MKDP & nationwide credit card debt Defective DN/TN?

[Stagparty]

Hi All

 

I have a problem with Nationwide Credit Card - I can't work at the moment due to long term ill health and am on Long Term Incapacity Benefit.

 

When I realised I was in trouble I contacted the CCCS who told me to write to creditors (and gave me a template) offering a token £1 a month.

 

Nationwide refused the offer. To be fair, I can see their reasoning but they can't have what I don't have so I've sent them the token £1 each month anyway.

 

At start of July they issued a Default Notice which is attached below

 

This is the Default Notice that they sent me

 

I think the Default Notice is defective as it does not specify an actual date by which the alleged breach should be remedied (just says within 14 days of receipt of this letter) and even if that was permissible it doesn't allow time for service. Can anyone please have a look and comment?

 

My attitude towards Nationwide turned a couple of days ago when I received a call from them. I remained polite and factual at all times, explained that my circumstances haven't changed. The conversation took an unusual turn in so much as the Call Agent suggested I asked friends of family for money to pay them so the debt wasn't referred to KBR (who I believe are Nationwide's "in house" Debt Collectors. I said I didn't think this was very sensible as I would be borrowing more money to repay someone. He didn't particularly like my response and closed by telling me that "Debt Collectors could put a charge on my house" - I obviously corrected him and reminded him that they would first need judgement and me to then default on the CCJ. He kind of spluttered at that and ended the conversation.

 

I know I will get flak for talking to them on the phone but I wanted to find out if they had actually terminated the account or just suspended facilities. The call agent suggested that they would terminate the account if I agreed a payment plan with them but didn't seem to know if the account had already been terminated.

 

I also recorded the call, having previously notified Nationwide in writing, that calls may be recorded for fact verification purposes.

 

Now... I really got the hump with this guy. I'm fortunate - I know they can't just take my house away but the implication that they could was a very thinly veiled threat and suggesting that I borrow money from friends is just out of order (and I believe against OFT guidlines?). So I'm thinking of making a formal complaint. Can anyone suggest what form and to whom such a complaint should be made please?

 

As soon as I had any inkling that they may refer to matter to debt collectors I CCA'd them. I received just one sheet back from them. It's shown below. For information the account was opened in March 2007.

 

This is the alleged agreement they have sent me, there were no terms and conditions etc enclosed - just this one side of paper

 

As you can see from the link, the CCA is just what appears to be page 5 of 5. Interestingly (maybe?) it isn't signed by Nationwide, however on the original there is a 5 letter/digit code hand written in the top corner and the date. Is the fact they haven't signed it significant?

 

Also, is the fact that they have demanded full payment of the account and the return of the card sufficient to claim properly that they have terminated the account? If not, does anyone have any suggestions as to how I can get them to formally terminate it?

 

Thanks for ploughing through to the end of this thread - I really can't thank you all enough for the help and support I'm getting!

 

SP

[Stagparty]

Just one quick point re the above which hopefully will be relevant - The Default Notice demanded repayment of the full amount outstanding, not the arrears at that point in time.

[Stagparty]

I'd really like to get a letter put together over the weekend to deal with this. Would anyone please be able to cast their eyes over it and give me some advice?

 

Thanks

[transparentspoon]

I'll try and offer some general advice but one of the more experienced forum members will be able to help with the specifics and point you in the right direction of templates, etc.

 

First point:

 

In the default notice, note the careful use of the word may in the "if you do not take action" section. It's now your job to persuade them as to why they shouldn't do this. What you need to remember is that if (that's if, not when) this goes to court the judge would want to see evidence of your financial situation. The fact that you've offered to make a payment - even if it's just £1 and that's all you can afford - and they haven't agreed to take it will certainly put them in a bad light. If you haven't already done so, when you send your next £1 (postal order?) put a clause in the letter to the effect that if they accept the payment then they accept this is the agreement until your situation approves, and make sure you go on to the Post Office web site to check that the order has been cashed (make a note of the order number when you buy one and then print off or screendump the page that shows the order has been cashed).

 

Other points:

 

By not specifying a date on the default notice, it will be difficult for them to argue when the 14 days was supposed to start from (plus they are probably falling foul of the consumer credit act, though I need to check this). Also, the consumer credit agreement is no good on its own without a copy of the full terms and conditions and must be signed by both parties to constitute a binding agreement.

 

On a final point, your card has always belonged to them and they are free to ask for it back at any time - returning the card cannot be construed as the company terminating the agreement in any way.

 

Hope that helps!

[cerberusalert]

I think the Default Notice is defective as it does not specify an actual date by which the alleged breach should be remedied (just says within 14 days of receipt of this letter) and even if that was permissible it doesn't allow time for service. Can anyone please have a look and comment?

Yes it is defective also it is not allowing you to pay the arrears to remedy it is demanding the balance.

This is the alleged agreement they have sent me,

Unenforceable, you could send this;

 

Account no xxxxxxxxxxxxxx

 

 

Re: my request under the Consumer Credit Act 1974

 

This account is in Dispute .

 

On xx/xx/2007 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

 

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I refer to page 5 of the guidance which states;

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment.

 

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for your client to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

I respectfully request a response to this letter in 14 days

 

 

I trust this out lines the situation

Print name do not sign

[cerberusalert]

Do Not Return The Card Under Any Circumstances.

[Stagparty]

Thanks for the replies guys - why shouldn't I return the card Cerberus? (it's safely tucked away in the drawer at the moment!)

 

Could you also please tell me why you think the agreement is unenforcable?

 

I was kind of hoping that they had terminated the account on the back of a dodgy Default Notice so that absolute worst case I would only owe them the arrears at the date of the alleged default.

 

Thanks again

[Stagparty]

Sorry - I've just re-read my above post and it reads badly - I'm not questioning the validity of the advice... I'm trying to understand the background so I don't unnecesarily waste people's time asking stupid questions in future!

[cerberusalert]

There was a case where the CC company produced a cut-up credit card in court and it was accepted by the judge that an enforceable agreement must have been in existance.

 

I can't find the thread at the minute.

[cerberusalert]

There are non of the prescribed terms within the four corners of the agreement and because your a/c is prior to April 2007 it would be deemed as unenforceable.

 

The DN is defective & it could be construed as a termination but it would be better to have a Termination Notice too.

[transparentspoon]

[snip]

 

Thanks for the advice as well, cerberusalert - hope I didn't confuse the issue with my earlier post.

Edited August 7, 2009 by transparentspoon
Clarification

[Stagparty]

Ah OK thanks for that Cerebus.

 

Again, I'm not doubting your knowledge or experience, but could you please outline what makes you think it is an application form rather than an agreement?

 

On the basis that I don't think they have formally terminated the alleged agreement at the moment, would I be better off keeping quiet about the defective Default Notice? That way at least if they do manage to magic a compliant agreement out of their "vaults" at some point in the future I would only be liable for the arrears.

 

Or does issuing a Default Notice requiring the entire balance and requesting the card back suggest that they have terminated?

 

Thanks again, and sorry for asking what must seem dumb questions

[cerberusalert]

Found it; Tragic case of Judgement because a cut up card was produced by MBNA at hearing. - The Consumer Forums

[Stagparty]

Thanks for your reply Transparentspoon - it's now approximately 30 days since the Default Notice was issued. Apparently the next thing that they will do (in the next few days) is pass it to their own DCA.

Again, does passing the account to a DCA and demanding full payment mean that they have terminated the agreement?

[Stagparty]

Cerberus - thanks for the link - my heart goes out to that guy. What an appalling judgement

[cerberusalert]

Because they haven't given you the chance to remedy the default by paying the arrears and by demanding the full balance it would be deemed as unlawful rescission of the a/c so in theory they would not be able to legally claim anything.

 

Yes keep the defective DN to yourself.

 

As for your first question there are non of the prescribed terms within the document; credit limit, %APR, repayment terms etc so would be deemed unenforceable.

[Stagparty]

So if we leave the DN out, would a letter along these lines work?

 

Account no xxxxxxxxxxxxxx

 

 

Re: my request under the Consumer Credit Act 1974

 

This account is in Dispute .

 

On xx/xx/2007 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

 

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I refer to page 5 of the guidance which states;

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment.

 

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable it would be in everyone’s interest to consider the matter closed and for you to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

I respectfully request a response to this letter in 14 days

 

Yours etc

SP - printed not signed.

I've just noticed that Nationwide have responded quickly my request and the 12 working days (+2 for service?) have not yet expired. Tactically, should I wait until they have or just send the letter anyway?

 

Thanks again

[cerberusalert]

Yes you could wait for the time to expire.

[Stagparty]

I really am grateful for your help.

 

I'd also like to nail them for the phone threats made re collection methods - would a simple formal complaint letter to them be the best place to start? Or report them to the OFT and tell them what I have done?

[cerberusalert]

You could send them the letter below & then if they continue make a complaint to the TS & the OFT;

 

Dear Sirs

 

I am writing in relation to the quantity and frequency of telephone calls that I have received from your company, which I deem to be personally harassing.

 

I have verbally requested that these stop, but I am still receiving calls. (Delete if necessary)

 

I now require all further correspondence from your company to be made in writing only.

 

You are reminded of the following under The Administration of Justice Act 1970.

 

Section 40 of the act provides that a person commits an offence if, with the object of coercing another person to pay money claimed from the other as a debt due under contract, he or she:

 

(a) harasses the other with demands for payment which by their frequency, or the manner or occasion of their making, or any accompanying threat or publicity are calculated to subject him or his family or household to alarm, distress or humiliation;

(b) falsely represents, in relation to the money claimed, that criminal proceedings lie for failure to pay it;

© falsely represent themselves to be authorized in some official capacity to claim or enforce payment;

(d) utters a document falsely represented by him to have some official character or purporting to have some official character which he knows it has not.

 

I am of the view that your harassment of me by telephone puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

 

If you continue to harass me by telephone, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

 

Further to this all calls from your Doorstep Collectors must also cease unconditionally and with immediate effect. I note that there is only an implied license under English Common Law for certain people to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.).

 

Take note, I revoke license under English Common Law for you, or any of your representatives to visit me at my property and if you do so without my permission, you will then be liable to damages for a tort of trespass. You would also be conspiring in a trespass if you sent someone to visit me nevertheless. Any trespassers you attempt to send therefore will be dealt with accordingly.

 

Be further advised that any further telephone calls from your company will be recorded.

 

 

Yours faithfully,

Print name do not sign

[Stagparty]

Thanks for that Cerberus.

 

I've already informed them that I would record calls, and I'd quite like to make a formal complaint about the "gentleman" who appeared to relish the "fact" that according to him their debt collection company could put a charge on my house. And also the girl who seemed to find it a little amusing that "the debt collectors will make contact with you verbally before they visit you at home".

 

I have no problems with companies when they play by the rules, but when they lie and make at best thinly veiled threats in an attempt to "coerce" me into paying them money that I don't have, then it becomes a whole different ball game.

 

So maybe I can use the letter you outline above whilst at the same time use the two examples above of specific instances where they appear to be in breach of the Administration of Justice Act?

[Stagparty]

May I just check if my calculation of the 12+2 days rule is correct...

 

I sent the CCA request 28 July, therefore by my reckoning the 12+2 expires today.. If this is right, should I post the "CCA not valid letter - account in dispute, today or to be safe leave it til tomorrow?

[Stagparty]

Another question, this may be a general legal point though....

 

If a lender instructs as DCA (the DCA acting as the lenders agent) to collect a debt, and the DCA act improperly (in breach of CCA, OFT etc) can the lender be held jointly responsible for the DCA's actions on the basis that the DCA is merely an extension of the lender at that point?

[Stagparty]

Would anyone be able to give me a few words of wisdom on the above please?

[bigegg]

yes. the OC can be held responsible for it's agents.

Any complaint made against a DCA should be copied to the OC as a seperate formal complaint against the OC as well.

 

see :-

[/url]http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/182533-fun-npower-gfp.html#post1968036

 

how it worked for me as a dual complaint against DCA and OC (original creditor)