Drydens lawyers want a charging order

[DonkeyB]

Hmmm... I don't think they should have terminated before 4 February... what do others think?

[DonkeyB]

I think you are right, what would they have done if payment had arrived after they closed the account on the 3rd

 

My thoughts exactly! They terminated early.

[DonkeyB]

They are obliged to provide you with 14 clear days from service to remedy the breach. Service allows a few extra days for the letter to arrive. Unless they can prove the DN was posted first class, I believe they have terminated the account a day early (more opinions please!).

 

This technically means they have unlawfully rescinded the contract, ie. they have terminated it without giving you the full opportunity to remedy the breach.

 

You are, therefore, allowed to accept their termination and you will only be liable for the actual arrears at that point.

 

However, unlawful rescission would give you the opportunity for remedy through a counterclaim for damage to your credit status, and simply for the act itself, the amount of which might wipe out any arrears.

 

That said, I'd rather hear a few more views on whether the account was terminated early. I don't think they should have terminated till the 4th.

 

Judges and creditors like to regard faults with the issue of DNs and termination as 'de minimis', ie. not really important or relevant. They tend to rely on 'well, you've had the money, pay it back'.

 

But it is not a small issue. It is the law - to enjoy the benefits of S87, the creditor MUST abide by it, and that includes not terminating the account unlawfully.

[DonkeyB]

Post up the Particulars of Claim, deleting your personal info, and we'll have a look.

[DonkeyB]

First step is a CPR request.

 

You want them to furnish a copy of the agreement and a copy of the DN, and anything else they intend to rely on in court.

 

I'd like to get more feedback from Caggers on the legality of the DN and termination notice they issued - to recap, DN dated 15 January, account terminated 3 February.

 

So...

 

DN dated Friday 15 Jan.

First day posted = Monday 18 Feb. Say, three days delivery = taken as served on Thursday 21 January.

14 clear days to remedy takes us to Thursday 4 February. Account terminated 3 February.

 

Is this correct, Caggers?

 

If so, the account was terminated early, it's only the arrears they can claim, and the contract would also have been terminated unlawfully. This could give rise to a counter claim for damages.

 

Incidentally, did the default notice ask for arrears or the whole balance? This could be important.

 

It would also help if you could let us see any copies of the DN, termination letter ad agreement you have.

 

They are claiming relief under S87.1, so they have to abide by it - and they haven't, IMO.

 

So - CPR request, and acknowledge online and state you will defend.

[DonkeyB]

Thanks snoops!

 

My worry here is that this borderline-faulty DN is all we have to go on as a defence at the moment, and although DNs are not a de minimis issue, judges tend not to have a good grasp of the detail of the law. Being almost certainly small claims, the latitude for the judge is also much wider.

 

In the CPR, you need to also ask for full statements of the account, as then we can look at the issue of unlawful charges. It only takes one to render the DN faulty, and the claim faulty, although these issues can sometimes be resolved (though not the DN) and a fresh claim issued.

 

If you got the charges back, would you be willing to negotiate a repayment plan with them? Defending this could be viewed in that context as a tactic to get you a result you're happy with. In this light, you may want to consider a without prejudice proposal to them. If they refuse, and you win, you can then present this to the judge when claiming costs.

 

That said, you have offered token payments and they are pushing for judgment and a CO, so IMO they deserve a kicking!

 

This remains a huge problem for the DCA industry - when confronted with people who want to pay, they get greedy and try to put the boot in. You're not a "won't pay", so you have my unswerving support.

[DonkeyB]

donkeyb

Thanks for your help

I will scan and post up DN and termination Letter

 

Have i interpreted things correctly if there is charges on my credit card agreement i.e the £12 late payment fee and £12 over limit fee then the amount they are suing me for is incorrect and that's a defence.

 

It is, but it's not the best! A judge would think you were clutching at straws, to be honest. There is no legal ruling on credit card charges, as there is with bank charges, so you could appeal them - however, the CC companies have reduced their charges significantly in the last couple of years.

[DonkeyB]

I note it says 'before 03/02/2010', ie. by close of play on 2 Feb. this further stuffs the DN.

[DonkeyB]

Even better. They have taken a shotgun to their whole leg. Frankly, it's a piddling amount to go for a CO, and the judge will not be happy as you have offered to pay.

[DonkeyB]

CPR request goes to Drydens.

 

I think the wrong name is hardly an issue.

 

But we want to use CPR to see if they will offer up a dodgy DN to help their case. And who knows - there may be issues with the agreement. These French companies...