Kafka - v -BC/Lowell

[ncf355]

Re: Kafka - v -BC/Lowell

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

The judge that did this would be at risk of appeal for incorrect application of statute.

The statute surrounding this is VERY clear that a complaint DN must be issued prior to the demand for the full balance or enforcement.

If they wished to issue a new, compliant DN they would need to discontinue and reissue but would then fall into Estoppel and require the courts permission to reissue the same claim.


The above is not just my own uneducated, unqualified option, I was given direct advice on this by a barrister with a great number of years in consumer credit law.


28 days for the timeline means nothing if the DN was received 1 day before that 28 days was up! - it is not enough to state a date at the top of the notice, the date by which action must be taken is one of the key points, and it is NOT stated.

There is also a train of thought that a defective DN would amount to repudiation of contract, meaning all they could ever claim now is the arrears due at the time of the faulty DN issue.

[ncf355]

Re: Kafka - v -BC/Lowell

Re the Default

So I'm clear, the DN that is being referenced and replied upon by them is the one alleged to be issued in 2007?

If so, I don't believe the notice is effective due to the minimum payments as clearly

- Making the assumption here that the last full payment was made January 2006?? - can you clarify the actual date of last, full contractual payment where interest was applied normally? -

There is no way that the total arrears came close to the balance, as the total arrears at July 2007 would be monthly minimum payment x 18 (again, assuming last payment made January 2007)

Most cards of this time were minimum payment of 3% of the balance, so........

[ncf355]

Re: Kafka - v -BC/Lowell

Personally, I think you have enough ammo to take down an army, but that is an unqualified opinion and obviously its ulimately up to you/your friend how to proceed

:tinysmile_grin_t:

[nemesis45]

Re: Kafka - v -BC/Lowell

The judge that did this would be at risk of appeal for incorrect application of statute.

The statute surrounding this is VERY clear that a complaint DN must be issued prior to the demand for the full balance or enforcement.

If they wished to issue a new, compliant DN they would need to discontinue and reissue but would then fall into Estoppel and require the courts permission to reissue the same claim.


The above is not just my own uneducated, unqualified option, I was given direct advice on this by a barrister with a great number of years in consumer credit law.


28 days for the timeline means nothing if the DN was received 1 day before that 28 days was up! - it is not enough to state a date at the top of the notice, the date by which action must be taken is one of the key points, and it is NOT stated.

There is also a train of thought that a defective DN would amount to repudiation of contract, meaning all they could ever claim now is the arrears due at the time of the faulty DN issue.

The " generic" nature of DN's is what allows the issue of a compliant DN I've seen this allowed many times when the claimant has declared a " clerical error", it is done after careful consideration of the facts before the court, not seen any appeals at any level just a bit of hysterics in most cases.
A technical point for a judge to decide.

[Kafka]

Re: Kafka - v -BC/Lowell

Re the Default

So I'm clear, the DN that is being referenced and replied upon by them is the one alleged to be issued in 2007?

If so, I don't believe the notice is effective due to the minimum payments as clearly

- Making the assumption here that the last full payment was made January 2006?? - can you clarify the actual date of last, full contractual payment where interest was applied normally? -

There is no way that the total arrears came close to the balance, as the total arrears at July 2007 would be monthly minimum payment x 18 (again, assuming last payment made January 2007)

Most cards of this time were minimum payment of 3% of the balance, so........

Actually the DN has not been supplied by them, the copy in question was supplied in the SAR.

The usual CCA and CPR requests were sent to Lowell and BC respectively, all some time ago, and the initial response was the bog-standard BC one that they don't need to supply anything. Some time passed and long after the compliance periods, the material in post #7 was sent and this is evidently in response to the CCA request, although this was not made clear in the letter from BC. They have still not supplied the DN or NoA as required through the CPR request.

I should also add that the original paperwork for this account is very good, and there was no DN ever sent. The account was put into an agreed payment plan through CCCS and payments were made as agreed. Then suddenly, the account was defaulted without warning, even though the payments had been made and continued to be made for some time after the defaulting. All of this is clear from the statements.

My guess is that when the SAR went to Cap1 they realised their errors and cobbled together the DN in debate here to put in the SAR and make it look as if they had complied with the rules. In fact - and apart from the dates - the DN of 14/7/2009 was clear that the agreement had been broken because there was a Long Term Payment Plan, not because that plan had not been kept. They clearly wanted that plan to be cancelled and normal payments recommenced, but in my view it is not clear exactly what was required to satisfy the demands of the DN.

Two weeks later (17/7/2009) a Notice of Sums in Arrears (attached here) acknowledged the agreed payments being made, but stated that the amount payable for "missed or partly-missed payments" was the full balance. In other words, they were demanding that the full balance was due even before the DN of 2 weeks earlier had run the 28 days. It seems to me that they tired of the agreed DMP and decided to default the account without bothering with the CCA requirements, but only realised this when the SAR request hit them.

What I really need is the DN to be supplied by Lowell/BC so that it can be challenged. I did reply to their recent CCA stuff with a letter pointing out that there were still requested items under the CPR that were still outstanding.

[ncf355]

Re: Kafka - v -BC/Lowell

The " generic" nature of DN's is what allows the issue of a compliant DN I've seen this allowed many times when the claimant has declared a " clerical error", it is done after careful consideration of the facts before the court, not seen any appeals at any level just a bit of hysterics in most cases.
A technical point for a judge to decide.

But the 'must be issued prior to enforcement" is crystal clear and not open to interpretation

Certainly the judge can try, but if it was me I'd definitely appeal if this was allowed as IMHO (and as I said, that opinion also held by a time served consumer credit barrister) it's an error in law - the judge cannot overrule statute (at least when it's something so clearly laid out), I'm sure that if they had that option, S127(3) unenforceable agreements would have been binned by many a judge

[nemesis45]

Re: Kafka - v -BC/Lowell

Lowell cannot issue a DN.
You say above" the DN of Two weeks Earlier" is that correct.
Any " payment arrangement" amounts to a default on the terms of the agreement, and on would expect a default to be placed at the inception of the payment agreement..........

The document above clearly states it is Not a Demand.

[ncf355]

Re: Kafka - v -BC/Lowell

Actually the DN has not been supplied by them, the copy in question was supplied in the SAR.

The usual CCA and CPR requests were sent to Lowell and BC respectively, all some time ago, and the initial response was the bog-standard BC one that they don't need to supply anything. Some time passed and long after the compliance periods, the material in post #7 was sent and this is evidently in response to the CCA request, although this was not made clear in the letter from BC. They have still not supplied the DN or NoA as required through the CPR request.

I should also add that the original paperwork for this account is very good, and there was no DN ever sent. The account was put into an agreed payment plan through CCCS and payments were made as agreed. Then suddenly, the account was defaulted without warning, even though the payments had been made and continued to be made for some time after the defaulting. All of this is clear from the statements.

My guess is that when the SAR went to Cap1 they realised their errors and cobbled together the DN in debate here to put in the SAR and make it look as if they had complied with the rules. In fact - and apart from the dates - the DN of 14/7/2009 was clear that the agreement had been broken because there was a Long Term Payment Plan, not because that plan had not been kept. They clearly wanted that plan to be cancelled and normal payments recommenced, but in my view it is not clear exactly what was required to satisfy the demands of the DN.

Two weeks later (17/7/2009) a Notice of Sums in Arrears (attached here) acknowledged the agreed payments being made, but stated that the amount payable for "missed or partly-missed payments" was the full balance. In other words, they were demanding that the full balance was due even before the DN of 2 weeks earlier had run the 28 days. It seems to me that they tired of the agreed DMP and decided to default the account without bothering with the CCA requirements, but only realised this when the SAR request hit them.

What I really need is the DN to be supplied by Lowell/BC so that it can be challenged. I did reply to their recent CCA stuff with a letter pointing out that there were still requested items under the CPR that were still outstanding.

Why do you need Lowell to supply one?

At the moment they are relying on the one in the SAR which is (IMHO....) flawed in many ways

You would have good grounds to go for a strike out of their claim from what I've seen , possibly more so if you were sticking to your grounds that the DN was never served

It could be two pronged...................

The Defendant requests that the court strike the Claimants claim out as having no lawful grounds to proceed due to:

1) The fact the Claimant denies that the Defendant (or the original creditor) have served upon him a valid Default notice under Section 87 of the Consumer Credit Act 1974 (such notice being required prior to the issue of a claim based on a Consumer Credit Act 1974 Agreement)

2) Failing the above (and should the Claimant show clear proof of service upon the Claimant of a notice relied upon) that the Default notice served failed to comply with the statutory requirements of such a notice and is invalid

[ncf355]

Re: Kafka - v -BC/Lowell

The above of course is even before we start getting into the 'agreement' copy itself................

[nemesis45]

Re: Kafka - v -BC/Lowell

But the 'must be issued prior to enforcement" is crystal clear and not open to interpretation

Certainly the judge can try, but if it was me I'd definitely appeal if this was allowed as IMHO (and as I said, that opinion also held by a time served consumer credit barrister) it's an error in law - the judge cannot overrule statute (at least when it's something so clearly laid out), I'm sure that if they had that option, S127(3) unenforceable agreements would have been binned by many a judge

If a " new" DN is allowed it's provided prior to enforcement i.e. a judgement.

[Amethyst]

Re: Kafka - v -BC/Lowell

The DN isn't grounds for a strike out application, it is a defence point to argue at trial.


Capital One's website says this about payment plans.

Set up a payment plan – if you're eligible, this will take into account your individual situation. To help you work out what you can afford, first try our handy budget planner.

A payment plan makes it easier to get your account up to date by:

Spreading your payments over a longer period
Temporarily stopping any late payment and overlimit fees (you'll still be charged interest on your balance)
Preventing your account from defaulting
Showing on your credit file that you're trying to get back on track

If you're eligible for a payment plan, and you miss one of your plan payments without contacting us, we'll ask you to pay the amount required to bring your account up to date.

By doing nothing you risk:

More late payment and overlimit fees
Your debt being passed on to a Debt Collection Agency
Defaulting – your account will be closed and the default will stay on your credit file for six years. This could stop you getting credit in the future, including loans and mortgages

[Amethyst]

Re: Kafka - v -BC/Lowell

CCA - did you get the terms and conditions with this ?

[Kafka]

Re: Kafka - v -BC/Lowell

Lowell cannot issue a DN.
You say above" the DN of Two weeks Earlier" is that correct.
Any " payment arrangement" amounts to a default on the terms of the agreement, and on would expect a default to be placed at the inception of the payment agreement..........

The document above clearly states it is Not a Demand.

Lowell can't issue a DN but they can supply a true copy when they mention it in the POC and are requested to supply it through a CPR request.

The DN supplied through the SAR doesn't make clear exactly what needed to be paid by the 28 days. The Notice of Sums in Arrears of 2 weeks later states that the full balance was then due. Although not a demand, I think it confirms that they had - in effect - defaulted the account despite no payments having been missed on the repayment plan.

[ncf355]

Re: Kafka - v -BC/Lowell

That's a fair argument Nemesis

Though of course the 'arrears' amount would then have to be accurate and it would be open to Kafka's friend to pay the arrears, making the claim DoA?

[Kafka]

Re: Kafka - v -BC/Lowell

CCA - did you get the terms and conditions with this ?

Yes the V number supposedly at inception and the other with the default terms. Both are undated and neither was ever sent at the time.