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?

Apologies if I've trodden on your toes - no rule making intend, just a request, following things said on the previous thread.

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).

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".

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 and so bring the agreement to an end. After this point the creditor cannot by any means recover anything but arrears already outstanding. I disagree, basically for these two reasons: 1. I do Not think that the creditor can effect termination without service of a valid default notice, because of section 87(1). Whatever the creditor says, the agreement endures. Its repudiation of the agreement is a breach of contract but does not end the agreement. 2. If the agreement is terminated by the debtor - by accepting the repudiatory breach which takes place when the creditor purports to terminate - then the oustanding balance will fall due at that point, if the contract says that that is the case. In the other thread I pointed to a term to that effect in a Cahoot agreement, and another less clear term in a Captial One agreement. That what you wanted?

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 and it will die of its own accord fairly quickly. To set the ball rolling, three arguments I think will not work, and briefly why: 1. Reliance upon CCA after a CCJ has already be granted (save where the CCJ is set aside of course). Reasoning: Once a CCJ has been obtained, any further steps the creditor takes rely upon the CCJ, not on the original credit agreement. As for limitation purposes, the CCJ is a fresh start the debt and unless it is set aside, CCA issues will not be considered by the courts. 2. The "Approved Limit" vs "Credit Limit" point. Reasoning: Wilson v Hurstanger says that "prescribed term" means a contractual term, and that a term is present if the court can identify it. I think that the court will say "Approved Limit", on its true construction means "credit limit". It is not unusual for loan agreements to use terms other than "amount of credit" when expressing a figure which is, in fact the amount of credit. 3. The arguement that accepting a repudiatory breach, following the service of a defective DN will prevent the creditor from recovering the outstanding balance. Reasoning: accepting a repudiatory breach will terminate the contract. In cases where the contract provides that the oustanding balance falls due on termination, no further default notice will be needed, because the creditor will not need to terminate or demand earlier payment of any sum - the whole sum is due on termination.

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 debtor, the creditor's stronger position etc. I do not think that those points add any strength to the technical argument. I raised this point because my motives for disagreeing with the consensus were questioned. While the cases have no direct relevance, they, and many others show which way the wind is blowing, therefore I mentioned them to point out that my position is based on cynicism rather than personal interest, as had been suggested. This thread seemed to have wandered far from the original subject when I arrived, however I do take your point about threadjacking. My original intention was to make it clear that antigone was not a lone voice and that the DN arguement should come with a health warning. I remain of the view that people reading this forum should be aware that disagreement exists; that the arguements set out are not universally accepted outside this forum - that can get lost when reading threads full of people agreeing on everything, however to avoid further threadjacking, and having left things in this thread as complete as I can, I'll start a separate thread for Devil's Advocacy (tomorrow though, dinner is calling...) My view (returning to the point) is that there are very few CCA arguements which a high probability of success: 1. Wilson v FCT type cases (obviously) but these will be very rare. Other cases suggest that the point can arise where insurance or payment of other arrears are a conditions of the loan, but the Supreme Court may take the oppertunity to narrow the scope of Wilson when they give judgment in Walker. 2. Cases where no terms are provided at all at the time of signature (engaging section 61(1)(a)) i.e. you fill in a form full of details, but sign without ever being given the prescribed terms. This is probably relevant only to a few credit card cases. I've heard perhaps one or two people saying that they remember this happening with their credit card. 3. Cases where the debtor has been treated incredibly badly by the Creditor, sufficient that the court is willing to use section 140B to rewrite the agreement. There's very little authority on this, but Shaw v Nine Regions seems to suggest that the bar is very high. Before it's demise I believe Cartel/CCLS had some success with section 140B but it was an unreported case. ECPR

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 the second DN.

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 have quite a wide discretion). So far as I have the time I intend to continue posting, though as you chaps have probably noticed it takes a while for me to get round to each post. As someone pointed out it may be best to take devil's advocacy into a separate thread, to avoid (further) threadjacking. All of this is quite true. As to defending an invalid claim, the Defendant would usually get his costs - that's all Defendants ever get when the Claimant fails, even if the claim was misconcieved from the start. As I said before, if the agreement is still in existance then the above could involve breaches of contract, and inaccurate credit reference entries might be actionable. If a CCJ were granted by default then the Defendant might get it set aside. Unfortunately, as they say, ignorance of the law is no excuse. There are plenty of people and companies who do actionable things and aren't sued because the injured party simply doesn't know that they have a claim, and don't find out until after the limitation period is up. The mechanisms for protecting consumers are far from perfect - but this is straying from the point. The purported termination of the agreement, and any breach the creditor commits in reliance upon termination, are, in my view, actionable, if you can show damage, precisely the same as if a car dealership sells you a lemon. That is where, in my view, the debtor gets his remedy, if purported termination harms him. As for the others, congratulations, you've spotted that I like most other people do not spell check forum posts. If I were at work I wouldn't be using contractions or colloquialisms either. Sadly, I've seen plenty of bad spelling and grammar in the legal world, even from counsel.

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 me to expressly prohibit termination, not merely render the termination unlawful. The creditor's actions after termination could simply be a breach of contract. By accepting that repudiatory breach the debtor could effect termination of the contract. Looking, for example, at a set of Cahoot terms and conditions, at 14.4: "where we or you end the agreement and close a cahoot account (a) you must repay all amounts you owe under the agreement". Some Captial One terms circa 2005 are rather more vague, stating (to paraphrase) that the creditor can end the agreement in exceptional circumstances (which is wrong, of course) and that the debtor must then pay all amounts owing. Although the agreement is silent as to what happens in the event of termination by the debtor, it would then be a matter of how one construes the contract. There might, I suppose, be an issue if there is no such clause in the contract as it exists at termination; that requires more thought. Yes, the Debtor has been denied an effective right to remedy the breach. That is why the creditor has to serve a new, correct, default notice before continuing. If they don't they are in breach of contract and the debtor can recover damages should they suffer any. I am not, nor have I ever been, as you seem to imply, employed by a bank, debt collector or one of their solicitors. If I were, I would've had the courtesy to respect the forum rules and post in the section for bank employees. My attitude to CCA comes from experience as a paralegal working for a solicitor's firm which joined the great CCA feeding frenzy. Thankfully the firm has turned to other work now. I saw plenty of behaviour on both sides which was pretty disgusting and I've seen plenty of arguements consigned to the dustbin, by District Judges or the Court of Appeal. That, basically, is why I am advocating for the Devil here - because, in this case, I think that whatever the morals of the point, the creditors will win in court.

Is the agreement secured?

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 qualified to practice. If I were I would probably not be posting here. This isn't really the place to discuss legal history, but yes, trespass vi et armis etc is the ancestor of modern tort law.

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 repudiation, so that it is the debtor who terminates the agreement. Section 87 does not limit the debtor's ability to terminate. The creditor could rely on breach of the agreement prior to the issue of the Defective Default Notice. Just because the agreement ended after the breach, that does not preclude the creditor from relying on that breach. ECPR

It's the wording required by the regulations.

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 breach of contract. 3. The standard remedy for breach of contract is damages. The damages are "expectation" damages - the amount of money necessary to put you into the position you expected to be, but for the breach. It is therefore unlikely that the debtor will actually suffer any damage as a result of the breach of contract. 4. If the debtor "accepts" the repudiation, then the contract is terminated at that point. That cannot effect monies which have already fallen due (arrears) or the money already owing. Accepting a repudiation would merely put the debtor in the same position as if a valid default notice had been served and the agreement properly terminated by the creditor. The only difference between the two situations is who terminates: creditor or debtor. There is no reason why the effect of termination should differ depending on who terminated. 5. There is no reason why a valid default notice could not be served after termiantion. The wording does not require that the agreement must be subsisting. 6. It would however, be largely pointless to serve a valid default notice after the debtor has accepted a repudiatory breach, because the creditor will no longer be interested in doing any of the things listed in section 87(1), save perhaps enforcing a security. Section 87 is not a bar on enforcement without a default notice, only a bar on specified courses of action. Termination by the debtor relieves the creditor of the need to take any of the actions listed in Section 87. That, or something likely it, is a chain of reasoning which would allow a judge to find against someone who accepts a repudiatory breach. By "accepting" the breach, the debtor has himself termianted the agreement with the same effect as if the creditor had terminated it.