Cap1 & CCA return

[ncf355]

Hi VS,

 

would that not only apply if they had served either no, or an invalid default, followed by a termination notice, thus preventing them from issuing a new, valid default?

[Viscount Stair]

It's not beyond doubt but there is a strong argument that demanding the whole balance is inconsistent with the terms of an instalment based agreement and is a repudiatory breach which is tantamount to a termination.

 

The other point is that demanding earlier payment is one of the things for which a prior, valid DN is required in any event.

[ncf355]

So, it would seem I have a valid argument

 

A creditor is making a claim for the balance via moneyclaim, and are relying on a DN served that claimed the *full balance* NOT the arrears

 

They then served termination

 

Following the termination, a statement was sent with a date later than the DN stating "you must pay the arrears of (5 x monthly payment) immediately"

 

So my argument would now be that they are only entitled to the arrears that stood (e.g: 5 x monthly payment amount) up to the termination point?

 

 

 

 

 

My concern however, is the act states for the default notice:

 

"88. (1)

 

(b) IF the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken

 

©If the breach is NOT cabable of remedy, the amount required to be paid as compensation for the breach, and the date before which it is to be paid "

 

 

(CAPITALS my own emphasis, not the acts!)

 

(b) and © seem to be worded in such a way that the creditor could say they do not consider it capable of rememdy and therefore require repayment in full, and thus the DN states the full balance?

[Viscount Stair]

My assumption would be that s88(1)© was intended with non-monetary breaches (eg requirements to insure etc) but I cannot back that up with any certainty, let alone authority.

 

Has this been covered already?

 

Interestingly, First Direct suddenly became willing to accept an interim offer they had been ignoring for over five months when I hinted I was looking carefully at their DNs. Word to the wise, I think.

Edited December 30, 2008 by Viscount Stair
correctly inserting sub-section and para

[lexis200]

Just a quick question...

 

LV have sold a debt of mine to Robinson Way.

 

I have received no Notice of Assignemt.

 

Do LV have to send one to me and what are the implications of not sending one.

 

Cheers

 

HAK

 

I recently asked this too about one of my creditors, but was told that it is only the assignee that needs to send a letter, not the oc! I did query it (even though it was x20 who said it, and I'm not generally taken to querying him:D), as this seems very wrong to me, but it is in black and white as a legal requirement. I think it may have been further back in this thread actually, so if you have time you could probably find it.

[car2403]

I recently asked this too about one of my creditors, but was told that it is only the assignee that needs to send a letter, not the oc! I did query it (even though it was x20 who said it, and I'm not generally taken to querying him:D), as this seems very wrong to me, but it is in black and white as a legal requirement. I think it may have been further back in this thread actually, so if you have time you could probably find it.

 

Law of Property Act 1925;

 

136 Legal assignments of things in action

 

(1)Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

 

(a)the legal right to such debt or thing in action;

(b)all legal and other remedies for the same; and

©the power to give a good discharge for the same without the concurrence of the assignor:

 

Any assignment that doesn't comply with s.136 is ineffectual in law and makes the assignment null and void.

[banker_rhymes_with]

Hello NCF355!

 

So, it would seem I have a valid argument.

 

A creditor is making a claim for the balance via moneyclaim, and are relying on a DN served that claimed the *full balance* NOT the arrears

 

They then served termination.

 

Following the termination, a statement was sent with a date later than the DN stating "you must pay the arrears of (5 x monthly payment) immediately"

 

So my argument would now be that they are only entitled to the arrears that stood (e.g: 5 x monthly payment amount) up to the termination point?

 

The default had to be something you were required by the Agreement to do, and did not do, i.e. make Monthly Payments.

 

I doubt the Agreement said you had to Pay the whole Balance on a routine basis. Likewise, if that Balance was not all due at the time they got fed up enough to issue a Default Notice, then it wasn't in default at that time and so did not need to be remedied at that time.

 

So, a Default Notice that asked you for a sum that was not otherwise due has to be invalid if the amount they wanted was significant compared to what was actually overdue, i.e. the overdue Monthly Payments (also known as/AKA the Arrears).

 

In Woodchester v Swayne and Co 1998, the Default Notice overstated the Arrears by 38.71% and was declared invalid, so any Notice that is at least that inaccurate should also be invalid based on that case history.

 

The degree of error will determine if the Notice is invalid, an error greater than 38.71% will exceed the Default Notice error noted in Woodchester v Swayne and Co 1998, so can be considered invalid based on that precedent. Below 38.71% margin for error, and there will be a debate if the error is significant enough to invalidate the Default Notice, or if the error is just de minimis.

 

de minimis = de minimis non curat lex, a Latin phrase meaning the Law does not care about very small matters. This is not very helpful, and does not actually say how small an error needs to be before it can be considered de minimis.

 

Arguably, a Default Notice that is even 1p out should be invalid, because any large and sophisticated financial institution ought to know down to the last penny what you owe.

 

But the further away from 1p inaccuracy you can get, and the closer to 38.71% inaccuracy you can get, the better.

 

Cheers,

BRW

[lookinforinfo]

I recently asked this too about one of my creditors, but was told that it is only the assignee that needs to send a letter, not the oc! I did query it (even though it was x20 who said it, and I'm not generally taken to querying him:D), as this seems very wrong to me, but it is in black and white as a legal requirement. I think it may have been further back in this thread actually, so if you have time you could probably find it.

 

The NOA must come from the OC otherwise I could write to you and say that your debt had now been assigned to me so please start paying £100 per month.

[ncf355]

Hi all,

 

many thanks for your learned comments!

 

I am very sure in saying the lender in question has overstepped the "38.71% margin" (love the figures BTW, nice work there!) by a MASSIVE amount, we are talking of (example given so as not to give clues to those that might plot against my person!) £8000, when the amount of arrears should be around £1400

 

Let the competition begin!

 

Now, my learned friends, what would be the likelihood of getting such a claim struck out as having no merit and therefore being a waste of court time?

[car2403]

Hi all,

 

many thanks for your learned comments!

 

I am very sure in saying the lender in question has overstepped the "38.71% margin" (love the figures BTW, nice work there!) by a MASSIVE amount, we are talking of (example given so as not to give clues to those that might plot against my person!) £8000, when the amount of arrears should be around £1400

 

Let the competition begin!

 

Now, my learned friends, what would be the likelihood of getting such a claim struck out as having no merit and therefore being a waste of court time?

 

Has the account been terminated, ncf?

 

If so, they have no chance as they can't terminate again.

 

If not, they could just issue another (compliant!) Default Notice and the claim would continue on that basis. (After being stayed pending expiration of the new Default Notice and your non-compliance with it, that is)

 

Do you have a thread on this claim? I'd suggest you start one if you haven't already.

[patrickq1]

where do i stand if during PPI payment by an insurance co who were paying my Morgan Stanley GOLD CARD (i was self employed at the time )MS defaulted me twice during the payment claim because the insurance co was slow in paying ,

MS are trying to FOB me off with its upto me to contact the insurance co ? i think this is wrong as the PPI was introduced to me through MS it was their agreement with the insurance co not mine even though the insurance paid for 24 months it was still an agreement that was without my knowledge nor with my agreement so thankfully they did payout but and a big but MS added a second PPI payments on my card at the start of the claim without my say so in effect the two PPI insurance did not even keep up with the intrest being charged with both PPI being taken should nt the first one have been cancelled and then the second introduced with my agreement,

also at the start of the PPI payments MS instructed me by phone to destroy my card this is on a recording that they informed me that it was recording the conversation now MS deny they ever recorded anything

in fact i cant even get the agreement instead they have now assigned it to NEWMANS who passed it on to HFO ,but i have left HFO know that i am in no mood for there games and have already entered a serious complaint against them to both the ICO AND FSA yet to hear anything of this though

pat

[ncf355]

Has the account been terminated, ncf?

 

If so, they have no chance as they can't terminate again.

 

If not, they could just issue another (compliant!) Default Notice and the claim would continue on that basis. (After being stayed pending expiration of the new Default Notice and your non-compliance with it, that is)

 

Do you have a thread on this claim? I'd suggest you start one if you haven't already.

 

Hi,

 

they have indeed terminated the account, how very silly, eh?

 

Though, even though the DN falls within "matters arising during the CURRENCY of agreements" I dont see a specific mention in the CA 74 preventing them from issuing another valid DN (though this makes plain english sense to me, you (CAR) as well as I, know the courts can have odd interpretations of such things)

 

May be worth a counterclaim for damages for "repudation of contract", dont you think?

 

I'm reserved from starting an actual thread as this may give the MIB more clues than needed!

 

[ncf355]

Another little note

 

The details in Pudsters14 link thread by Steven4064 states the DCA/OC cannot claim S69 interest on a regulated agreement

 

Is this correct, and if so, by what regulations?

 

I was under the impression S69 interest was a valid claim on any claim for monies?

[reallymadwoman]

Can someone have a look at the figures in this post and work out if they are correct http://www.consumeractiongroup.co.uk/forum/payment-protection-insurance-ppi/175039-hitachi-finance.html#post1891152.

 

Thanks on behalf of OP

[car2403]

Can someone have a look at the figures in this post and work out if they are correct http://www.consumeractiongroup.co.uk/forum/payment-protection-insurance-ppi/175039-hitachi-finance.html#post1891152.

 

Thanks on behalf of OP

 

I've replied on the thread... Looks like a tasty one to watch...

[aceandco]

Hi

 

I have been approached by a company who have asked for a £500 fee pls £250 per additional case. They have said that they maybe able to write off my cards and loans.

 

I have read a number of threads and would appreciate some help to see if I have a case or even cases.

 

MBNA:

I had amastercard with MBNA prior to April 2007 but this card was transferred over to their AMEX card does this mean that I have all the new T&C's?

 

Goldfish to Barclaycard:

I had a G/F card which has been bought out by Barclaycard and I have since recieved a new card and T&C's.

 

Egg Loan:

Was taken out pre April 2007.

 

I would just like to know if I anyone could guide me on th above rather than having to pay the fees ie do I have a case, what should I do next etc? I really appreciate your help in advance.

[steven4064]

Hi aceandco

 

Welcome to CAG.

 

What do you mean by 'write off my cards and loans'? No company will be able to write off legitimate debts and we cannot condone that either.

 

If you are in financial trouble, then we can help you sort things out - reduce payments, get interest suspended, reclaim unlawful charges - just as well as any company that charges fees.

 

What case you have will rather depend on what you are trying to do. PLease give us some more infornation so we can help.

 

in the meantime, our advice would be not to touch any such company with a barge pole. Anything they can do for a fee, we can do for free. And we will support you. Quite often these companies take your money and than actually do nothing. Notice the word 'may'

[car2403]

Hi

 

I have been approached by a company who have asked for a £500 fee pls £250 per additional case. They have said that they maybe able to write off my cards and loans.

 

I have read a number of threads and would appreciate some help to see if I have a case or even cases.

 

MBNA:

I had amastercard with MBNA prior to April 2007 but this card was transferred over to their AMEX card does this mean that I have all the new T&C's?

 

Goldfish to Barclaycard:

I had a G/F card which has been bought out by Barclaycard and I have since recieved a new card and T&C's.

 

Egg Loan:

Was taken out pre April 2007.

 

I would just like to know if I anyone could guide me on th above rather than having to pay the fees ie do I have a case, what should I do next etc? I really appreciate your help in advance.

 

Hi Ace and welcome to the haven that is CAG.

 

Firstly, you don't need to pay those companies - you can do everything yourself, using the information on this site. If you do pay them, you will still have to sue those companies and go to Court if it comes to that - they won't represent you, (or the other people that have paid them) in Court, generally. So, what are they charging you for, exactly, when the info is on this site? Don't get me wrong, some people can't be bothered with the hassle of taking action themselves, which I can understand, but these companies don't always make the bigger picture known.

 

Secondly, what you need to do is to send a Consumer Credit Act 1974 request under s.77/s.78 to those companies - only then can you establish what state the accounts are in and if the debts are enforceable or not. A lot of pre-2007 agreements are totally unenforceable, meaning that the debtor is under no legal obligation to make payments under the agreement. Usually, unenforceable debts are written off and removed from Credit Reference files, as a result. How to approach each company will depend on their reply and what they send you. You'll find the relevant letter template in the document library at the top of the main forum - Template N is the one you need.

 

Thirdly, once you've received a reply from each company, come back to CAG and post a new thread cover each one in the relevant place on the forum - there are sub-forums for most companies and there is a legal forum where you can post if you are looking to take Court action. There's a lot more reading you can do before you embark on any of this and you'll find some useful links to start with in my signature, below, which will get you started.

[sharpgun]

hi car ive tried to get info on hear wiyhout much success any ideas

[B3rty]

Its all here if you look through the threads

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/131982-basic-information-credit-agreement.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/108467-basic-introduction-consumer-credit.html

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/20758-creditors-dcas-letter-templates.html

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/105315-my-agreement-enforceable-useful.html

[steven4064]

And more recently - http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162851-consumer-credit-agreements.html

[gamekeeper01]

Hello to one and all. I have been on this site for several weeks (that's how long it took me to read it) and it has been a fascinating read by the way. I have taken advice from various threads but now I think I might need help and I would be very grateful!!!!

I have several credit cards with the usual suspects and have written off to obtain the various agreements etc some of which are obvioulsy not enforceable and some not so clear cut. One response in particular from Capital One is proving an issue at the moment.

I think I took this one out in 2005, online. They have sent me "The Terms of your Credit Card Agreement" but these are their most recent terms and does not appear to relate to the time which the card was taken out.

I did read some where that after December 2004 online applications are just a tick box and don't need a signature. Is this the case and would the information Capital One have sent be enforceable?

This is just the first of many questions I have but this will get me started for now.

Many thanks

 

Gamekeeper

[steven4064]

Hi Gamekeeper

 

It is true that agreements online require only a tick in the box post December 2004. I don't know why they have sent you only recent T&Cs when it must be so easy for them to print off a copy of a properly executed agreement. I am sure that CAp1 will have an enforceable agreement for any online application post 2004. (but almost certainly not for anything else in my experience)

[angry cat]

Hi Gamekeeper

 

It is true that agreements online require only a tick in the box post December 2004.

 

steven, could you elaborate on the above;

 

Thanks

 

AC

[gamekeeper01]

Hi and many thanks for the reply Steven. That was what I thought. Ah well one marked off the list several more to go.

I have had responses from other credit card providers which are not so clear cut and I will post them in due course for others to look at and comment.

Be in touch soon

Many thanks

 

Gamekeeper