Smile Loan - invalid DN & termination?

[mkb]

Have a smile loan with PPI. Realised that PPI was mis-sold so claimed back but now with FOS to decide.

 

In the meantime I have not paid the monthly instalment & have had to go onto income support.

 

Got a letter dated 03/11/09 which I think is their effort at a Default Notice

http://img4.imageshack.us/img4/9246/smile1j.jpg

 

followed by letter dated 17/11/09

http://img692.imageshack.us/img692/9273/smile2.jpg

 

then today got Termination Notice dated 18/11/09.

http://img20.imageshack.us/img20/7985/smile3n.jpg

 

 

 

 

Sooo

• No DN as required by law
  
• TN on back of invalid DN
  
• Mis-sold PPI
  

I think I'm in a mighty strong position here but as always, would appreciate your opinions

 

When (not if!!) the FOS find in my favour re PPI, will the entire refund be payable to me since there is now no a/c for them to credit seeing as they have terminated it?

 

As they have terminated unlawfully, the most I would owe would be £365.13 - yes?

 

Should I write to them accepting the termination or do nothing?

 

Should I be doing ANYTHING at all or simply waiting for their next move?

Edited November 21, 2009 by mkb

[mkb]

Bump

[mkb]

Bump again

[citizenB]

Hi,

 

Right, well you are correct in thinking that the first one dated 3/11/2009 is NOT a proper default notice.

 

This is a legal requirement that came in with the last lot of tampering with the regulations. They must as they say in their letter... sent you one of these at least every 6 months.

 

The 2nd one dated 17/11/2009 - Well to be sure, I am not quite certain what they are trying to achieve. They havent given you any time to remedy the breach have they ? It most certainly isnt a Default Notice as required in order for them to take the next step...

 

The third one is as you rightly suggest a Termination notice.

 

Chances are that when the FOS get around to sorting our your PPI claim, SMILE will just credit to your account, terminated or not:eek:

 

I am not certain what steps you need to take in respect of this.

 

diddydicky appears to be pretty up to date with procedures re termination of accounts.. perhaps you could track him down.

[citizenB]

The following information was provided by andyorch. Dont know whether it explains things a bit better than I have done for you. I have highlighted a section in blue toward the bottom of the post. It would seem to me that SMILE kind of missed out a fairly important part of the process..

 

 

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/161927-amendments-default-notices-cca.html#post1736169

 

A new amendment has been made in case of failure to give notice of sums in arrears in CCA 1974. Section 11 CCA 2006 inserts a new section - 86D - that sets out the consequences for a creditor or owner if he fails to give a notice as required by sections 86B or 86C.

 

If the creditor or owner fails to provide a notice of sums in arrears when required to do so, then during the period of his failure to provide the notice (i.e. from the date that it was required to be given until the end of the day on which it is eventually provided), he is not entitled to enforce the agreement. In addition,

 

The debtor or hirer is not liable to pay any interest that relates to the period of the creditor or owner’s failure,

 

Notice of default sums

Section 12 of CCA 2006 applies to situations where a debtor or hirer under a regulated agreement incurs a default sum.

 

A creditor or owner must give the debtor or hirer a notice in the specified form when a default sum becomes payable as a consequence of a breach of the agreement. For example, you hire a car for the duration of your holiday. There will often be a penalty sum payable if you incur a fine from using the car. The car-hire company might say this is to cover, for example, administration charges. Either way, certain sums are payable if you breach the agreement. Where this applies, the creditor must provide notice to the debtor, of the amount they must pay. This only applies where the default sum exceeds a specified amount.

 

Additionally, a creditor may only require a debtor to pay interest (in connection with a default sum) 28 days after the day the notice was given to the debtor. So if the creditor fails to give notice to the debtor then he can not enforce the agreement until notice is given.

 

“Default sum”

The term ‘default sum’ has been redefined in s.18 CCA 2006.“Default sum” now means: a sum payable by a debtor or hirer in connection with his breach of a regulated agreement (e.g. a charge imposed for late payment of an instalment due under the agreement or a fee imposed for exceeding a credit limit on a credit card). A default sum does not include sums that, as a consequence of a breach of the agreement, become payable earlier than they otherwise would have done. Nor does it include interest.

 

Interest on default sums

Section 13 has been amended so that a creditor or owner may only require simple interest to be paid in respect of default sums payable by the debtor or hirer. This includes sums payable under non-commercial or small agreements.

 

Minimum 14 days after Default notices

The new minimum period after which a creditor or owner may take action (in respect of the agreement after having issued a default notice) is now 14 days. It used to be only 7 days. Section 14 CCA 2006amends section 88 of the 1974 Act to create this extension.

 

Additionally, under s87, a creditor or owner must give the debtor or hirer a default notice in the prescribed form if he wishes to:

- terminate the agreement;

- demand earlier payment of a 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 to

- enforce any security

 

Section 88 is also amended to allow the Secretary of State to prescribe information in the default notice to include any matters relating to the agreement (e.g. information about whether the agreement includes a term providing for the charging of post-judgment interest).

 

 

[mkb]

Thanks CB.

 

 

Will find DD & ask him to comment as well.

[diddydicky]

hi, well if the first letter was meant to be a DN , aren't you the lucky one!!

 

i would immediately fire off a SAR and then sit tight and do or say nothing you dont have to until you get the sar back

 

make sure you use the full sar request including the communications logs

 

make sure you send it recorded and keep all letters and envelopes.

 

you may have to wait up to 40 days but you really do need to see if that first letter was their attempt at a DN or if there is another one recorded that you have not received

 

in the ,meantime. leave it a week or so then write confirming that you accept that the agreement has been terminated by them and saying you have an appointment with a solicitor on XXXX date ( make it about 3 weeks hence) therefore you would be obliged if they would wait 28 days for a response

 

by which time hopefully the sar will be back

[mkb]

Thanks dd, will get SAR off tomorrow

 

Did have a little chuckle when I saw their effort tho

[diddydicky]

Thanks dd, will get SAR off tomorrow

 

Did have a little chuckle when I saw their effort tho

 

yes if that it is- but there is a gap betwen the 3rd and 17th so we need to make sure nothing is in that gap before we celebrate- although if there is anything in there it would not have given you sufficient time to remedy

[mkb]

Understood

 

Will update when SAR info back or sooner if anything else.

 

Thanks again dd

[diddydicky]

Understood

 

Will update when SAR info back or sooner if anything else.

 

Thanks again dd

 

make sure you keep envelopes of all inward correspondence and staple them to the back of the letters that were sent in them- however innocuous the letter appears to be

[Pinky69]

It's the Co-op at their best. They wouldn't know a Default Notice if they saw one.

[mkb]

It's the Co-op at their best. They wouldn't know a Default Notice if they saw one.

 

 

[mkb]

Well you've just got to laugh at this lot

 

Termination Notice dated 18/11/09 followed today by.............

 

a Default Notice!!!!!!

 

DN dated 1st Dec for remedy by 15th & sent UK Mail - I KNOW this is totally invalid but it also makes a mockery of the fact that they terminated the A/C & they think that the great British public are so stupid that we will comply!!

 

Sadly, there are probably people out there who would pay up in line with the DN but thanks to CAG who have helped me learn my rights, I'm no longer one of them

 

Can't wait for my SAR to come back

[diddydicky]

i suspect it is a case of the left hand not knowing what the right hand has done, alternatively someone desperately trying to correct a previous faulty /missing DN and hoping you don't notice the error

[mkb]

Like notice the significant fact that they terminated before sending the default notice - pre-CAG, they would have gotten away with that

 

SAR 40 days are not up til 5th Jan allowing exactly 40 days but should I be allowing extra days cos of Christmas & New Year bank holidays?

[citizenB]

Well you've just got to laugh at this lot

 

Termination Notice dated 18/11/09 followed today by.............

 

a Default Notice!!!!!!

 

DN dated 1st Dec for remedy by 15th & sent UK Mail - I KNOW this is totally invalid but it also makes a mockery of the fact that they terminated the A/C & they think that the great British public are so stupid that we will comply!!

 

Sadly, there are probably people out there who would pay up in line with the DN but thanks to CAG who have helped me learn my rights, I'm no longer one of them

 

Can't wait for my SAR to come back

 

Woohoo, fantastic.. Dont you just love it when a plan comes together:D

[diddydicky]

Like notice the significant fact that they terminated before sending the default notice - pre-CAG, they would have gotten away with that

 

SAR 40 days are not up til 5th Jan allowing exactly 40 days but should I be allowing extra days cos of Christmas & New Year bank holidays?

 

yes, but you may still get it before xmas

[mkb]

Thanks DD but on filing their latest missive, I realised that I hadn't sent the £10

 

I guess I just need to wait for them to ask for it then start the 40 days all over again

[Pinky69]

brilliant - terminating the account before issuing the DN - you couldn't make it up! The account is now well and truly rescinded - an early Christmas present!

[mkb]

Blimey, they really are dumb aren't they?

 

This whole saga is because of mis-sold PPI which they deny & is currently with FOS. Termination followed by default notice then today the following!! You REALLY couldn't make it up!!!!!!!!!!

 

[mkb]

Well, I think I'm a happy bunny!

 

Got my SAR info back today which is remarkably thin

 

SAR confirms that a TN was sent on 17/11/09

 

 

Followed by DN on 01/12/09

 

 

So, they can only claim arrears, yes? What then happens about my PPI complaint which is currently with FOS?

 

Out of interest, here are the copies of said DN & TN which I presume they would use & mock up the info if this ever went to court!! I've only scanned the front page of each as I think this gives us the gist of it.

 

 

[diddydicky]

you lucky sod!

 

first you get a TN followed by a DN

 

then you get a free SAR in double quick time

 

i would buy a lottery ticket this week if i were you (and remember who told you to:D)

 

if you sent the acceptance of termination off i would now file that one and do absolutely nothing

 

who knows, you may get some more dn's and tns

's

[mkb]

Hi dd

 

Thank you soooooooo much

 

Any ideas about the PPI refund due though? I have paid more PPI than is overdue on the loan so there will be a surplus which of course co-op will want to keep!

 

I did send the acceptance & now keeping tabs on truecall of the number of calls they're making as well

 

And, for the record, if ever I bought a lottery ticket & it won (ha bloomin' ha!!), of couse I would share x

[pompeyfaith]

Hiya MKB,

 

Carry on fighting for the PPI and I would inform the FOS that they have terminated the account before issuing a Default Notice.

 

Send The FOS copies of all the docs you have posted here and state that under the circumstances any PPI refund is due to you and not the Co-op.

 

Well Done Oh and can I walk in your shoes lol

 

Regards

 

PF