Dodgy Default Notices

[Guest HeftyHippo]

New here, and just starting to get to grips with my debt problems. Spent a few hours sorting out the correspondence, specifically looking for DNs after I read on here that many issued are invalid.

 

I'd welcome your opinions.

 

 

Amex: They didn't issue a DN, just cancelled the agreement after I contacted them to say I had problems. In fact, they sent me 2 DNs on condecutive days! Their 'friendly advisers' are still phoning despite being told to contact PayPlan.

 

 

 

 

 

Halifax: From what I've read on here, this DN seems invalid because it doesn't allow 14 days after service in which to bring the account up to date. I haven't got the envelope but the date on the Notice is only 14 days before the deadline, hence service time wasn't considered (it was dated a Friday and it took 6 days in the post). ie dated 17/04/09 deadline 1/05/09

 

 

 

 

 

 

The subsequently issued a Termination Notice on 1/05/09

 

 

 

 

Sainsbury's: This one looks even dodgier. Again, service wasn't allowed for, nor was the Easter Bank Holidays. Again, I don't have the envelope, but DN issued 30/03/09, deadline 13/04/09 (14 days - ignoring Good Friday 10/04/09 and Easter Monday 13/04/09)

 

 

 

 

 

 

They didn't subsequently issue a Termination, they hired a DCA and issued more statements of defaults but have sent statements (with charges) and sent it out to another DCA (Blair, Oliver Scott).

 

Really not sure where to go from here, and whether these DNs help me or not. I'm hoping that Halifax constitutes a breach of contract on their part that renders them unable to collect the debt (as I've read here).

 

I may have sent other default notices for other accounts to PayPlan so I'm trying to get copies back from them.

 

(Apologies, I tried to insert thumbs of the notices, but they seem to be full size. Hope that doesn't break any rules)

Edited November 5, 2009 by HeftyHippo

[silverfox1961]

Hi,

I'm assuming the defaults from AmEx were ok as you didn't refer to them much.

The Halifax DN is definitely duff and they have terminated so, unlawful rescission of contract. They can only claim the arrears now.

 

Sainsbugs. As they haven't terminated yet, I would keep very quiet about the duff DN for now.

I think the card is administered by BoS as they are using their in-house debt collection team.

If this debt goes to an outside debt collector, make sure you get confirmation it has been sold and not just being collected on behalf of the OC.

 

Don't worry about posting full pics, it's just as ease either way.

 

fox

[mkb]

The Halifax one is invalid

 

17th April was a Friday so deemed served on 23/05/09 (which is also the date you wrote on it as having been received) so 1st clear day is 24th & so on for 14 days making it 7th May to be the last day for making payment.

If they subsequently terminate, it's unlawful rescission & you are only liable for the amount of the arrears on the DN.

 

The Sainsburys one is also invalid because they did not allow time for service - dates are exactly 14 days from date on letter. Again, you would only be liable for the arrears figure on the DN & not the full balance.

As they have not issued a TN - Keep the information to yourself & do not notify them of their failure

 

Amex - have not followed correct procedure.

 

With all three, I would get a CCA off in the post with £1 postal order. Send unsigned & by recorded delivery.

It would probably be worth also sending a SAR to all 3. This costs £10. When you get the information, you can add up all the charges & this should be reclaimable of deducted off the balance.

CCA requests go to the DCA if there is one, otherwise to the OC

SAR requests go to the OC only.

 

Hope this helps

[42man]

Some good contributions above - this might also be of interest - http://www.consumeractiongroup.co.uk/forum/show-post/post-2166205.html

[Guest HeftyHippo]

Thanks guys.

Silverfox: The Amex one I'm stumped about. They haven't issued a Default Notice that I can tell (I may have passed it to PayPlan). I suppose a SAR will reveal if one was ever issued.

 

If they didn't issue a DN, then I guess what I say about Halifax will also apply to Amex?

 

42man: I had seen that link, and did my best to follow it, amongst other posts, its what made me think my DNs might be faulty.

 

Silverfox & MKB: So, with Halifax, because they terminated, the only amount they can claim is the amount stated on the DN - the amount I had to pay in before the deadline (3rd para "You must pay £xx into your [account]")? And they can only claim that if they have a valid agreement which a CCA will reveal?

 

MKB: You're assuming delivery was 4 working days after posting ie 2nd class as per the post referenced by 42man (I know you say delivery 23/5 but you mean 23/4)

 

If Sainsburys terminate, then the above about Halifax will apply to them also? I wonder if they know the DN is faulty that's why they haven't terminated?

 

Is there any precedents for this? ie claiming they have rescinded the contract by virtue of a faulty DN?

Edited November 4, 2009 by HeftyHippo

[mkb]

Thanks guys.

 

Silverfox & MKB: So, with Halifax, because they terminated, the only amount they can claim is the amount stated on the DN - the amount I had to pay in before the deadline (3rd para "You must pay £xx into your [account]")? And they can only claim that if they have a valid agreement which a CCA will reveal? Correct

 

MKB: You're assuming delivery was 4 working days after posting ie 2nd class as per the post referenced by 42man (I know you say delivery 23/5 but you mean 23/4) Yes, sorry I did mean 23/4 & yes, 2nd class UNLESS they can prove otherwise but even if they had sent it 1st class, you would still have had until 5th May

 

If Sainsburys terminate, then the above about Halifax will apply to them also? I wonder if they know the DN is faulty that's why they haven't terminated? Quite possibly

 

Is there any precedents for this? ie claiming they have rescinded the contract by virtue of a faulty DN? Have a read of these links

 

Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998)

 

Results within Legislation - Statute Law Database

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/200901-anatomy-default-notice.html

[Guest HeftyHippo]

Thanks MKB, I'll have a look at those links later when my brain is less mushy.

 

Meanwhile, found another interesting one. I'd welcome everyone's opinions:

 

 

 

 

Although I don't have the date I received the DN, again, even allowing for 1st Class post, they are one day short in their deadline (I think)

 

Subsequently, they sent the following that I am assuming to be a termination notice:

 

 

 

Interestingly, they demanded I repay my current account overdraft along with the credit card.

 

After that, they received a payment offer from PayPlan (which was already 'in the works' when they DN), which they rejected and informed me that the deadline in their Demand had expired and the account would be passed to a DCA. Next, I heard from Metropolitan Collection Services who informed me that they have 'been instructed' to collect the balance.

 

So, my assessment is that this is another defective DN, FD have terminated the account, and is the same situation as with Halifax above? Although they've closed the account, it appears, that like Halifax they haven't sold the debt to a DCA.

Edited November 4, 2009 by HeftyHippo

[mkb]

Agree with you on the dates being 1 day short but this is only IF they posted 1st class, otherwise its 3 days short so yes, invalid

 

Not sure about the final demand - logic says it should be terminated on the basis of that letter but I would urge caution until someone comes along (and they will) who can advise with more certainty

 

Hope you didn't send the card back cos someone lost a case when the claimant produced the cut-up card as evidence

[silverfox1961]

I'm sure Metropolitan are in-house collectors so I would assume they haven't terminated as yet, just sent a final demand.

Again, with the definitely faulty DN, keep schtum

[Guest HeftyHippo]

Thanks

MKB, no, didnt send card back (read somewhere maybe here about a stupid judge who accepted from a bank that a returned signed card was the same as a signed acceptance when the bank couldn't comply with CCA)

 

I can't see how a bank can demand full payment of a credit card and it not being the same as termination. Also can't see whether the collectors are in-house or not makes any difference as the same collectors can surely be appointed before or after termination?

 

However, I don't intend to approach any bank just yet, I want to determine the situation with them all.

[mkb]

I can't see how a bank can demand full payment of a credit card and it not being the same as termination.

 

That's what I meant when I said that 'logically' it should be classed as terminated but until you get the actual letter headed Termination of your a/c, it MUST be assumed that, for reasons known only to them, it is still live & they then have the opportunity to correct their error with the DN which would make it extremely hard for you to win any court case they may bring - keeping quiet about their failings is the best thing you can do at this stage & wait for them to make the next move

[Guest HeftyHippo]

That's what I meant when I said that 'logically' it should be classed as terminated but until you get the actual letter headed Termination of your a/c, it MUST be assumed that, for reasons known only to them, it is still live & they then have the opportunity to correct their error with the DN which would make it extremely hard for you to win any court case they may bring - keeping quiet about their failings is the best thing you can do at this stage & wait for them to make the next move

 

Had a look at my account on PayPlan, and they say a Demand is different from a Termination. Don't see how it can be myself, but there you go.

 

Anyway, that bit about keeping quiet and waiting for them to make the next move....? They did - with their in-house legal rats (http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/230568-my-first-solictors-letter.html)

[Guest HeftyHippo]

What about this one then? I reckon if it was posted 2nd class (which unless they prove otherwise) it's one day short. How do I establish if it was 1st or 2nd class postage and hence if it is valid or not?

 

 

The interesting thing is, the sum required to rectify is the outstanding balance..... is that permissible?

 

The other thing is, subsequent to this, I think they sold the debt to someone else. I haven't had anything from MBNA, but someone else is sniffing round claiming to have bought a debt of mine. MBNA didn't issue a Termination notice.

 

What's everyone's thoughts?

[mkb]

As you say, without the envelope, you can't prove that it was sent 1st class BUT send for the CCA cos there's lots of threads mentioning clause 8f in MBNA which doesn't appear on the copy they send you!

[Guest HeftyHippo]

Thanks MKB, had a search for things about 8f.... interesting

 

However, para 8f is mentioned on line 2

[mkb]

I meant that you need to see if clause 8f appears on the agreement which is why you should send the CCA request to see if it does actually have clause 8f on the COPY they send in response to your request.

[Guest HeftyHippo]

sorry! misread "they send you" as "they sent you"

yes, you're right. Was reading a thread about this clause 8 elsewhere, and as someone pointed out, clause 8 could've been added subsequent to the original agreement.... all getting very technical and legal now isn't it?