MKDP & nationwide credit card debt Defective DN/TN?

[Stagparty]

Thanks Jasper

 

Much appreciated.

[vint1954]

Thanks for the PM's Stagpart. If you update this thread with your latest comms from NW, we can all see them.

[Stagparty]

The latest update is as follows:_

 

I sent the letter kindly suggested by Vint to Carter and NW back in January. All went quiet for a while, Carter responded by saying he was taking instructions from his client.

 

I then got a letter from a "Senior Manager" saying they were investigating my complaint about the DN, so I had to correct them and say that I wasn't actually complaining about the DN but I had accepted the unlawful termination.

 

I've just had another letter from this guy saying that he has completed his investigation and that he realises that i may not have had time to take advice from a solicitor re the DN (the DN was defective as it didn't allow time for service) but he was disappointed that I hadn't made a payment or been in touch since and so it had been referred to a DCA (they have actually referred it to two at the same time, but that's another matter). He goes on to say that NW have been tolerant in this matter. I've no idea what is tolerant about failing to fulfill a s78 request, issuing a defective DN then unlawfully terminating the agreement, using two DCAs to try and collect at the same time etc...

 

My proposed reply is as follows:

 

I refer to your recent letter and our subsequent telephone conversation where you advised when this account was passed to a DCA. I would comment as follows:-

 

I note that your comment regarding the lack of time for me to take advice. However you have not dealt with the unlawful termination of contract by Nationwide due to a defective Default Notice nor the implications that follow this. Would you please address this matter and let me have your proposals for settlement.

 

I note that you instructed a DCA in X. As they act as your agents in this matter you are clearly responsibly for their conduct. Their initial contact was by a brightly coloured postcard which is against OFT Regulations in respect of Debt Collection. Following this there have been a variety of vague voicemails instructing me to call a person urgently on a designated telephone number and a few text messages containing various threats which I have not responded to. However I have retained them should either a complaint to the Regulator be necessary or should it be necessary to demonstrate their, and hence Nationwide’s, misconduct to a Court at any point in time.

 

I am sure you are aware that under OFT Guidelines only one debt collection agency should be assigned to collect an alleged debt at any one point in time. Bearing this in mind could you please explain why Fredrickson’s and then Bryan Carter have attempted to collect this alleged debt in the same period that AIC have been assigned to the matter. This is particularly important as I am lead to believe that Bryan Carter (Solicitors) came within 24 hours of issuing proceedings against me. This was a particularly stressful situation as I am sure you can imagine. For your information I have received further correspondence from Carter as recently as 25 March and a telephone call from the other DCA today, so it is clear that both are still acting and as a result Nationwide remains in breach of OFT Guidelines in respect of Debt Collection.

 

Your letter states that “as a result of no payments and no communication” the account was referred. I have 11 copy letters to DCA's in addition to the letters to Nationwide. I would respectfully suggest that this is not “no communication”. Perhaps you would care to comment further on your original statement.

 

You go on to state that “you believe that Nationwide has been more than tolerant”. Perhaps I should remind you that Nationwide has unlawfully terminated an account following its issuing of a defective Default Notice (a termination which I have accepted), it remains in default of a request for information under s78 Consumer Credit Act (whilst various information has been provided, the total information required has never been provided) although this has been superseded by the unlawful termination. Furthermore its agents have failed to respond to a written complaint and Nationwide has instructed more than one Debt Collection Agency to act on its behalf at the same time. In addition the Debt Collection Agencies have frequently breached OFT Guidelines.

 

It may well be that you were not properly appraised of this case before you responded, but with the above in mind do you still believe that Nationwide has been tolerant? In the circumstances I would invite you to withdraw this statement and to recall the matter from all Debt Collection Agencies currently assigned to collect this alleged debt whilst you carry out further investigations. Your response to this letter will directly influence whether or not a complaint is made to the OFT via Trading Standards and to the FOS.

 

I look forward to your response together with your proposal for settling this matter.

 

ys

sp

 

 

Has anyone got any suggestions as to my proposed letter?

 

Thanks again

SP

[DonkeyB]

Marvellous!

[Stagparty]

I guess you approve then Donkey? Any suggestions to improve it?

[DonkeyB]

I would quote again the specific parts of S87 they have breached - spell it out for them.

[NailPost]

No its fine as it is. Perhaps you could copy it to the OFT, Financial Ombudsman etc. Maybe even send it to the media and stir up a hornet's nest!

[vint1954]

You need to bang home the facts. As DB says, they have fallen foul of s87-88 therefor unlawfully rescinded on termination.

 

In all honesty, that is all you need to advise them.

 

You are bemussed to receive their continuing communications as the account no longer endures. The OC has unlawfully rescinded the agreement, the details of which are none of their concern. End of story.

 

You are still waiting for the OC to respond to your request for a true ballance of arrears at the time they unlawfully rescinded, against which you will be claiming for unlawful termination.

 

You have got to a stage now, UR, don't complicate it and get into diversive arguments.

[Stagparty]

Thanks for the feedback Vint and Donkey.

 

I'm struggling to get the wording right around the s87-88 breach, would something along the following work?

 

I would remind you that the Default Notice Nationwide issued under s87(1) Consumer Credit Act 1974 was defective. It was not compliant with

s88(2) Consumer Credit Act 1974 as it did not allow sufficient time to remedy the alleged breach of the agreement. The Default Notice also terminated the agreement by demanding repayment in full rather than the amount of any genuine arrears. You will be aware that 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 a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but gives rise to a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119. In summary, the maximum liability I would have is the arrears at the date of termination of the account against which I can claim damages from Nationwide. May I therefore have your proposals for settlement?

 

 

 

[vint1954]

I would just hit them with the facts, not bother with explaining s87 to them. Yourr argument is with Nationwide.

[Stagparty]

Sorry to try and put words into your mouth Vint - are you then suggesting something along the lines of...

 

Dear Sirs

 

I refer to your letter of X, certain of its contents are factually incorrect. However that matters little in so much as you failed to deal with the main point in my letter. That point is, that the default notice issued by NW was defective, the subsequent termination (which I have previously accepted) was unlawful under s87-88 CCA 1974. Therefore the most I owe NW is the amount of arrears (approx £500) as detailed in your letter. Against this I can make a claim for damages for the unlawful termination. May I therefore have your proposals for settlement

SP

[vint1954]

Something along those lines

[Stagparty]

Time for an update on this one, some advice as to how to reply would be appreciated too!

 

NW have replied and said that they don't believe the DN is defective (despite it not allowing time for service).

 

They have then said that due to my concerns they are issuing a new DN (despite me repeatedly accepting their unlawful termination previously) and that if i bring the account back up to date they will handle it in house.

 

The new DN has arrived and NW have (nearly) corrected the deficiency - they now put a remedy date of 21 days rather than a date 14 days from the date of the letter, so they have obviously realised there was a problem with the previous version.

 

I'm a little confused as to how to respond - the new DN I think actually strengthens my position in that the account was terminated in writing last year, although I feel I need to reject this DN in order that they can't suggest that the agreement endured and that I have accepted the new DN.

 

Any advice please?

[Stagparty]

Hi All

 

I had a credit card account with Nationwide which they issued a defective default notice on, I accepted their termination and asked for the amount of arrears at the date of termination.

They denied their initial default notice was defective (it was as they hadn't allowed time for service) and issued a second default notice.

I pointed out that this was pointless and that I had already accepted their termination of the account.

They said this was their final response.

 

I heard nothing until recently when I got a letter allegedly from Nationwide saying they had assigned the debt to MKDP LLP.

 

What's the best course of action now? Wait until MKDP contact me or should I pre-empt this and write to them? Also what the heck should I say?

 

Thanks in advance for any help!

[Stagparty]

Could anyone give me some advice on this please asI've now had a letter from MKDP appointing MKRR and demanding payment.

[Nishikigoi]

Is it on your CRA file?

 

When did you take it out?

 

How did you accept the termination?

[Stagparty]

I accepted the termination in writing to Nationwide.

[Nishikigoi]

I accepted the termination in writing to Nationwide.

 

Date and CRA file?

[DonkeyB]

Forget unlawful rescission. Case law now says that they CANNOT terminate if the DN was faulty. So the account was still live. If they then issued a compliant DN and terminated, they are within their rights.

 

Were there any legitimate disputes on the account?

[Stagparty]

Donkey - ironically their 2nd DN isn't correct either.

 

I also think the original Credit Agreement is defective as the required terms aren't within the "four corners"

 

Can they not terminate unlawfully even when they say they have terminated the account?

[dadofholly]

Donkey - ironically their 2nd DN isn't correct either.

 

I also think the original Credit Agreement is defective as the required terms aren't within the "four corners"

 

Can they not terminate unlawfully even when they say they have terminated the account?

 

Technicaly the account connot be terminated on the back of a faulty DN - but they cannot enforce the agreement in Court with a faulty DN.

[Stagparty]

Ok, can I please check my understanding here....

 

An account can no longer be terminated on the back of a defective default notice, even if the creditor says the account has been terminated. But they then can't go to court to have the account enforced - Is this similar in effect to the original credit account being missing prescribed terms (ie the account exists but the Court won't enforce it?)

 

Nationwide obviously realised they had big problems and an unenforceable account here as they went absolutely silent for around 18 months before unloading the account.

 

Am I also right in thinking that the dispute automatically transfers to the new "owner" of the account?

 

Has anyone got a sample response to send to a creditor in this situation please?

 

Thanks in advance again and sorry if I seem confused and rambling (that's cos I am!!)

[dadofholly]

Have you sent the new owners of the account a CCA request?

[charlie*]

In Post #8 above dadofholly said...

 

"Technicaly the account connot be terminated on the back of a faulty DN - but they cannot enforce the agreement in Court with a faulty DN".

 

Is this not a little misleading since it appears the creditor can re-issue a faulty default notice as often as he wishes, in which circumstances, surely, the agreement would become - SOONER OR LATER , enforceable in court.

 

This being so, it's a dead end afore it even starts, surely?

 

Can this be cleared up please... it would be most useful.

 

Many thanks in advance

[DonkeyB]

Yes, that is correct. But why should it be any other way? I agree it’s a bit of a joke, but that’s the view the judges have taken, and that’s the way it will be until it’s challenged (and I still agree that some elements re termination need to be challenged – I think the current situation leaves out some very clear statute, or rather disregards it).

 

The alternative is that favoured by the debt evader – using technicalities to get out of what you possibly do owe. Obviously personal circumstances and the ethics of the banks play a part, and they often ignore genuine disputes, but why should a faulty DN mean the debt is wiped out?

 

People often confuse the type of ‘protection’ afforded to consumers by the CCA. It’s there so that creditors don’t ride roughshod over you, ie. you must have a PROPER opportunity to deal with the situation that does not prejudice you – not as a means to avoid paying!