Me v Post Office Credit card

[dasby]

Hello caggers, please can you help with this problem as I received a solicitors letter threatening legal action if I fail to pay the £3k balance within 7 days.

 

It is for a Post Office credit card (Bank of Ireland).

I got into financial problems and with advice I started paying paying £1pm which was not accepted. Bank of Ireland issued a Default Notice and Termination Notice and a demand for the full balance.

 

I did a CCA request and it looks ok (post 2007).

 

I complained to them quoting the OFT guidelines about being unfair to push debtors to pay more than they can afford but they took no notice.

 

After several letters from a debt collector called 'Red' for payment of the full balance I got this from their solicitors today:

 

"Bal: £3k

 

Account In Arrears - Final Chance to pay

 

Dear XXX

 

We have been instructed by our clients to assist in recovery of the overdue debt.

 

Payment must be received in our offices WITHIN 7 DAYS of the above date. failure to do so may result in a county court claim being issued without further warning.

 

If County Court action does commence the balance will be increased as your account will have Court Fees and Solicitor's costs of £80 added.

 

Please contact us now by calling 01789 405 333 quoting xxxxxxx to pay the balance in full by debit or credit card.

 

Alternatively if you are unable to pay the balance in full, call the number above and we will be happy to consider proposals for payment and possibly avoid legal action being taken at this time. "

 

I would be grateful for any advice and suggestions you can give me.

Edited March 18, 2010 by dasby

[debt4get]

have you still got the default notice? and termination notice? if so can you copy and paste for people to have a look and advise?

[dasby]

Thank you, here are the images on imageshack. I hope they open and enlarge ok.

 

 

 

 

 

[dasby]

anyone?

[Pinky69]

The validity of the Default Notice is a close call. If they posted it 1st Class they have given you sufficient time to remedy the breach but if they posted it 2nd Class, the normal business class, then the time to remedy the breach is out by 1 day. If you contested it on that basis they would have to produce proof of postage if they try to claim they posted it 1st Class.

 

This is how it works. The date on the Notice is 10 June 2009. If they posted it 1st Class then you would have been deemed in law to have received it on the 12 June - that is the Date of Service. Then you would have been given 14 days after the Date of Service to remedy the breach, giving you until the 26 June, the date on the Notice.

 

However, if they posted it 2nd class, you wouldn't have been deemed to have received it until the 16 June as in law the weekend doesn't count for postage, only working days. So 14 days thereafter is the 30 June - 1 day later than the Notice and 1 day is sufficient to render the Notice unlawful.

The significance of this is that they have terminated the account and termination without the DN being lawful is repudiation of contract. That causes unlawful rescission ie puts you back in the position you were in before you signed the agreement, and all you would have to pay then is the arrears on the Notice - they forfeit all the rest of the payments due thereafter.

 

You could send them a SAR to discover what is recorded about the DN - I doubt very much they will have recorded what rate of postage they used but it is worth checking. They have 40 days to reply. If it isn't there, then I would argue that you were given insufficient time to remedy the breach and let them prove otherwise. Not a word of this to either the creditor or the DCA and come back for more advice one you have the SAR reply. If they take action in the meantime the argument for an unlawful DN becomes your defence and that is when this site jumps in to help.

[dasby]

thank you Pinky very interesting.

 

I did an SAR request a month ago. They have not sent anything yet. Reading other threads it looks likely that they will not send a copy of the default and termination notices but just a reference to the date they were printed and sent.

 

I didnt keep the envelopes so I dont know if they were first class. Even if it was can you trust that it was sent on the day claimed or if it sat around in the post room for a day or two? If this goes to court is it good enough for a judge if they swear it was sent first class on the day or do they need proof of postage and proof of delivery?

 

My worry now is that the solicitor is going to take it to court straight away. Please can anyone help with a reply to the letter in post #1

[debt4get]

i think you had better read the letter from red again..it is one of their usual 'we may' letters.....they may do this they may do that....the only time to worry is when you actually get the court papers come through the door...otherwise its just the usual threats these dca's use

[Artie44]

This is how it works. The date on the Notice is 10 June 2009. If they posted it 1st Class then you would have been deemed in law to have received it on the 12 June - that is the Date of Service. Then you would have been given 14 days after the Date of Service to remedy the breach, giving you until the 26 June, the date on the Notice. The deadline date on the Notice is 29th June

 

However, if they posted it 2nd class, you wouldn't have been deemed to have received it until the 16 June as in law the weekend doesn't count for postage, only working days. So 14 days thereafter is the 30 June - 1 day later than the Notice and 1 day is sufficient to render the Notice unlawful.

I read a post by banker_rhymes_with which differs from your explanation. He says they have to allow 14 clear days after the Date of Service. So for 1st class delivery the first day they can demand full payment is 27th June. For 2nd class delivery it is 1st July - 2 days later than the notice deadline.

 

The question now is, who is right?

[Pinky69]

They do not keep copies of DNs - they do them on templates. If it went to court it would be for you to put them to strict proof of postage and for them to prove they sent it 1st Class. They won't have proof and you then bring in the argument laid down by the Queen's Bench below. The date deemed delivered has nothing to do with them and they cannot prove delivery unless they sent it Recorded Delivery, which they didn't do. The date deemed delivered ie the Date of Service, is laid down in law.

 

2. Practice Direction

 

Service of Documents - First and Second Class Mail

 

"With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

 

1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

 

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

 

(a) in the case of first class mail, on the second working day after posting;

 

(b) in the case of second class mail, on the fourth working day after posting.

 

"Working days" are Monday to Friday, excluding any bank holiday.

 

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

 

4. This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8 March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

As for the letter in Post 1, never phone them- everything in writing. If £1 a month is what you are offering then that is it - they have no choice but to accept it. A court will not make you pay more then you can afford and they know it.

[Pinky69]

Sorry, I misread the date on the Notice as the 26th - it is of course the 29th. It's academic anyway because that is part of the 1st Class argument.

 

I have allowed for 14 clear days being posted 2nd Class. It's straight days after the date of service and doesn't exclude weekends.

[Bookworm]

I read "Red" and I read: "DCA", why panic?

 

Please name the "solicitors" who sent this oh-so-not-threatening letter, Hampton Legal by any chance?

 

Looks to me like a common or garden variety threatogram.

[Artie44]

I have allowed for 14 clear days being posted 2nd Class. It's straight days after the date of service and doesn't exclude weekends.

Sorry, I misunderstood your post. So to clarify they must allow 14 days starting the day after delivery for the breach to be rectified. They cannot demand the full balance or issue a termination notice until the fifteenth day.

[Artie44]

I read "Red" and I read: "DCA", why panic?

 

Please name the "solicitors" who sent this oh-so-not-threatening letter, Hampton Legal by any chance?

 

Looks to me like a common or garden variety threatogram.

Don't want to give too much away in case the DCA is looking. It is an independent firm of solicitors who specialise in debt collecting.

[Bookworm]

They could be looking all they like, it makes little difference. Stop running scared.

 

When it comes to DCAs, I have yet to come across any "independent" solicitors. DLA Piper, Bryan Carter, Hampton Legal, they're all at it, and some of them are not even really solicitors, just pretending to be. Look at the bottom of the letter and see if it says in tiny letters somewhere "[name] is a trading style of ...".

 

Sorry, I don't communicate by PM for your safety and mine. if you're not willing to tell us who they are, that is your choice, of course. Maybe you can search for their name on this forum and see what comes up?

 

I don't want to commit myself without knowing who they are in case I am mistaken, but the letter you received looks like the one that gets sent by every illegitimate debt collector to try and scare you into paying. The clue is in the "we MAY...", and "if" that dot the letter. ;-)

[dasby]

Yes I found them on other threads - Geoffrey Parker Bourne

[debt4get]

they seem to be a prelegal company used by dca to intimidate you into paying..personally i would ignore until they actually do initiate court proceedings but i think you will be waiting a long time...save worrying for something that happens not MAY happen

[dasby]

It took a while and lots of letters and it looks like they are going to agree a much reduced Full and Final settlement paid for by a family member.

Edited September 9, 2011 by dasby