Excel PCN from 2013, new letter from BW Legal- help!

nigelbb

nigelbb wrote: »

You counted wrong. It's calendar days not working days. The date of the 'crime' was 28th February (Day 0) so 29th February was Day 1 & the 18th April was Day 56.

LoveNorfolk wrote: »

There was no Feb 29th, so counting from 1st March I get day 56 as 25/4. I'm positive it arrived a couple of days after 23/4 dated on it.

Ah, just spotted the thread title & see that this PCN is from 2013 & that I miscounted so it should indeed have arrived on 25th April. Sadly unless the envelope was postmarked 24th April or later or not sent First Class the presumption is that it was posted on 23rd & arrived two days later.

LoveNorfolk

Coupon-mad wrote: »

And that if you look at Schedule 4 , para 8 and 9 give the requirements for a NTK. The wording does not feature in Excel's NTKs, so it is ipso facto a non-POFA NTK, aimed at a driver only, under contract law. No-one else.

Excel, never mid 'Elliot v Loake' (irrelevant) prove the driver then...!

Thank you Coupon-mad, I like to make sure I'm understanding what I am writing. Yours and everyone else's help, really is much appreciated.:T

LoveNorfolk

nigelbb wrote: »

Ah, just spotted the thread title & see that this PCN is from 2013 & that I miscounted so it should indeed have arrived on 25th April. Sadly unless the envelope was postmarked 24th April or later or not sent First Class the presumption is that it was posted on 23rd & arrived two days later.

No problem, as Coupon-mad said, the main point is the non POFA compliant NTK.

LoveNorfolk

Ok, so have been researching a few past threads as suggested and have come up with this letter. Any advice on it would be greatly received. As far as I can see, they are failing the CSA pre-litigation on this point: "not mislead customers as to the consequences or inevitability of consequences arising from any legal or bankruptcy action." And I presume you would report them to SRA for them attempting to mislead and bully you without just cause? Thanks.

Dear Sir/Madam,

Ref ****

Thank you for your letter dated ****.

Being the registered keeper of the above vehicle, I feel it prudent to bring to your attention a few points.


Firstly, your client Excel Parking, sent a notice to keeper which was non compliant with POFA 2012, schedule 4, paragraph 8, on the grounds that it clearly stated, “liability for the parking charge notice (PCN) lies with the driver/hirer of the vehicle.” As such, no keeper liability can be formed if you were unsuccessful in identifying the driver of the vehicle at the time of the alleged contravention. It is embarrassing that it takes myself, an unrepresented consumer such to point out to you, a supposed 'legal firm' acting for a company such as Excel Parking, that Excel Parking do not use the required wording that is required for keeper liability.

Secondly, the notice to keeper denotes the maximum 'balance' (£100) that can be recovered, and as the supposed £54 initial legal costs were not applied at the time of this notice being served, they cannot be added to the 'unpaid balance.' Please refer to ParkingEye v Somerfield, in which debt collection costs of £60 were found to probably be a penalty by HHJ Heggarty.

Thirdly, I also feel I must point out that in your letter you state that “should you successfully obtain a CCJ this may have effect on my future creditworthiness and employability”. You are misrepresenting the legal process, I feel as a scare tactic, as, should you be successful at a hearing, the losing party has 14 days to make payment or arrange a payment plan and as such this does not automatically obtain a CCJ against the losing party nor effect creditworthiness nor employability.


As I dispute this charge and consider this matter now closed, I politely request that you do not contact me further and refer it back to your client Excel Parking. Should further correspondence be forthcoming I will be left with no choice to report BW Legal to the SRA (Solicitors' Regulatory Authority) and the CSA (Credit Services Association) for the misleading information contained within this letter.


Yours faithfully,

Coupon-mad

Yes, you have nailed it all, I'd say.

LoveNorfolk

Coupon-mad wrote: »

Yes, you have nailed it all, I'd say, except maybe the CSA complaint needs to be done anyway because BW Legal will get tied up for weeks while it is investigated...

I will pop the letter in the post tomorrow, getting proof of postage and will update any replies. I know some people have had them send another letter saying pay within 10 days, which advice is to ignore(?) and wait for genuine court paperwork.

Shall I leave in that I will complain to the CSA, or that I have and then do so whilst sending the letter?

In my complaint to CSA, do I basically mention I'm being unlawfully harassed and the wrong info they give about court?

Thanks Coupon-mad, really do appreciate the help!

Coupon-mad

Re the CSA, I haven't studied their Code of Practice but that's what I would read, in your shoes; spot the breaches and then complain from a position of some knowledge, if BW Legal have done something wrong.

I would recommend robust responses because we know they do now proceed to a claim in some cases, which we suspect may be more likely, at ignorers, in the hope of a default CCJ or scaring them into coughing up.

So my advice to others with a BW Legal letter is to respond as keeper.

LoveNorfolk

I have been working on a letter, took me ages as I have been through points both in the CSA code of practice and Use, format and content of standard debt collection communication Guidance document Produced in association with the Office of Fair Trading (OFT). I shall post a copy shortly if anyone would check it over to make sure it actually makes sense. (I know you may not be familiar with the points, but as long as it reads OK).


Can I just ask, when sending a letter to CSA do I just put my first and middle name as BW Legal sent and a squiggle as I don't know whether CSA will pass on my name to BW Legal saying they've had a complaint from xxxx when they don't know my surname it appears.


Cheers.

LoveNorfolk

Updated letter to BW Legal informing them of complaint to CSA:
[FONT=Arial Nova, sans-serif]
Dear Sir/Madam,[/FONT]
[FONT=Arial Nova, sans-serif][/FONT][FONT=Arial Nova, sans-serif]
Thank you for your letter dated XXXXX.

Being the registered keeper of the above vehicle, I feel it prudent to bring to your attention a few points.

Firstly, your client Excel Parking, sent a notice to keeper which was non compliant with POFA 2012, schedule 4, paragraph 8, on the grounds that it clearly stated, “liability for the parking charge notice (PCN) lies with the driver/hirer of the vehicle.” As such, no keeper liability can be formed if you were unsuccessful in identifying the driver of the vehicle at the time of the alleged contravention. It is embarrassing that it takes myself, an unrepresented consumer to point out to you, a supposed 'legal firm' acting for a company such as Excel Parking, that Excel Parking do not use the required wording that is required for keeper liability.
[/FONT]

[FONT=Arial Nova, sans-serif]Secondly, the notice to keeper denotes the maximum 'balance' (£100) that can be recovered, and as the supposed £54 initial legal costs were not applied at the time of this notice being served, they cannot be added to the 'unpaid balance.' Please refer to ParkingEye v Somerfield, in which debt collection costs of £60 were found to probably be a penalty by HHJ Heggarty.

Thirdly, I also feel I must point out that in your letter you state that “should you successfully obtain a CCJ this may have effect on my future creditworthiness and employability”. You are misrepresenting the legal process, I feel as a scare tactic, as, should you be successful at a hearing, the losing party has 14 days to make payment or arrange a payment plan and as such this does not automatically obtain a CCJ against the losing party nor effect creditworthiness nor employability.

As I dispute this charge and consider this matter now closed, I politely request that you do not contact me further and refer it back to your client Excel Parking. Should further correspondence be forthcoming I will be left with no choice to report BW Legal to the SRA (Solicitors' Regulatory Authority) for the misleading information contained within this letter. A complaint has been made to the CSA (Credit Services Association) for this same reason.


Yours faithfully, [/FONT]

LoveNorfolk

[FONT=Arial Nova, sans-serif]Dear Sir/Madam,[/FONT]

[FONT=Arial Nova, sans-serif]I have received a letter from BW Legal on behalf of Excel Parking, a copy of which I enclose for your perusal. I am concerned that the letter breaches the guidelines of the CSA Code of Practice and those of the Use, format and content of standard debt collection communication Guidance document, (Produced in association with the Office of Fair Trading (OFT). As such I wish to raise a complaint about the matter.[/FONT]


[FONT=Arial Nova, sans-serif]There are many points in which I believe BW Legal are not complying with the above guidance, I shall start first with those from the CSA Code of Practice.[/FONT]

• [FONT=Arial Nova, sans-serif]1.d. The CSA Code of Practice states that members shall make available on their website (if they have one), or following a request, a copy of this CSA Code of Practice, I am unable to find this on their website despite searching the entire site. If it is on there it is extremely well hidden.[/FONT]

• [FONT=Arial Nova, sans-serif]1.g. Ensure that any communication complies with this Code of Practice and is in plain English.[/FONT]
• [FONT=Arial Nova, sans-serif]1.y. Communicate with customers fairly and transparently, and not intentionally mislead them.[/FONT]
• [FONT=Arial Nova, sans-serif]1.aa. Treat customers fairly and not subject customers (or their authorised representatives) to aggressive practices, or conduct which is deceitful, oppressive, unfair or improper, whether lawful or not. [/FONT]
• [FONT=Arial Nova, sans-serif]10.c. Not mislead customers as to the consequences or inevitability of consequences arising from any legal or bankruptcy action[/FONT]
  [FONT=Arial Nova, sans-serif]All the above I believe show BW Legal are attempting to mislead and frighten by misrepresenting county court procedures.[/FONT]

• [FONT=Arial Nova, sans-serif]1.k. Inform their clients of the true rates of charges for services rendered.[/FONT]
• [FONT=Arial Nova, sans-serif]10.k. Only impose such costs and interest on customers as it is lawfully entitled.[/FONT]
  [FONT=Arial Nova, sans-serif]They are attempting to add onto the alleged charge, £54 to send me letter.[/FONT]

• [FONT=Arial Nova, sans-serif]7.e. When making written contact, adhere to the CSA Guidance on Debt Collection [/FONT]
  [FONT=Arial Nova, sans-serif]Communication*, and ensure communications are written and produced in line with applicable regulations, legislation and regulatory guidance (* Use, format and content of Standard Debt Collection Communication, produced in association with the Office of Fair Trading).[/FONT]
• [FONT=Arial Nova, sans-serif]10.d. Comply with section D (“Content - Legal”) of the CSA’s Standard Debt Collection Communication Guidance document.[/FONT]
  [FONT=Arial Nova, sans-serif]I do not feel these (which both appear to be the same guidance but named differently in your code of practice upon your website) are being followed by BW Legal and there are points I raise to this this later in this letter of complaint.[/FONT]

• [FONT=Arial Nova, sans-serif]10.o. Adhere to all relevant legislation and regulations throughout proceedings. BW Legal and Excel Parking are both ignoring POFA 2012, schedule 4, paragraph 8. As Excel stated on their notice to keeper, the driver/hirer is liable for a parking charge notice, they cannot then pursue the registered keeper as they have, as there is no keeper liability. Yet both continue to harass me.[/FONT]

[FONT=Arial Nova, sans-serif]The following points from the Use, format and content of standard debt collection [/FONT]
[FONT=Arial Nova, sans-serif]communication Guidance document, (Produced in association with the Office of Fair[/FONT]
[FONT=Arial Nova, sans-serif]Trading (OFT), I also feel have not been adhered to by BW Legal. [/FONT]

• [FONT=Arial Nova, sans-serif]D.1.1.[/FONT]
• [FONT=Arial Nova, sans-serif]The OFT has seen a number of standard letters issued by DCAs which contain inaccuracies and omissions in their description of the debt recovery procedure and the legal process, and which fail to mention that steps are required before enforcement action can be taken. For example:[/FONT]
• [FONT=Arial Nova, sans-serif]Letters which set out the potential enforcement actions following non-payment of a County Court Judgement (eg bailiffs seizing goods, employers deducting money from wages) without indicating that a further application to the court is required before enforcement action can be taken (ie to obtain a Warrant of Execution, Attachment of Earnings, Charging Order, etc); or[/FONT]
• [FONT=Arial Nova, sans-serif]Letters presuming the awarding of a Judgement (eg stating “when Judgement is granted...” as opposed to “if Judgement is granted...”)[/FONT]

• [FONT=Arial Nova, sans-serif]D.1.2. Sending such letters would, in the OFT’s view, potentially be an unfair or oppressive business practice in breach of several sections of the DCG.[/FONT]
• [FONT=Arial Nova, sans-serif]D.1.3. Although the OFT does not expect to see every stage of the process set out in letters of this type, a correct indication of the steps required before enforcement action can be taken should be provided to prevent letters from being misleading, potentially exploiting customers’ lack of knowledge and being perceived by recipients as threatening.[/FONT]
• [FONT=Arial Nova, sans-serif]D1.1.4. Members are reminded that the granting of Judgements and other orders are court decisions and letters should not pre-empt a particular outcome eg that a Judgement will be granted. Communications should not mislead customers to believe that the outcome of legal proceedings will be determined other than at the discretion of the court.[/FONT]
• [FONT=Arial Nova, sans-serif]D1.1.5. If a DCA wants to refer to the process that may be followed after a debt is unpaid, it is the responsibility of the DCA to understand and correctly state the process. [/FONT]
  [FONT=Arial Nova, sans-serif]The wording of BW Legal's letter states that they will “seek our client's instructions to commence legal proceedings against you in the form of a County Court Claim Form in the County Court.” It does not explain that they need to apply to the court first and does not clearly set out the steps required before enforcement action can take place. It also appears to be written in their favour of a successful County Court Judgement and misleadingly states, “In the event County Court Proceedings are issued you may be liable for Court fees, further solicitors costs and statutory interest. Should we successfully obtain a County Court Judgement (“CCJ”), this may have a detrimental effect on your creditworthiness and employability. Our client also reserves the right to commence enforcement proceedings against you for recovery of balance due.” I feel this is an attempt to scare those receiving this letter into paying and it does not set out the 14 days that the losing party has to make payment or arrange a payment plan, which if done so does not result in a County Court Judgement (CCJ) nor any effect on creditworthiness nor employability. . It is unfair to not clearly set out the action to be taken by BW Legal to apply to court and the process after a hearing if either party is successful, the majority of recipients of this type of letter will rely on BW Legal providing clear and concise information on the process[/FONT]

[FONT=Arial Nova, sans-serif]I trust you will find all the information you require within this letter, I have replied to BW Legal not only disputing the alleged balance they are attempting to collect but also to notify them of my complaint to yourselves.[/FONT]


[FONT=Arial Nova, sans-serif]I look forward to your response.[/FONT]
[FONT=Arial Nova, sans-serif]Yours faithfully,[/FONT]