Kafka - v -BC/Lowell

[ncf355]

Re: Kafka - v -BC/Lowell

Does the 'Section 16' of the agreement as per the default notice match the repayment clause of the agreement they allege to be Defendants?

[ncf355]

Re: Kafka - v -BC/Lowell

Also, I don't think that meets the requirements for underlining the text in various spots which I again believe has been found not to be a 'de minimis' error (in other words they must have the text EXACTLY as prescribed or the notice is defective)

[Kafka]

Re: Kafka - v -BC/Lowell

Err

Amethyst etc may or may not back me on this?, but I'm pretty sure the '28 days' thing is a no - no - I believe case law somewhere stated they MUST state a date by which the payment needs to be made

Thats for starters.........

I thought that that didn't matter, providing there was an absolute date somewhere that did allow you the statutory time to correct and was unambiguous regarding the date for compliance. There have been a few cases with no date at all so must be invalid.

[Kafka]

Re: Kafka - v -BC/Lowell

Does the 'Section 16' of the agreement as per the default notice match the repayment clause of the agreement they allege to be Defendants?

Pretty much, just some slight changes to the wording. However, T&Cs weren't sent when the account was opened and were not supplied within the SAR. These have only come in response to the CPR request.

[ncf355]

Re: Kafka - v -BC/Lowell

I thought that that didn't matter, providing there was an absolute date somewhere that did allow you the statutory time to correct and was unambiguous regarding the date for compliance. There have been a few cases with no date at all so must be invalid.

Really?

Hmmm, news to me I must admit

[Kafka]

Re: Kafka - v -BC/Lowell

This from the ICO guidance in 2007. It refers to the precise date of the projected default being clear, so that is the case whether they say X date, or Y days after Z date.
******************************
Notices to comply with Sections 13.7 of the Banking Code5 and 7.5 of the Lending Code6 should provide adequate warning. A notice of intention to file a default can be sent with a formal default notice served under Section 87 of the Consumer Credit Act 1974. Where lenders are not required to issue these notices, they can send an intention to file a default through a final demand, letter or relevant account statement, which should make clear not only the intention to file but also the date of the intended default. The date should allow the customer enough time to respond properly. Lenders who have to provide a notice of intention to file a default under a relevant code of practice should be aware that not complying with the code may be taken into account in any assessment of the fairness of their processing.

[ncf355]

Re: Kafka - v -BC/Lowell

Is the amount specified in the DN the correct amount of arrears as at the time of the DN?

[ncf355]

Re: Kafka - v -BC/Lowell

This from the ICO guidance in 2007. It refers to the precise date of the projected default being clear, so that is the case whether they say X date, or Y days after Z date.
******************************
Notices to comply with Sections 13.7 of the Banking Code5 and 7.5 of the Lending Code6 should provide adequate warning. A notice of intention to file a default can be sent with a formal default notice served under Section 87 of the Consumer Credit Act 1974. Where lenders are not required to issue these notices, they can send an intention to file a default through a final demand, letter or relevant account statement, which should make clear not only the intention to file but also the date of the intended default. The date should allow the customer enough time to respond properly. Lenders who have to provide a notice of intention to file a default under a relevant code of practice should be aware that not complying with the code may be taken into account in any assessment of the fairness of their processing.

Hi,

in this case, the ICO's comments are irrelevant and they are meant in respect to when it is valid to place a default on CRA files

We're concerned with statute around the S87 and what case law has had to say about it

It may be that the date at the top of the letter is adequate, but I (if put in court with this) would argue that the letter could have been posted at any time, so without a date upon which action must be taken, the DN is unlawful.

We all know that DCA's, banks, etc have some very funny postal systems - I used to regularly receive letters from DCA's demanding payment within 7 days when the date on the letter was yesterday!

[ncf355]

Re: Kafka - v -BC/Lowell

Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal

[Kafka]

Re: Kafka - v -BC/Lowell

Is the amount specified in the DN the correct amount of arrears as at the time of the DN?

The amount required in the DN was the full amount to clear the account. There had been an arrangement made (on health grounds) to pay £5 pm under a DMP and this was being paid throughout the period of default. They just seem to have decided to default it for the sake of it and requested the full balance, not the slippage by paying the £5 rather than the minimum amounts.

[ncf355]

Re: Kafka - v -BC/Lowell

If the standard monthly payments were multiplied by the number of months missed, would they meet or exceed the full balance?

If not, the DN is six foot under

[nemesis45]

Re: Kafka - v -BC/Lowell

It seems to me that what has been sent I an attempt at a recon agreement. Lowell have been " cobbling together" some pretty poor attempts at this recently to be clear here is what a recon must have to comply with a CCA request.

1. Your name and address at the inception of the account.
2. The original creditors name and address at inception.
3.All the Ts & Cs at inception
4.All the Ts & Cs at closure of the account.
5.Any Material Amendment to the Ts & Cs made during the life of the agreement.
6.Any other documents mentioned in the Ts &Cs.

If any part is missing or is defective the recon fails to comply.

A. No signatures are required.

There are a couple of things I would remark on in the thread, fake assignment notices, it is allowed that the NOA can be sent by the creditor and or the debt purchaser, often the original creditor allows the debt purchaser to supply its NOA often in the same envelope these are not fakes or forgeries.
The other comment concerns what one Might Expect to receive in response to a SAR.
This all hinges on what may be called " Personal Data" . Such items as Default Notices are considered "generic documents" and are not routinely archived ( there is no obligation so to do).

Having taken a considerable time in discussion with the ICO both in writing and verbally over the last few years I found that Regulated Consumer Agreements/contracts are also considered " generic" as the terms and conditions for instance on a particular credit card brand are generic and apply to all customers applying for that facility.

The ICO has confirmed that " although it might "Expect" an agreement to be supplied with the SAR response there is No Specific Obligation so to do. Some creditors will send agreements but most will decline and or point one to the appropriate sections of CCA 1974 (as amended).

Final Demands particularly to " Service Contracts" e.g. Mobile Phone Accounts where " final demand " is issued prior to placing a default as said in the post above, but so often we see irate consumers complaining that no DN was issued and a CCA request has gone unanswered.

The 28 day time scale on the DN is a generous one imo 14 days being more usual.

Also always remember a judge can allow a compliant DN to be issued, and will do so if circumstances are appropriate.

Reading the DN in this case again it refers to a " long term payment plan" so is not a further default just a notice that an "agreed payment arrangement" has failed.

I must agree that the OC should have defaulted the account immediately prior the inception of a payment plan, the later default can be challenged as unfair as is leaves the debtor at a " disadvantage when compared to a debtor who has made no effort to repay his debt, yet has the default entry removed from CRA files after 6 years paid or not."

I have successfully used this challenge on behalf of others many times.

nem.

[Kafka]

Re: Kafka - v -BC/Lowell

If the standard monthly payments were multiplied by the number of months missed, would they meet or exceed the full balance?

If not, the DN is six foot under

from what I can see of the statements, there was a DMP to pay token amounts from early 2006, but they kept adding to the figure for minimum payment due. So while the balance was falling slightly (with no interest), the min payment due kept rising. In 10/2006 the £1 payments were still being made, but the min payment due suddenly leapt to be the full balance of over £2k from the previous figure of over £500. The DN and following Notice of Sums in Arrears were not sent until 7/2007 although the claim that the full amount was due had been sent 9 months earlier.

I should add that the DN and Notice of Summe in Arrears only came for the SAR and copies were not supplied by BC in response to the CPR request.

[Kafka]

Re: Kafka - v -BC/Lowell

It seems to me that what has been sent I an attempt at a recon agreement. Lowell have been " cobbling together" some pretty poor attempts at this recently to be clear here is what a recon must have to comply with a CCA request.

1. Your name and address at the inception of the account.
2. The original creditors name and address at inception.
3.All the Ts & Cs at inception
4.All the Ts & Cs at closure of the account.
5.Any Material Amendment to the Ts & Cs made during the life of the agreement.
6.Any other documents mentioned in the Ts &Cs.

If any part is missing or is defective the recon fails to comply.

A. No signatures are required.

There are a couple of things I would remark on in the thread, fake assignment notices, it is allowed that the NOA can be sent by the creditor and or the debt purchaser, often the original creditor allows the debt purchaser to supply its NOA often in the same envelope these are not fakes or forgeries.
The other comment concerns what one Might Expect to receive in response to a SAR.
This all hinges on what may be called " Personal Data" . Such items as Default Notices are considered "generic documents" and are not routinely archived ( there is no obligation so to do).

Having taken a considerable time in discussion with the ICO both in writing and verbally over the last few years I found that Regulated Consumer Agreements/contracts are also considered " generic" as the terms and conditions for instance on a particular credit card brand are generic and apply to all customers applying for that facility.

The ICO has confirmed that " although it might "Expect" an agreement to be supplied with the SAR response there is No Specific Obligation so to do. Some creditors will send agreements but most will decline and or point one to the appropriate sections of CCA 1974 (as amended).

Final Demands particularly to " Service Contracts" e.g. Mobile Phone Accounts where " final demand " is issued prior to placing a default as said in the post above, but so often we see irate consumers complaining that no DN was issued and a CCA request has gone unanswered.

The 28 day time scale on the DN is a generous one imo 14 days being more usual.

Also always remember a judge can allow a compliant DN to be issued, and will do so if circumstances are appropriate.

Reading the DN in this case again it refers to a " long term payment plan" so is not a further default just a notice that an "agreed payment arrangement" has failed.

It did not 'fail' due to lack of agreed payments though, as they were still being made even after the default process.

I must agree that the OC should have defaulted the account immediately prior the inception of a payment plan, the later default can be challenged as unfair as is leaves the debtor at a " disadvantage when compared to a debtor who has made no effort to repay his debt, yet has the default entry removed from CRA files after 6 years paid or not."

In this case they appear to have accepted the payment plan for some time, then suddenly recorded that the full balance was due 9 months before they apparently issued the Default Notice

I have successfully used this challenge on behalf of others many times.

nem.

....

[bcarterproblems]

Re: Kafka - v -BC/Lowell

Find this interesting in the light of your question concerning BC referring to the information they have supplied as a reconstituted agreement. All they appear to have done in my instance is supplied a later version of the T&C's with no reference to the original T&C's in 1997. They have not described them as reconstituted and in the light of the information in your post I gather they would be flawed if they attempted to do this.