Help needed solicitor threatening legal action***Claimant Discontinues action***

[y1234]

This is my first post on the forum and hope someone could advise.

 

The solicitor acting for credit card company replied that s78 CCA requests only apply to

running-credit accounts but my account was no longer a running credit account as their client

served a Default Notice pursuant to s87(1) of the CCA 1974 and I failed to remedy the breach

which led to the account being terminated. Is the solicitor correct in saying that s78 does not

apply in this case and allow 7 days to discharge debt or else will issue county court

proceedings without further notice. They added that they have the right to exhibit their

correspondence in the event I file a spurious defence to the claim.

 

Can someone help me with a response to their letter and would a Subject Access Request be

appropriate as a reply

 

I am uncertain if signed credit card agreement is enforceable as it was previously a House of Fraser

store card that is now Santander from November 2007.

[y1234]

Can someone please confirm if the solicitor is correct in saying that s78 CCA requests only apply to running-credit accounts and not to an account that is in default and terminated. Any help appreciated, thanks.

[AndyOrch]

Sounds like you are dealing with the caretaker not a solicitor y1234.If the debt is still with the OC then send the request to them......... if assigned (sold on) then to the DCA.

 

Regards

 

Andy

 

PS Wecome to CAG

[y1234]

Thanks Andy. I have today SARed the OC copying in the solicitor. Does anyone know whether the solicitor will still issue county court proceedings before complying with the SAR .

[AndyOrch]

Who knows......but they had better have a copy of your agreement if he does.

[y1234]

Santander sent CCA and terms and solicitor wants reply before 7 June and will issue court proceedings without further notice. Can someone confirm if the attached CCA has all the prescribed terms. The House of Fraser credit card was originally GE but the terms and condition only refer to Santander. CCA is hardly legible but hope someone could advise what to do next.

[renegadeimp]

When was the account opened? I ask because those terms do not satisfy the requirements. They MAY satisfy a reconstituted agreement... barely, but definitely not enough of the account was opened pre april 2007

[y1234]

opened Nov 2007, does it matter if its post apr 2007?, thanks.

[renegadeimp]

Pre april 2007 they need a copy of the original CCA, plus terms and conditions at the time of inception and at the closing of the account. Post april they can reconstitute an agreement but it still has to meet certain requirements.

[y1234]

Thanks renegade. Not sure how to respond to solicitor since it looks like CCA is enforceable, any suggestions appreciated.

[y1234]

The DN was issued in May 2012 asking for arrears to be paid within 14 days from receipt of notice. This was paid within the time limit and 1 last payment was made in June 2012. No further DNs were issued other than notice of default sums for late payment and overlimit fees. The solicitor's letter stated that account was terminated but could not recall ever receiving termination notice. Am I right to assume that they have correctly defaulted and terminated the account and could enforce this in court, any advice appreciated, thanks.

[y1234]

Solicitor issued court proceedings and ignored my last letter querying the overlimit and late payment charges added to the credit card debt. Can someone please advise if it is possible to dispute the charges and admit to the court only part of the debt and offer part settlement. As I have only 14 days to respond to the court I would appreciate any advice on how best to proceed, thanks.

[AndyOrch]

You have the option to deal with this on line y1234 by registering to use MCOL. Once registered there is a password on your summons to complete the summons response.

 

A partial admittance .So if you admit part of the claim and the Claimant accepts that part admission in settlement they will request judgment for that amount plus the recalculation of interest and costs allowed for that sum.(Automatic County Court Judgment) If the Claimant rejects the part admission then the court will treat the matter as a defended matter and you will then gain an extra 14 days to prepare and submit your defence.

 

If you defend all of the claim then it proceeds to trial .This could increase costs (subject to the amount and track) in prolonging the process but could also allow chance of mediation to avoid the CCJ and reach settlement.

 

You have 33 days in total if defending in full 5 deemed served so 28 days (14 to Acknowledge service and a further 14 to submit a defence.With a partial plea you only have 14 +5.

 

Regards

 

Andy

[DonkeyB]

Can you please clarify – you were sent a default notice, but you complied with the demand and paid the arrears within the required timescale? Can you prove this? If so, the original DN was discharged, and should be treated as if it never occurred.

 

If this is correct, then the account would have to be defaulted AGAIN before the agreement can be enforced in court. So your defence would be simple – that the account cannot be enforced as no DN has been issued.

 

CPR 31 should provide all the evidence you need.

 

What does the PoC say?

[DonkeyB]

Moreover, as the account could not have been terminated if no further DN was issued, then the account remains live and they remain in default of your valid CCA request (the reply you received in no way complies with Carey v HSBC).

[y1234]

Thanks for all your replies. The first part of the POC states claim is for monies due under regulated credit agreement. The second part states the Defendant has failed to make payment in accordance with the terms of the agreement and a default notice has been served upon the Defendant pursuant to Section 87(1) of the Consumer Credit Act 1974.

 

The default notice is dated 1/5/12 asking for arrears of 36.70. It states to remedy this breach you must pay the arrears within 14 days from receipt of ths notice.

 

They sent us all the transactions of the account after SAR was sent on 15/3/13. The 14/4/12 statement required minimum payment of 73.70 including overdue amount of 36.70 by 10/5/12. The 14/5/12 statement show payment of 36.70 made on 9/5/12 and required min pmt of 72.79 by 9/6/12. The 14/6/12 statement show payment of 36.60 made on 13/6/12 and required min pmt of 72.45 by 10/7/12. No further payments were made to the account after that.

 

Santander letter 31/7/12 notifying that they are passing the account to Viking.

CCA request sent on 7/8/12,

Section 10 Notice sent on 27/8/12.

Santander letter 23/8/12 enclosing CCA received 29/8/12.

Viking letter 4/9/12 asking for full balance. Reply 9/9/12 no home visit.

Viking letter 12/11/12 asking for full payment. Reply 18/11/12 quoting CPUTR 2008.

Lewis Debt Recovery 3/12/12 final demand.

Solicitor 31/1/13 notice of pending legal action.

 

Sorry for length of reply but there were no further default notices and solicitor stated that we failed to remedy the breach which led to the account being terminated. Should we now dispute the claim as the arrears were paid within the time limit. Thanks for all your valuable inputs.

Edited June 20, 2013 by y1234

[y1234]

Just to add further from the points below does it mean that Santander cannot issue 2nd default notice as I am assuming agreement has been terminated even though there is no written confirmation of this apart from what the solicitor said, thanks.

 

So its not a question of they can not terminate the account till they issue a valid DN, as they perfectly well can terminate regardless of DN, and they do so as soon as the debt is sold to a DCA which is what unlawful rescission is in regards to credit agreements. You simply can not commit an unlawful act or termination and then say it did not occur or does not apply as they have now issued a valid default notice as issuing a valid default notice post termination, when the agreement no longer exist, would require the new DN to necessarily state a date by which you would be required to comply (remedy) after which you would be in default and the agreement terminated. Meaning that the second default would therefore maintain the pure fiction that the agreement had endured after originally was terminated and ceased to exist - Which clearly that can not be the case as the agreement does not exist after the unlawful termination on the back of the original invalid DN. Therefore the second Default Notice would automatically be invalid as no credit agreement exists for such DN to be issued under.

 

 

Additonal Point

 

The Credit act makes it clear that upon remedy of a default Noitce the default shall be treated as not having occured, and therefore the account/agreement will be return to its prior standing before the breach/default occured. Therefore if sold to a DCA prior to the remedy before date on the DN then its impossible for the account to return to its previous standing before the breach/default occured and therefore not possible to treat that breach/default upon the remedy of the breach/default as not having occured. Which itself makes the DN invalid as section 89 of the act makes it clear that if remedied on or before the date of required for rememdy then the breach shall be treated as not having occured - therefore the creditor would have no valid grounds in which to terminate the agreement. It is also clear they can not terminate till after the date or remedy as the act does not allow for them to terminate lawfully prior to such date. So in both cases, in this paragraph, the creditor will have commited unlawful termination rescission/repudiation of the agreement.

[DonkeyB]

Just to add further from the points below does it mean that Santander cannot issue 2nd default notice as I am assuming agreement has been terminated even though there is no written confirmation of this apart from what the solicitor said, thanks.

 

So its not a question of they can not terminate the account till they issue a valid DN, as they perfectly well can terminate regardless of DN, and they do so as soon as the debt is sold to a DCA which is what unlawful rescission is in regards to credit agreements. You simply can not commit an unlawful act or termination and then say it did not occur or does not apply as they have now issued a valid default notice as issuing a valid default notice post termination, when the agreement no longer exist, would require the new DN to necessarily state a date by which you would be required to comply (remedy) after which you would be in default and the agreement terminated. Meaning that the second default would therefore maintain the pure fiction that the agreement had endured after originally was terminated and ceased to exist - Which clearly that can not be the case as the agreement does not exist after the unlawful termination on the back of the original invalid DN. Therefore the second Default Notice would automatically be invalid as no credit agreement exists for such DN to be issued under.

 

 

Additonal Point

 

The Credit act makes it clear that upon remedy of a default Noitce the default shall be treated as not having occured, and therefore the account/agreement will be return to its prior standing before the breach/default occured. Therefore if sold to a DCA prior to the remedy before date on the DN then its impossible for the account to return to its previous standing before the breach/default occured and therefore not possible to treat that breach/default upon the remedy of the breach/default as not having occured. Which itself makes the DN invalid as section 89 of the act makes it clear that if remedied on or before the date of required for rememdy then the breach shall be treated as not having occured - therefore the creditor would have no valid grounds in which to terminate the agreement. It is also clear they can not terminate till after the date or remedy as the act does not allow for them to terminate lawfully prior to such date. So in both cases, in this paragraph, the creditor will have commited unlawful termination rescission/repudiation of the agreement.

 

Forget all this. Won’t wash.

 

The facts are fairly straightforward, I think.

 

1. The lender can reduce your credit limit to zero, and can sell the account at any time it likes.

 

2. Forget rescission. A new DN will fix that. Technically the agreement has not actually been terminated.

 

3. You clearly remedied the default. Therefore no DN has been served. That is your defence.

 

4. To take the case further, they would have to withdraw before judgment, issue a compliant DN, and wait for you not to comply before they litigate.

[y1234]

Thank you DonkeyB. I will try and draft a defence and hope you can help me with this.Can you also advise if I should I also work out the overlimit and late payment charges including interest and try and get the court to deduct this from the amount claimed. If they withdraw judgement and a new DN is issued will they be able to litigate if we comply on the new DN. If the agreement has not been terminated does it also mean that we can carry on paying the minimum amount indefinitely. Thanks again for all your help.

[y1234]

Would appreciate if someone check help with the following defence an comment if this sufficient for a strike out and advise how to get the court to deduct the unfair charges that were added over the years, thanks.

 

It is admitted that the defendant signed the credit agreement numbered xxxxx/xxxxxxxxx between the defendant and the bank on …… and note specifically that this agreement is regulated by the Consumer Credit Act 1974 and that it contains terms and conditions which are subordinate to the provisions of the Act.

 

2) The lawful arrears of xxx were paid on …. in respect of the default notice that was issued on …., yet the claimant terminated the contract without entitlement when they issued the County Court Claim on ….

 

3) The claimant brings his claim to court without entitlement and where the breach was remedied according to the Act.

 

4) It is further claimed that the claimant forms an unfair relationship by taking action without entitlement and seeking money where he has no entitlement and I ask the court to consider an order be made for relief under relevant provisions of the Act.

 

5) It is averred that no sums are due as provisions within the Act preclude any claim for unpaid sums where the Acts requirements are not complied with.

 

6) I believe the above statement to be true and factual to the best of my knowledge

[y1234]

AOS submitted via MCOL and will need to submit a defence within the time frame as per Andy's earlier post. As this is the first time I have ever dealt with a county court defence can someone help please and let me know if the following draft makes sense, thanks.

 

It is admitted that the defendant signed the credit agreement numbered xxxxx/xxxxxxxxx between the defendant and the bank on …… and note specifically that this agreement is regulated by the Consumer Credit Act 1974 and that it contains terms and conditions which are subordinate to the provisions of the Act.

 

2) The lawful arrears of xxx were paid on …. in respect of the default notice that was issued on …., yet the claimant terminated the contract without entitlement when they issued the County Court Claim on ….

 

3) The claimant brings his claim to court without entitlement and where the breach was remedied according to the Act.

 

4) It is further claimed that the claimant forms an unfair relationship by taking action without entitlement and seeking money where he has no entitlement and I ask the court to consider an order be made for relief under relevant provisions of the Act.

 

5) It is averred that no sums are due as provisions within the Act preclude any claim for unpaid sums where the Acts requirements are not complied with.

 

6) I believe the above statement to be true and factual to the best of my knowledge

[DonkeyB]

I don’t think you need to state that you have signed anything – this implies you agree the CCA is compliant, and we don’t know that. Simply state that you acknowledge applying for an account, but cannot confirm or deny whether such an account complies with the requirements of CCA 1974 (or 2006 as appropriate).

 

Also, no point in claiming that the account has been terminated – it has not, of course, and that is part of your defence.

 

In 4, what relief are you actually seeking? Spell it out.

 

In 5, it would be worth stating which parts of the CCA they have not complied with.

 

Look around the forum for examples of how to word a statement of truth – loads of examples.

[y1234]

Thanks DonkeyB. I have made the amendments but uncertain what relief the court will grant, please help.

 

1. The defendant acknowledge applying for an account, but cannot confirm or deny whether such an account complies with the requirements of CCA 1974.
   
2. The lawful arrears of xxx were paid on …. in respect of the default notice that was issued on ….
   
3. The claimant brings his claim to court without entitlement and where the breach was remedied according to the Act.
   
4. It is further claimed that the claimant forms an unfair relationship by taking action without entitlement and seeking money where he has no entitlement and I ask the court to consider an order to strike out the claim and deduct all unfair charges added to the account.
   
5. It is averred that no sums are due as provisions within CCA74 S87(1)(b) preclude any claim for unpaid sums where S88 requirements are not complied with.
   
6. I believe that the facts stated in this defence are true.
   

[y1234]

Still a bit unsure where I am heading wih this. Will this go to trial or will it be enough for court to strike out and can I claim for cost?

[y1234]

Is this ok to use?

 

1. The defendant acknowledge applying for an account, but cannot confirm or deny whether such an account complies with the requirements of CCA 1974.
   
2. The lawful arrears of xxx were paid on …. in respect of the default notice that was issued on ….
   
3. The claimant brings his claim to court without entitlement and where the breach was remedied according to the Act.
   
4. It is further claimed that the claimant forms an unfair relationship by taking action without entitlement and seeking money where he has no entitlement and I ask the court to consider an order to strike out the claim and deduct all unfair charges added to the account.
   
5. It is averred that no sums are due as provisions within CCA74 S87(1)(b) preclude any claim for unpaid sums where S88 requirements are not complied with.
   
6. I believe that the facts stated in this defence are true.