Default Notice Re-Issue

[MAGDA]

Thanks again BRW. I've noticed a lot of creditors seem to be taking court action where before they might not have done, or at least have thought twice - Cabot are currently trying to enforce a non-enforceable MBNA agreement for £15,000 (where they get that figure I really don't know). They all seem to be coming out of the woodwork at the moment.

 

Really appreciated your wise words of wisdom and will keep you posted how it goes.

 

Best regards,

 

Magda

[42man]

Just adding this Magda, it might be useful - (maybe not the statute barred bit) http://www.consumeractiongroup.co.uk/forum/legal-issues/162456-help-statute-barred-debt.html#post1744862

[MAGDA]

Many thanks 42man, will have a good read through.

 

regards, Magda

[annabella7]

Hi all,

Just curious about something,.when an account has had no activity for many years, a single one off payment accepted, then many years pass and discover the debt hasnt gone away, but was passed to debt agency.

Whats the permitted time for them to issue the new default notice if there has been no activity on account for more than 4 plus years. The present outstanding sum is £130 ....so they say, and default placed on Credit file 26th of april 2010

[AnimalMagic]

Statute of limitation is 6 years, so if you haven't sent any communication acknowledging the debt in the last 6 years, then they cannot enforce.

 

They also cannot enforce if no valid default notice has been issued. If they've already terminated the account, then they cannot 're-issue' a default notice.

[chez262]

Hi cagers,

 

Can someone please confirm that the re-issue of a DN after a wrongful termination is in valid as the contract is no longer live??

 

My solicitor is telling me that even though the claimant issued a Termination notice without a DN, they then corrected the issue by issuing a DN and then a more 'valid' Termination notice therefore they rectified their mistake and I in turn have no case!!

 

Thanks.

[gh2008]

A creditor can terminate an agreement at any time of their own free will. Nobody can force them to continue with it.

 

HOWEVER if they ever want to see their money back they have to conform to the rules of the CCA.

 

BUT you will have to show that 'a reasonable man' would believe that the account was indeed terminated ( a letter from them saying we have terminated your account is quite a good one)

 

If they also stopped sending statements between termination and new DN that also indicates that they themselves believed the account was no longer 'live'

 

Issuing a DN on a terminated account is absurd as the wording of teh DN itself makes it clear that if the default is rectified then the default would be treated as never having happened - well if you've had to destroy your cards and already refused credit etc etc then again that makes the DN plainly invalid

 

jmho though ....

[chez262]

Thanks gh... much appreciated!

 

I actually received a Terminatation Notice demanding the remainding sum. Three months later I received a Default Notice.

[Peterbard]

Hi cagers,

 

Can someone please confirm that the re-issue of a DN after a wrongful termination is in valid as the contract is no longer live??

 

My solicitor is telling me that even though the claimant issued a Termination notice without a DN, they then corrected the issue by issuing a DN and then a more 'valid' Termination notice therefore they rectified their mistake and I in turn have no case!!

 

Thanks.

 

Yes he is correct.

 

If the defaqult was not corrctly formated then the orriginal termination was also invalid, thus the ccount was still active, enabling the second default.

[chez262]

Yes he is correct.

 

If the defaqult was not corrctly formated then the orriginal termination was also invalid, thus the ccount was still active, enabling the second default.

 

So creditors can now get the default notice wrong or terminate without a default notice as long as they correct the default notice at a later date and re terminate?

Then a faulty DN no longer stands as a defence?

[gh2008]

Well, there you have the 2 opinions

 

I'd love to see someone take a creditor to Court for terminating an account without a valid DN and not getting their money back - I wonder where the damage would be shown.

 

Just because a law says you can't do something does not mean it cannot be done .....

You MUST NOT exceed the speed limit it is the Law, however you can of your own free will (and perhaps face the consequences) why can't a creditor terminate an agreement??

 

Just because the Law says you cannot do something - does that mean you can just do it and then say ooops because the Law says I can't do it that means I never actually did it??

[gh2008]

@Peter - To follow on from this - if a creditor takes you to Court on the back of a faulty DN and loses - are you saying that they could then following the loss at Court - re-issue a valid DN and tehn take action again. After all it would not be another action on the same matter as this time it would be on the back of a valid DN a very different matter.

At what point is an account terminated .....

 

Recently a creditor closed one of my account and wrote of the balance - now, I was in default and they had sent a DN (invalid) so again are you saying that that account is still 'live and kicking' and could be resurrected at any time ....

[george brown]

hi im having some problems myself at the mo and have an invalid default notice, i just wanted to thank you all for some really great advice in this thread, brilliant stuff!!!!

[chez262]

hi im having some problems myself at the mo and have an invalid default notice, i just wanted to thank you all for some really great advice in this thread, brilliant stuff!!!!

 

Well it would seem it's not as simple as having an invalid DN anymore, creditors can apparently correct their mistakes!

 

Have you come across this also George??

[chez262]

@Peter - To follow on from this - if a creditor takes you to Court on the back of a faulty DN and loses - are you saying that they could then following the loss at Court - re-issue a valid DN and tehn take action again. After all it would not be another action on the same matter as this time it would be on the back of a valid DN a very different matter.

At what point is an account terminated .....

 

Recently a creditor closed one of my account and wrote of the balance - now, I was in default and they had sent a DN (invalid) so again are you saying that that account is still 'live and kicking' and could be resurrected at any time ....

 

In my case, they terminated. Then sent a DN and terminated again. Then sent another DN and Terminated again. I accepted the TN the first time around but they continued the contract then eventually took me to court.

[chez262]

Can anyone please confirm which is the more proven case out of the two options provided above?

I have to decide if I am to have my case set aside (as the court went ahead without notice the first time) but I don't want to challenge a case that may now be deemed pointless if the claimants can rectify an unlawful termination with a second DN and termination and a third DN and termination when the first termination was accepted by me.

Many thanks for your help!

[jayjay11]

Hi all I now have the same problem i have an account that was terminated with no DN, which i accepted and this was then folled by a DN and another termination.

All the advice so far has been that a terminated account is just that, and if the creditor then tries to rectify by further issuind a dn and tn then this is not allowed.the wording of the act ould suggest this is the case.

although the creditor has not started action , even tho ive made no payments since sept 2008, i keep getting threat o grams but if they do issue a claim i need to also know if the defence is valid!

[chez262]

I got a solicitor a year ago, informed him of the DN sent after the unlawful termination and he agreed to represent me. I then received a judgment for delivery of good and full payment forthwith to which I didn't understand. The solicitor told me it had gone to court without us so he would get it set aside but in the mean time he needed answers from the claimant to proceed.

They never responded so he left it, stating he presumes they have left it. In deed they hadn't.

A year later they present my solicitor withthe DN sent after the termination and appartent my chances are now unlikely to succeed. Thats after a year of interest accued on the sum and solicitor fees mind

He has said he will still apply for the case to be set aside if I so want but it will be further costs.

I don't know what to do now

I have a month before the charging order hearing too!

[gh2008]

Well imho your solicitor isn't much cop allowing it to go to Court without you and letting them get away with adding post judgement interest which isn't allowed on CCA cases either.

 

Both arguments have been used. BUT neither has been appealed therefore AFAIK there is no binding precedent.

 

IMHO it has all depended on a) how well the defendant's case was put and b) the Judge's lottery (although again IMHO I would put far more on point a than b)

 

There was a recent case in CC where the claimant put forward PB's stance as a proposed solution having lost because of a faulty DN and the DJ dismissed it out of hand. Not because of bringing a 2nd case but because the agreement was terminated. I'll try and dig it out.

 

Why not put my argument to your solicitor and ask them to explain .....

[chez262]

I'm sorry please excuse my ignorance but what is PB's stance??

[chez262]

Also are you saying post judgment interest isn't allowed on CCA cases? They are adding 2% every month in my case!

The thing with my solicitor is that he specialises in these case however and there is a big however, he defends a lot of creditors. I'm concerned, and this is without prejudice, that they are not acting in my best interest.

[gh2008]

2% - Ok, so they are claiming contractual interest. Is there a provision for that in the agreement?

 

PB = PeterBard

 

If your solicitor normally works for the creditors then and again this is just my opinion - it may be that they have not fully explored the other 'side of the coin' ....

 

As I said earlier, IMHO a creditor can terminate an account at any time.

The debtor would then theoretically have a case against them for breach of contract - however showing damage having taken their money would be difficult.

 

The CCA does not stop them doing a thing they are not allowed to do - the Law says you should keep your side of teh agreement too. When you stop repaying and you are not allowed to - does that mean that because you weren't allowed to that, in fact, it didn't happen ? .....

 

Also check out S98A(3) from teh new EU Directive

 

(3) Where a regulated open-end consumer credit agreement, other than an excluded

agreement, provides for termination of the agreement by the creditor—

(a) the termination must be by notice served on the debtor, and

(b) the termination may not take effect until after the end of the period of two months,

or such longer period as the agreement may provide, beginning with the day after

the day on which notice is served.

 

You will also notice that many credit agreement will have a clause stating that the creditor can terminate at any time. Now having signed the agreement - again you accepted that clause - (although you could have refused to accept it as unfair at the time)

[chez262]

Yes there is provisions for contractual interest.

I totally get your point on the not happening question... how can a DN be served on an already terminated agreement! It's absurd.

If I punched someone and got arrested for assault, I couldn't then return to the time of impact and say ok 'hit me first' then claim I hit the person through self defence because I'd made a mistake, right!!

 

Yes the contract does state the creditor can terminate at any time but only once the payments are missed and the CCA process is followed.

 

I fear that my solicitor does not want me to win. You may say why haven't you jumped ship, well because he has been telling me it's all in my best interest but he has let this whole case spiral out of control to the point where I am worse off.

 

If I feel I have a case to defend I will pay the fees to have this set aside and take the risk but I need to gather all my evidence before I do so.

[chez262]

My solicitor is also telling me it is more than likely a set aside application will be unsuccessful due to them having a DN after the termination. Is this case? Surely a DJ would give me the option to defend my case with good grounds?

I would have had the decision set aside immediately and have email proof of me requesting this of my solicitor who said timing was not an issue as it is them delaying the issue.

[gh2008]

Ok, you are probably best off, starting your own thread, and post the whole story there. Post a link to it in this thread so that everyone who wants to can follow

 

There may be other issue as well that have been missed.