Cap1 & CCA return

[Guest dvdriley]

SHAKESPEAR - reading with interest.

 

AMEX sent me a default notice, payment must be received 14 calender days from the date of this default notice.

 

Is this wrong them?

[citizenB]

Question ?

 

If an account was opened in late 1999, should the declaration that you sign regarding Data Protection read "Data Protection Act 1998"

 

and not

 

Data Protection Act 1984

[banker_rhymes_with]

Hello dvdriley!

 

AMEX sent me a default notice, payment must be received 14 calender days from the date of this default notice.

 

Is this wrong then?

 

This would depend on when the Default Notice was sent in terms of which Date. The time limit used to be 7 Days, then it was increased to 14 Days.

 

See:

 

Consumer Credit Act (1974) and related Regulations

 

Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

3

A specification of:--

 

(a) the provision of the agreement alleged to have been breached; and

 

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

 

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than

fourteen days] after the date of service of the notice, before which that action is to be taken; or

 

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and

the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

The notes at the bottom of this confirm when the 14 Days came into force:

 

NOTES

Amendment

 

Para 3: in sub-paras ©, (d) words "not less than fourteen days" in square brackets substituted by SI 2006/3094, regs 2, 3.

Date in force: 19 December 2006: see SI 2006/3094, reg 1.

 

So, if they sent you this before 19/12/2006, then it's OK, because the time limit then was 7 Days, and they have probably allowed that, even allowing for Postage 2nd Class.

 

However, if they sent it to you after 19/12/2006, then the time limit was 14 Days, in which case they are stuffed. They have not allowed for Postage, so could not possibly have given you the clear 14 Days the Act requires. The only way they could have managed that would have been to hand it to you on the same day they Printed it.

 

Cheers,

BRW

Edited December 1, 2008 by banker_rhymes_with
Typo

[Guest dvdriley]

Thank you BANKER, should I ignore it and wait for further action or tell them their default notice is not valid

[banker_rhymes_with]

Hello dvdriley!

 

Thank you BANKER, should I ignore it and wait for further action or tell them their default notice is not valid.

 

Don't say a word!

 

Keep this to yourself for now, because you don't want them to realise this and try to fix it.

 

Wait for them to write saying they have Terminated. That is the key stage you want them to reach. Either via a Letter saying they have Terminated, or by a Letter asking you for the Full Balance (i.e. a Total amount that contains a sum that would otherwise not have been due until that stage). That's effectively their acceptance that the alleged Agreement has ended, because they are then assuming they can rely upon enjoying the benefits of s87(1) - which allows them to ask for early Payment of sums that were otherwise not due.

 

Likewise, a Court Claim demanding the Full Balance is also acceptance that they regard the alleged Agreement to be Terminated.

 

The ideal is a Letter saying the Agreement is Terminated, because once they send you that, they cannot then go back and issue a new Default Notice to fix the invalid one. Why? Because the Agreement is ended, and it has to be live for them to be able to issue a valid Default Notice.

 

This is what Surfaceagentx20 has to say about it:

 

An ineffective default notice will prohibit the Claimant recovering all those things on which the service of an effective default notice is dependant. In short, the claim will be reduced to just the arrears, See Woodchester v Swayne.

 

By when proceedings have commenced the Claimant will have terminated the agreement. The language of a default notice is framed on the basis there is a current agreement. That language is prescribed. If the Claimant terminated the agreement, to deliver an effective defalt notice will involve the fiction the agreement is current and never terminated. It would also involve the Claimant reinstating unilaterally. The debtor would be unlikely to agree to reinstatement if to do so would cure the Claimant's difficulties.

 

Cheers,

BRW

[Guest dvdriley]

Thank you!!!

[citizenB]

Question ?

 

If an account was opened in late 1999, should the declaration that you sign regarding Data Protection read "Data Protection Act 1998"

 

and not

 

Data Protection Act 1984

 

Please does anyone know the answer to this question. I thank you.

[Sparkie1723]

Please does anyone know the answer to this question. I thank you.

 

 

 

It should have but any aguement put forward about it would be argued against on the grounds there was what was called ....a "transitionary" period for the New Act to come fully into force

sparkie

[steven4064]

I don't know the answer, but suspect that it is 'probably'

 

Section 75 says the some of the Act "shall come into force on the day on which this Act is passed" , and the "remaining provisions of this Act shall come into force on such day as the Secretary of State may by order appoint"

 

Sections 7, 13 and 14 are all in the 'remaining provisions' - I have no idea what day the S of S appointed.

[citizenB]

Thank you sparkie and steven. I will do a bit of research and see if I can dig up anything.

[Viscount Stair]

Can't remember the dates precisely but the 1998 Act was phased in over a few years - I think some of it may not even have come into force until 2002.

[Viscount Stair]

Can't remember the dates precisely but the 1998 Act was phased in over a few years - I think some of it may not even have come into force until 2002.

Time, it would appear, really does fly when you're having fun: the bulk of the Act was brought into force on 1 March 2000 by SI 2000/183 (Statutory Instrument 2000 No. 183 (C.4)).

[FANTASY CHARGES]

Please does anyone know the answer to this question. I thank you.

 

 

THE 1998 DATA PROTECTION act 1998 did not come into effect until i seem to recall march 1st 2000 (give or take a week )

 

we need confirmation of this sorry i cnnot find the link to the act at the moment

 

sorry i did not read the above post !!

Edited December 1, 2008 by FANTASY CHARGES
duplication

[citizenB]

Can't remember the dates precisely but the 1998 Act was phased in over a few years - I think some of it may not even have come into force until 2002.

 

Time, it would appear, really does fly when you're having fun: the bulk of the Act was brought into force on 1 March 2000 by SI 2000/183 (Statutory Instrument 2000 No. 183 (C.4)).

 

 

Oh bother !! I had hoped I found a seriously fatal flaw in an alleged credit card agreement. :grin:

[Vulture_Bank]

however their could be a fatal flaw here if the deed of assignment was not witnessed

 

 

the deed of assignment is a 4 or 5 page document

 

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/171221-what-deed-relating-assignment.html#post1847457

[Viscount Stair]

Bad luck but you have given me an idea about something else to check in relation to the "true copy" (so called) that Amex sent me - I think they may have made the opposite mistake.

[lexis200]

An ineffective default notice will prohibit the Claimant recovering all those things on which the service of an effective default notice is dependant. In short, the claim will be reduced to just the arrears, See Woodchester v Swayne.

 

By when proceedings have commenced the Claimant will have terminated the agreement. The language of a default notice is framed on the basis there is a current agreement. That language is prescribed. If the Claimant terminated the agreement, to deliver an effective defalt notice will involve the fiction the agreement is current and never terminated. It would also involve the Claimant reinstating unilaterally. The debtor would be unlikely to agree to reinstatement if to do so would cure the Claimant's difficulties.

 

Hi BRW

 

Just reading the above - I'm on a payment plan with Cap1, and in getting onto it the account was closed, card stopped etc. They've now changed their payment plan so that if you're on a long term one you get an automatic default. Does x20's quote apply to this too, and if so, what would it mean for me with the lovely Cap1?

 

Thanks

 

Lexis:)

[banker_rhymes_with]

Hello Lexis200!

 

It doesn't sound like you are still in the same Agreement in that case.

 

Did they issue you with a Default Notice, and did they then say the Account was Closed thereafter, assuming you didn't Pay whatever the Default Notice asked for?

 

It sounds like you are now into another Agreement. The question is then how did you get from the first Agreement to the next one?

 

Or, rather, that's the question you need to ask Capital One to explain!

 

Cheers,

BRW

[lexis200]

Hi BRW, thanks for coming back on this:)

 

No, as far as I'm aware I've not had a default before on this. I just asked them if I could start on a payment plan with them about 18months/2 years ago as our income evaporated. They agreed and I started payments. I didn't sign anything etc., and it was done by me rather than through a debt charity. They then told me the account was cancelled and please could I send my card back (bit tricky that one as I'd cut it up some time before:D)

 

This has been ticking along with no problems for that whole time, then they sent a letter saying the plan I was on was 'no longer available' and that I had a choice of a 6 month plan (where you reduce for 6 months then go back to normal payments and nothing changes) or long term, where you won't pay them back for the forseeable future, so they give you the extra time, but also a big fat default to go along with it:(

 

Does that make any difference?

 

Thinking about it, I've actually had the initial scenario with all but one of my cards (as far as I remember that is). From what I can recall, the only ones to give me a default before cancelling my account were the Co-Op.

 

Lexis:)

[lexis200]

Forgot to mention...

 

I didn't sign anything when they started this new agreement. In actual fact, I didn't even agree to the long term plan - I think they inferred that from my extremely polite letter to them telling them I wasn't about to send the details they wanted in order to continue on a plan (practically asking for my bra size!!), and I also wouldn't be increasing it seeing as they'd forced me to nearly double it last year. The next thing I knew they sent me a letter saying they'd accepted my offer (which amusingly was the correct pro-rata amount, not what they'd insisted I had to pay last year:D)

[BlueSquirrel]

So just to double check, I have a default notice from Monument dated 18 November which gives me to 2 December to pay. Is this invalid as it has not allowed postage time? Is the payment date 2 Dec, included as one of the days in which case I suppose they have allowed 15 days in total. Just interested as there are other issues here as well, such as outstanding SAR from July and CCA. What should I do next? Nothing?

[banker_rhymes_with]

Hello BlueSquirrel!

 

If the Default Notice was dated 18th November...I hope you kept the Enevlope by the way...then if Posted 1st Class, Date of Service should be the 20th (assuming you mean 2008 ).

 

14 clear Days from there takes you to 4th December.

 

If the Deadline was 2nd December, then they only allowed you 12 Days.

 

So, sit tight and await Termination!

 

Cheers,

BRW

[foolishgirl]

Hello Lexis200!

 

It sounds like you are now into another Agreement. The question is then how did you get from the first Agreement to the next one?

 

Or, rather, that's the question you need to ask Capital One to explain!

 

Cheers,

BRW

 

Lexis - have you sent Cap1 a SAR yet? If not, be sure to ask them for ANY info they hold on you, not just the stuff pertaining to the present account. This might produce the paper trail you're looking for & if it doesn't, then you can start the battle!

[BlueSquirrel]

Hello BlueSquirrel!

 

If the Default Notice was dated 18th November...I hope you kept the Enevlope by the way...then if Posted 1st Class, Date of Service should be the 20th (assuming you mean 2008 ).

 

14 clear Days from there takes you to 4th December.

 

If the Deadline was 2nd December, then they only allowed you 12 Days.

 

So, sit tight and await Termination!

 

Cheers,

BRW

 

Thanks BRW!

 

I got three letters from Monument the same day in three different envelopes, the default notice, my statement of account and a letter about default charges all dated 18 November, all in envelopes with pre-paid second class postage.

 

I also got a lovely orange envelope with a telemessage in with an urgent request to call Ron. Which I think is our dear friends the Co-op. Bless! But that's another story....

 

I will set up new threads for Monument and the Co-op drama and RBS who have all been quite naughty

[Viscount Stair]

Woodchester v Swayne:

 

Is the text of the Assistant Recorder's judgment at first instance available anywhere?