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Et Contra Pacem Regis

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  1. Yes Defective Default notices are no good. If Welcome or anyone else go to court based on one the most they can hope for is arrears to date. That's clear from Woodchester and I accept it. All I'm saying is that the arguement outlined above won't necessarily stop a creditor getting the oustanding balance, if they try. Out of interest have Welcome tried to serve proper DNs and go to court all over again following judgment, or have they just given up?
  2. Apologies if I've trodden on your toes - no rule making intend, just a request, following things said on the previous thread.
  3. The Total Charge for Credit is not prescribed. It is required by Schedule 1, paragraph 9/10 (depending on type of agreement) of the Consumer Credit (Agreements) Regulations 1983. Only Schedule 6 are prescribed terms. Failing to include a required term makes the agreement enforceable only at the order of the court, not irredeemably unenforceable by section 127(3).
  4. The "Total Amount" is really what the CCA calls the "Amount of Credit". The Regs don't say it has to be called "Amount of Credit".
  5. I should point out that the above are, like much else here, arguements - see the Manchester Test case thread starting about page 143 for lengthy arguement about DNs. To expand, as I understand it the presently accepted CAG arguement goes like this: 1. Creditor serves a Default Notice which is wrong and therefore invalid per Woodchester. 2. Creditor then sends a Termination Notice, or does something else that indicates they consider the agreement at an end. This is a repudiatory breach. 3. Either, the repudiatory breach is itself "unlawful recission" or the debtor can accept the breach an
  6. Following on from discussion on the Dissecting the Manchester Test Case thread, this is intended as an oppertunity to expose the weaknesses and risks of various common arguements, for those who might be intimidated by the usual reaction on this forum to dissent. For the majority it will hopefully sharpen these arguments, as well as sounding a note of caution. To further this purpose, please leave accusations of bad faith (e.g. that any person posting is trolling, posting on behalf of a creditor, stupid, or acting out of self-interest) outside. If you don't like it, leave the thread alone
  7. That on the Defective Default point, the creditor will be successful in the majority of cases. "not won" on the strength of the Defective DN/TN arguement, where no other issues were in play? If Creditors fail to turn up to argue the case, while it's promising, it does not prove that the debtor's arguement was right. If the creditor looses by not turning up, there is little it can do by way of an appeal. Judges aren't sympathetic to companies which waste their time. I mentioned it because one or two people pointed out the unfairness of the DN/TN situation to the debt
  8. Yes, this is a good point - I've seen DNs both with and without the threat of CRA, but I don't really know sufficient about the operation of the CRAs to know whether a default notice is a strict requirement of entering a default, or even what creditors generally understand a default entry to indicate. On the DN/TN/DN point, assuming that no termination acutally occurs (i.e. termination is ineffective because it is prohibited by s87(1)), then the second DN can still work. If termination does occur, for whatever reason, the complicated question is what happens if the debtor remedies under t
  9. I would say that, unless something else happens to bring the agreement to an end, such as the debtor terminating the agreement, then the agreement continues. If the creditor issued a claim for the outstanding balance, based on the defective DN, then he should discontinue the claim, serve a valid DN and start all over again, however some creditors try to get round this by serving a new DN during proceedings and then applying to amend their particulars to plead the new DN. I can see some district judges agreeing to that (because the point about discontinuing or amending is Civil Procedure, they
  10. I don't particularly. I just can't see anything to prevent it in section 87. If it is unlawful for the creditor to register a default without having served a valid default notice, for example, if the default entry leads people reading it to think that the valid notice has been served, or that the agreement has been terminated, then the debtor might have an action for defamation. That is fair enough. I just don't think that invalid default notices have the effect contended for. I still do not think that the creditor can terminate without a valid default notice. section 87 seems to
  11. no apologies necessary As to the rest, I have not claimed any more authority for my arguements than anyone else here. That my opinions are different from the majority here does not make them incorrect. Until the point is authoritatively decided, it remains an open arguement. Other views exist, and even if we all agreed, that would be no guarantee that the courts would find in our favour. Even If there is no devil's advocate here, there will certainly be one in court some day. I have not claimed to be a lawyer, because that would not be true. I have some legal education, but I am not
  12. He may be damaged by a credit reference default. Then the issue is whether a credit reference default can be entered without service of a Default Notice. Credit reference defaults are not mention in section 87(1) so no specifically prohibited. Section 87 prohibits the demand of "earlier payment", not "sums unpaid" - creditors can require payment of sums which have already fallen due (i.e. arrears) at any time. The arguement would be that payment of the outstanding balance falls due on termination, and that termination is brought about by the debtor's acceptance of the creditor's r
  13. It's the wording required by the regulations.
  14. I must agree with Antigone on the defective Default Notice. Section 87(1) prohibits termination of the agreement without the service of a valid Default Notice. The creditor cannot effectively terminate the agreement until one is served. Suppose a creditor serves a defective notice and then purports to terminate the agreement: 1. The agreement, clearly, does not end. It continues as before. 2. The creditor has indicated that it will not continue to honour its obligations under the agreement. This is a breach of contract. You might call it a repudiation, but that is merely a brea
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