Default Re: Me V Bank - defective DN and unfair relationship defence.

[diddydicky]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

just a thought- having lodged your defence- would you consider contacting them with regard to the harrison decision and their defective DN and invite them to discontinue with no costs on either side

they will be no more able to bring a second case than if they had been dismissed/struck out- but by agreeing to discontinue would not run the risk of them seeking to stay the trial whilst they re issue a New DN?

alternatively, if they refuse to discontinue - and they then lose - they are going to look a bit silly.

[toomanycalls]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

just a thought- having lodged your defence- would you consider contacting them with regard to the harrison decision and their defective DN and invite them to discontinue with no costs on either side

they will be no more able to bring a second case than if they had been dismissed/struck out- but by agreeing to discontinue would not run the risk of them seeking to stay the trial whilst they re issue a New DN?

alternatively, if they refuse to discontinue - and they then lose - they are going to look a bit silly.

Thanks for your thoughts, no I haven't written to them at all about this beyond the cpr request and the court copy of my outline defence. I'm very much in two minds the best way to go. I've been advised that the likely hood of winning a strikeout at this stage is very low and probably not worth costs so I'll probably just reply to the AQ on Monday as required and then...

I think a letter is perhaps a good idea, I think its at the stage of spelling out to them what's wrong and seeing how it turns out. If they try there luck and reissue the DN I can probably scrape up (with the help of a relative) to pay it which will be an interesting twist, hit them with new I & E and settle a low repayment schedule. This of course has no connection with the s140 problems they have created. with two attempted terminations and a second terribly faulty default notice.

[toomanycalls]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

Taking DD's suggestion, I have drafted a letter to send to the bank next week after delivery of the AQ

As usual all thoughts and suggestions welcome.

Without Prejudice

Dear Nationwide

Nationwide V TMC

I am writing to offer you the opportunity to withdraw the above claim with no penalty to costs.

It is plain to me and my advisors that your claim is doomed to fail as you have no right of action. The default notice you served under s87(1) of the Consumer Credit ACT 1974 is fatally flawed as it fails to allow sufficient time to rectify the default in accordance with the Interpretation Act 1978 Section 7, and claims sums not yet due so does not conform with the requirements of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

I draw your attention to the recent judgement of Harrison V Link Financial Ltd where his Honour Judge Chambers QC said “The notice of enforcement was a statutory pre-condition of enforcement. It was a bad notice and enforcement cannot be attempted in dependence upon it.”

There is no provision in the CCA that allows the creditor to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

An invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was confirmed by KPR as having been terminated on 8.7.10

I also claim that Nationwide has formed an unfair relationship as per the Consumer Credit Act s140B(2) by taking action without entitlement and seeking money where they have no entitlement and I will if this action continues ask the court to consider an order be made for relief under S140A. I draw your attention to OFT guidance

The unfair relationships test
2.3 Section 140A provides that the court may determine that the relationship between a lender and a borrower arising out of a credit agreement (or the agreement taken with any related agreement) is unfair to the borrower because of:
• the way in which the lender has exercised or enforced any of its rights under the agreement or any related agreement, or
• any other thing done (or not done) by or on behalf of the lender either before or after the making of the agreement or any relate agreement.

I look forward to receiving your response within seven days.

Sincerely

TMC

[toomanycalls]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

AQ hand delivered to court today ready for today's deadline, as yet Nationwide haven't put there's in. Any ideas to how much latitude the court allow them on time-scales?

Also any thoughts on the above letter?

[toomanycalls]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

Posted the letter to Nationwide yesterday inviting them to withdraw then this morning another default notice turned up obviously crossing in the post. This time it has the correct amount of arrears showing (or about what I guess it to be) but the date to rectify.......March 2010, third notice now and all of them wrong!! It even says "if you don't pay we may commence court proceedings", bit late for that...No OFT notice that they are supposed to include. The balance of the account is overstated by the amount of interest that they promised to credit to my account last month - Ł311.94

What was it the Judge in the Harrison case said "82. Another factor in the opposite direction is the apparently cavalier manner of the sending both of the enforcement notice and the failure to include the requisite document. "

[diddydicky]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

AQ hand delivered to court today ready for today's deadline, as yet Nationwide haven't put there's in. Any ideas to how much latitude the court allow them on time-scales?

Also any thoughts on the above letter?

the courts tend to allow far more leeway to creditors as opposed to LIPS as the former have very high case loads

give them PLENTY of rope to hang themselves

[toomanycalls]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

Received a reply from NW this morning.


With a new valid (?) DN


The balance of the loan is still overstated because of the refunded interest by Ł311.94 though also no OFT leaflet supplied again.

Thoughts please? This balance now includes court charges etc as well so not legally allowable (?)

[Lord_Alcohol]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

Presumably the new arrears are for the "missed payments" between March 2010 and now?

If so, the bank need to explain how this can have happened when they withdrew the facility to make the contractual monthly payments. It is hardly your fault that this new sum has arisen.

Moreover, a S87(1) DN must state the provision in your agreement alleged to have been breached. But NW ended your agreement last year, meaning that no further provision can have been breached in the meantime as there was no agreement !!

If they refer to the earlier breach, how can it possibly be further breached when the contract is dead?

Did you receive a "Notice of Resurrection"? When did NW tell you the contract was now extant, so you could start paying monthly payments? Not until your new DN, I would assume.

IMHO, the only amount they can reasonably demand is the original arrears - my annoyed little rant above assumes that the new DN demands far more than that. If so, I would point out the problems above by letter.

[toomanycalls]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

Presumably the new arrears are for the "missed payments" between March 2010 and now?

Yes, as a rough guess is about right.

If so, the bank need to explain how this can have happened when they withdrew the facility to make the contractual monthly payments. It is hardly your fault that this new sum has arisen.

Moreover, a S87(1) DN must state the provision in your agreement alleged to have been breached. But NW ended your agreement last year, meaning that no further provision can have been breached in the meantime as there was no agreement !!

If they refer to the earlier breach, how can it possibly be further breached when the contract is dead?

Termination letters were July and August last year, 3/4 months after the orignal DN.

Did you receive a "Notice of Resurrection"? When did NW tell you the contract was now extant, so you could start paying monthly payments? Not until your new DN, I would assume.

IMHO, the only amount they can reasonably demand is the original arrears - my annoyed little rant above assumes that the new DN demands far more than that. If so, I would point out the problems above by letter.

No NOR, (like they could...)

Funny how it took my letter to realise they had issued a duff DN, this is definitely attack.

If I pay the arrears they will have to discontinue. I assume I could then claim for costs (?). What about unfair relationship. Pay the arrears and then insist they set a repayment schedule in line with my NW overdraught, ie no charges/no interest, low payments.

Can they reissue the POC without creating an unfair relationship?

Only problem now is they have set the clock ticking again...

[mystery1]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

If they hadn't terminated (or tried depending on your pov) would the arrears total on the new DN be accurate ?

M1

[toomanycalls]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

If they hadn't terminated (or tried depending on your pov) would the arrears total on the new DN be accurate ?

I think its about right, haven't worked it out exactly yet, the refunded interest of Ł300 might not be taken into account, certainly not in the total of the loan.

[toomanycalls]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

Just thinking out loud, if they amend the POC are they then not liable for my costs of proceeding to trial? Would be interesting to argue the unfair relationship without worrying about costs.

[pt2537]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

Just thinking out loud, if they amend the POC are they then not liable for my costs of proceeding to trial? Would be interesting to argue the unfair relationship without worrying about costs.

The general rule is that the amending party is liable for the costs occasioned by the amendments. This basically means the opponent will be liable for your costs, BUT there is a point you MUST remember

The oppo is only liable if the costs are sought at the application to amend or in the draft order

If the Court orders no order as to costs then you get no costs, so you must deal with this in the proper manner

[toomanycalls]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

Thanks PT

Just to clarify, is that costs as far as and including the amendment hearing or also upto and including the final hearing?

[pt2537]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

Thanks PT

Just to clarify, is that costs as far as and including the amendment hearing or also upto and including the final hearing?

The rule is “costs of and caused by” the application (as to the meaning of such an order, see the Costs Practice Direction, Para.8.5 (44PD.2).

So it is only costs of the application to amend, and directly caused by, not the whole costs