Cap1 & CCA return

[angel_1]

hey you two, BRW and lexis did you mention Chocolate?? lol

 

need a new thread hahahahha

 

there is me thinking more info on cca and i get chocolate yum yum hahahha

 

 

see ya laters ciao maz

[johndeevoy]

If they take you to Court and win, which the above suggests, you will have to pay court fees and costs on top of the debt.

 

Right, I have issue with this. The agreement is not properly executed as it does not have a creditors signature as per s61(1)(a).

 

They can only "enforce" the agreement by on order of the Court (s65).

 

s127 refers to and relates to "an application for an enforcement order".

 

In my view, when an agreement has been improperly executed, a creditor cannot simply terminate and then sue for any debt claiming County Court scale costs related to the sum of that debt. They must make an application for enforcement which would carry far lower legal costs than a debt claim for thousands of pounds.

 

Consider this conundrum; if a creditor terminates an improperly executed agreement does a debt therefore exist? The answer has to be NO. Clearly, no debt exists until the Court has aproved enforcement of the agreement. But how then can the Court enforce an agreement that has been terminated and no longer exists?

 

In my view, the correct procedure would be for a creditor to apply for enforcement of an agreement WHILE THE AGREEMENT STILL EXISTS. Only after declared enforceable by the Court can the creditor issue a Default and Terminate.

 

Also, why should a respondant be held liable for legal costs which a creditor has incurred solely due to their failure to properly execute an agreement? They were the author of the situation and should clearly bear their own costs, even if a Court decides to fully enforce.

[banker_rhymes_with]

Hello JD!

 

Yes, I agree. That would be my understanding as well.

 

The battle is to get those points across in Court.

 

I think they are quite valid.

 

Cheers,

BRW

[don leocornay]

subscribing.

 

If anyone could cast an eye over my situation. I'd be grateful.

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/118035-don-leocornay-hsbc-10.html

[Jeff2000]

no not at all, i am refering to the point where the other side refuses to disclose docs that you need to assess if you have a legitimate claim

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/147432-high-court-judgement-rankines-7.html#post1766169

 

check this post, it explains a little better

 

 

 

 

Yes, I see now!

 

 

I should of known better! This is what I did recently in my case!

 

 

Jeff.

[ncf355]

Hi all,

 

Default Notices (again)

 

Where they have to state what is required to rectify the agreement, do they have to state the arrears amount (e.g: 6 montly payments of £100 = £600 required to rectify) or can they legally state the total balance as the amount required to rectify?

 

Cheersh!

[banker_rhymes_with]

Hello ncf355!

 

The clue is contained within s87(1) of the Act:

 

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.

 

If you think this through, the Agreement will require you to Pay them something as it runs, and those Payments are Payable as they fall due. Let's say you are required to Pay them £100 a Month.

 

However, the actual Balance of the Account is not due, as you are busy Paying that off. Let's say that is £5,000.00.

 

If they feel you have ratted on the deal, i.e. you have failed to Pay them the regular amounts expected as they fell due, then the Creditor is allowed to chase you up for these due Payments.

 

To do this, they must follow the required steps as outlined in s87 and s88, and issue you with a Default Notice making it clear what you have done wrong so far, i.e. you've missed the last 3x £100 Monthly Payments for example, so you owe £300.

 

What you owe at that point is just the Arrears of £300, the rest of the Balance is not due at that point, although you do owe it to them, it's just something that is payable in the future (that's assuming you can find £300, kiss and make up, and the Agreement carries on again as if nothing had happened).

 

Thus, the Default Notice is a warning to say what you must do to put things right. It must state what you have done wrong very accurately. It must also be set out in the Prescribed Form. It must also say what you need to do to correct the default, and finally it must give you 14 clear Days from Date of Service to do what they ask. That would be from the Day they hand it to you, or 2 Days after Posting if it's sent via 1st Class Post and they can prove when they sent it.

 

Let's assume now that they want Arrears of £300. If you don't Pay that within the Default Period then, once you go past that, they can Terminate the Agreement, and only then seek early Payment of the rest, i.e. the Arrears and the Balance that was otherwise not due until they Defaulted and Terminated.

 

I believe they must get this right, or else they risk Terminating the Agreement unlawfully, and thus they throw away their Right to ask for early Payment of an amount that was only ever due in the future. Once the Agreement is Terminated, then that should be that. They should not be allowed to turn back time to have another go at getting the Default Notice and Termination right.

 

So, if you follow this, they should not ask for more in the Default than you were required to Pay at the time the Default was issued. That would be the Arrears you have failed to Pay on time, not the Balance still to Pay in the future.

 

Sadly, too many Creditors are using Defaults (the thing that happens after the Default Notice) as a threat, and as an unofficial County Court Judgement.

 

They are using the Threat of a Default as a means to extract Payment. This is clearly not acceptable, because they are abusing the lawful purpose of a Default. Section 87 and s88 make it quite clear what a Default Notice and Default are intended for, and it is plain that these were never intended by Parliament to be used as an arbitrary punishment to replace a proper Hearing in a County Court. A Default Notice and Default are required stages that must be followed should a Regulated Agreement require Lawful Termination once a Consumer is in default of the agreed terms and has been unable to remedy the default to negate the Default Notice. These steps are required to allow the Creditor to seek early Payment of the balance of the alleged Debt, they were never intended to be used as convenient punishments to trash your Credit for 6 Years!

 

I hope this helps.

 

Cheers,

BRW

[MAGDA]

Banker, if I want to find out if the creditor (claimant) has a copy of the NOD issued by the OC, or is able to get one, is there any cpr rule that I can use to force them to disclose this. This is relevant to two court claims currently underway, and so far, the claimant has not produced any default, just made a vague reference that a DN was sent by the OC. No specific date or proof provided. I don't want to leave things, so that they can suddenly produce the DN in court, but would like a chance to check its validity beforehand. I know that some of the routes to force disclosure apply much earlier on in the claim, so not sure what my options are now. Many thanks, Magda

[Viscount Stair]

Fascinating! That makes two cock ups instead of just one in a Default Notice that First Direct have sent me!

 

On a related vein, Mrs VS received a document from MBNA headed "Important Default Notification" that I initially mistook for a Default Notice (which I presume was the idea). Is the consensus that this is a breach of the OFT Guideline relating to misleading looking documents and possibly even a breach of CPUTR?

[banker_rhymes_with]

Hello VS!

 

On a related vein, Mrs VS received a document from MBNA headed "Important Default Notification" that I initially mistook for a Default Notice (which I presume was the idea). Is the consensus that this is a breach of the OFT Guideline relating to misleading looking documents and possibly even a breach of CPUTR?

 

Looks that way to me too!

 

Magda...

 

Banker, if I want to find out if the creditor (claimant) has a copy of the NOD issued by the OC, or is able to get one, is there any cpr rule that I can use to force them to disclose this. This is relevant to two court claims currently underway, and so far, the claimant has not produced any default, just made a vague reference that a DN was sent by the OC. No specific date or proof provided. I don't want to leave things, so that they can suddenly produce the DN in court, but would like a chance to check its validity beforehand. I know that some of the routes to force disclosure apply much earlier on in the claim, so not sure what my options are now. Many thanks, Magda

 

If you are at the Court stage, I regret I can't advise on that with any Authority, you'd need to run that past Paul/PT2537 or Surfaceagentx20.

 

But if you are not yet at the Court stage, from what you say, my suggestion would be to S.A.R - (Subject Access Request) the Original Creditor who issued the Default Notice.

 

Cheers,

BRW

Edited October 21, 2008 by banker_rhymes_with
Fat Fingers!

[ncf355]

BRW,

 

thankyou

 

As ever, an excellent explanation

[MAGDA]

Hello VS!

 

 

 

Looks that way to me too!

 

Magda...

 

 

 

If you are at the Court stage, I regret I can't advise on that with any Authority, you'd need to run that past Paul/PT2537 or Surfaceagentx20.

 

But if you are not yet at the Court stagem, from what you say, my suggestion would be to S.A.R - (Subject Access Request) the Original Creditor who issued the Default Notice.

 

Cheers,

BRW

 

Many thanks BRW. I am at the court stage and they've been ordered to respond to my defence, which they have now done, but no specific details relating to DN. Have asked this question on another thread also, so hopefully, might hear back from Surfaceagent on that one. Cheers, Magda

[car2403]

Many thanks BRW. I am at the court stage and they've been ordered to respond to my defence, which they have now done, but no specific details relating to DN. Have asked this question on another thread also, so hopefully, might hear back from Surfaceagent on that one. Cheers, Magda

 

You should use CPR Part 18 to request the document.

 

The issue with CPR 18 is that you can't demand access to any document - the Court must order their compliance with your request once they fail to respond to you.

 

The other issue is that there is no clear legal requirement to retain a copy of the original DN, meaning that an entry on a computer system showing one was sent and a certified copy of a sample DN would probably suffice for enforcement action.

[MAGDA]

You should use CPR Part 18 to request the document.

 

The issue with CPR 18 is that you can't demand access to any document - the Court must order their compliance with your request once they fail to respond to you.

 

The other issue is that there is no clear legal requirement to retain a copy of the original DN, meaning that an entry on a computer system showing one was sent and a certified copy of a sample DN would probably suffice for enforcement action.

 

Thanks Car. I did send a cpr 18 when the claims were first initiated, but Link did not really bother to respond to this until ordered to do so by the court, in line with my draft directions attached to the AQ. Link mention a default was sent by the OC, but no date or anything specific, and I don't remember getting anything at the time. I just thought there might be some other way to force their hand, so that I know for certain before going to court exactly where I stand on this. Many thanks, Magda

[BlueSquirrel]

Is there some new rule about default sums? I paid two of my credit cards late (one day) this month and I received letters from both of them stating "This notice is being sent to you as required by the Consumer Credit Act 1974 because default sums have been levied on the account."

 

I have never had one before and it threw me initially as I thought it was something more sinister. Is this going to be their justification for chargiing the fee, since they have to send you a letter telling you they have charged it. If so, sounds a bit twisted in the logic dept to me!

[Viscount Stair]

A raft of new rules came in on 1 October: the last batch of amendments made by the 2006 Act and implementing regulations came into force on that date.

 

There is now a requirement to send out factsheets with default notices and when default sums are charged. There is also a new requirement for annual statements for personal loans.

 

I think there is also a new rule prohibiting the charging of interest on default sums (ie charges), which may or may not be implemented properly by creditors. This could be another basis for quibbling.

 

However, in my analysis, these are ancillary provisions and do not legitimise default sums that do not satisfy the requirements of UTCCR, although they may affect the calculation to some extent.

[car2403]

Thanks Car. I did send a cpr 18 when the claims were first initiated, but Link did not really bother to respond to this until ordered to do so by the court, in line with my draft directions attached to the AQ. Link mention a default was sent by the OC, but no date or anything specific, and I don't remember getting anything at the time. I just thought there might be some other way to force their hand, so that I know for certain before going to court exactly where I stand on this. Many thanks, Magda

 

Has the Court ordered disclosure of the Default Notice? If they have and it hasn't been complied with, you should ask for the claim to be struck out if they fail to comply again.

[MAGDA]

Has the Court ordered disclosure of the Default Notice? If they have and it hasn't been complied with, you should ask for the claim to be struck out if they fail to comply again.

 

Hi Car, the court actually ordered the defendant "to provide a response to my defence with 21 days" and my defence included mention of the fact that I put them to strict proof that a DN had been issued etc etc.... but the only reference they made in their response was that a DN had been sent by the OC - no specifc date was given, that was basically it... so, I want them to have to prove that a DN was indeed issued by FNB. Two claims (out of original 4) are currently proceeding, one of which was struck out at my request, only to be reinstated, as the claimant stated that they had not recieved any of the court orders, so back to dealing with two claims again now unfortunately! Many thanks, Magda

[car2403]

Hi Car, the court actually ordered the defendant "to provide a response to my defence with 21 days" and my defence included mention of the fact that I put them to strict proof that a DN had been issued etc etc.... but the only reference they made in their response was that a DN had been sent by the OC - no specifc date was given, that was basically it... so, I want them to have to prove that a DN was indeed issued by FNB. Two claims (out of original 4) are currently proceeding, one of which was struck out at my request, only to be reinstated, as the claimant stated that they had not recieved any of the court orders, so back to dealing with two claims again now unfortunately! Many thanks, Magda

 

In that case, you should ask for the claim to be struck out on the basis that they haven't complied with the Courts Order, which was to respond to your defence that asks for the documentation to be provided.

 

Do you have a thread on this, Magda, as this is well off topic now?

[MAGDA]

In that case, you should ask for the claim to be struck out on the basis that they haven't complied with the Courts Order, which was to respond to your defence that asks for the documentation to be provided.

 

Do you have a thread on this, Magda, as this is well off topic now?

 

Hi Car, think I will do as you suggest and contact the court again requesting the claim be struck out, nothing to lose really is there. I am a bit off topic now, sorry about that. The link to my actual thread is:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/136957-claim-issued-asset-link.html?highlight=magda

 

Many thanks for your help, Magda

Edited October 22, 2008 by MAGDA
typo

[ncf355]

Hi folks,

 

heres one for you

 

If a agreement states within its terms that the account and its rights/duties may be assigned at any time to any other PERSON, can it then be lawfully assigned to a Ltd Company? (such as, just for instance, a DCA)

 

?

[Viscount Stair]

Yes, it can.

You and I are what the law calls natural persons but a limited company is what the law calls a legal person.

[biddy65]

sorry to but in on this thread but if a company cannot provide you with acopy of your signed agreement do you have to pay whats owing?

[car2403]

sorry to but in on this thread but if a company cannot provide you with acopy of your signed agreement do you have to pay whats owing?

 

When was the agreement taken out?

[biddy65]

over three years ago i think