Date issue re: Default Notice & Termination

[waroo]

Having read another thread I have been left wondering about the dates of a default & termination notice.

 

The default notice is dated the 4th & gives 14 days to respond (no specified date which I believe it should specify a date should it?) but the termination notice is dated the 18th.

 

Can they issue a termination notice before the 14 days are up (taking into account the time it woud have taken to post & receive the default notice)

 

I can see that I would have still received them in theory 14 days apart but would the termination not run from the 18th being the date it must have happened but the default from the 5th or even 6th?

 

Also, the amounts owing are different so is there any basis for an arguement on this point?

 

Any help is much appreciated, thanks

[AndyOrch]

Hi Waroo and welcome to CAG legal

 

If it is possable to scan and post it up less your personal details of course and I will take a look. I dont suppose its one of the infamous Link defaults?

 

Regards

 

Andy;)

[banker_rhymes_with]

It certainly doesn't sound like a valid Default Notice.

 

Not knowing the Month, I'll just assume the 4th was a Monday. If they Posted it on Monday 4th, then Date of Service would be Wednesday the 6th.

 

Your 14 Days starts ticking from then.

 

The Deadline is therefore the 20th.

 

If they Terminated on the 18th, then they ended the Agreement whilst you still had 2 Days still to go on the Default Notice.

 

How silly of them.

 

Cheers,

BRW

[waroo]

Hi,

thanks for that. how would I be able to use this in court i.e. is it grounds that they don't have a valid case or would a judge say it's not enough to throw out the case with.

 

I have also just dug out letters from them previously and realised that they had already issued me with a default notice and terminated the agreement prior to the default notice which is subject of this tread. Presumably the second default notice and termination letter which they are relying on in court are invalid since they had defaulted and terminated a month earlier, should I bring this up in court and produce the letters at the hearing?

 

Furthermore, they have stated on an application notice that I have no grounds for defence, asked for a judgement without a hearing and requested a charging order to be put on the house. They have said that they are unwilling to accept any proposals for payment until a charging order has been made. Can they do this? If so how can I defend myself on this as I was under the impression that a charging order can only be made if I default on payments for a CCJ. Is this correct? The loan was usecured. The house is in joint names but belonged solely to my wife for 4 years before I was put on the deeds, plus we have a newborn baby and a 3 year old, would a judge consider these issues if a charging order were to go ahead?

 

I am in the process of scanning docs etc to post on here if anyone can give me some direction on how to proceed. The hearing is mid November.

[42man]

quote the following from Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

 

Quote:

SCHEDULE 2

FORM OF DEFAULT NOTICE BEFORE A CREDITOR OR OWNER CAN BECOME ENTITLED, BY REASON OF ANY BREACH BY THE

DEBTOR OR HIRER OF A REGULATED AGREEEMENT, TO TERMINATE THE AGREEMENT, DEMAND EARLIER PAYMENT OF ANY

SUM, RECOVER POSSESSION OF ANY GOODS OR LAND, TREAT ANY RIGHT CONFERRED ON THE DEBTOR OR HIRER BY THE

AGREEMENT AS TERMINATED, RESTRICTED OR DEFERRED OR ENFORCE ANY SECURITY

Regulation 2(2)

Details of agreement

 

1

A description of the agreement sufficient to identify it.

 

Parties to agreement

2

(1) The name and a postal address of the creditor or owner.

(2) The name and postal address of the debtor or hirer.

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than

fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and

the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

The case law for deficient defaults is....

 

DEFAULT NOTICE

The Need for a Default notice

• Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the petition.
  

• It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant
  

• Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)
  

• Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974
  

• Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119
  

[AndyOrch]

Hi Waroo

 

If you can flesh the bones a little more and where you are up to in procedures, I presume you have submitted a defence and filed AQs with reference to the Claimant making an Application.Have they attached a Witness Statement to the Application and if so could you give more details of its contents?

 

 

Regards

 

Andy

[waroo]

default notice dated 4th june asking for areas of £260

 

termination notice 18th june have failed to pay reqested areas of £502

Edited October 26, 2008 by waroo

[waroo]

Hi,

Sorry I have just seen the reply.

 

I will get another post together now detailling where I am up to with things.

Thanks

[AndyOrch]

Hi,

thanks for that. how would I be able to use this in court i.e. is it grounds that they don't have a valid case or would a judge say it's not enough to throw out the case with.

 

I have also just dug out letters from them previously and realised that they had already issued me with a default notice and terminated the agreement prior to the default notice which is subject of this tread. Presumably the second default notice and termination letter which they are relying on in court are invalid since they had defaulted and terminated a month earlier, should I bring this up in court and produce the letters at the hearing? Needs to be raised invalis Default Note

 

Furthermore, they have stated on an application notice that I have no grounds for defence, asked for a judgement without a hearing and requested a charging order to be put on the house. They have said that they are unwilling to accept any proposals for payment until a charging order has been made. Can they do this? If so how can I defend myself on this as I was under the impression that a charging order can only be made if I default on payments for a CCJ. Is this correct? Yes The loan was usecured. The house is in joint names but belonged solely to my wife for 4 years before I was put on the deeds, plus we have a newborn baby and a 3 year old, would a judge consider these issues if a charging order were to go ahead?

 

I am in the process of scanning docs etc to post on here if anyone can give me some direction on how to proceed. The hearing is mid November.

I would consider making an Application to object to their intentions and reiterate your Defence and more importantly the issues raise re Default Notices.They are trying to get Summary Judgement via the back door.

Regards

Andy

[waroo]

I sent a CPR request and filed a defence stating they hadn't complied with my reqeust, however, it came on the 14th day but I had already sent my defence to get it in the next day (being 28th day). Next came the allocation questionnaire and then the response from court giving me a hearing date.

 

The info attached is an application notice but they haven't ticked the 'witness statement' box they have ticked the ' evidence in part C overleaf in support of my application' box. Attached is 2 pages detailling 15 points in support of the application.

The first few points are formalities regarding the claim etc and then it states I failed to comply with the default notice sent on 4th June required to remedy by 18th. A formal demand ws sent on 18th demanding payment within 7 days after which the amount of the claim became due which corresponds to the statement attached.

It goes on to say that I suffered no prejudice by them not attaching a copy of the loan agreement to the POC as I as would have had no difficulty in identifying the agreement.

They state that the CPR request was sent etc and then that I have no real prospect of successfully defending the claim and they know of no other reason why the claim should await trial.

Thay have asked the court to award judgement along with costs etc and stated it is their intention to apply for a charging order in respect of any judgement the court may grant. They therefore seek a forthwith judgement but may only after obtaining a charging order be open to considering any offer of a monthly installment to reduce the amount protected by the charging order.

Finally, if I wish to rely on written evidence at the hearing I must file a written defence and send them a copy at least 7 days before the hearing.

 

They have attached to this a copy of the loan agreement, t & c's, statment of account, default notice, formal demand (states they are terminating the agreement) & telephone notes.

 

The copies of the default and formal demand are dated the same as the orignals I have kept however, the content has variations (including the amount of arrears) so surely they must have produced false evidence for the court? Not to mention that they had already defaulted me & terminated the agreement in May.

 

also, the terms and conditions say Eskimo Loans who I have never heard of and on the original default notice I was sent by them it refers to 'in accordance with clause 4' but the copy they have produced for the court states clause 5 although this is supposed to be a copy of the default notice I was sent.

 

I also made them an offer of £20 per month until my situation improved which they flatly declined.

 

any help is appreciated thanks

[waroo]

How would I go about making an application as I haven't been given the opportunity to file a defence or anything before the hearing.

[AndyOrch]

Ok Waroo that explains where we are now.So you submitted an holding defence subject to response to CPR 18 request.I would by way of the AN request permission to now file a detailed Defence in light of what has been furnished and in response to their Application to negate their request for Summary Judgement, this can be used also as your witness statement further along the process

 

 

You will need to download the N244 (AN) and will cost in the region of £75.00.

 

 

Regards

 

Andy

[waroo]

Do I use the N244 form just to request the opportunity to file an amended defence or do I need to put across my defence in the form? Once completed would I just take it to the court asap even though they are not expecting to receive anything from me.

 

Does the fact that I have been given a hearing date without the opportunity to file an amended defence mean that the loan company is going to be awarded their judgement request without me getting chance to defend myself? I have no idea how this works.

[AndyOrch]

Do I use the N244 form just to request the opportunity to file an amended defence or do I need to put across my defence in the form? Once completed would I just take it to the court asap even though they are not expecting to receive anything from me.Yes on all accounts

 

Does the fact that I have been given a hearing date without the opportunity to file an amended defence mean that the loan company is going to be awarded their judgement request without me getting chance to defend myself? I have no idea how this works.

No thats why you are making the Application so your Defence will be in by the time of the hearing

 

 

Regards

 

Andy

[waroo]

Thanks for your patience. Can I just ask before i get started - should i base my defence on the info they are using or should I bring to light the first default and termination notices I have kept which they have not mentioned in their application.

 

Would the default they are relying on be invalid with regards to the fact that they had already issued a default notice & termination prior to issuing the second default? Also, could the judge give them the opportunity to resubmit things using the correct default notice etc.

 

I don't want to 'shoot myself in the foot'. Should I just throw it all at them and keep my fingers crossed?

 

Thanks

[AndyOrch]

Hi Waroo

 

Has I understand you need to get a particularised Defence submitted, now if the your Holding defence is suffice to refute their P.O.C then I would hold on an ameneded defence.I Have not seen details of the Claimants P.O.C nor have I seen what you submitted as an Holding Defence so really difficuilt to advise.If they refer to the DN being issuedin their P.O.C then you take them to task on which one they wish to rely on.You really cant issue 2 Defeault Notices for the same agreement unless the first was rectified and then you defaulted again so that is your key in this instance.The agreement as been unlawfully terminated therefore making said alleged debt in dispute and rendering Legal Action also unlawful and vextatious.

 

I trust the above is of help

 

Regards

 

Andy

Edited October 26, 2008 by Andyorch

[robcag]

Hi waroo

 

Without interupting the advice Andy is giving you, some of the things you are asking about (defective DNs, amended defence) are the same things I was asking about here; http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/124572-hfc-no-agreement-amended.html#post1298236

 

This case was eventually discontinued by the claimants due to a defective DN, so in answer to your question further up this thread, yes, a faulty default notice is enough for you to win the case.

 

Cheers

Rob

[waroo]

Thanks for that. I am part way through reading your link and already feel alot better about things and it's really helpful. I was struggling on how to approach an amended defence but your link has helped to get the cogs turning. Thankyou

[waroo]

Just wanted to ask someone in the know. The P.O.C state the agreement date was 30th Nov but the signatures were dated 17th Nov (loan company) & 24th (mine) is this okay o do they have to get the date exactly right?

 

Thanks

[waroo]

Thanks for the help & advice received on this thread.

I submitted an amended defence by way of an N244 & was awarded a hearing on Friday when the Claimants application for summary judgement hearing had already been set & thanks to the advice received on here the summary judgement wasn't awarded to the claimants.

 

The barrister said that if I did win this then the claimant would just re-issue court proceedings which the judge didn't seem to agree with.

 

I received a final demand which stated they were demanding full payment and were 'now terminating the agreement' but does this constitute actually terminating it? If it hasn't actually been terminated can they demand the full amount?

 

It's been set to go to trial in Spring. Both the judge and the solicitor have advised me it could be costly if I were to lose but the judge seemed to think I did have a point i.e they'd breached the CCA 1974 etc

 

Can anyone advise if there is any help/exemption from costs/fees because I am on a low income. I'm self employed & in receipt of working tax credit.

 

I hadn't been sent a copy of their AQ but they had estimated their fees to be £5K.

 

They have got to disclose all information by early Dec & then went on to reel off lots of dates for submitting various things.

 

What is the general course of action before the trial?

 

Any info would be much appreciated.

THANKS

[cleo4patra]

Thanks for your patience. Can I just ask before i get started - should i base my defence on the info they are using or should I bring to light the first default and termination notices I have kept which they have not mentioned in their application.

 

Would the default they are relying on be invalid with regards to the fact that they had already issued a default notice & termination prior to issuing the second default? Also, could the judge give them the opportunity to resubmit things using the correct default notice etc.

 

I don't want to 'shoot myself in the foot'. Should I just throw it all at them and keep my fingers crossed?

 

Thanks

Urgent hep needed!! M&S Money have sent default notice (dated 11/11/08) received 15/11/08) and asking for payment of arrears within 14 days of date of letter. Received statutory arrears notice dated 4/11/08 on 12th November so have received default notice 3 days later - is this right?? Obviously not posted 1st class either.

[waroo]

Thanks for the help & advice received on this thread.

I submitted an amended defence by way of an N244 & was awarded a hearing on Friday when the Claimants application for summary judgement hearing had already been set & thanks to the advice received on here the summary judgement wasn't awarded to the claimants.

 

The barrister said that if I did win this then the claimant would just re-issue court proceedings which the judge didn't seem to agree with.

 

I received a final demand which stated they were demanding full payment and were 'now terminating the agreement' but does this constitute actually terminating it? If it hasn't actually been terminated can they demand the full amount?

 

It's been set to go to trial in Spring. Both the judge and the solicitor have advised me it could be costly if I were to lose but the judge seemed to think I did have a point i.e they'd breached the CCA 1974 etc

 

Can anyone advise if there is any help/exemption from costs/fees because I am on a low income. I'm self employed & in receipt of working tax credit.

 

I hadn't been sent a copy of their AQ but they had estimated their fees to be £5K.

 

They have got to disclose all information by early Dec & then went on to reel off lots of dates for submitting various things.

 

What is the general course of action before the trial?

 

Any info would be much appreciated.

THANKS

[cleo4patra]

Hi - where is it stated that date of service is two days later than date on n otice please?? Is this the postal rule? thanks - cleo

[banker_rhymes_with]

Hello Cleo4patra!

 

It's not really the Date on the Default Notice, because if you have the Envelope it came in, and that has a Postal Date, then that is the Date the Date of Service is based on.

 

However, if you don't have that, then it'll be assumed that the Default Notice was Posted on the same Day that it was Dated.

 

If it is also assumed they Posted it via 1st Class Post, then the Date of Service should be two Working Days after Posting.

 

This is about the best reference that can be used when talking about the Date of Service for general Letters and Notices:

 

Click here to read the full details.

 

Council Tax Manual - Section 3 - Appendix 3.6 - Service of documents by post

 

Appendix 3.6 - Service of documents by post

 

All Text Amended

1. Interpretation Act 1978, Section 7

 

This states:-

 

"7. Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

 

Service of Documents - First and Second Class Mail

 

"With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

 

1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

 

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

 

(a) in the case of first class mail, on the second working day after posting;

 

(b) in the case of second class mail, on the fourth working day after posting.

 

"Working days" are Monday to Friday, excluding any bank holiday.

 

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

 

4. This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8 March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

This is why keeping the Envelopes can prove vital, especially if they used 2nd Class Post!

 

Cheers,

BRW

[waroo]

Further to my post #22.

 

Today was the day the claimants had to serve all their paperwork to the court.

 

Well, I received in the post a letter & attached Notice of Discontinuation from their solicitors. I phoned the court who said "they would be sending me a letter to confirm things & that's it all done & dusted".

 

Can I now breathe a sigh of relief or are they lulling me into a false sense of security.

 

Any advice from anyone who has experince from this situation would be greatly appreciated.

 

Also, should I dare to claim costs or would that be foolish of me?

 

A big THANKYOU to all who have helped on this thread & all the advice I've read from other threads. I wouldn't have had any idea without this site.