Welcome Finance : Dodgy welcome default notice

[sick of welcomw]

i received on the 8th january 2011 my default notice dated 02 january 2011. it states the amount payable within 14days of the date of the letter

 

now the reason i think this is dodgy is that i thought they were supposed to insert the date the arrears have to be paid by not just 14 days?

 

am i right or have i got this wrong?

[sick of welcomw]

bump

[dx100uk]

you are correct

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

2. Under the Interpretation Act 1978 Section 7, it states:

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

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.

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for

serving of documents :-

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also 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).

6. The 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 an 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 [1996] 4 All ER 119.

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which

states:

Section 87. Need for Default Notice

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor

or hirer of a regulated Agreement -

(a) to terminate the Agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

(e) to enforce any security.

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

Section 88. Contents and effect of Default Notice

(1) The Default Notice must be in the prescribed form…

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice.

The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

 

 

tell us more

99% of welcome stuff is littered with unlawful charges & mis-sold PPI

 

dx

[sick of welcomw]

i have put a claim in for missold ppi what can i do about the incorrect default notice, what should my next step be?

 

thanx

[sick of welcomw]

will post up my default notice to see if defo invalid

[bottomofthepile]

Hi,

 

I have had the same default notice served by WFS, dated 02/01/11 (Seems odd for a start as that was a Sunday!), and am also in dispute over PPI.

 

Any advice on the next step would be great...

 

Thanks

[dx100uk]

postage stamps

 

scan the required letters/agreements/sheets

remove all pers info inc barcodes etc but leave all figures and dates.

goto one of the many free online pdf converter websites

convert the image to pdf format.

open a new msg box here

hit go advanced below the msg box

hit manage attachments below that box

hit the add files button on the top right

hit select files, navigate to your file on your pc

hit upload files

NB:you can set where it goes in the post by hitting insert inline.

the hit reply button

dx

[sick of welcomw]

sorry all u can now read these documents

wcf1and2 080111.PDF

[dx100uk]

[ATTACH]24111[/ATTACH]

 

following the above case

most of not all DN issues were blown out the water.

 

have you the agreement?

 

dx

[sick of welcomw]

yes i have the agreement and the original because what happened is i had my loan rewritten in dec07 stretching it from 4 to 7 years

[dx100uk]

then you've been fleeced on PPI + it's int twice as i bet you never got a rebate when you refinanced.

 

get reclaiming.....

 

as i said above.......

 

"tell us more

99% of welcome stuff is littered with unlawful charges & mis-sold PPI"

 

dx

[sick of welcomw]

apparently they rebated all my ppi on the original loan plus mechanical breakdown and lifecare 24 so it went from 17500 to 13525

the only paperwork i have is the original agreement the reqwite is just a tick sheet that says no to insurances and my signature no figures nothing

[dx100uk]

blimey thats is rare!

 

well done

 

dx

[sick of welcomw]

thanks the gu who rewrote it got the sack for misdealings apparently

[sick of welcomw]

copies of original loan and rewrite...numbers dont seem to add up can someone please check for me

vectra original and rewrite 5 6 7.PDF

[dx100uk]

you need to be removing the fax bars top/right on sheets and your argeement number on pg2/3

 

dx

[sick of welcomw]

thanks will do,,,apart from that is there any discrepancies on the agreements

[sick of welcomw]

bump

[dx100uk]

you have still left a/c number on one page and vehicle details on the first.....

 

dx

[sick of welcomw]

WELL I SENT A LETTER T WELCOME HEAD OFFICE TO PUT THE ACCOUNT into dipute this was on friday i also emailed it as a pdf document, to my utter surprise i actually got a letter today saying sorry u have had to compain to us and we will get back to u within 4 weeks

 

now does that mean my account is in dispute or do i still have to deal with the local office ****?

[dx100uk]

why have you put the a/c into dispute?

does the PPI reclaim = more than what you owe?

 

dx

[sick of welcomw]

no the account is in dispute because wrong amounts on loan agreement rewrite and acceptance fee having interes tadded to it each month