BRYAN CARTER; Northampton CCBC

[means2anend]

S 86B applies applies to agreements whenever made, subject to the transitional provisions of CCA 2006, Sch 3, para 6 where the remaining provisions of that particular section came into effect since 1 Oct 2008 in SI 2007/3300 Sch 3.

 

 

Yes you are right!

 

Thank you Rhodium

 

But we must also be aware of the limitations within the same provisions as I have set out below.

 

CONSUMER CREDIT ACT 2006 c:14

 

SCHEDULE 3 Section 69

Transitional Provision and Savings

Interpretation

 

Default under regulated agreements

5-The OFT shall prepare, and give general notice of, the arrears information sheet and the default information sheet required under section 86A of the 1974 Act as soon as practicable after the commencement of section 8 of this Act.

 

6-(1)Section 86B of the 1974 Act applies in relation to agreements whenever made.

 

-(2)In the application of section 86B in relation to an agreement made before the commencement of section 9 of this Act, the conditions under subsection (1) can be satisfied only if the two payments mentioned in paragraph © were not required to have been made before the commencement of section 9.

 

(3)-In the case of an agreement within subsection (9) of section 86B, sub-paragraph (2) has effect as if for “two” there were substituted “four”.

 

7(1)-Section 86C of the 1974 Act applies in relation to agreements whenever made.

(2)-In the application of section 86C in relation to an agreement made before the commencement of section 10 of this Act, the conditions mentioned in subsection (1) can be satisfied only if the two payments mentioned in paragraph (b) were not required to have been made before the commencement of section 10.

 

8-Section 86E of the 1974 Act applies in relation to agreements whenever made but only as regards default sums which become payable after the commencement of section 12 of this Act.

 

9(1)-Section 86F of the 1974 Act applies in relation to agreements whenever made but only as regards default sums which become payable after the commencement of section 13 of this Act.

(2)-Where section 86F applies in relation to an agreement made before the commencement of section 13, the agreement shall have effect as if any right of the creditor or owner to recover compound interest in connection with the default sum in question at a particular rate were a right to recover simple interest in that connection at that rate.

 

Well there is your answer Sickboy in relation to 'notices for sums in arrears'

 

Thanks to Rhodium's input we finally got there.

 

As it applies to agreements whenever made it is important now for you to see exactly when they should have sent you that notice.As we are satisfied firstly that the 2006 or 74 amendments regulations do apply here is the crucial section;

 

For Fixed Sum Agreements

 

86B Notice of sums in arrears under fixed-sum credit agreements etc.

 

[1] This section applies where at any time the following conditions are satisfied—

 

(a)-that the debtor or hirer under an applicable agreement is required to have made at least two payments under the agreement before that time;

(b)-that the total sum paid under the agreement by him is less than the total sum which he is required to have paid before that time;

©-that the amount of the shortfall is no less than the sum of the last two payments which he is required to have made before that time;

(d)-that the creditor or owner is not already under a duty to give him notices under this section in relation to the agreement; and

(e)-if a judgement has been given in relation to the agreement before that time, that there is no sum still to be paid under the judgment by the debtor or hirer.

 

 

[(2] The creditor or owner—

 

(a)-shall, within the period of 14 days beginning with the day on which the conditions mentioned in subsection (1) are satisfied, give the debtor or hirer a notice under this section; and

(b)-after the giving of that notice, shall give him further notices under this section at intervals of not more than six months.

 

 

For Running Account agreements

 

86C Notice of sums in arrears under running-account credit agreements

 

(1) This section applies where at any time the following conditions are satisfied—

(a)-that the debtor under an applicable agreement is required to have made at least two payments under the agreement before that time;

(b)-that the last two payments which he is required to have made before that time have not been made;

©-that the creditor has not already been required to give a notice under this section in relation to either of those payments; and

(d)-if a judgement has been given in relation to the agreement before that time, that there is no sum still to be paid under the judgment by the debtor.

 

(2) The creditor shall, no later than the end of the period within which he is next required to give a statement under section 78(4) in relation to the agreement, give the debtor a notice under this section.

(3) The notice shall include a copy of the current arrears information sheet under section 86A.

(4) The notice may be incorporated in a statement or other notice which the creditor gives the debtor in relation to the agreement by virtue of another provision of this Act.

 

Remember the 'time' for sending you that notice begins when all the conditions above are satisfied and must be sent no later than the number of days specified in fixed sum agreements or the satisfying of a specific condition in running account agreements.

 

rgds

 

 

m2ae

Edited June 3, 2010 by means2anend

[sickboy]

Schedule 3: Provisions coming into force on 1st October 2008

link

 

Ah! so the notices would have come into effect on the first payment due after 1/10/08.

 

To issue them after a 87(1) default notice is something else!

[means2anend]

link

 

Ah! so the notices would have come into effect on the first payment due after 1/10/08.

 

To issue them after a 87(1) default notice is something else!

 

 

Clarify?

[sickboy]

Clarify?

 

Well the CCA should be easy to understand like reading a book!......... perhaps not as enjoyable

 

If you get three quarters of the way through, then you don't flick back to the middle and start again. My point is that the notice of arrears/default sums, comes before section 87 on default notices.

 

If the notices cover agreements whenever made, it surely doesn't give retrospective permission to serve them after the fact of a 87(1) notice.

 

IMHO

Edited June 4, 2010 by sickboy

[means2anend]

If the notices cover agreements whenever made, it surely doesn't give retrospective permission to serve them after the fact of a 87(1) notice.

 

 

Logically they MUST come BEFORE A DN is served under 87(1)...In other words they (Notices of sums in arrears) are a condition precedent .

 

It is quite clear WHEN a notice of arrears must be served...when all those conditions in a FIXED SUM AGREEMENT COME TOGETHER or WHEN THAT SINGLE SPECIFIC CONDITION IS SATISFIED IN A RUNNING ACCOUNT AGREEMENT as described in the sections.

[means2anend]

That meeting of the conditions is the 'trigger'.

 

The notice must then be sent 'no later than 14 days from that moment'.

 

If they have served it outside that time frame they failed in relation to that prescribed period.

 

You should go through your account and see if you can pinpoint exactly when that trigger occurred and then calculate whether in fact a notice of sums in arrears were subsequently sent to you 'not later than 14 days' later

 

m2ae

[means2anend]

One would think why is it the the 2006 Act in terms of S86B, C can be applied to 'agreements whenever made'...Is there not an element of retrospectivity about it and therefore unlawful.

 

Well the answer is here...

 

2007 No. 3300 (C. 136)

The Consumer Credit Act 2006 (Commencement No. 3) Order 2007

CONSUMER CREDIT

Made 22nd November 2007

The Secretary of State makes the following Order in exercise of the powers conferred by sections 69(2) and (3) and 71(2) of the Consumer Credit Act 2006

 

Subsection 3 goes on to say;

 

 

69-Transitional provision and savings

 

(1)-Schedule 3 (which sets out transitional provision and savings) has effect.

 

(2)-The Secretary of State may by order made by statutory instrument make such transitional or transitory provisions and savings as he thinks fit in connection with the coming into force of any provision of this Act.

 

(3)-An order under this section may (amongst other things)—

(a)where a provision of this Act is brought into force for limited purposes only, make provision about how references in Schedule 3 to the commencement of that provision of this Act are to apply;

(b)make provision for or in connection with the application of any provision of this Act in relation to—

(i)things existing or done, or

(ii)persons who have done something or in relation to whom something has been done, before the coming into force of that provision of this Act.

(4)-An order under this section may—

(a)modify any Act or any subordinate legislation (within the meaning of the Interpretation Act 1978

(b)modify any Northern Ireland legislation or any instrument made under such legislation;

©make different provision for different cases.

 

(5)Schedule 3 does not restrict the power under this section to make transitional or transitory provisions or savings.

[means2anend]

link

 

Ah! so the notices would have come into effect on the first payment due after 1/10/08.

 

To issue them after a 87(1) default notice is something else!

 

 

6-(1)Section 86B of the 1974 Act applies in relation to agreements whenever made.

 

-(2)In the application of section 86B in relation to an agreement made before the commencement of section 9 of this Act, the conditions under subsection (1) can be satisfied only if the two payments mentioned in paragraph © were not required to have been made before the commencement of section 9.

 

 

 

1-Yes but only makes sense where agreements whenever made have not YET fallen behind in their payments before the commencement 01/10/08

 

2-If that IS the case then those agreements whenever made and DID fall behind on their payments before 1/10/08 was potentially at a time where there existed an unregulated area and this could be a possible loophole in favour of the consumer.And therefore s86B,C...were NOT APPLICABLE

 

Is it possible that the inclusion of s86B,C and it's commencement date 1/10/08 have resulted in the law of unintended consequences....

 

It would mean that ALL NOTICES and/or DN/s sent out before that date to consumers who had fallen behind no matter whether correctly worded or incorrectly worded had no force in law ab initio.

 

After all we were having trouble exactly finding wherein the Original Act 1974 regulation existed in the area of Notices of sums in Arrears

 

REMEMBER !!!the Consumer Credit Enforcement Default and Termination Notices Regulations 1983 ONLY instructs as to HOW and WHAT must be included in the NOTICE...It does NOT say anything about applying to agreements whenever made

COULD THIS BE POSSIBLE!!!

 

m2ae

Edited June 5, 2010 by means2anend

[sickboy]

But the consequences of not serving a notice is also if all of the conditions have been met. Therefore consumers would only have a protection against enforcement after two missed payments post 1/10/08.

 

Before this point a DN would be effective IMHO. However I'm looking at the interest between the trigger and receipt of a valid notice served under 86(b)

 

 

 

 

 

 

[sickboy]

Just putting my defence together today. After checking the forums and some careful thought it will be based on:

 

1. The Agreement and any hidden charges for insurance, with the claimant held to strict proof. Point out the different cancellation rights, was a copy of the executed agreement ever received..... etc

2. liability for payments made (redundancy) with regards to the insurance.

3. The conduct of the claimant; two faulty dn's which use a clause to terminate the agreement and demand the full balance. No response to complaint regarding insurance.

4. Perhaps use the arrears notice(s) to challenge the extra interest added to the arrears.

 

The the consequences of above.

 

Permission to counter claim.

 

 

Not sure about:

 

86B Notice of sums in arrears under fixed-sum credit agreements etc.

 

[1] This section applies where at any time the following conditions are satisfied—

 

(a)-that the debtor or hirer under an applicable agreement is required to have made at least two payments under the agreement before that time;

(b)-that the total sum paid under the agreement by him is less than the total sum which he is required to have paid before that time;

©-that the amount of the shortfall is no less than the sum of the last two payments which he is required to have made before that time;

(d)-that the creditor or owner is not already under a duty to give him notices under this section in relation to the agreement; and

(e)-if a judgement has been given in relation to the agreement before that time, that there is no sum still to be paid under the judgment by the debtor or hirer.

 

 

[(2] The creditor or owner—

 

(a)-shall, within the period of 14 days beginning with the day on which the conditions mentioned in subsection (1) are satisfied, give the debtor or hirer a notice under this section; and

(b)-after the giving of that notice, shall give him further notices under this section at intervals of not more than six months.

Is a notice valid if it is not served under section 86(B)?

 

My notices are "Given in compliance with the Consumer Credit Act 1974".

 

ty

[sickboy]

Or

 

The order asked for any contract relevant to the claim, would this include any insurance contract?. Perhaps a strike out may be a better option?

 

Thanks

[means2anend]

Re-Post 110

 

'Is a notice valid if not served under s86B'?

 

The answer is in s86B [2]para(a) and(b)

 

You said that you were sent a notice 6 months later for the first time.

 

Well that notice cannot be sent to you UNTIL first a notice within the meaning of s86B para[a] was sent to you first 'no later than 14 days' when the conditions in s1 first existed...If not then they have failed in procedure.

 

That section is NOT ABOUT YOU GIVING THEM notices but them giving YOU notices...so why have you said 'MY notices are given in compliance with...''

[sickboy]

Re-Post 110

 

'Is a notice valid if not served under s86B'?

 

The answer is in s86B [2]para(a) and(b)

 

You said that you were sent a notice 6 months later for the first time.

 

Well that notice cannot be sent to you UNTIL first a notice within the meaning of s86B para[a] was sent to you first 'no later than 14 days' when the conditions in s1 first existed...If not then they have failed in procedure.

 

That section is NOT ABOUT YOU GIVING THEM notices but them giving YOU notices...so why have you said 'MY notices are given in compliance with...''

 

Sorry m2ae! by "my notices" I actually meant the notices that I've received. oops!

 

I know it's only a technicality but a DN is "Served under Section 87(1) of The Consumer Credit Act 1974", so should an arrears notice be "Served under Section 86(B) of The Consumer Credit Act 1974"?

 

It's only a thought .

 

Will have a look later to see if i can find the prescribed format for them.

 

btw

[sickboy]

Almost there on the defence!

 

Though i think that it may be too bulky, perhaps I should concentrate on the agreement and insurance.

[means2anend]

When you have completed your defence...try not to be too specific on here as it is probable that your opposition trawl through these threads...

[sickboy]

ty m2ae!

 

I kept it short and technical, with a little personal twist regarding the insurance.

 

Off to the court to drop hand in an application tomorrow.

[sickboy]

I did have a little panic tho!

 

But then I remembered a post which said to put it all down on paper and then leave it for a while.

[sickboy]

Hi

 

This has been quiet for a while!

 

Last month I was contacted by a debt collector for the amount in the claim (received two letters). However as the agreement was assigned, these were in the name of the new creditor.

 

Received a Notice of Discontinuance of Proceedings; TAKE NOTICE, that the Claimant herby wholly discontinues this action against the Defendant (N279 - Order 18.Rule 1). However this is served in the name, and not the claimant.

 

As far as I was aware the case was stayed, can he discontinue without lifting the stay?

 

Thanks

[DonkeyB]

Sounds a bit confusing – can you post up redacted copies of the docs you have received?

[sickboy]

Hi DonkeyB

 

Yes it's a little confusing..... sorry! here you go;

 

 

Thanks!

Edited October 10, 2011 by sickboy
oops

[sickboy]

Here's one before the order from Carter;

 

 

Uploaded with ImageShack.us

 

I forgot to mention that the docs are in date order above

[sickboy]

Quite a few doc's are also in this post; http://www.consumeractiongroup.co.uk/forum/showthread.php?247713-BRYAN-CARTER-Northampton-CCBC&p=2933312&viewfull=1#post2933312

 

#7 is the Transfer from the OC to NBS

#5 the N1 claim form

 

Thanks!

Edited October 10, 2011 by sickboy
oops

[means2anend]

Take your name off of one of the letters!!!

 

You also state that the alleged debt has been assigned yet above Carter states that it has not???

[means2anend]

Sickboy

 

Make sure that Carter is not trying it on!!!

 

Make sure that the Notice of Discontinuance applies to the WHOLE CLAIM...not Part of a claim nor to a remedy...

 

Here is the link..read in particular Rule 38.1

 

http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/civil/contents/parts/part38.htm

 

It also appears from Rule 38.2 that a claimant can discontinue at any time..you may also be eligible for costs.... read further down in that Part

 

rgds

m2ae

[DonkeyB]

Carter has discontinued a claim by Nationwide Building Society, not by Nationwide Trust (which was the actual claimant).

 

So have Nationwide now passed the account to those best friends of the OFT (‘Minded to Revoke’, eh?), Roxburghe? Are Nationwide aware that they are using a company for debt collection that the OFT does not think is fit to hold a licence? I think Mr Graham Beale at Nationwide must be told... by you!

 

Remind us – did you file any form of defence before the discontinuation?