Co-op Bankruptcy Petition

[C2K]

Hi 42man or anyone, please help?

 

I have a credit card account with Co-Op Bank since 2005. Current outstanding balance £8400.

 

12/08 - started missing payments due to genuine financial difficulties.

04/09 - OC instructed a solicitor firm to serve me a court stamped bankruptcy petition, the hearing was scheduled on 05/06/09. However...

05/09 - the hearing was off when OC accepted an offer of reduced payment at £50 for 6 months.

26/10/09 - CCA request made.

05/11/09 - OC's Collection sent me a letter that a monthly contractual payment will resume as the temporary arrangement is expired.

09/11/09 - copy of agreement received, although the prescribed terms is presented, but...

12/11/09 - dispute letter went to OC on the ground of legibility issue.

13/11/09 - letter sent to the OC's Collection that the account is in legal dispute, no further payments will be made until the dispute is resolved.

24/11/09 - received a phone call from OC's Collection ignoring my claim that the account is still in dispute and threatening to take the same legal action against me if I refused to pay.

 

I have not missed a single payment since the account was put on a temporary arrangement. Apart from the payment late status shown no default has been registered as yet.

 

Since it happened before, I have a good reason to worry that it will happen again!

[hunterandthehunted]

have you had a default notice and has the account been terminated.

if not then they are empty threats

[C2K]

Hi 42man or anyone, please help?

 

I have a credit card account with Co-Op Bank since 2005. Current outstanding balance £8400.

 

12/08 - started missing payments due to genuine financial difficulties.

04/09 - OC instructed a solicitor firm to serve me a court stamped bankruptcy petition, the hearing was scheduled on 05/06/09. However...

05/09 - the hearing was off when OC accepted an offer of reduced payment at £50 for 6 months.

26/10/09 - CCA request made.

05/11/09 - OC's Collection sent me a letter that a monthly contractual payment will resume as the temporary arrangement is expired.

09/11/09 - copy of agreement received, although the prescribed terms is presented, but...

12/11/09 - dispute letter went to OC on the ground of legibility issue.

13/11/09 - letter sent to the OC's Collection that the account is in legal dispute, no further payments will be made until the dispute is resolved.

24/11/09 - received a phone call from OC's Collection ignoring my claim that the account is still in dispute and threatening to take the same legal action against me if I refused to pay.

 

I have not missed a single payment since the account was put on a temporary arrangement. Apart from the payment late status shown no default has been registered as yet.

 

Since it happened before, I have a good reason to worry that it will happen again!

 

Further to my request for help in this matter, I also like to attach a copy of Credit Agreement I received from Co-op. Please can someone comment on its enforceability and legibility. Thank you.

 

Coop credit agreement p.1 picture by chi2k - Photobucket

 

Coop credit agreement p.2 picture by chi2k - Photobucket

[C2K]

have you had a default notice and has the account been terminated.

if not then they are empty threats

 

No default notice as yet and the account is still running. Thank you.

[42man]

I can't quite believe that they went for a bankruptcy petition (did they claim costs ? did it actually go to court ?), when they hadn't sent you a default notice or terminated (although at the time you probably weren't aware of your rights), i'd say without them doing this then it was an unlawful action...as for the agreement apart from legibility it seems ok.....you could write back telling them they have not complied with your request as it is illegible and point them in the direction of this - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/146767-illegible-cca-copy-received.html#post1548408

 

You might also be interested to read this - http://www.consumeractiongroup.co.uk/forum/show-post/post-2166205.html

 

I would also be very interested to read the particulars of the claim on the bankruptcy petition....

[C2K]

I can't quite believe that they went for a bankruptcy petition (did they claim costs ? did it actually go to court ?), when they hadn't sent you a default notice or terminated (although at the time you probably weren't aware of your rights), i'd say without them doing this then it was an unlawful action...as for the agreement apart from legibility it seems ok.....you could write back telling them they have not complied with your request as it is illegible and point them in the direction of this - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/146767-illegible-cca-copy-received.html#post1548408

 

You might also be interested to read this - http://www.consumeractiongroup.co.uk/forum/show-post/post-2166205.html

 

I would also be very interested to read the particulars of the claim on the bankruptcy petition....

 

Hi 42man

 

Thank you for your comments. The hearing did not take place and the proceedings was dismissed because the OC accepted reduced payment that I offered. However, they made me pay for the legal cost at £650 and the cost was added to the balance of my account. In August the OC charged me for another "Trace Fee" (don't know what it is for) of £150, again it was added to my balance, the outstanding balance is mounting because of the fees and the £50 I paid each month for the last 6 months only just enough to cover the interests!

 

Do you mean my account/agreement has to be terminated before they can take such bankruptcy petition? I have the following questions:

 

1. Will I be able to reclaim the fee from the OC if their legal action is proved to be unlawful.

2. Beside of a "illegibility" letter, is it time to send them a SAR.

3. What can I do if they served me a bankruptcy petition again.

4. Last time the documents were hand-delivered. Can I refuse to accept the documents if they sent somebody round my house.

5. To which body my complaint goes.

 

Your further comments would be appreciated. Many thanks.

[42man]

I really need to know what the particulars of the claim are first on the BP....

[C2K]

I really need to know what the particulars of the claim are first on the BP....

 

Morning 42man

 

Thank you for your swift reply. The OC demanded a full balance of £7904.56 at the time to be repaid. Thank you.

[42man]

Is that all they put ? There is no cause ?.....

[C2K]

Is that all they put ? There is no cause ?.....

 

Perhaps I will upload a copy of the BP a little later, so that you could comment on it further.

[C2K]

Perhaps I will upload a copy of the BP a little later, so that you could comment on it further.

 

Hi 42man

 

here's a copy of BP. They are 3 pages in total, personal details are erased for security reason. Thank you for your time.

 

Coop BP p.1 picture by chi2k - Photobucket

 

Coop BP p.2 picture by chi2k - Photobucket

 

Coop BP p.3 picture by chi2k - Photobucket

[42man]

Did you get ALL the court files including an affadavit ? did you ever get a statutory demand ?...

 

I suggest that you also send a sar or a CPR31.16 requesting the default notice and termination...their action would seem unlawful.

 

I am also going to move this to the legal issues forum....

[42man]

Have a read of this....I need to try and find a reference (somewhere) maybe in the Consumer Credit Act with regard to legal action before default and termination....this is a new situation to me...(but hopefully others will add to this thread)

 

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

[42man]

This is the reference to CPR31.16 - although this does refer to agreements, I know you can potentially use this to disclose documents to assess whether you have a legal case - http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

[42man]

If you do not have the affadavit or stat demands, then you can ring up the court and request ALL the paperwork in the files....

[42man]

You may possibly have a case, but estoppel could come into the equation....did you dispute the debt in any way shape or form ? Are there any penalty charges on this account ?

[C2K]

You may possibly have a case, but estoppel could come into the equation....did you dispute the debt in any way shape or form ? Are there any penalty charges on this account ?

 

 

Hi 42man

 

Thank you for your advice and of course your invaluable time too. I did not disput the debt at that time. With regard to the statutory demand, I did receive it and it was dated before the BP was served. In this case, does it mean they have complied with the legal requirements? One query though; did they have to terminated my account/agreement before a BP can be served? I think I am not too much concerned about challenging the legality for the last BP served. Since I have now started disputing the debt on the grounds of "illegibility", I just wanted to know how to prepare myself for the battle in terms of a right letter to be sent to the right people at a right time. So, I think I will take you advice that sending them a SAR before they initiate a possible legal action. Your further thoughts would be appreciated.

[42man]

I think the first stage is the SAR yes which you can find here - http://www.consumerforums.com/resources/templates-library/86-debt-collectors/576-subject-access-request-debt-a-dca

 

I am just trying to get some clairification of the issues of taking legal action whilst the agreement is still live and no default notice has been issued.... I think they key is in here - http://www.consumeractiongroup.co.uk/forum/show-post/post-2166205.html

[C2K]

I think the first stage is the SAR yes which you can find here - http://www.consumerforums.com/resources/templates-library/86-debt-collectors/576-subject-access-request-debt-a-dca

 

I am just trying to get some clairification of the issues of taking legal action whilst the agreement is still live and no default notice has been issued.... I think they key is in here - http://www.consumeractiongroup.co.uk/forum/show-post/post-2166205.html

 

Thank you 42man once again, you are certainly pointing me towards a right direction. I will do a little research on this and share with you once I have found the information that might help others too.

[42man]

you might find this interesting too - http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

[C2K]

you might find this interesting too - http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

 

 

Hi 42man

 

I have been unwell and not able to get back to you. Thank you for your research, it does make me think.

 

Coop has learnt from the past perhaps and sent me a DN, I have a feeling they are really prepared for it. I sent them a SAR together with the following letter on 26.11.09. Please can you advise if I should respond to their DN and what should I write. Thanks again.

 

I refer to your telephone call on 24 November 2009 in which you threatening with legal actions as you are of the belief that you have fulfilled your obligations under the Consumer Credit Act 1974 by sending me a copy of credit agreement on the 9 November 2009.

 

However, I would like to reiterate that the document entitled “Credit Card Agreement Regulated By The Consumer Credit Act 1974” which appears to bear my signature, fails to comply with the requirements of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557). In particular section 2 of the Regulations.

 

Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557)

 

2. Legibility of notices and copy documents and wording of prescribed Forms

 

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

As you will be no doubt aware, the Copy Document Regulations requires that documents are easily legible and clearly the terms of the agreement are not easily legible. Many of the terms are blurred and cannot be interpreted and I am further unable to make out the full prescribed terms as required by schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). After taking advice on this matter, I am of the belief that this agreement that you have presented before me, as it stands would be unenforceable even by court order. Therefore, I require that you provide me a clearly legible copy of the agreement, where all the terms are clearly legible. This agreement does not conform to sections 60(1) and 61(1) of the Consumer Credit Act 1974 and would therefore only be enforceable by a court under s65. However, the absence of any (prescribed terms / signature) means that a court would be prevented from enforcing it under s127(3).

 

Should you not be able to supply a clearly legible copy containing the necessary prescribed terms, I would suggest that you give consideration to cancelling this account and reducing the balance to zero. Of course the alternative would be to seek a declaration of my rights under Section 142(1) of the Consumer Credit Act 1974. I am advised that with the documents that you have supplied there would be an extremely good prospect of success with such a declaration. However, I am mindful of additional costs that such action could incur both on my part and on yours so I trust you will give consideration to this request.

 

Please note you may also consider this letter as a statutory notice under s.10 of the Data Protection Ac(1998) to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 30 days provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a “legal right”; you must outline your reasoning in this matter and state upon which legislation this reasoning depends. Should you not respond within 30 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute. The lack of an acceptable credit agreement is a very clear dispute and as such the following applies:

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

As such, any legal action is considered to be unlawful. I am also of the opinion that any continued pursuit is in violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines.

 

After that I will consider that the above account is closed and that you will no longer pursue the alleged debt.

 

After this period you should close the file and cease processing any personal data relating to me on this matter

 

I would appreciate your due diligence in this matter and look forward to hearing from you in writing.

Coop Bank - Default Notice.pdf

[C2K]

I think the first stage is the SAR yes which you can find here - http://www.consumerforums.com/resources/templates-library/86-debt-collectors/576-subject-access-request-debt-a-dca

 

I am just trying to get some clairification of the issues of taking legal action whilst the agreement is still live and no default notice has been issued.... I think they key is in here - http://www.consumeractiongroup.co.uk/forum/show-post/post-2166205.html

 

I have found this thread interesting, particularly the #8, #12 post by humbleman. Would any legal eagle comment on this?

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/86067-getting-statutory-demand-set.html

[lilly white]

not less then 14 days from service

Quote:

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.

 

relevant case law is this too...

 

DEFAULT NOTICE

 

The Need for a Default notice

Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the petition.

It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid. I 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)

Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974

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 a 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 [

Edited November 29, 2009 by lilly white

[lilly white]

ok if they did not serve a default notice before they went for br. and added the costs,

 

well what can i say complete shower.

 

well what to do imho i would wish this to go before a judge.

 

lilly

[C2K]

not less then 14 days from service

Quote:

 

 

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.

 

 

 

 

 

 

 

 

 

relevant case law is this too...

 

 

 

 

 

 

 

DEFAULT NOTICE

 

 

 

 

 

 

 

The Need for a Default notice

 

 

 

 

Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the petition.

It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid. I 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)

Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974

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 a 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 [

 

Thank you so much for your info, it happened to me in April and I don't know if I should make a fuss of it. OK I lost in the 1st round, this is a 2nd round and I determine not to lose this time, if you have followed my thread,so should I respond to their DN in your opinion? Many thanks.