clear days after allowing for service by post, which in the case of 1st class is 2 days after the date of posting, and 4 days in the case of 2nd class.

 

They may think they have served the DN in accordance with s.87 but they are wrong.

 

If they have terminated on the 20th. then they are up sh1t creek without a paddle.

 

Cheers

Rob

[bobj70]

Thanks Rob for your input,

 

The claim form says DN served by 1st class post 2/11 and termination issued on 20/11.

 

Does that not mean IF posted on letter date, 2/11 add 2 full days post, so 14 days start on 5th and end on 18th, so 20th day serving is just in ?

 

Cheers

[bobj70]

IMG_0013.pdf

 

other DN page

 

Cheers

[supasnooper]

Please re-read your Default Notice dated 2nd November 2007 -

 

"In order to remedy this breach you must pay us as compensation for the breach the sum of £251.51 before 16th November."

 

That does not give you the required 14 days from being deemed served as stipulated by Parliament.

 

As it was posted to you, even if sent by 1st class post, would be deemed served on Tuesday 6th November 2007, only giving 10 days.

 

Have a read of the link below -

 

B_R_W's post on DN's

[robcag]

Thanks for explaining that snoops , I had to go out for a while otherwise I would have got back to the thread.

 

Sorry, I should have, of course, also explained that the service days required are by necessity working days and not weekends etc.

 

Cheers

Rob

[middenmess]

Not sure of hire purchase agreements but how can you have an 'option to purchase' charge as you are already purchasing the car?

 

 

They also appear to be charging you twice for this 'option to purchase' as £40 appears on the first page and then again in the final payment.

[bobj70]

Thanks for the link and explanation folks, it's set out as clear as day in that.

 

At the end of the day not only should they have served DN at agreement address where she was still living, because she had not contacted them to change it, the was not enough time given to respond anyway.

 

Not sure about interest and option fees mentioned above though being right or wrong.

 

Correct me if i am wrong but this is a clear reason to have CCJ set aside with little defence for them to offer ?

 

I think i may contact them say nothing about mistakes, find out if they intend to chase husband or her for debt because he had then sold car without consent (which they didn't know until i told them)and kept money which is an offence and nothing to do with her, she can not make police complaint about this as not registered keeper, so plod say.

 

If they agree to chase him maybe let it lie for a while, but if chase her then try to get it set aside.

 

Opinions as always most welcome.

[bobj70]

I am confused folks and need some more advice please.

 

Lady in question just had meet with proper (?) contract solicitor who said the no DN was only reason to request a hearing and prepare a case and a judge would not autumatically set aside because of it.

 

She also said even if set aside given the was nothing stopping them sending a new DN and termination notice and getting a new CCJ.

 

 

Is some all or none of this right please ?

[mkb]

They can't re-issue DN's once they have terminated the agreement.

[robcag]

To gain a bit more understanding of the DN issues, have a look at the thread linked to below, started today by diddydicky;

http://www.consumeractiongroup.co.uk/forum/legal-issues/229178-nationwide-next-step.html

 

 

There are others, but conveniently I just read that one.

 

Cheers

Rob

[bobj70]

Cheers Rob,

 

I note 42man's post says calender rather than working days for DN 14 day limit. The postage says working but i could only find 14 days mentioned in act,so may need to check if still out of calender deadline.

 

Thanks

again

[cymruambyth]

Hi, posting is working days but once deemed delivered it's calendar days.

[robcag]

Cheers Rob,

 

I note 42man's post says calender rather than working days for DN 14 day limit. The postage says working but i could only find 14 days mentioned in act,so may need to check if still out of calender deadline.

 

Thanks

again

 

You're right to query what you're being told in order to satisfy yourself that you are being advised correctly

 

Hi, posting is working days but once deemed delivered it's calendar days.

 

cymruambyth has explained perfectly

 

Don't worry, your DN is definitely defective, and means that the enemy are on their backfoot (just before falling over )

 

A faulty DN and terrmination is fatal to any claim if you use the correct arguments in your defence. There are many threads on here which have been successfully defended for precisely that reason, but here is a link to mine which pt2537 won for me (prior to which I was as ignorant of that fact as any newcomer );

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/124572-hfc-no-agreement-amended.html

 

Cheers

Rob

[bobj70]

Cheers Rob for your further posting.

 

Just looked at your post, JESUS !, did you and he put some effort and fight into it, Fair play and full credit.

 

 

This site and the people on it (and what a great bunch you are) seem to be telling me one thing which i am beginning to believe.

 

A lot of cases on here are pre CCJ granting, but DESPITE the CCJ has been granted in this one it can and should be set aside because the DN notice was sent to wrong address and not enough time given, even the insolvency service web site lists not receiving DN as a set aside reason.

 

BUT, the so called £150 p/hour people, who should (???) know what they are saying, say it does not matter because they allready have judgement and even if it was set aside the is nothing stopping a new DN,termination and CCJ being sort.Which other than using hubby took, used and sold car and she was made to sign by him under duress to sign as defence she signed so is liable.

 

I asked the solicitor, using bits from your site about a new DN etc, how can they issue new DN on agreement they terminated so doesnt exisit and got thats a point of law technicality but money still owed so they can have another go, which seemed crap to me, but first to admit i know very little.

 

I was hoping she would say yes, cast iron reason to have set aside and new DN or CCJ can not be granted due to termination, which still leaves them hubby to go after anyway.

 

Thanks again all

[bobj70]

Hi All,

 

Just looked at another great post started by harry may, oct 08 and 42man's posts, they set the DN thing and not being able to re issue out clearly.

 

Re checked the dates on this one and either way still wrong.

 

Letter which came with DN, dated 2/11 says 14 days to clear arrears which would still be 20/11 after 2 days post, the day they terminated, so 13 days anyway.

 

BUT the actual DN states, before 16/11 which is only 10 days.

 

So wrong both ways, not forgetting wrong address as well.

 

 

Looking at the posts although the are countless success stories, the seems nothing in the law saying a new DN can not be reissued or the termination notice is still valid so nothing due other than arrears, seems more down to a happy or grumpy judge or other side backing down at 11th hour.

 

What would you say is the best ACTUAL court case to look at or quote which sets these facts out as simple as possible please ?

 

Cheers