MACKENZIE

[teaboy2]

Re: MACKENZIE

Right I have cleaned this thread up as it is making everyone involved look very childish.
Are we really stooping THAT low.


Also, for the avoidance of doubt, Teaboy, you are incorrect in your reading of The Act.
As a PDL is designed to be repaid in ONE lump, over a term not exceeding 1 calendar month, it is NOT covered by The Act and so the need for a DN is superfluous.
See also Amex (and other) CHARGE cards.
I'm sorry but I can't recall the specific section that covers this, but I will dig it out if you wish to argue the toss.

Sorry CB but how is a pay day loan not regulated by the consumer credit act 1974? Though i do see where your coming from, I do not see anywhere where they are exempt by the act - Especially when their is a charge and/or interest on PDL's e.g. borrow £100 pay back £125.

the key bit is highlighted in red:

3.6 The Act does not regulate a debtor-creditor-supplier agreement for
fixed-sum credit where the credit is provided without interest and
without any other charges and which is:
• an agreement under which the total number of payments to be
made by the debtor does not exceed four, and those payments are
required to be made within a period not exceeding 12 months
beginning with the date of the agreement29

Basically the bit in blue only applies if the loan is without interest and/or charges - Otherwise it simply does not apply. Not only that, if you were correct CB, then why are PDL sending people Default Notices left right and centre? Because if you were correct, then clearly they would not be sending out default notices for PDL's. So unless where missing something then am afraid i must disagree with you on that one.

Also, as for the Amex case please provide a link to it so we can see exactly what it is your reffering to when you mentioned said case, as the only Amex case of importance in recent years that am aware off was the Brandon V Amex which was won at appeal by Brandon, which was regarding Default Notices. Heres a link giving a overview of the case for anyone interested: http://www.google.co.uk/url?sa=t&rct...7L9rrA&cad=rja

Atleast me a Davyb agree that a PDL is covered by the act - Or i think we do.

[Guest]

Re: MACKENZIE

Sorry but how is a pay day loan not regulated by the consumer credit act 1974? I do not see anywhere where they are exempt by the act - Especially when their is a charge and/or interest on PDL's e.g. borrow £100 pay back £125.

the key bit is highlighted in red:

3.6 The Act does not regulate a debtor-creditor-supplier agreement for
fixed-sum credit where the credit is provided without interest and
without any other charges and which is:
• an agreement under which the total number of payments to be
made by the debtor does not exceed four, and those payments are
required to be made within a period not exceeding 12 months
beginning with the date of the agreement29

Basically the bit in blue only applies if the loan is without interest and/or charges - Otherwise it simply does not apply.

Atleast me a Davyb agree on that it is covered by the act - Or i think we do.

Yes they are. However(and this is something we have been working on for nearly four years together with COMPASS)

The act does not offer anywhere near the kind of protection that it does on other loans. This is because it was not designed with short term high interest loans like this in mind.

We had hoped that there would have been amendments or SI in place by this time, but all we got was a code of practice which is less than useless.

Things like notice of default sums, Default notices, total charge for credit, all things that you would expect to be made available for a standard fixed sum loan are not available under the requirements of the act on PDL.

Judges so far have been helpful in that they have made liberal use of the fairness legislation contained in the 2006 act, and should a case go to court these are the most successful methods of defense, by far.

30% on a short term loan may be acceptable if it is under a contract, but continuing the charge whilst the agreement is in default is not enforceable it seems in most cases.

What is needed is a cap on the total charge for credit as they have abroad together with a limit on rollovers linked to a central database so that debtors cannot get multiple loans through a variety of lenders, they have this in Canada apparently and it works very well.

The OFT are currently looking into the way that these loans are advertised which is another major issue but they are very slow, as we know.

Sorry running on a bit.

D

[teaboy2]

Re: MACKENZIE

Well i have a copy of a default notice from one case i helped someone with (though they referred to it as a Notice of Default) that was issued under section 87 (1) - Therefore, is a default notice (see attached). So it would seem they too believe they have to follow section 87(1) and issue default notices too.

[Guest]

Re: MACKENZIE

As i said earlier they do send out notices like this but there is no requirement.
Notice there is no remedy available other than to pay the full balance, therefore it is just a letter before action.

D

[bluebottle]

Re: MACKENZIE

Morning all,

I had a 'bit of bother' from Mac Hall some time ago. These are the 2 letters which I sent to them and they vanished into the mists of time!!

Milland Road, Hailsham, Sussex,BN27

Thomas Lloyd
Mackenzie Hall
30 The Foregate
Kilmarnock
KA1 1JH 9^th May 2008


First Class recorded delivery.

Re: M XXXXXX

I do not acknowledge any debt to your company or any other person.

I have today received your unsigned letter dated 29/4/2008.

I will not be making any payment to you.

I will not be calling you. This is because I do not carry out any financial business on the telephone, all business between us must be in writing.

Please provide me with proof of your lawful right to claim any money from me.

You must not telephone me, any calls from you will be recorded and construed as harassment.

You must not send collection staff or any other person acting on your behalf or under your instructions to my residence as this will be construed as harassment.

Take note that any implied right of access that may have existed to my residence and grounds is withdrawn from you and any of your agents apart from Royal Mail, to this effect, for you to send a door step collector will be considered trespass and harassment and you will be held liable and reported to the relevant authorities.

If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

IN RESPECT OF THE ALLEGED DEBT CLAIMED, I REQUIRE:

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of any default and at the time the account was opened.

2. All records you hold on me relevant to this case, including but not limited to:

a. A transcript of all transactions, including charges, fees, interest, repayments and payments and both the original amount of the loan and any repayments made to it the account.

b. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

c. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account.

d. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

e. Documents relating to any insurance which is held on the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

f. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

g. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

h. A genuine copy of any deed of assignment, or proof that you have a legal right to this money.

i. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

j. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

k. A copy of all account statements for the duration of the agreement.


3. A copy of your complaints procedure, as required by the Consumer Credit Act 2006.

4. Clarification of the date you acquired the debt, or instructions to act as collection agents; what organisation these were acquired from, their registered office, their company number (if any), and what legal title they had to this debt, and what credit licence number they had at the time that the debt was purchased or entered into. You are also required to provide your credit licence number.

I must advise you that if the information is not forthcoming within the legally prescribed timescale, all of the facts will be reported to the OFT and Trading Standards for consideration of the question of prosecuting you for all or any of the offences disclosed.

(Please note :A “true copy” means a first generation copy of the actual signed document.)

All documents should be readily available as proof of your or your clients legal right to collect this account.

Your and your client’s failure to provide this documentation within the statutory time limits means would means you or your client has committed a summary criminal offence.

However, due to your vexatious nature of your correspondence I also reserve the right to make formal complaints against you and/or your client to Trading Standards and the Office of Fair Trading to whom I may now send copies of our correspondence as evidence.

Please be aware that I am logging all correspondence with you with regards to this matter and will be charging for time at the rate of £17.80 per hour as part of my counterclaim against any action you may take.

I trust you will deal with this matter using all due diligence.

Kind Regards




Yours faithfully,






Mr Rxxxxxxxxd.


....and this was my second letter:

Hailsham, Sussex,BN27 1TP

Thomas Lloyd
Mackenzie Hall
30 The Foregate
Kilmarnock
KA1 1JH 20^th May 2008


First Class recorded delivery.

Re: M 7884833

I do not acknowledge any debt to your company or any other person.

I have today received your unsigned letter dated 9/5/2008. I will not be making any payment to you.

I will not be calling you. This is because I do not carry out any financial business on the telephone, all business between us must be in writing.

It is necessary to draw your attention to my letter to you dated 9^th May 2008, sent by recorded delivery first class mail.

Royal Mail have confirmed receipt by you of this letter.

This letter required certain information from you – that information is still outstanding.

In the meantime, the contents of your letter dated 9^th May 2008 constitute an offence under The Fraud Act 2006 .

The appropriate sections read:

Section 1. Subsection (3) sets out the penalties for the offence. The maximum custodial sentence of 10 years is the same as for the main existing deception offences and for the common law crime of conspiracy to defraud.

Section 2. This section makes it an offence to commit fraud by false representation.
Subsection (1)(b) requires that the person must make the representation with the intention of making a gain or causing loss or risk of loss to another. The gain or loss does not actually have to take place. The same requirement applies to conduct criminalised by sections 3 and 4. Subsection (2) defines the meaning of "false" in this context and subsection (3) defines the meaning of "representation". A representation is defined as false if it is untrue or misleading and the person making it knows that it is, or might be, untrue or misleading. Subsection (3) provides that a representation means any representation as to fact or law, including a representation as to a person's state of mind.
Subsection (4) provides that a representation may be express or implied. It can be stated in words or communicated by conduct. There is no limitation on the way in which the representation must be expressed. So it could be written or spoken or posted on a website.
Subsection (5) provides that a representation may be regarded as being made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention). The main purpose of this provision is to ensure that fraud can be committed where a person makes a representation to a machine and a response can be produced without any need for human involvement.

Section 3. makes it an offence to commit fraud by failing to disclose information to another person where there is a legal duty to disclose the information. A legal duty to disclose information may include duties under oral contracts as well as written contracts. The concept of "legal duty" is explained in the Law Commission's Report on Fraud, which said at paragraphs 7.28 and 7.29:
"7.28 ..Such a duty may derive from statute (such as the provisions governing company prospectuses), from the fact that the transaction in question is one of the utmost good faith (such as a contract of insurance), from the express or implied terms of a contract, from the custom of a particular trade or market, or from the existence of a fiduciary relationship between the parties (such as that of agent and principal).
7.29 For this purpose there is a legal duty to disclose information not only if the defendant's failure to disclose it gives the victim a cause of action for damages, but also if the law gives the victim a right to set aside any change in his or her legal position to which he or she may consent as a result of the non-disclosure. For example, a person in a fiduciary position has a duty to disclose material information when entering into a contract with his or her beneficiary, in the sense that a failure to make such disclosure will entitle the beneficiary to rescind the contract and to reclaim any property transferred under it."

Section 5. defines the meaning of "gain" and "loss" for the purposes of sections 2 to 4. The definitions are essentially the same as those in section 34(2)(a) of the Theft Act 1968 and section 32(2)(b) of the Theft Act (Northern Ireland) 1969. Under these definitions, "gain" and "loss" are limited to gain and loss in money or other property. The definition of "property" which applies in this context is based on section 4(1) of the Theft Act 1968 (read with section 34(1) of that Act) and section 4(1) of the Theft Act (Northern Ireland) 1969 (read with section 32(1) of that Act). The definition of "property" covers all forms of property, including intellectual property, although in practice intellectual property is rarely "gained" or "lost".

Section 6 makes it an offence for a person to possess or have under his control any article for use in the course of or in connection with any fraud. This wording draws on that of the existing law in section 25 of the Theft Act 1968 and section 24 of the Theft Act (Northern Ireland) 1969. (These provisions make it an offence for a person to "go equipped" to commit a burglary, theft or cheat, although they apply only when the offender is not at his place of abode.) The intention is to attract the case law on section 25, which has established that proof is required that the defendant had the article for the purpose or with the intention that it be used in the course of or in connection with the offence, and that a general intention to commit fraud will suffice. In R v Ellames 60 Cr. App. R. 7 (CA), the court said that:
"In our view, to establish an offence under s 25(1) the prosecution must prove that the defendant was in possession of the article, and intended the article to be used in the course of or in connection with some future burglary, theft or cheat. But it is not necessary to prove that he intended it to be used in the course of or in connection with any specific burglary, theft or cheat; it is enough to prove a general intention to use it for some burglary, theft or cheat; we think that this view is supported by the use of the word 'any' in s 25(1). Nor, in our view, is it necessary to prove that the defendant intended to use it himself; it will be enough to prove that he had it with him with the intention that it should be used by someone else."
Subsection (2) provides that the maximum custodial sentence for this new offence is 5 years.

Section 7 makes it an offence to make, adapt, supply or offer to supply any article knowing that it is designed or adapted for use in the course of or in connection with fraud, or intending it to be used to commit or facilitate fraud. For example, a person makes devices which when attached to electricity meters cause the meter to malfunction. The actual amount of electricity used is concealed from the provider, who thus makes a loss. Subsection (2) provides that the maximum custodial sentence for this offence is 10 years.
In the Magistrates Court the sentence for a single offence may not exceed 12 months. However, Section 78 of Powers of Criminal Courts Act (Sentencing) Act 2000 imposes a maximum of six months. This was due to be changed in November 2006 and will change if Section 154 Criminal Justice Act 2003 is activated. As at 16 January 2007 it has not been activated so the maximum penalty is restricted to six months.

Section 8: "Article"
Section 8 extends the meaning of "article" for the purposes of sections 6 and 7 and certain other connected provisions so as to include any program or data held in electronic form. Examples of cases where electronic programs or data could be used in fraud are: a computer program can generate credit card numbers; computer templates can be used for producing blank utility bills; computer files can contain lists of other peoples' credit card details or draft letters in connection with 'advance fee' frauds.

Section 12 repeats the effect of section 18 of the Theft Act 1968. It provides that if persons who have a specified corporate role are party to the commission of an offence under the Act by their body corporate, they will be liable to be charged for the offence as well as the corporation. By virtue of subsection (2)(a) and (b) this offence applies to directors, managers, secretaries and other similar officers of companies and other bodies corporate. Subsection (3) provides that if the body corporate charged with an offence is managed by its members the members involved in management can be prosecuted too.
It is now too late to reverse your position, as a report has today been passed to the OFT.
However, I am conscious of the possibility that their enquiries may be protracted and so therefore I have today made a formal complaint to the Police, providing a S.9 Witness Statement, together with first generation copies (taken by the Police) from the documents you sent to my address. My request for this matter to be investigated under the Fraud Act 2006 has been accepted and enquiries are today commencing.



Yours faithfully,






Mr Rxxxxxxxx

I never heard from them again......I wonder why???

Best wishes all

Dougal

They probably all ran and hid in case PC Plod & Co. turned up and took their office door off its hinges, like they do. LOL!

[teaboy2]

Re: MACKENZIE

As i said earlier they do send out notices like this but there is no requirement.
Notice there is no remedy available other than to pay the full balance, therefore it is just a letter before action.

D

Sorry Davyb, but if their was really no requirement for them to send them out then why on earth are they sending them out!! Perhaps its because they are required to do so, as i doubt they would spend money on something when they are not required. Am pretty certain they would have consulted legal professionals about whether they are required to send them out or not, don't you think!

If it was just a Letter before action, then why not just send out a formal Letter Before Action instead of disguising it as a Default notice or notice of Default. If what you are saying was true then it simply would not make any sense for them to send out notices under section 87(1) like they do.

[Dougal16T]

Re: MACKENZIE

They probably all ran and hid in case PC Plod & Co. turned up and took their office door off its hinges, like they do. LOL!

Afternoon all,

The important point (IMO) is that they [Mac Hall] just do not like being in the same position as the people they write to:

That is to say they [Mac Hall] are now being stopped from bullying....and will run away.

I was always told that if you stand up to a bully he/she will stop. I had my ex-wife arrested twice for assaulting me in the 14 years of our marriage, and I not ashamed to say that I did so - why? Because I do not believe in striking a female, and I knew she was breaking the Law!! She was a bully, but only in the last 3-4 years of our marriage...it seemed to grow once she had the smell of money....my dear departed Mum left me well provided for...need I say more?.

So my view is Mac Hall = Bullies. Me = standing up to the bullies with their own treatment of others being used against them. [Works every time!!]

PS: As an ex-PC I knew/know that those who intimidated others often 'got their doors put in' (by other PC's), just to show these low-life perpetrators that they were not going to get away with their behaviour. Saved a fortune for the Government and bought offenders to heel. 'Summary Justice', I think it's called!

Best wishes all


Dougal

[Guest]

Re: MACKENZIE

Yes its mostly because they lke to maintain the illusion tht they are regulated, when effectively they are not.

Ask yourself this, if this notice was none compliant what would be the remedy?

Look at Woodchester, or just the regs. They would be due the arrears on the account, which is the same sum.

We have had people try to challenge these on DN issues, it doesn't work, The only tenuous issue is that the creditor shouldn't enforce in 14 days, which isn't really a problem.(which is no different than a LBA)

The purpose of the DN is to offer protection and opportunity to remedy, this gives neither.

D

[teaboy2]

Re: MACKENZIE

Yes its mostly because they lke to maintain the illusion tht they are regulated, when effectively they are not.

Ask yourself this, if this notice was none compliant what would be the remedy?

Look at Woodchester, or just the regs. They would be due the arrears on the account, which is the same sum.

We have had people try to challenge these on DN issues, it doesn't work, The only tenuous issue is that the creditor shouldn't enforce in 14 days, which isn't really a problem.(which is no different than a LBA)

The purpose of the DN is to offer protection and opportunity to remedy, this gives neither.

D

Really?? So why is it that when you miss the last payment or last few months payments on any loan you get a default notice for the Arrears, the Arrears obviously being the same as the total amount currently outstanding? So sorry Davyb, but just because the amount outstanding is the total remaining amount, which it obviously would be, it is still classed as arrears that are due. And therefore it can be used on a DN to recover such arrears.

As you said earlier and i agreed, PDL agreements are regulated by the Consumer Credit ACT 1974. As such, the act does not allow for the agreement to terminate when the debtor is in default just because the loan duration has expired, without the creditor issuing a default notice under section 87 (1). The debtor will have defaulted on the term that stipulates the loan duration, as such they are in breach of that term and the creditor can enact other terms of the agreement that allows them to issue a default notice, terminate and enforce the agreement in court. If the agreement terminated when the last repayment date past, then the creditor would be able to benefit from the terms of the agreement that entitles them to issue a DN, terminate, and enforce the agreement in court. Nowhere in the act does it state that a credit agreement terminates when the loan duration period has past. The agreement remains in place until either the arrears are paid or it is terminated by the creditor when a debtor fails to comply with a Default Notice issued under section 87(1).

As per my example in the other thread, if i employed a bulider to build an extension where the work must be completed within 56 days, and when on the 56 day the work is still not completed, the contract does not terminate, it remains in place until the work is completed no matter how long it takes to complete. The builder simply can not turn round and say the contract is no longer in place as it terminated on the 56th day, as the contract continues to be in place and their are terms that can be enacted as a result of the builders failure to comply with the term that states the work must be completed within 56 days. The builder must still turn up on the 57th and all over days required to finish the work, as the contract is for building an extension, not to do halve a job and leave. This is basic contract law and its the same for CCA's as the agreement does not terminate when money is still owed under it, other terms in the contract are enacted to enforce the debt, which includes termination and taking it to court.

If what you are saying was true, then what would be the point of the agreement being regulated under the CCA 1974, there would be no point at all. It would be like me lending money to a friend under the conditions that he pays it back in installments over a period of 12 months, only for him to miss the last payment. What your saying is that i could simply take the matter to court to reclaim the money that was not paid in the last installment. Bloody hell mate, why aren't creditors just waiting for the last day of the loan period (whether its a 1 month of 36 month period) and then just taking the debtor to court for to reclaim what was not paid? Oh wait i forgot loan agreements are regulated agreements therefore a creditor is not entitled to enforce the debt in court (at any time whether it be during the loan period or after) until thay have issued a VALID Default Notice and the debtor has not complied with it.

BY your logic the creditors would be better off waiting for the loan period to come to pass, and then have a free for all in court to reclaim outstanding amounts, it would certainly save a lot of trees due to them no longer having to issue default notices under section 87 (1), all because the loan period has past and the agreement terminated automatically. I wonder why on earth the creditors never thought about that themselves!!

[Guest]

Re: MACKENZIE

Sory, i dont see what you are trying to get at here.

If a loan is defaulted within the loan period the notice will give the current default balance(the arrears) if these are not paid then the full amount(principle+interest} will be payable.

If the loan has already run its term all the above will be due, don'know how else i can put it.

D

[teaboy2]

Re: MACKENZIE

Sory, i dont see what you are trying to get at here.

If a loan is defaulted within the loan period the notice will give the current default balance(the arrears) if these are not paid then the full amount(principle+interest} will be payable.

If the loan has already run its term all the above will be due, don'know how else i can put it.

D

Exactly, atleast we agree on that point. I admit i may have misread your post there, but i myself was only pointing out that if the arrears is the same as the total amount due then it is deemed arrears and can be put on the DN.

However as for it being a LBA, well thats laughable, as it is not a Formal Letter Before Action it is what it is stated to be, a Default Notice or Notice of Default (which if issued under section 87(1) is a default notice) issued under Section 87(1) act, it clearly states that and can not therefore be denied that it is not what it itself states it is.

Not only that you can not call a DN a letter before action as their are Civil Procedure Pre-Action Protocol that goven the content of an LBA. Below is what must be included in the Letter Before Action:

• A summary of the facts
• What you want from the party you are claiming from
• How you have calculated the sum you want to claim
• A list of the key documents that you will use to support your case
• A list of any documents you want from the party you are claiming from
• A reasonable deadline for a response (this must not be less than 14 days and it’s usually appropriate to allow 28 days)
• A reference to the Practice Direction on Pre Action Conduct and the fact that section II(4) of the direction gives the courts the power to impose sanctions on the parties if they fail to comply with the direction
• A warning that ignoring the letter before claim may result in court action being commenced
• Where appropriate a statement that you would be willing to consider Alternative Dispute Resolution

A Default Notice simply does not comply with what is required for a letter before action. Although i understand why you suggest a DN could be deemed a Letter Before Action, on the face of it, but the fact is it is not a Letter Before Action. It is what it is, a Default Notice!

[Guest]

Re: MACKENZIE

I can put a label on my dog saying,"i am a cat", it would still be a dog.

D

[Guest]

Re: MACKENZIE

Sorry a little facetious.

Point is that it performs none of the functions of a DN under the act, if it is wrong there is no sanction.

D

[teaboy2]

Re: MACKENZIE

Sorry a little facetious.

Point is that it performs none of the functions of a DN under the act, if it is wrong there is no sanction.

D

Ehh seriously Davyb, are you saying the a Default Notice performs none of the functions under the CCA Act 1974?? If you are then you have completely lost me there. As a Valid Default does perform the functions under the act. Its only when its invalid when it fails to perform. Or are you referring to the example i posted earlier today (which to be honest i can not remeber if it was valid or not now and i never checked it before i posted it as an example to proof PDL companies do issue DN's), if so then am not talking about that particular DN, am talking about DN's in general.

[teaboy2]

Re: MACKENZIE

I can put a label on my dog saying,"i am a cat", it would still be a dog.

D

But your Dog is not a legal document regulated by legislation now, is it!!