Default Notice Re-Issue

[Gilbert_O'Sullivan]

Thank you surface agent, what a thoroughly comprehensive reasoning.

 

Well, my default notice is ineffective and I'm just going to wait for the trial date and argue my case.

 

THANK YOU VERY MUCH.

[Von Greenbach]

Subbing for future reference

 

Great thread.

[thekat1979]

Subbing with a quick question...

 

IF a CC was to default you asking for the full balance to be paid, but that full balance contained many penalty charges, could you claim back the penalty charges and then ask for the default notice to be removed from your CRA on the basis that it was not the ACTUAL amount owed? After that, what could they then do? Would it just be any of the late payments (arrears) on the account that they could ask you to repay, or could they re-issue the default notice for the 'new' amount (the one without the penalty charges)? Given that interest was being paid on the charges - and balance - at the contractual rate, as were any payments due, and those payments would not have been so high if you see what I mean.

 

Just curious about wht they could and couldn't do. Hope someone can filter out what I meant. I will start my own thread on this once I have got info back from the SAR and am about to start all this, but just wanted a bit of an idea of where I was going beforehand.

[Von Greenbach]

Thanks 42Man

 

Is there a link to the offical information below rather than copy the text?

 

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.

 

relevant case law is this too...

 

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
  

[lexis200]

I think this is it

 

http://www.consumeractiongroup.co.uk/forum/statutes-library/27535-consumer-credit-act-1974-a.html

 

Lexis:)

[underdog13]

superb thread - really helpful:)

 

I do hope x20 returns to the forums at some time in the future...

[Gazza112]

Subbing

[GamekeeperToPoacher]

Subbing

 

I am very interested in CPR 24 and will have to read and return with questions.

 

Many people on here will recognise that I advocate pro activity.

 

GK

[meerkatsmimm]

Subbing also, extremely interesting

[jayjay11]

Hi i have read this thread with interest. In my case i have been chasing LTSB for a CCA then CPR disclosure for a while . Concentrating on this I missed the point that i got a letter from **** demanding payment and terminating the account in FEB I never recieved a DN but then in early may a DN for arrears of £35 landed !!! Have they shot themselves in the foot ?? my thread is http://www.consumeractiongroup.co.uk/forum/general-debt-issues/159815-cca-1974-credit-cards-6.html

please give your opinions and any action i may be able to take thanks JJ11

[angel_1]

hiya all am subbing as ive learnt no end and clarified my fears on my defective dn and i hold a termination letter on one of my creditors - but surprsing no threats and no court case threatened yet after nearly 5 months - weird

 

the other one that is resurfacing defective dn and a solicitors letter demanding full settlement in 14 days thus im pretty sure now i could argue the defective dn - well i will wait

 

great thread and good luck everyone laters angel x

[MAGDA]

superb thread - really helpful:)

 

I do hope x20 returns to the forums at some time in the future...

 

I'll second that, he was really helpful to me re: cpr 31.14 and this thread is brilliant also. Here's hoping x20 will be back at some point.

 

Magda

[GamekeeperToPoacher]

A big third for me too.

 

GK

[MAGDA]

Hi, have a question (which I have posted on my thread also). We have been taken to court by Asset Link and one of the claims is now on the Fast Track. One area of my defence (they appear to have an enforceable agreement) is that a DN wasn't issued prior to proceedings, although they of course claim it was (by the OC back in 2004) followed they claim by a calling-in notice and soon afterwards the debt was assigned. No proof of either DN or calling-in notice.

 

I am now really worried though as I have been told that if an agreement would have reached an end if it had continued to run without problem,e.g., loan taken out August 2003 over five year period which, had the loan run its natural course, would have meant the loan finished last August, though proceedings were issued prior to this in April 2008 - then the claimant no longer requires an effective DN or TN (even if proceedings are under way) as the date of trial will be the date up to which any arrears are due, i.e., the full balance, and the claimant now has the right to sue for this amount. I don't think I am convinced by this, and obviously it is going to mean the DN argument in my case (and many others if their loan would have run its course by now, is valueless.

 

I had thought that if a defective (or proceedings commenced without DN) DN was issued, followed by demand for payment of full outstanding balance, then to all intents and purposes the account was deemed terminated, either by TN from the creditor, or by the creditor's actions. In this case I had thought that only the arrears due at the date of the defective Default Notice would be recoverable.

 

Now totally confused and wonder if anyone can help to shed some light on this - not sure where to go with this now.

 

Magda

Edited August 12, 2009 by MAGDA

[N.P]

Hi MAGDA,

 

My understanding is the same as yours. Afterall, the CCA 1974 requires a Default Notice to be served.

 

Egg claim to have sent me one, but I never received one. Although later letters start with `despite the recent Default Notice`, and when I logged into the Egg website a message showed up `Default Notice recently sent`.

 

Again, like yourself, I beleive they must be served otherwise you won`t know what the problem is and how it can be fixed.

 

I also beleive that if they start a claim without issuing a DN then they lose all rights to the remaining balance. The problem is, the CCA 1974 doesn`t seem to state what should happen, if anything, if they don`t issue you a DN.

 

I would argue that if they sent one, they MUST prove it, otherwise they must be considered to be lying. I would also say they MUST use Recorded Delivery which would give a proof of posting and a signature on receipt.

 

If they fail to prove it, then ask the judge why he/she should take their word for it and not yours, when they don`t have any proof they sent one.

 

They clown will say you can`t prove it that you never received it, in which case you can`t because their is nothing to prove, because you never recieved it.

 

By the way, who informed you about the loan running it`s life?

 

Do you have a link to your thread, with your CCA scanned up?

[supasnooper]

Default Notices can be sent out by any postal method, or indeed delivered by hand.

 

Whilst here on CAG we always recommend sending any documentation by at least Recorded Delivery, creditors do not always follow the same mantra.

 

That is why it is important to ask for a copy of the Default Notice in pre-trial disclosure to see if the DN is fully compliant ( headed with company name, dates, amounts, wording, etc..).

 

If they haven't disclosed one before the hearing and then produce one in court, ask for an adjournment to take advice.

[MAGDA]

Hi MAGDA,

 

My understanding is the same as yours. Afterall, the CCA 1974 requires a Default Notice to be served.

 

Egg claim to have sent me one, but I never received one. Although later letters start with `despite the recent Default Notice`, and when I logged into the Egg website a message showed up `Default Notice recently sent`.

 

Again, like yourself, I beleive they must be served otherwise you won`t know what the problem is and how it can be fixed.

 

I also beleive that if they start a claim without issuing a DN then they lose all rights to the remaining balance. The problem is, the CCA 1974 doesn`t seem to state what should happen, if anything, if they don`t issue you a DN.

 

I would argue that if they sent one, they MUST prove it, otherwise they must be considered to be lying. I would also say they MUST use Recorded Delivery which would give a proof of posting and a signature on receipt.

 

If they fail to prove it, then ask the judge why he/she should take their word for it and not yours, when they don`t have any proof they sent one.

 

They clown will say you can`t prove it that you never received it, in which case you can`t because their is nothing to prove, because you never recieved it.

 

By the way, who informed you about the loan running it`s life?

 

Do you have a link to your thread, with your CCA scanned up?

 

Hi NP, I read about the loan being at an end scenario on the 'tale of a dodgy DN further discussion' thread. If this is the case, the creditor can just stall until the loan would naturally be at an end (if that isn't too far off) and then not need to provide any DN, and although they haven't followed the letter of the law, get away with this. I'm pretty sure I didn't receive any DN at any time from FN or Link, but Link went ahead with issuing proceedings (and at that point the loan wasn't at an end).

 

I do have a copy of the CCA scanned up, and here is a link to my thread:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/197600-more-problems-link-6.html#post2361457

 

Many thanks NP, Magda

 

Default Notices can be sent out by any postal method, or indeed delivered by hand.

 

Whilst here on CAG we always recommend sending any documentation by at least Recorded Delivery, creditors do not always follow the same mantra.

 

That is why it is important to ask for a copy of the Default Notice in pre-trial disclosure to see if the DN is fully compliant ( headed with company name, dates, amounts, wording, etc..).

 

If they haven't disclosed one before the hearing and then produce one in court, ask for an adjournment to take advice.

 

 

Thanks for the above info supasnooper,

 

Magda

[MAGDA]

Hi all, would really appreciate some advice. I was taken to court last year by Link (four claims in all) and one in particular, that was discontinued by Link, was then passed back to the OC, GE Money. I don't know how this was done as Link claimed the debt had been assigned to them absolutely. Apart from a letter from Link advising me that they were discontinuing because the OC wanted to re-purchase the debt (likely story!) there was nothing else.

 

Recently GE Money has been in touch more often. Initially they just sent a notice of arrears (last Nov/dec time) and it was then quiet. However, they recently sent DN stating that I needed to pay the arrears by such and such a date or they would commence court proceedings. Today received two further letters, one a final demand for payment and the other a Notice telling us that we had incurred charges of £60 for the DN.

 

Now as far as I'm aware GE issued a DN and calling in notice in 2004 and a default is also registered on our credit file dated 2004. This was confirmed by Link in their POC/Statement of Case, however, they couldn't provide the DN when asked to do so and discontinued.

 

I'm pretty sure now GE intend to reissue this claim, hence the new DN, and would really appreciate some advice as I am already dealing with a claim for a huge overdraft and another hefty one from Cabot. Any comments at all much appreciated.

 

regards, Magda

[42man]

If they terminated previously then their recent issue of another DN is complete fiction. How can they issue a default notice as you no longer have any agreement with them. ?? How about a letter explaining what went on last time, the fact they are trying to issue a DN when you no longer have any agreement with them, and the fact that you will defend this unlawful action.....

[MAGDA]

Thanks 42 man, I don't know what they hope to achieve - I supposed they think they will hoodwink the court into believing that it's all above board. They are wording all their letters now as if the agreement is still 'live' so guess they are trying to ignore the fact it was previously defaulted/terminated and assigned to Link. I don't have anything to prove it was terminated in 2004, but by their action, i..e, assigning the debt and the court action Link took, it would be logical that they did.

 

Think you are right about gettting a letter off, either that or wait until I get the court claim, so that seems a better option right now.

 

Many thanks,

 

Magda

[banker_rhymes_with]

Hello MAGDA!

 

I'd send fresh SARs to wLINKers and also to GE Misery, to see how many Absolute Assignments pop out, i.e.:

 

(1) GE-M to LINK

 

Otherwise how could LINK take you to Court?

 

(2) LINK to GE-M

 

Otherwise how can GE-M start to threaten Court if they do not own the Debt and thus have no Right of Action.

 

One or both of them are telling fibs.

 

However, one possibility could be that LINK never acquired the Debt, it may not ever have left GE-M.

 

Did GE-M ever write to say they had Assigned it to LINK? Likewise, any letters from LINK saying they had bought the Debt from GE-M?

 

GE-M might just say they have no idea what LINK got up to but, whatever they got up to, that was all down to LINK and nothing whatsoever to do with them. Although how LINK ended up with your details, the Account details, and so forth, will take some explaining on the part of GE-M, from the point of view of the Data Protection Act 1998 if nothing else.

 

Thus, it would be good to know if there is any sign of any Assignments going either way.

 

The other scenario is that GE-M have forgotten what utter clueless complete bankers they are, and just need reminding of that fact.

 

Cheers,

BRW

[MAGDA]

Hi BRW, Link provided a copy of the credit agreement (once proceedings were up and running) and they obtained this from GE money and they also sent a copy of a NoA I seem to remember. I rang GE Money at the time because I was querying where to send the SAR, and they said the account had been sold to a company called Link. I asked if the assignment was absolute and GE confirmed it was. Link also stated in their court papers that the debt had been assigned on such and such a date, so as you say, it may be the case that either one or the other or both were lying. I don't see how they can just 'hand' the debt back to GE without it being re-assigned, which doesn't seem to be the case. It is all very strange. They have done the same thing with Semyaza on another thread, again Link discontinued and handed it back to GE.

 

Think perhaps I will do as you suggest and SAR both Link and GE and see what turns up.

 

It's just really annoying though that you go through all the stress and hassle of dealing with the claim only to have it turn up again.

 

Thanks for the advice, Magda

[banker_rhymes_with]

Hello MAGDA!

 

I would keep them in the dark for now, and let them huff and puff while you research the background issues.

 

Taking a step back, the first task is to establish that the Debt was Assigned to LINK absolutely.

 

Once that has been established, it means LINK still own it, because nobody has actually told you it was bought back by GE-M. All you were told was GE-M wanted to buy it back, that's not the same as being told it had been re-sold.

 

Even if GE-M have bought the bundle of fun back, it's equitable, because LINK have not notified you. LINK still retain the Legal Rights, GE-M only have the Equitable Rights, no matter what they paid or refunded to LINK to get it back.

 

So, dig around to see what you can find, but let GE-M do what they have to do. If they start Court Action, you have a complete defence if there is no Assignment back from LINK to GE-M...that's apart from anything else you know about that will cause them problems.

 

IOW, this is the same as a third party being involved such as, say, if LINK had sold it to Cabot. In that case, Cabot would need to have an absolute Assignment to take you to Court. It is no different for GE-M: they can't take you to Court because they have no Right of Action.

 

Furthermore, if you can prove that LINK did have an absolute Assignment, then the fact they started Court action, confirms the Agreement had been Terminated. That ends any chance of anyone being able to issue a new s87(1) Default Notice because, as 42man has said, it would be based on the fiction of an enduring Agreement.

 

This, I think, could also raise CPUT 2008 issues. GE-M are making up stories and bending the rules, and that is not fair. Prepare a letter for Trading Standards once GE-M hang themselves some more.

 

Cheers,

BRW

[MAGDA]

This is really helpful, thank you BRW. I don't think it will be very long before GE issue a claim, so hopefully then I can use all of the above in my defence. There were other issues originally with Link as well, such as not being able to prove they complied with the regs on my right to cancel - this was a cancellable agreement, so GE Money may bite off more than they can chew.

 

I've had one of those days today where everything that could go wrong has, so thanks for the words of encouragement. Feel a lot better now.

 

Magda

[banker_rhymes_with]

Hello MAGDA!

 

No worries, keep your chin up and don't let these banking vermin get you down. They have all proved beyond any doubt they are lower than the nasty stuff that sticks to the sole of your shoe on a hot day, so keep that fact firmly in mind at all times.

 

A National Debt of 1.5 trillion number-monies is all the evidence anyone needs. But, in case of doubt, just watch them ignoring the mess they have caused, while they are pre-occupied handing themselves billions in number-money bonuses! Even with the minor issue of 50% Tax for a while, that won't slow them down.

 

The banks are now grabbing and grasping for all they are worth. Indeed, as we knew they would once the Recession got deeper and deeper.

 

Anyway, back to GE-M. If they start a Claim when they have no Right of Action, then that is that. They can't acquire it along the way, they need it before they start, otherwise, they had no right to start and it's game over as soon as this is pointed out.

 

Look on the bright side, start getting your costs ready, timed to hit them between the legs 24 hours before the N244 Application Hearing that Strikes Out their Claim!

 

Plan ahead. Wait for the Claim, then go for a Strike Out before the Claim has been allocated to a Track. Because then it will be Multi-Track with no limit on Costs (at that stage).

 

Cheers,

BRW