Cap1 & CCA return

[don leocornay]

subscribing

[banker_rhymes_with]

Hello Magda!

 

I am given to understand by BRW that a debt that has been sold/ assigned to a DCA cannot be rectified by re-serving a NOD; BRW correct me if am I wrong.

 

That's not quite what I meant. As I see it, the issue hinges on the Termination of the Agreement. The Assignment is a later issue, and doesn't in itself say anything about the Enforceability of whatever is being Assigned.

 

Termination = something that existed, but that has now been brought to an end.

 

The CCA requires that before an Agreement (i.e. that is in default by the Debtor for whatever reason) can be Terminated, and in turn early repayment demanded, a lawful Default Notice must be sent.

 

87.

Need for default notice.

 

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

 

(a) to terminate the agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

My point is that Termination is Termination. Once the Agreement is brought to an end, it has ended. It's like being Pregnant and giving birth, you can't just reverse that, become un-Pregnant and pop the baby back in!

 

I'm quite sure that when Francis Bennion was drafting the CCA, he didn't just select the word Terminate at random because he liked the sound of it. If he really intended this to mean sortof ended, easily reversed, a definite maybe end, he'd have chosen another word entirely or left it out. No, he chose Terminated and he absolutely meant Terminated.

 

If a Creditor wants to Terminate an Agreement and make the end final, then they must Default you beforehand, and that Default must be lawful and valid. It is a critical step and s88 outlines what is needed for that required Notice to be valid.

 

Again, s88 wasn't added just to pad out the middle bit of the Act.

 

If they get it right, then they can end the Agreement, and drag you into Court to have a chat about the early repayment issues. That's assuming they have the other paperwork in order, such as having to hand the Original properly executed Regulated Credit Agreement.

 

However, if they have messed up the Default Notice, and then gone on to Terminate the Agreement, it should be a one way trip. I cannot see anything in the Act that allows them to reverse a Termination, re-activate the Agreement and then go back to fix an invalid Default Notice.

 

Otherwise, how far back can they go to fix other issues, such as going back to fix an invalid Agreement! Look M'Lud, here's a nice new Agreement we knocked up last week, to fix the one we messed up 10 years ago. And here's the nice new Default Notice we knocked up yesterday, to fix the one we messed up last Christmas.

 

I do fully appreciate that this won't stop the creative banker from trying, and I'm sure it won't stop their creative Barrister from trying to smooth a brand new post-Termination Default Notice past a half awake Judge.

 

But, if you think about this, and are prepared to stand up and point out the clear logic to a Judge, then the lack of a valid Default Notice where they have also Terminated the Agreement, should be a knock out blow to any case they bring.

 

The original Default Notice must be set out in the Prescribed way, must allow the Statutory timescale from date of Service, and must be accurate in terms of the figures.

 

It's arguably no less important than the Agreement itself. Indeed, it should render any Agreement invalid if they mess up the Default and go on to Terminate, because that is an Unlawful Rescission of Contract. An Agreement is a Contract, it just happens to be one that is also Regulated by the CCA Act.

 

Rescission = annul or revoke, as if it never existed.

 

If the bankers send you a letter saying they have Defaulted and Terminated the Agreement, then it has ended. There can be no going back once they put the Termination in writing.

 

If the Default Notice was unlawful and invalid, that should present something of a major problem for them. I feel that they must produce a valid Default Notice in Court as much as they must produce a valid Agreement.

 

I think it can get messy when they Default but don't Terminate. Then the Agreement is in limbo, and I think they could, in theory, just trot out another Default Notice and then Terminate. But, by Court, they must show that the Agreement has ended, or else you can just say please can I have my Credit Card back, and I'd like to carry on making the minimum Payment, what's all the fuss about M'Lud.

 

So IMHO, the act of Terminating the Agreement is quite important, as it marks the cut-off point. The end of the Agreement. Beyond that, there is no Agreement to Default, just a Debt. The Court then must decide if that Debt is Enforceable...or not, but based on what came before the ending of the Agreement. The bankers should not be allowed to go back and fiddle the paperwork to fix errors.

 

Cheers,

BRW

[car2403]

As a DN has to conform to the specifications of the CCA Regulations a copy must be kept in case a dispute arises, primarily to protect the issuing company. It is a legal document after all.

 

The onus I would assume would be on the issuer to prove that it conformed to the regs. if any dispute arose.

 

Very poor document management not to keep copies of legal documents and I would be arguing strongly to have the default set aside due to non-compliance with the regs unless the issuer can prove otherwise. Why should a Court assume that the DN was compliant?

 

In theory, this is true, but in practice, the Court turns a blind eye and enforces the debt anyway, regardless of the DN been original or accurate.

 

This is a clear err in law, especially considering Woodchester Lease Management v Swain, where this has already been ruled on, IMHO and gives very good grounds for an appeal.

 

Until District Judges know the CCA and the regs and all the caselaw that goes with it, we will get these travesties of justice along the way.

[foolishgirl]

... in practice, the Court turns a blind eye and enforces the debt anyway, regardless of the DN been original or accurate.

 

This is a clear err in law, especially considering Woodchester Lease Management v Swain, where this has already been ruled on, IMHO and gives very good grounds for an appeal.

 

Until District Judges know the CCA and the regs and all the caselaw that goes with it, we will get these travesties of justice along the way.

 

 

Agree, agree car! This is point I was trying to make too.

Makes your blood boil. Grrr...

[MAGDA]

Hello Magda!

 

 

 

That's not quite what I meant. As I see it, the issue hinges on the Termination of the Agreement. The Assignment is a later issue, and doesn't in itself say anything about the Enforceability of whatever is being Assigned.

 

Termination = something that existed, but that has now been brought to an end.

 

The CCA requires that before an Agreement (i.e. that is in default by the Debtor for whatever reason) can be Terminated, and in turn early repayment demanded, a lawful Default Notice must be sent.

 

 

 

My point is that Termination is Termination. Once the Agreement is brought to an end, it has ended. It's like being Pregnant and giving birth, you can't just reverse that, become un-Pregnant and pop the baby back in!

 

I'm quite sure that when Francis Bennion was drafting the CCA, he didn't just select the word Terminate at random because he liked the sound of it. If he really intended this to mean sortof ended, easily reversed, a definite maybe end, he'd have chosen another word entirely or left it out. No, he chose Terminated and he absolutely meant Terminated.

 

If a Creditor wants to Terminate an Agreement and make the end final, then they must Default you beforehand, and that Default must be lawful and valid. It is a critical step and s88 outlines what is needed for that required Notice to be valid.

 

Again, s88 wasn't added just to pad out the middle bit of the Act.

 

If they get it right, then they can end the Agreement, and drag you into Court to have a chat about the early repayment issues. That's assuming they have the other paperwork in order, such as having to hand the Original properly executed Regulated Credit Agreement.

 

However, if they have messed up the Default Notice, and then gone on to Terminate the Agreement, it should be a one way trip. I cannot see anything in the Act that allows them to reverse a Termination, re-activate the Agreement and then go back to fix an invalid Default Notice.

 

Otherwise, how far back can they go to fix other issues, such as going back to fix an invalid Agreement! Look M'Lud, here's a nice new Agreement we knocked up last week, to fix the one we messed up 10 years ago. And here's the nice new Default Notice we knocked up yesterday, to fix the one we messed up last Christmas.

 

I do fully appreciate that this won't stop the creative banker from trying, and I'm sure it won't stop their creative Barrister from trying to smooth a brand new post-Termination Default Notice past a half awake Judge.

 

But, if you think about this, and are prepared to stand up and point out the clear logic to a Judge, then the lack of a valid Default Notice where they have also Terminated the Agreement, should be a knock out blow to any case they bring.

 

The original Default Notice must be set out in the Prescribed way, must allow the Statutory timescale from date of Service, and must be accurate in terms of the figures.

 

It's arguably no less important than the Agreement itself. Indeed, it should render any Agreement invalid if they mess up the Default and go on to Terminate, because that is an Unlawful Rescission of Contract. An Agreement is a Contract, it just happens to be one that is also Regulated by the CCA Act.

 

Rescission = annul or revoke, as if it never existed.

 

If the bankers send you a letter saying they have Defaulted and Terminated the Agreement, then it has ended. There can be no going back once they put the Termination in writing.

 

If the Default Notice was unlawful and invalid, that should present something of a major problem for them. I feel that they must produce a valid Default Notice in Court as much as they must produce a valid Agreement.

 

I think it can get messy when they Default but don't Terminate. Then the Agreement is in limbo, and I think they could, in theory, just trot out another Default Notice and then Terminate. But, by Court, they must show that the Agreement has ended, or else you can just say please can I have my Credit Card back, and I'd like to carry on making the minimum Payment, what's all the fuss about M'Lud.

 

So IMHO, the act of Terminating the Agreement is quite important, as it marks the cut-off point. The end of the Agreement. Beyond that, there is no Agreement to Default, just a Debt. The Court then must decide if that Debt is Enforceable...or not, but based on what came before the ending of the Agreement. The bankers should not be allowed to go back and fiddle the paperwork to fix errors.

 

Cheers,

BRW

 

Thanks for that BRW, it makes a lot of sense. I think a lot of the time, we assume the court will fail to see the point we are making, and don't push hard enough to get them to accept what is actually part of consumer legislation. It is the same with the orignal agreement thing - I think a lot of people still assume the court will say it isn't necessary and don't actually mention in their defence that they will expect the original to be produced in court. I realise that many judges are extremely biased and that it is a lottery on the day - you may get a judge who is fair and extremely knowledgeable on consumer law, but you may get one who is leaning heavily towards the claimant from the outset. However, I still think you need to push to make them take on board what you are saying and who knows, you then may have a chance of actually getting the outcome you want. I asked for the original agreement to be produced in court (you had told me on several occasions, as had Steven, that this should be available) and the court has stated in the hearing order that all orignal documents should be available at the hearing. So, it is certainly worth a try at least. Thanks again, Magda

Edited October 1, 2008 by MAGDA
typo

[Viscount Stair]

Hi! I'm still very new here but BRW has kindly put me right about where best to post - thanks, BRW.

 

I need some advice on spotting a "reconstructed" CCA and, as suggested, I have started a thread:

 

Viscount Stair vs Amex

 

(I know this will have been done to death but there is so much good information on CAG that I can't find the bit I need right now.)

 

All help gratefully accepted and I hope to be able to repay any help in kind in time.

Edited October 1, 2008 by Viscount Stair
Replacing original post with link to shiny new own thread

[banker_rhymes_with]

Hello Magda!

 

Yes, the biggest problem by far is the Judge Lottery issue.

 

The best defence to that is to try and have a crystal clear understanding of the points you are making to stop the Judge from making a poor decision...especially if he/she is so biased that they want to make a poor decision!

 

I think the CCA does say all that you need to see off a Court Claim based upon an invalid Default Notice and unlawful Termination but, it's not as clear as we would like. So, it's vital to know what points you are presenting, and make sure you state them very clearly and with as much supporting case history to back you up as you can find.

 

However, as we move steadily into the next banking engineered Recession, my greatest concern now is the political pressure that is inevitably being applied to the Judiciary to support the lame bankers who have caused this global financial mess in the first place. Please be in no doubt that this is not a Business Recession, much as the bankers would like to shift the blame elsewhere. What we are seeing is the inevitable banking boom/bust cycle because most major economies are now based on Debt Finance.

 

The banking bubble has to burst every few years, because that is how their system works. The problem for us, is the banking bubble gets bigger each time and, when it does go pop, the deflation gets worse each time. One day, the banking bubble may swell so large that, when it pops, it may not re-inflate. By then, the UK will just be one big Retail Park with nothing to sell, and everyone in so much Debt they couldn't buy anything even if they wanted to. We'll also by then have forgotten how to make anything...but at least we'll still have our own high quality Coal!

 

But, right here, right now, I fear we are going to see bank biased Judges being even more biased over the coming few years as the bursting banking bubble blows a big raspberry at us. Sadly, the odds are being stacked against the Consumer even more than they were.

 

When this next Recession is over, we'll see yet another huge transfer of assets to the banks. It is no accident that steps are already nearly in place to allow easier Charging Orders on Property. That didn't happen just by accident, it's part of a wider plan to shift even more of the housing stock over to the banks.

 

I urge everyone to sign FunkyFox's No 10 Petition to try and stop this wicked move from being enacted:

 

Charging Orders Petition - Sign it NOW!

 

At the last count, something like 50% of all Property is now bank owned. However, I think that will jump to perhaps 65% over the next few years. The bankers won't be happy until they get to 100%. Then they can lend and lend number-money far in excess of the build-cost or land value. The silly numbers will just get even more silly.

 

There was a large transfer of assets from Consumer to banker during the last Recession, this next transfer will be much bigger. The banks can't lose and won't be allowed to lose. After all, they are pulling all of the strings at the moment.

 

Sure, the bankers will sacrifice a few big sounding banks, and a shed load of bank employees will get a P45, but the core will do very well, and are no doubt already planning how to start re-inflating the banking bubble in a 3-4 years time.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Viscount Stair!

Still very new here, so if I am in the wrong place, I won't take it astray if directed to the right one.

 

No problem, and welcome to CAG.

 

It's probably wise to start your own Thread, as this Consumer Credit Act Thread is a huge, huge Thread, so your above Post will soon get lost in amongst the daily Posts that will soon appear...and so because of that, you may not receive the best attention.

 

However, CAG does have a dedicated Amex Forum, please see below:

 

Amex

 

The best tip is to start your own Thread, and then edit your above Post to add a Link to your own Amex Thread. That way, people Today can see your Post, and then click straight to your New Thread over in the Amex Forum. All being well, you'll catch the attention of enough people here to get things started over in the Amex Forum.

 

I'll watch out for it, and will gladly help out there however I can.

 

Cheers,

BRW

[angry cat]

A Default Notice is required if the lender is to terminate the agreement.

Should the lender seek to terminate the agreement a Default Notice would have to be served.

If the creditor brings proceedings for the whole debt it would have to serve a default notice that complies with s88 before terminating and enforcing.

If it fails to do so one would have a defence to the claim for the amount due on termination.

Any failure on the part of the creditor to serve a DN can be rectified by stopping the proceedings, serving a default notice and re-issuing the claim.

 

AC

[angry cat]

LINK FINANCIAL HAVE DONE A MASS MAILING OF DEFAULT NOTICES TO HUNDREDS OF CONSUMERS!

 

The majority of the accounts relate to agreements that have been sold / assigned to Link Financial Limited. Agreements that have already been defaulted and terminated by the original Lender.

 

The DN's state:

"We Link Financial Limited, give you notice of default acting on our own behalf as assignee of the benefit of the above referenced agreement and debt, AND ON BEHALF MBNA (and possibly other Lenders) TO THE EXTENT THAT THEY ARE STILL A CREDITOR"

 

One wonders what the meaning behind these DN's?

an attempt to panic consumers into settling disputed debts, or are they getting ready to ofload the debts onto a secondary assignee?

 

I still fail to see, how Link can default these accounts, the agreements have ended.

 

AC

[banker_rhymes_with]

Hello AC!

 

Any failure on the part of the creditor to serve a DN can be rectified by stopping the proceedings, serving a default notice and re-issuing the claim.

 

I do not think that is supported by anything in the Consumer Credit Act, i.e. if they have by then already gone ahead and Terminated the Agreement.

 

A Terminated Agreement is just that, Terminated.

 

IMHO there is nothing left to Default. All that is left is a Debt, and the size and enforceability of that Debt must then be evaluated based on the Original Agreement, Original Terms, Varied Terms if so allowed, related Documentation and all Notices that were created before and during the lifetime of the Agreement.

 

Were this not the case, then the banker could go right back and re-create a better Agreement than the one they first created.

 

There has to be a cut-off point, and that cut-off point is the Termination.

 

Cheers,

BRW

[MAGDA]

Thanks again BRW, I agree with everything you have said. We do have a debt based economy, and there really is nothing else left in this country now other than that really - and based on this, we were bound to be headed towards a fall, but as you say, the Banks always come out more or less intact. It is unfortunate though from our point of view, that judges often come down on the side of the creditor, especially when granting charging orders on unsecured debt. I really do not understand how a debt which was taken out on the understanding that it was not secured on property or anything else can then become secured, it just doesn't make sense. I do not have any proof that I ever received a default notice, they have not even provided a date when it was supposedly sent in their response to my defence, and I have absolutely no way of knowing if it was in the correct format or contained the information that it should, without seeing it, of course. So, I will definitely push for the claimant to provide a copy of this document in court.

 

AC thanks for your replies, the thing that confuses me if a creditor fails to serve a DN (which you say can be rectified by stopping the proceedings, serving a default and re-issuing the claim - and I'm sure you are correct, so not trying to imply otherwise) is that surely if they did not default correctly, or at all, then they did not have the right to assign the debt to a third party, as the agreement between the original creditor and the debtor has not been terminated. Therefore, surely everything that proceeded the 'termination' of the account has therefore not been carried out according to the legislation concerned and this would imply that the assignee is not the owner of the debt at all. Just something I have been thinking about recently, as it doesn't seem to make sense otherwise. Magda

Edited October 1, 2008 by MAGDA
added text

[The Phantom]

LINK FINANCIAL HAVE DONE A MASS MAILING OF DEFAULT NOTICES TO HUNDREDS OF CONSUMERS!

 

The majority of the accounts relate to agreements that have been sold / assigned to Link Financial Limited. Agreements that have already been defaulted and terminated by the original Lender.

 

The DN's state:

"We Link Financial Limited, give you notice of default acting on our own behalf as assignee of the benefit of the above referenced agreement and debt, AND ON BEHALF MBNA (and possibly other Lenders) TO THE EXTENT THAT THEY ARE STILL A CREDITOR"

 

One wonders what the meaning behind these DN's?

an attempt to panic consumers into settling disputed debts, or are they getting ready to ofload the debts onto a secondary assignee?

 

I still fail to see, how Link can default these accounts, the agreements have ended.

 

AC

 

i got one of those yesterday from Link. Despite the fact that LINK defaulted on my CCA request last year in May (yes, 2007).

An indicator that you are correct to say these were bulk - mailed.

The way I understand it, they are not even allowed to send this to me whilst being in default themselves ?

[foolishgirl]

Would it be too hopeful to think that perhaps Link Financial are teetering on the brink too & are getting DESPERATE?

[The Phantom]

Certainly a possibility

I didn't hear from them for 15 months after they defaulted on my CCA request and now they send me a DN...??? HMMMM

[MAGDA]

Certainly a possibility

I didn't hear from them for 15 months after they defaulted on my CCA request and now they send me a DN...??? HMMMM

 

At the moment Link seem to be taking a lot of people to court, so maybe the issue of the defaults is all part of their master plan.....

[angry cat]

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/162255-link-financial-limited.html

 

I have started a thread re Link on the debt forum

 

AC

[citizenB]

As a DN has to conform to the specifications of the CCA Regulations a copy must be kept in case a dispute arises, primarily to protect the issuing company. It is a legal document after all.

 

The onus I would assume would be on the issuer to prove that it conformed to the regs. if any dispute arose.

 

Very poor document management not to keep copies of legal documents and I would be arguing strongly to have the default set aside due to non-compliance with the regs unless the issuer can prove otherwise. Why should a Court assume that the DN was compliant?

 

In theory, this is true, but in practice, the Court turns a blind eye and enforces the debt anyway, regardless of the DN been original or accurate.

 

This is a clear err in law, especially considering Woodchester Lease Management v Swain, where this has already been ruled on, IMHO and gives very good grounds for an appeal.

 

Until District Judges know the CCA and the regs and all the caselaw that goes with it, we will get these travesties of justice along the way.

 

 

Is it possible that these CC judges actually want one to go to appeal because they dont understand the consumer law sufficiently. Or are they truly biased because of the Rankine issues.

[car2403]

Is it possible that these CC judges actually want one to go to appeal because they dont understand the consumer law sufficiently. Or are they truly biased because of the Rankine issues.

 

They don't care that they don't know, CB - all they are interested in is working through their lists and getting out on the to the Golf course. They also don't care about a litigant in person that has a sound basis for bringing the claim, as it's all too much hassle for them.

 

If they just did what Parliament intended and what the High Court/Court of Appeal and House of Lords tells them, we wouldn't be in this situation.

 

Until the Government, or their croney agencies, step in and resolve it, this is just the system we'll have to live with.

[citizenB]

 

 

When this next Recession is over, we'll see yet another huge transfer of assets to the banks. It is no accident that steps are already nearly in place to allow easier Charging Orders on Property. That didn't happen just by accident, it's part of a wider plan to shift even more of the housing stock over to the banks.

 

I urge everyone to sign FunkyFox's No 10 Petition to try and stop this wicked move from being enacted:

 

Charging Orders Petition - Sign it NOW!

 

At the last count, something like 50% of all Property is now bank owned. However, I think that will jump to perhaps 65% over the next few years. The bankers won't be happy until they get to 100%. Then they can lend and lend number-money far in excess of the build-cost or land value. The silly numbers will just get even more silly.

 

 

 

Cheers,

BRW

 

Funky Fox has also drafted a letter that can either be posted or emailed to your MP. The more MPs we have asking questions regarding this issue the better.

[citizenB]

Is it possible that these CC judges actually want one to go to appeal because they dont understand the consumer law sufficiently. Or are they truly biased because of the Rankine issues.

 

They don't care that they don't know, CB - all they are interested in is working through their lists and getting out on the to the Golf course. They also don't care about a litigant in person that has a sound basis for bringing the claim, as it's all too much hassle for them.

 

If they just did what Parliament intended and what the High Court/Court of Appeal and House of Lords tells them, we wouldn't be in this situation.

 

Until the Government, or their croney agencies, step in and resolve it, this is just the system we'll have to live with.

 

I rather think that I will be a handful of ashes by the time this happens:(

[foolishgirl]

I rather think that I will be a handful of ashes by the time this happens:(

 

Me too! and possibly my children, grand-children, great-grandchildren, great, great grandchildren..............

[angry cat]

A Default Notice is required if the lender is to terminate the agreement.

Should the lender seek to terminate the agreement a Default Notice would have to be served.

If the creditor brings proceedings for the whole debt it would have to serve a default notice that complies with s88 before terminating and enforcing.

If it fails to do so one would have a defence to the claim for the amount due on termination.

Any failure on the part of the creditor to serve a DN can be rectified by stopping the proceedings, serving a default notice and re-issuing the claim.

 

AC

 

MADGA

 

The above view that I gave you relates to the Lender/OC.

 

I do not know what consequence flows in a situation, were an account has been sold assigned to a DCA; assignee, when the OC's default was ineffectual and thereby the Termination was ineffective.

 

The Termination would have been ineffective, but the account was charged off and sold by the assignor (OC) to the assignee, the DCA.

 

Can they go back and rectify the ineffective termination, when the account has been sold?

 

Most debt debts are sold off in job lots and under the LoP Act

 

I would imagine that if an account had been incorrectly terminated, then the whole account would have to be returned to the OC, in order that the Termination could be rectified; as the assignment would have been ineffective.

 

They cannot go back and correct an improperly executed agreement!?

 

AC

Edited October 1, 2008 by angry cat
error

[johndeevoy]

post 12875 from banker = quality!

 

well said sir!

[MAGDA]

MADGA

 

The above view that I gave you relates to the Lender/OC.

 

I do not know what consequence flows in a situation, were an account has been sold assigned to a DCA; assignee, when the OC's default was ineffectual and thereby the Termination was ineffective.

 

The Termination would have been ineffective, but the account was charged off and sold by the assignor (OC) to the assignee, the DCA.

 

Can they go back and rectify the ineffective termination, when the account has been sold?

 

Most debt debts are sold off in job lots and under the LoP Act

 

I would imagine that if an account had been incorrectly terminated, then the whole account would have to be returned to the OC, in order that the Termination could be rectified; as the assignment would have been ineffective.

 

They cannot go back and correct an improperly executed agreement!?

 

AC

 

Hi AC, yes, the reason I raised this point is because a large percentage of debts are assigned, I know from my own experience that not many of them stay with the original OC. Therefore, if a debt has been incorrectly defaulted (if at all) and then assigned, the assignee should not have any right to enforcement, as the debt was not legally assigned. Magda