MKDP & nationwide credit card debt Defective DN/TN?

[charlie*]

Thanks Donkey.... so, DN's and Termination's in any circumstances are totally useless.

[DonkeyB]

No! It's still a defence if it's not right. If a claimant insists it is right, and the judge disagrees, they will lose. Whether they try again is another matter - not something we've seen much of.

[Stagparty]

OK - thanks for the clarification

 

I am pretty certain if NW thought they had a good case they would have pursued it or at least made lots of noise about it over the last 15 to 18 months instead of being totally quiet.

 

There is a suggestion above to re apply for the copy of the original document - is this worth doing even though NW did provide this (am the terms weren't all in the 4 corners)

 

Thanks again guys

[dadofholly]

are you able to scan the agreement and edit ou any personal info, account numbers etc, so we may be able to give a better opinion on the compliane issue?

[dadofholly]

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

 

Hi Charlie - not spoken in a long while.

 

As regards the DN Donkey covers the issues - it does sound contradictory, if not a little unfair, but thats where the law is at the moment.

[Stagparty]

Hi Charlie - not spoken in a long while.

 

As regards the DN Donkey covers the issues - it does sound contradictory, if not a little unfair, but thats where the law is at the moment.

 

This is the bit that confuses me most.... how can a bank, when the have put in writing that they have terminated the account be able to keep issuing Default Notices until they get one that does comply with the Act. Surely once the account has been terminated it would need the debtors agreement to restart it so that a subsequent DN is compliant?

 

On a separate note, I have requested a copy of the agreement under s77/78 CCA 1974 - it will be very interesting to see whether or not the one produced matches the one Nationwide provided a few years ago!

[Always Struggling]

Have been trying to help in another thread in reagrds a faulty DN followed by a termination then followed by the sale of the debt to a DCA.

http://www.consumeractiongroup.co.uk/forum/showthread.php?302500-Abbey-Santander-Santander-refuse-token-payments-then-send-defaults-out&p=3608761&highlight=rescission#post3608761

 

She has today received a letter from their solicitors (not yet posted up) saying that they intend to take further action and intend to rely on the credit agreement, DN & termination notice, she has 7 days to respond etc.

 

How similar to this situation I'm not sure but I am wondering if her faulty DN, termination and subsequent sale of debt to DCA is still a valid point?

 

The fact it has been sold makes the difference I'm still assuming and the solicitors letter would just be 'hot air'?

[DonkeyB]

Sale is irrelevant. It’s the DN that counts. But remember that all they really have to do is issue a compliant DN, then terminate if not rectified, and carry on to court. The purpose of the DN is a chance to rectify a default, so a bit more substance in any defence would be needed.

[Always Struggling]

Ok... if I read you right, even if the debt has been sold after an invalid DN and an unlawful termination of agreement the buying DCA can still get a valid DN on a terminated agreement?

 

I had thought only those party to the original agreement could rectify an invalid DN.... so you say the DCA that purchased the debt after its unlawful termination of the agreement can send a new DN and undo the terminated agreement or they can issue a new DN dated after termination?

[DonkeyB]

Yes. Because, according to the law as it stands, the termination could not have occurred on the back of a non-compliant DN. Crazy but true.

 

A debt can be sold at any time.

[Always Struggling]

Yes DB, what I want to double check on is:

Can a faulty DN issued by OC then terminated by OC (albeit unlawfully), then sold by OC to DCA. Can the DCA issue a new DN?

 

I had understood that ONLY the OC could issue a new DN to rectify the invalid one?

[DonkeyB]

Nope – the owner can issue a DN, but before they do they must offer the same repayment terms as previously. If you satisfy the DN (which may not always be possible), then they would have to let you subsequently pay it off in line with the original T&Cs.

[Always Struggling]

Would you mind looking over the thread in question please DB? I'm beginning to get confused.... not difficult lol

My current advice is to send a SAR to ascertain exactly what they do hold.

http://www.consumeractiongroup.co.uk/forum/showthread.php?302500-Abbey-Santander-Santander-refuse-token-payments-then-send-defaults-out&p=3608761&highlight=rescission#post3608761

[Always Struggling]

I understand a little bit more now DB (as much as one can 'understand' at least lol)

Have been reading through the Brandon thread.... tough going.

 

In regards to the thread in post above, there are some other factors for a court to consider at least IMO.

 

Made CCA request to santander (no reply)

Made offer of token payment to santander (no reply)

Account sold to CCM

Notified CCM of DN error and unlawful termination (no reply)

Sent section 10 letter to CCM (no reply)

Current letter received from CCM sols threatening action

 

That pretty much sums up the situation.

 

I can now see exactly what you were meaning. It's been a few months since any contact from the DCA and I hadn't seen the Brandon thread and the points raised in the case.

 

My excuse is have been concentrating on the particular areas of law, regs and rules relating to my own thread

 

I will leave it for the SAR to be sent and see what comes back

[jessie_girl6]

Hi all

It's been some time since I've been on the forum - as it has helped me so much with so many issues I was facing last year - but I now need to revisit. And it appears that thought/case law has changed since I was last here when invalid DN + termination letter on back of DN = invalid recission. I have yet to find the relevant case law, but it seems that this is no longer the case.

 

So, what happens when I have taken this approach (with AMEX), accepted their termination, paid off the arrears demanded and then they come back 12 months later and issue a formal termination in line with their T&C's? Does that mean that the account is now terminated at this point (as it never was with the invalide DN) and I have to pay back all that is owed?

 

We are due in court to fight this issue in December, so I need to know if I have any chance of defence given the new info that has come to light.

 

Thanks

JG6

[trout]

What case law says that the Creditor can rectify an invalid DN anytime they wish ?

 

It is my understanding that a bad notice can 'often' be rectified by a good one ( Harrison ). Often however, does not mean always.

 

What we got from Brandon was that Statute is not de minimus, but shed no light on the possibility of the Creditor re-issuing a faulty DN post unlawful termination ( or prior ).

 

I can see that a Creditor could possibly re-issue a compliant DN prior to their termination ( however, what happens when they Terminate the account on the back of a defective DN ie it is unlawfull and no enforcement can be taken on the back of it-( Harrison ) ?

 

eg 1/1/09 an invalid DN arrives on the doormat, arrears at the time say £300,outstanding balance £6000.It goes to court on 1/12/2011 and then the Creditor wants to rectify their invalid DN having not been able to enforce judgement.

 

What would be on the new DN ?

 

£300 arrears, No because the account had not been terminated lawfully and interest would have accrued- ( because the Creditor now has to accept that the account had always been up and running ).

 

Pay the inflated arrears or we will now demand the full balance of £8600 - not rectified by a good DN as it is now inaccurate to the position of 1/1/09

 

Rectify the breach by 20/1/09 - impossible unless you have a tardis.

 

Pay £300 pounds by 20/12/11 as if nothing has happened - what about the loss of the facilities given to the defendant under the agreement that was withdrawn from them due to the Creditors illegal actions, defaults on credit files, harrasment by DCA's ( Harrison ) etc.

 

So UNTIL we have case law from a higher Court, the defective DN debate will continue and will be down to the Judge Lottery in the lower Courts.

 

Also, I don't think that reference to Debt Avoidance is relevant,the law ie Statute is the law ( Brandon )

 

IMO,

 

trout

[trout]

Jessie G,

 

Read the Brandon Appeal.

 

The Appeal Judges agreed that once Amex had gone down the CCA74 route to Termination,they could NOT change track to their contractual route ( and whether that would be successful for them was another matter ).

 

Also remember that a Creditor under an agreement regulated by the CCA74 cannot CONTRACT out of that Statute( ie their T&C's are irrelevant if in breach of CCA74 ).Prior to Feb this year a Creditor under the CCA74,could not Terminate a running agreement ie a Credit Card without issuing a Valid DN and that could only be issued when the account was in arrears.

 

IMHO,

 

trout

[sytra]

Subbing with interest

[toymaker1]

Jessie G,

 

Read the Brandon Appeal.

 

The Appeal Judges agreed that once Amex had gone down the CCA74 route to Termination,they could NOT change track to their contractual route ( and whether that would be successful for them was another matter ).

 

Also remember that a Creditor under an agreement regulated by the CCA74 cannot CONTRACT out of that Statute( ie their T&C's are irrelevant if in breach of CCA74 ).Prior to Feb this year a Creditor under the CCA74,could not Terminate a running agreement ie a Credit Card without issuing a Valid DN and that could only be issued when the account was in arrears.

 

IMHO,

 

trout

 

Hi trout.

 

Regarding your point about EEC amending CCA 1974 to allow termination of a CC agreement when not in default.

I assume you are referring to the Consumer Credit (EU Directive) Regulations 2010.

If so, I was not aware that anything had been changed so far as allowing a creditor to terminate a CC agreement when not in default, except that any termination cannot take place until after the end of a period of two months

What the new EU Regulations refer to is termination where a regulated open-end (i.e credit card) agreement provides for termination. - that is not at all the same thing as saying that the creditor is "allowed" to terminate it if it is not in default.

My understanding of the new Regulations is that where termination is provided for under any part of CCA 1974 - for example where the debtor has failed to comply with the requirements set out in a default notice sent under S87, and the creditor then decides to terminate the agreement, which he is entitled to do under S87(1)(a) if the debtor fails to take the required steps by the due date - them the creditor must give at least two months notice of any such termination.

He is not given any new "entitlement" to terminate a regulated non-default credit card agreement just because he wishes to. - so in that respect nothing at all has changed. - it just makes clear the period of notice which must be given in cases where he is entitled to terminate..

 

 

My own case is at a critical stage, so cant say anything .

 

Best wishes.

[Guest]

.......................Prior to Feb this year a Creditor under the CCA74,could not Terminate a running agreement ie a Credit Card without issuing a Valid DN and that could only be issued when the account was in arrears.

 

IMHO,

 

trout

 

incorrect. if there was no default/breach, then a running credit agreement could be ended without a def notice (ie as per the end terms of the agreement). a dn was/is required if 'by reason of any breach by the debtor' the creditor seeks termination, earlier payment etc.........

s98a cc act (ec directive) now (since feb) provides a statutory requirement re running credit agreements in non default cases. s98a applies to new and current running credit agreements.

interestingly though. s98a does not contain the same provision as s98 (6)!

Edited December 3, 2011 by Ford

[toymaker1]

incorrect in general. if there was no default/breach, then a running credit agreement could be ended without a def notice (ie as per the end terms of the agreement). a dn was/is required if 'by reason of any breach by the debtor' the creditor seeks termination, earlier payment etc.........

s98a cc act (ec directive) now provides a statutory requirement re running credit agreements in non default cases. s98a applies to new and current running credit agreements.

interestingly though. s98a does not contain the same provision as s98 (6)!

 

I find it odd that many people seem to believe that something changed in February 2011 with regard to a creditor's right to terminate a non-default credit card agreement.

The only thing which changed was the the EU directive clarified that where a creditor becomes entitled under CCA 1974 to terminate a regulated agreement, that termination cannot take effect until the elapse of two months. - no new right of termination was given to a creditor. And in the case of non-default credit cards, it was, and still is, the case that there is no entitlement under the provisions of CCA 1974 for a creditor to terminate non- default agreements.

The reason that S98(6) is not repeated in S98A is that there is no need to repeat it.

S98(6) say's what it says, and that is all there is to say. - it does not require to be repeated in S98A.

 

 

All the best.

[Guest]

toy

i think i see what you're saying. ie you're in agreement with my post? ie s98a for the most part just provides a statutory requirement re notice and to give reasons re non default cases. prior to that, it was as per an agreement re non default cases.(and still is, but now subject to s98a)

re your last point - hopefully any interpretation will see it that way

Edited December 3, 2011 by Ford

[toymaker1]

toy

i think i see what you're saying. ie you're in agreement with my post? ie s98a for the most part just provides a statutory requirement re notice and to give reasons re non default cases. prior to that, it was as per an agreement re non default cases.(and still is, but now subject to s98a)

re your last point - hopefully any interpretation will see it that way

 

That's right.

[biggeorge]

The whole financial industry is a mess,

I was always under the impression that after a defective Default Notice and termination the account was unlawful recission with only

the arrears due at the time now owing.

 

Seems like the judges and the banks have got together to conclude against us all.

 

My personal thoughts are if big companies like Barclaycard/Capital one can't get the legal documents correct when sending out threats then they

deserve everything they get and they should not be allowed to back track on their actions once termination has been notified.

 

George

[Guest]

it's not unlawful rescission per se (this does not exist). but rather unlawful termination. one q is whether it is enough for a rescission for breach as you allude to? there are factors to consider. have a read of the def notice threads for eg. the Woodchester case is still good authority. as is the Harrison case, and the Brandon case, in their own rights.