MKDP & nationwide credit card debt Defective DN/TN?

[blackntan]

 

Taken from the new EU Directive on open-end agreements.

 

 

Open-end agreements

 

37. In section 87 (need for a default notice), after subsection (4), insert–

"(5) Subsection (1)(d) does not apply in a case referred to in section 98A(4) (termination or suspension of debtor´s right to draw on credit under open-end agreement).".

38. After section 98 (duty to give notice of termination), insert–

"Termination etc of open-end consumer credit agreements

 

98A.–(1) The debtor under a regulated open-end consumer credit agreement, other than an excluded agreement, may by notice terminate the agreement, free of charge, at any time, subject to any period of notice not exceeding one month provided for by the agreement.

(2) Notice under subsection (1) need not be in writing unless the creditor so requires.

(3) Where a regulated open-end consumer credit agreement, other than an excluded agreement, provides for termination of the agreement by the creditor–

(a) the termination must be by notice served on the debtor, and

(b) the termination may not take effect until after the end of the period of two months, or such longer period as the agreement may provide, beginning with the day after the day on which notice is served.

(4) Where a regulated open-end consumer credit agreement, other than an excluded agreement, provides for termination or suspension by the creditor of the debtor´s right to draw on credit–

(a) to terminate or suspend the right to draw on credit the creditor must serve a notice on the debtor before the termination or suspension or, if that is not practicable, immediately afterwards,

(b) the notice must give reasons for the termination or suspension, and

© the reasons must be objectively justified.

(5) Subsection (4)(a) and (b) does not apply where giving the notice–

(a) is prohibited by an EU obligation, or

(b) would, or would be likely to, prejudice–

(i) the prevention or detection of crime,

(ii) the apprehension or prosecution of offenders, or

(iii) the administration of justice.

(6) An objectively justified reason under subsection (4)© may, for example, relate to–

(a) the unauthorised or fraudulent use of credit, or

(b) a significantly increased risk of the debtor being unable to fulfil his obligation to repay the credit.

(7) Subsections (1) and (3) do not affect any right to terminate an agreement for breach of contract.

(8) For the purposes of this section an agreement is an excluded agreement if it is–

(a) an authorised non-business overdraft agreement,

(b) an authorised business overdraft agreement,

© a debtor-creditor agreement arising where the holder of a current account overdraws on the account without a pre-arranged overdraft or exceeds a pre-arranged overdraft limit, or

(d) an agreement secured on land.".

39. In section 189 (definitions)(11), in subsection (1) after the definition of "OFT", insert–

""open-end" in relation to a consumer credit agreement, means of no fixed duration;".

[toymaker1]

 

Taken from the new EU Directive on open-end agreements.

 

 

Open-end agreements

 

37. In section 87 (need for a default notice), after subsection (4), insert–

"(5) Subsection (1)(d) does not apply in a case referred to in section 98A(4) (termination or suspension of debtor´s right to draw on credit under open-end agreement).".

38. After section 98 (duty to give notice of termination), insert–

"Termination etc of open-end consumer credit agreements

 

98A.–(1) The debtor under a regulated open-end consumer credit agreement, other than an excluded agreement, may by notice terminate the agreement, free of charge, at any time, subject to any period of notice not exceeding one month provided for by the agreement.

(2) Notice under subsection (1) need not be in writing unless the creditor so requires.

(3) Where a regulated open-end consumer credit agreement, other than an excluded agreement, provides for termination of the agreement by the creditor–

(a) the termination must be by notice served on the debtor, and

(b) the termination may not take effect until after the end of the period of two months, or such longer period as the agreement may provide, beginning with the day after the day on which notice is served.

(4) Where a regulated open-end consumer credit agreement, other than an excluded agreement, provides for termination or suspension by the creditor of the debtor´s right to draw on credit–

(a) to terminate or suspend the right to draw on credit the creditor must serve a notice on the debtor before the termination or suspension or, if that is not practicable, immediately afterwards,

(b) the notice must give reasons for the termination or suspension, and

© the reasons must be objectively justified.

(5) Subsection (4)(a) and (b) does not apply where giving the notice–

(a) is prohibited by an EU obligation, or

(b) would, or would be likely to, prejudice–

(i) the prevention or detection of crime,

(ii) the apprehension or prosecution of offenders, or

(iii) the administration of justice.

(6) An objectively justified reason under subsection (4)© may, for example, relate to–

(a) the unauthorised or fraudulent use of credit, or

(b) a significantly increased risk of the debtor being unable to fulfil his obligation to repay the credit.

(7) Subsections (1) and (3) do not affect any right to terminate an agreement for breach of contract.

(8) For the purposes of this section an agreement is an excluded agreement if it is–

(a) an authorised non-business overdraft agreement,

(b) an authorised business overdraft agreement,

© a debtor-creditor agreement arising where the holder of a current account overdraws on the account without a pre-arranged overdraft or exceeds a pre-arranged overdraft limit, or

(d) an agreement secured on land.".

39. In section 189 (definitions)(11), in subsection (1) after the definition of "OFT", insert–

""open-end" in relation to a consumer credit agreement, means of no fixed duration;".

 

 

Blackntan,

Not quite sure what point you are making.

 

Regards

[blackntan]

I was not trying to make a point.

 

I was just trying to clarify what the EU Directive actually says for those that may not know.

[toymaker1]

I was not trying to make a point.

 

I was just trying to clarify what the EU Directive actually says for those that may not know.

 

You're right - that could be very very useful to a lot of people.

[InformedSearcher]

Can I just ask / verify something here with regards to defective Default Notices?

 

I received one circa 3+ years ago now and the entry appears on the CRA files. I was under the impression that if the financial institution took me to County Court they'd probably lose because of the defective D/N (wrong dates from issue to delivery). However the 'catch 22' is that if I took them to CC to remove the D/N i would probably lose even though the D/N was defective? Taking that on board maybe better to just wait for the 6 years to pass and communicate with no one?

 

Michael

[DonkeyB]

The default on the CRA files is nothing to do with the issuing of a default notice. So a defective DN merely prevents them from terminating the account or taking legal action, but the default recorded with the CRAs, as long as it was fairly applied, will stay there.

[trout]

Toymaker,

 

Sorry for the long delay in answering your question re Statute is not de minimis ( I have been dealing with personal problems ).

 

Basically, what I meant was within the Brandon Appeal.

 

In the original judgement it was held that the defective DN issued by AMEX did not predjudice Brandon ie the Judge disregarded Statute !!

 

In the Appeal this point was addressed in para 30, in which it was concluded that the defective DN, not withstanding the lack of predjudice

was NOT De Minimus ie Statute ( the will of Parliment ) could not be overlooked as ' a small thing. '

 

This ruling should , in my opinion,be used when DJ's try to dismiss a defence that relies on the Statute that is CCA 74, on the basis of

' Well you had the money. ' eg Eggs terminations of accounts that were not in Default, CC agreements lacking prescribed terms etc

 

Regards,

 

Trout

[Guest]

indeed. the 'de minimus' mentioned in Woodchester, that creds seem to try to rely on, only related if at all to the amount. the argument put forward that the statutory notice need not be 'good in every single respect' was rejected by the CA there.

Edited April 25, 2012 by Ford

[Guest]

indeed. the 'de minimus' mentioned in Woodchester, that creds seem to try to rely on, only related if at all to the amount. the argument put forward that the statutory notice need not be 'good in every single respect' was rejected by the CA there.

 

so, the relevant decisions in Harrison and Brandon (appeal) were not really new. just upholding what was already held in Woodchester prior. but, there seems to be this issue now of whether a cred can go away, correct a dn, and then come back.

Edited April 27, 2012 by Ford

[trout]

Ford,

 

What are your thoughts on Post 28 ?

 

trout

[Guest]

Ford,

 

What are your thoughts on Post 28 ?

 

trout

 

 

your points there have pretty much been discussed same on the various def notice threads.

 

one view? once ended albeit unlawfully a new dn is of no effect unless debtor accepts it. if new dn is simply a correct version of the original, then no point if time has passed. can't be accepted. if new dn is correct current (ie re new current dates) then debtor has option to accept or not the creds offer to reinstate the agreement. if accepting, then pays the arrears. back to status quo. debtor then entitled to compensation for all that has followed re creditors mistake re duff dn.

Edited May 30, 2012 by Ford

[InformedSearcher]

The default on the CRA files is nothing to do with the issuing of a default notice. So a defective DN merely prevents them from terminating the account or taking legal action, but the default recorded with the CRAs, as long as it was fairly applied, will stay there.

 

Dare I ask in this case, does it allow the bank to 'sell on' the debt (in this case to MK Rapid Recoveries)?

 

Michael

[DonkeyB]

An account can be sold at any time.

[Stagparty]

Hi All

 

I wonder if anyone can help on this for me...

 

As a quick recap this relates to a Nationwide Credit Card which was terminated by them using a Defective Default Notice (the correct notice period wasn't given). I accepted their termination in writing and they have passed the account to various Collection Agencies.

 

I've had various correspondence from MKDP and consistently written back to them explaining the dispute etc. They've finally decided to escalate matters and I've today received a letter "Notice of Intended Legal Action"

 

May I please have some urgent advice as to how to proceed?

 

Thanks in advance

Stag Party

[Stagparty]

Sorry to be a pain guys but I've just spent the last couple of hours or so reading various threads and seem to have got myself into a total muddle now.

 

Can someone please check my understanding...

 

It seems as if the "Defective Default Notice" argument is no longer valid and that a creditor can now repeatedly serve one until he gets one right.

 

If this is correct then am I best trying to agree a token payment to MKDP? My personal circumstances and continued ill health mean that I could only afford a token payment (as demonstrated by my monthly payments to other creditors).

 

Again, I'd really appreciate some guidance as I really can't see the wood from the trees now.

[DonkeyB]

No – pay nothing, admit nothing.

 

They still cannot enforce on the back of a defective DN. Because MKDP are so incredibly stupid, they will probably try to enforce anyway and issue a claim. But they cannot get judgment on the back of that DN. A faulty DN is still a total defence, but they would have to jump through quite a few hoops to issue one. At this point you could begin to negotiate if necessary. If they try to start mucking around issuing DNs AFTER they issue the claim, any decent judge will tell them where to get off.

 

You are under no obligation to inform them of anything, as they should have, properly, been given access to all the case notes when buying this lemon. To admit to issuing a claim with a statement of truth without knowing their claim was accurate is a seriously unprofessional –*perhaps contemptuous – way of doing business.

 

However, you may wish to invoke the pre-action protocol rules as they have threatened legal action, and invite them to submit to you any documents they intend to rely on in court, such as the agreement, default notices, NoA, and statements of account (as required annually) and so on.

 

If you haven’t sent a CCA request, do it now.

[Stagparty]

No – pay nothing, admit nothing.

 

They still cannot enforce on the back of a defective DN. Because MKDP are so incredibly stupid, they will probably try to enforce anyway and issue a claim. But they cannot get judgment on the back of that DN. A faulty DN is still a total defence, but they would have to jump through quite a few hoops to issue one. At this point you could begin to negotiate if necessary. If they try to start mucking around issuing DNs AFTER they issue the claim, any decent judge will tell them where to get off.

 

You are under no obligation to inform them of anything, as they should have, properly, been given access to all the case notes when buying this lemon. To admit to issuing a claim with a statement of truth without knowing their claim was accurate is a seriously unprofessional –*perhaps contemptuous – way of doing business.

 

However, you may wish to invoke the pre-action protocol rules as they have threatened legal action, and invite them to submit to you any documents they intend to rely on in court, such as the agreement, default notices, NoA, and statements of account (as required annually) and so on.

 

If you haven’t sent a CCA request, do it now.

 

I haven't sent a CCA request to Keynes Collections, I did previously send one to Nationwide.

 

Should I send a CCA request at the same time as invoking the pre action protocols?

 

Thanks very much for your advice!

[DonkeyB]

Do them separately.

 

Failure to comply with a CCA request is also a total defence!

 

What happened with the Nationwide request?

[Stagparty]

Do them separately.

 

Failure to comply with a CCA request is also a total defence!

 

What happened with the Nationwide request?

 

Nationwide, after many months finally provided all the information needed to satisfy a CCA Request. However the agreement may be defective as I don't believe all the relevant information was contained within the 4 corners. I think I uploaded a copy towards the front of this thread.

 

It also seems as if MKDP send the CCA information piecemeal as part of their response to my complaint. I don't think I have as yet submitted a CCA request to them. Is it still worthwhile doing so?

 

Also it looks like the last payment made was around 5 and a half years ago. Is there any way I could drag this out so it becomes statute barred? Actually what is the position regarding statute barred if someone is threatening legal action?

 

Once again, many thanks for your help.. I do appreciate it,

[DonkeyB]

Yes, send the CCA request.

 

If they issue a claim knowing they have a defective DN or an incomplete CCA, just to try and stop the SB clock, there’s ways of getting it struck out as an abuse of process.

 

You are 100% entitled to the protection of the Consumer Credit Act – if they want money, they have to comply with it.

[Stagparty]

DonkeyB - thanks again for your help.

 

Sorry to be so stupid, I'm still confused about this and haven't slept for worrying about it ( I guess that's one of the reasons the letters are sent)

 

Should I send the CCA Request to Keynes Collections (the ones who I've had this latest letter from) or MKDP?

[DonkeyB]

MKDP – they are now the owner of the alleged debt and therefore responsible for complying with the CCA.

 

If they try to claim the CCA no longer applies as the account has been terminated, then your argument is simple – the DN was faulty, therefore the account could not be terminated under s77-79 of the CCA (and they haven’t used any other method to terminate). They would still need to produce the agreement to enforce, anyway.

 

Just remember – MKDP are terminally stupid when it comes to getting their ducks in a row, as a Google of recent MKDP judgments will tell you.

 

When I get time I’ll look back over the thread to see if I’ve missed anything.

 

Remember to put ‘I do not acknowledge any debt etc’ on the CCA request.

[Stagparty]

MKDP – they are now the owner of the alleged debt and therefore responsible for complying with the CCA.

 

If they try to claim the CCA no longer applies as the account has been terminated, then your argument is simple – the DN was faulty, therefore the account could not be terminated under s77-79 of the CCA (and they haven’t used any other method to terminate). They would still need to produce the agreement to enforce, anyway.

 

Just remember – MKDP are terminally stupid when it comes to getting their ducks in a row, as a Google of recent MKDP judgments will tell you.

 

When I get time I’ll look back over the thread to see if I’ve missed anything.

 

Remember to put ‘I do not acknowledge any debt etc’ on the CCA request.

 

Thanks again for your help.

 

When replying to Keynes is it worth spelling out to them the dn is defective and MKDP's refusal to deal with the issue will be brought to the Courts attention?

[dx100uk]

no simply send the cca request

 

£1 po leave it blank do not sign anything

 

dx

[Guest]

Maybe not at this point, seems a template threat. Did they say will be making a claim. Prob wldnt stop a claim anyway, just give them a heads up.

Do that cca request to the current owner.