Defaults - background, removal methods, challenges and taking a claim to Court

[annabella7]

I had an credit card since 2002, all was fine until 2009 when due to financial problems I made reduces payments. After just one month they sent default letter dated 24th june 09. To remedy breach I had to pay the arrears by 9th july 09. Final demand letter dated 28th Jul arrivd giving 7 days to pay full balance. I didnt actually realise what these letters meant so I continued to make the reduced payments.Meanwhile I had already paid a company to look into Unfair credit agreements They wrote a few letters to the company involved and got replies. End of March 2010 I get ccbc summons and around same time discover the company looking into the unfair Credit Agreements goes bust......so I sent acknowledge of service to Court and CPR 31.14 request to 'otherside' of which the 14 days is nearly up and I send letter of Defence to the Court. Main concern is the 'default notice' seems invalid due to dates, however because i realised late that the account was terminated I had continued to make reduced payments. Now should I write a letter asap and state that I accept their termination of the account eithir, lawfull or unlawful ?

[annabella7]

Thanks so much for the advice. I really appreciate it

[means2anend]

I had an credit card since 2002, all was fine until 2009 when due to financial problems I made reduces payments. After just one month they sent default letter dated 24th june 09. To remedy breach I had to pay the arrears by 9th july 09. Final demand letter dated 28th Jul arrivd giving 7 days to pay full balance. I didnt actually realise what these letters meant so I continued to make the reduced payments.Meanwhile I had already paid a company to look into Unfair credit agreements They wrote a few letters to the company involved and got replies. End of March 2010 I get ccbc summons and around same time discover the company looking into the unfair Credit Agreements goes bust......so I sent acknowledge of service to Court and CPR 31.14 request to 'otherside' of which the 14 days is nearly up and I send letter of Defence to the Court. Main concern is the 'default notice' seems invalid due to dates, however because i realised late that the account was terminated I had continued to make reduced payments. Now should I write a letter asap and state that I accept their termination of the account eithir, lawfull or unlawful ?

 

 

Firstly lets take this step by step:

 

1-Did you have an arrangement with them for reduced payments?

 

2-Need to see whether the Default Notice is in fact invalid.

 

3-Default Notice (time )in which breach of remedy or action to take was increased from 7 Days to 14 Days in late 2006 cannot remember exactly.It is important to take into account postal period for service of Notice.

 

4.Default Notices Regulated by;

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

 

Before we take this further please read this excellent clarification on how a default notice is CALCULATED in terms of it's time which may render it invalid

 

Here is the link:This is a thread started by Shakespeare 62

 

Banker_Rhymes_With

simple explanation in POST 3 is great.Thread is only 3 pages long...I STRONGLYadvise you to read ALL OF IT it because you will find a couple of your questions answered in it...If the DN is invalid it will be serious for them so this is the best place to start from.

 

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/179944-default-notice-period-7-a.html

 

 

In response to your concerns about the nature and TIMING of their response...check out THE FIRST PAGE ON THIS THREAD by CAR...the reason I am directing you in this manner is because it saves time and duplicating everything when issues have already been addressed...Just need to know where the resources ARE...

 

any further questions ...just post!!!

 

m2ae

Edited April 23, 2010 by means2anend

[annabella7]

 

Hi Means2anend. I didnt inform the company I just made reduced payments. I did post DF notice on another thread on this forum, but if you can give me advice on my situation regarding continuing to make reduced payments when the account was terminated. I didnt get any more statements since Sep 09. Thank you so much for all the good advice.

[annabella7]

Imageshack - mumdoc1.jpg

 

Imageshack - mumdoc2.jpg

[annabella7]

sorry needed a bit of help sending these !!

[means2anend]

I know this was last year but did you keep the envelopes etc...it came in.

 

I am looking at the FORM and CONTENT of your notice to see whether it conforms to Regulations...I will need to find out according to time of service and date of issue whether it is valid..

 

You will need to give me a little time on this.

 

you said they sent you a term notice is that correct...what was the date on that.

Edited April 23, 2010 by means2anend

[annabella7]

no envelopes unfortunately

[means2anend]

Do you have date of TN

[annabella7]

yes date of TN is the 24th june to be rectified by the 9th july. i have scaned the documents in above. thanks again

[means2anend]

Were you given notices of sums in arrears BEFORE receiving any DN?

 

Correct procedure MUST be followed and I am afraid this part of The Act is very technical.So I am going to take you back as to how it would have proceeded and what they should have done backing this with the relevant legislation bear with me.I shall post up the legislation as we go along in order of the process.

 

I need to find legislation in the Consumer Credit Act 1974 which specifically addresses

Edited April 23, 2010 by means2anend

[means2anend]

S:86C Notice of sums in arrears under running-account credit agreements

 

(1)-This section applies where at any time the following conditions are satisfied—

 

(a)-that the debtor under an applicable agreement is required to have made at least two payments under the agreement before that time;

(before that time=sending of notice

 

(b)-that the last two payments which he is required to have made before that time have not been made;

 

©-that the creditor has not already been required to give a notice under this section in relation to either of those payments; and

 

(d)-if a judgment has been given in relation to the agreement before that time, that there is no sum still to be paid under the judgment by the debtor

 

 

If you found yourself falling into ALL of the conditions above then they ought have given you a notice for the sum of arrears

 

That is the first step on the way to receiving a default notice.They must comply with the above section.So try to remember if you made ANY payments.You say that you were making minimum payments but they were still payments.You are at least required to make 2 payments which you did.The section does not say that you were to make the 2 required payments.There is a difference in the effect of the wording.So in all probability as early as this stage they should not have sent you ANY notice for sums in arrears.They ought to have sent you a letter of some other sort to propose a reduction of payment until such and such a time.The wording is very technical but the outcomes are different..

 

to be ''required to have made at least 2 payments'' which is what you did is different from ''making the 2 required payments''

 

In the first you have made at least 2 payments albeit reduced whereas in the latter you have also made 2 payments but not the required payments.

 

I should argue that there is a technical error if they did send you that earlier notice.You should have satisfied all those conditions not just any of them for them to have sent you an earlier notice.You only satisfied condition 1(a)

 

Can you remember if they DID...it is NOT a default/Termination Notice...it is something entirely different and could throw a spanner in the works even at that earlier stage leading up to and including receipt of DN/TN

 

Next I shall go onto the DN and then after TN

Edited April 23, 2010 by means2anend

[means2anend]

S: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

[means2anend]

Section:88. Contents and effect of default notice. —

 

(1) The default notice must be in the prescribed form and specify—

(a)the nature of the alleged breach;

(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 capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

(2) A date specified under subsection (1) must not be less than 14 days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those 14 days have elapsed.

 

Section:89. Compliance with default notice.

 

If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or © the breach shall be treated as not having occurred.

[means2anend]

Courtesy Of Banker_Rhymes_With

 

 

Example

 

1. A default notice, dated 7th July 2006 states the arrears must be payed BEFORE 16th July 2006

 

2. Taking the l7th July as date of posting, deemed date of service by first class post is on the 2nd day after posting - in this example, date of service is 9th July 2006.

 

3. The 7 day notice period starts on the day following date of service. In this case 1st day of notice period is 10th July, last day of notice period is 16th July

 

However the Default notice stated remedy required BEFORE 16th July. That means by the end of the 15th July. That gives only 6 clear days following Date of service . Is this an invalid notice period or not ?

OK, here's my opinion on this:

 

07/07/2006 Friday - Date of Default Notice

Assumed they Posted same Day via 1st Class Post

 

08/07/2006 Saturday - WEEKEND

09/07/2006 Sunday - WEEKEND

 

10/07/2006 Monday - 1st Working Day after Postage

 

11/07/2006 Tuesday - 2nd Working Day after Postage

This is Date of Service (see below)

 

12/07/2006 Wednesday - 1st Clear Day

13/07/2006 Thursday - 2nd Clear Day

14/07/2006 Friday - 3rd Clear Day

15/07/2006 Saturday - 4th Clear Day

16/07/2006 Sunday - 5th Clear Day

17/07/2006 Monday - 6th Clear Day

18/07/2006 Tuesday - 7th Clear Day = Statutory Deadline

 

On the above basis, I'd say the Default Notice was invalid.

 

If they had sent it via 2nd Class Post, then they'd be even more stuffed, as the Date of Service would be based on 4 Working Days after Posting.

 

Below is what you may need to quote when confirming the Date of Service based on Date of Postage:

Quote:

 

Click here to read the full details.

 

Council Tax Manual - Section 3 - Appendix 3.6 - Service of documents by post

 

Appendix 3.6 - Service of documents by post

 

All Text Amended

 

1. Interpretation Act 1978, Section 7

 

This states:-

 

"7. Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

 

Service of Documents - First and Second Class Mail

 

"With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

 

1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

 

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

 

(a) in the case of first class mail, on the second working day after posting;

 

(b) in the case of second class mail, on the fourth working day after posting.

 

"Working days" are Monday to Friday, excluding any bank holiday.

 

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

 

4. This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8 March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

This is why keeping the Envelopes can prove vital, especially if they used 2nd Class Post!

[means2anend]

Anabella- whenever 7 is used above it is now 14 days and came into effect in late 2006, but the period for posting is same.The principles are the same.

 

I shall inspect the actual notice you have put to see whether it conforms to Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983..and also where you are in terms of time in relation to them replying to you under CPR RULES.

 

Back Later

Edited April 23, 2010 by means2anend

[annabella7]

.... I have to admit picking through the paperwork looking for clues is interesting and certainly quite technical, so I am very glad of the help. I really appreciate it thanks again

[means2anend]

.... I have to admit picking through the paperwork looking for clues is interesting and certainly quite technical, so I am very glad of the help. I really appreciate it thanks again

 

Courtesy Of PT2537

 

 

Ok, lets clear up some confusion over the two provisons of the CPR which people seem to use in equal measure to obtain documents when they recieve a claim

 

CPR part 18.

 

What is part 18 for?

 

part 18 is for information purposes, so for example if the lender sends you three sets of terms and conditions during the course of proceedings and you are not sure which set relates to what? then you make a part 18 request.

 

The same applies if you need to clarify what happened with some of the money they are claiming , for example if the agreement has an amount of credit of say 10k but you only received 5k, then you would make a part 18 request for further information to clarify the points.

 

In any event BEFORE making a request you MUST read part 18 and Practice Direction 18

 

you will note that a part 18 request can be in a letter format but it must set out that it is made pursuant to part 18 and is intended to have part 18 effect.

 

you MUST also avoid putting anything other than part 18 requests in the letter, so dont start telling them about what Lord Nicholls of Birkenhead said in Wilson................... . cos that will damage the request.

 

The alternative request under part 18 is as follows

 

 

 

Quote:

 

 

 

IN THE XXXXXXXXX

county court CLAIM NO:

 

 

BETWEEN:

 

XXXXXXXXXX

Claimant

 

 

and

 

 

XXXXXXXXXXX

 

Defendant

 

 

_________________________ _________________________ ___________________

part 18 REQUEST FOR FURTHER INFORMATION

_________________________ _________________________ ___________________

 

 

To: XXXXXXXXXX (claimant)

 

Please answer the following questions:

 

1. What date is shown as the date the Claimant/Defendants account was transferred from XXXXXX to the Claimant/Defendant on the Deed of assignment?

 

2. What is the XXXXXXX account number shown on the Deed as being the Claimants/Defendants account?

 

 

 

TAKE NOTICE THAT YOU ARE REQUIRED TO ANSWER THE ABOVE REQUEST WITHIN 14 DAYS OF SERVICE OF THE SAME UPON YOU

 

Statement of Truth

 

I believe the facts stated herein are true

 

 

Signed................... ......................... ............ Claimant

 

 

Date..................... ......................... ..............

 

 

 

 

 

 

 

Ok so part 18 is NOT for DOCUMENTS

 

 

NOW THEN

 

CPR 31.14 and 31.15

What does this apply to?

 

If a party discloses a document by mention of it in amongst others his statement of case, then he has disclosed it and therefore pursuant to rule 31.14 you are entitled to inspect it.

 

Therefore you must follow the guidelines, write to the claimant or defendant, make clear the request is made under CPR 31.14 and request to be allowed to inspect or be provided copies of the document mentioned.

 

This type of request deals with things like credit agreement, default notice, deed of assignment etc which are mentioned in a claim form.

 

CPR 31.15 requires that upon receipt of a request in writing, the claimant must allow inspection of the documents and this must be done in 7 days from receipt of the request, if the claimant refuses then an application Must be made to the court for an order compelling disclosure

 

Also, within such a request, you should also seek an extension of time pursuant to CPR 15.5 to allow you time to receive the documents and review them and then formulate your defence.

 

you cant defend a claim under an agreement if you don't have the agreement as it is simply absurd to suggest you can,so, dont be panicked into putting in what people say is a "Embarrassed defence" as the rules are there to provide you with the tools and info you need to defend a case, you will not face criticism for using the rules by the court, but you will face a huge costs order if you muck around and file spurious and merit-less embarrased defences which have no legal basis.

 

Use the rules properly and you may face a discontinuance notice, use the rules WRONGLY and you will face summary judgement or a charging order or worst a order for sale.

 

For actual letters for requesting info under CPR 31.14 see this thread as it will assist you greatly

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

 

AND ALSO;

 

If YOU are the one being sued-then read this!

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

Edited April 24, 2010 by means2anend

[means2anend]

.... I have to admit picking through the paperwork looking for clues is interesting and certainly quite technical, so I am very glad of the help. I really appreciate it thanks again

 

If you've not already subscribed then this is a must for your questionable default notice

 

 

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/196312-invalid-default-notices.html

 

rgds

m2ae

[cbrfan]

subbing

[annabella7]

means2anend.

thank you soo much for the support on that last lot of information!! Certainly helps to become more informed !!

[pabb85]

Hi guys,

 

any help with my post entitled RBS Overdraft Default Removal (I cant post links yet) would be much appreciated

 

Best regards,

Paul

[tommo1951]

can welcome finance charge me for defaults

[newchick]

Sorry I am new here - can anyone tell me what the S10/12 Notice is?

[Somebody Told Me]

Sorry I am new here - can anyone tell me what the S10/12 Notice is?

 

Firstly welcome to CAG.

Whilst there is no doubt other people on here who are better qualified to answer this for you I'll give it a go.

The serving of a S10 / S12 Notice under DPA requests that the company in question remove adverse information from your credit file and / or removing your details from their records on the grounds that it is incorrect and causing unwarranted distress and inconvenience.

However, it's not a sure fire way of getting the outcome you desire as the company is likely to reply stating that the info is correct and as such will remain recorded on the basis that it is required for credit vetting purposes.

So we can help further are you able to provide any further details re your complaint?