Default Notice Re-Issue

[banker_rhymes_with]

By when proceedings have commenced the Claimant will have terminated the agreement. The language of a default notice is framed on the basis there is a current agreement. That language is prescribed. If the Claimant terminated the agreement, to deliver an effective default notice will involve the fiction the agreement is current and never terminated. It would also involve the Claimant reinstating unilaterally. The debtor would be unlikely to agree to reinstatement if to do so would cure the Claimant's difficulties.

 

Beautifully put X20.

 

So the debtor can only owe the arrears? The balance must be written off?

 

Yes. Any valid Arrears due before Termination are still owed, that's assuming they do still posses a properly executed Regulated Credit Agreement.

 

However, the Balance which was not yet due, is lost. This is because their option to seek early Payment of a Debt not yet due (the Balance), went out of the window the second they Terminated on the basis of an Invalid or non-existent Default Notice.

 

In effect, they wrote PARACHUTE on the Pilot's Lunch Box and jumped out of the Plane with it, saying that'll do.

 

Cheers,

BRW

[banker_rhymes_with]

Hello mberman!

 

See Post #4 above!

 

They key being if they have either Terminated the Account by Letter, or have Terminated the Agreement by their actions, then the Agreement is no longer live.

 

I say, by their actions, and that would mean they have Demanded Full and early Payment of a Balance that was otherwise not due, thus confirming they regarded the Agreement was Terminated by their actions as opposed to by saying it was Terminated via a Letter.

 

The key issue is when Payments are due.

 

Routine Monthly Payments are due as of the date they fall due, and once you go past that date unpaid, they become Arrears.

 

Arrears on any Monthly Payments are also due there and then, because the Arrears will be based on missed Payments that had already become due for Payment.

 

However, the main Balance is not due, as the Agreement will not require that to be Paid whilst you are making Monthly Payments, even if you miss some and turn them into Arrears.

 

The situation only comes to a head when the Creditor gets fed up of missed Payments/Arrears, and issues a Default Notice to say what needs to be Paid by when or else.

 

The or else will be their Right to Terminate the Agreement and Demand early Repayment of the main Balance.

 

To allow them to ask for the whole lot, they must follow s87/s88 otherwise, if they go ahead and Terminate or Demand Full Payment (that being effective Termination by their actions) without a valid Default Notice, then they end up Terminating without any of the benefits of s87.

 

s87 is what allows them to seek early Payment of an amount that was, until Termination, only Payable in the future.

 

Blow s87/s88 and they have no live Agreement to Default a 2nd time, and are left without any of the s87 benefits. All they can then ask for is any valid Payments that were due before Termination.

 

If they go to Court and it is shown that their Default Notice is invalid and they have Terminated the Agreement/Account, then they have no way to go back and issue a 2nd Default Notice, as there is no live Account left to re-Default.

 

They could only do that if they re-activated the Agreement, and they can't do that by themselves...they'd need you to agree to it.

 

...and I doubt you would be willing to agree to that!

 

I hope this helps.

 

Cheers,

BRW

[banker_rhymes_with]

Hello mberman!

 

The problem is they discontinued but intend to issue fresh proceedings and new default notices. They have admitted that the reason they discontinued was that the Default Notice was technically inaccurate! So could the fact that they have admitted the Default Notice is invalid be enough to terminate any contract between both parties even though it has not gone through the Court.

 

I think the key issue is if they either told you the Agreement had been terminated, or they Demanded Full Payment.

 

A Termination Letter is perfect, as that is concrete.

 

However, if they have, at any stage, demanded Full Payment of a sum that was otherwise not due if the Agreement was still live then, by this action they have effectively declared the Agreement ended; because if it was still live, they would have no Right to demand Full Payment of a sum not otherwise due because the live Agreement allowed you to Pay the main Balance off in small Monthly Payments stretching out into the future.

 

If the Original Court Claim states that they want the lot, plus interest, then I think that is as good a confirmation as any that they regarded the Agreement as being Terminated before they tried to haul you into Court. The fact that it never made Court is not important, you have their Claim Form that Demanded Full Payment, and that is as good as a Termination Letter if ever there was one.

 

That is your evidence that the Agreement is Terminated, and on a date that preceded Court. That date could be the Date they first asked for Full Payment, or the Date of the Claim if that was the first time they asked.

 

Either way, the Agreement was clearly dead at that point.

 

To say they will now go back and issue a Fresh Default Notice is going to present them with a problem. How can they pick a date in the future by which time you have to Remedy the Default, if the Account is already closed?

 

As Surfaceagentx20 has said so well:

 

By when proceedings have commenced the Claimant will have terminated the agreement. The language of a default notice is framed on the basis there is a current agreement. That language is prescribed. If the Claimant terminated the agreement, to deliver an effective default notice will involve the fiction the agreement is current and never terminated. It would also involve the Claimant reinstating unilaterally. The debtor would be unlikely to agree to reinstatement if to do so would cure the Claimant's difficulties.

 

I'm sure they will think they can do this, but when the facts are pointed out to them in front of a Judge, I think they will look rather foolish.

 

I suspect they only said they would go back and issue a fresh Default Notice as a passing spiteful comment to try and undermine your confidence. However, if they do elect to try it on with a Brand New Default Notice applied to a closed Account, then I think you will now know how to respond to that.

 

A New Default Notice can only be issued if...

 

(1) The Agreement is still live and was not Terminated. That cannot be the case in view of their Demand for Full Payment.

 

(2) The Agreement has been re-activated. That cannot happen unless both sides to the Agreement agree, that's why it's called an Agreement. You would not agree to that, so the Agreement can't be re-activated once Terminated, and certainly not by one party to the Agreement just so that they can fix their own mistakes.

 

If they do come back, then start getting your Counter-Claim and demand for Costs ready!

 

Cheers,

BRW

Edited November 27, 2008 by banker_rhymes_with
Clarity

[banker_rhymes_with]

Hello mberman!

 

I think you need to concentrate on two things, i.e. the fact that they have clearly Terminated the Agreement when they demanded Full Payment, and the fact that they did so on the back of an invalid Default Notice, thus denying themselves any of the benefits of s87. Click the Link below to read what any Section within the Act says:

 

Consumer Credit Act 1974

 

Below is the Paragraph that I added to a recent Defence (with underlying thanks to Surfaceagentx20 whose words I have mangled), to make it clear the nasty bankers concerned could not simply go back in time to fix their Default Notice mistakes:

 

Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on 18/06/2008. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

 

I'd use something like the above, but change the Date to match the Date of their Claim Letter. Or the Date of any earlier Letter if they asked for Full Payment before the Claim.

 

I regret I'm not familiar with your Claim/Counter-Claim, but have you sent them a s77-79 CCA Request and Subject Access Request, or have you used a CPR 18 Request once the Court Claim was issued to get the same sort of details?

 

I'm hoping there that you may yet be able to uncover some more useful information via Subject Access Request or via CPR 18 Request. If you have not yet used CPR 18, then it may be an idea, unless they have not yet issued a new Claim, in which case CPR 18 may not be applicable if no Court Action on their part is actually live at the moment. In that case, Subject Access Request would be the one to use for now.

 

Others may join in here, but the above is my own suggestions. The key is that the invalid Default Notice is 50% of the issue, the other 50% is the Termination. Put them together and they are ham strung, all they can ask for would be any valid Arrears that were due before Termination.

 

I say this, because the proposed Paragraph you stated in the last Post seemed to be mainly concentrating on the Invalid Default Notice, and didn't say enough about the fact that they had Terminated. That Termination is the key to denying them any s87 benefits (as they neglected to bring along a valid Default Notice when they Terminated), and it's also the key to denying them any right to go back and issue a new Default Notice (as the Account is close/dead/Terminated/t*ts up).

 

You may also be able to add a Counter-Claim for Unlawful Rescission of Contract!

 

Remember, an Agreement Regulated by the Consumer Credit Act 1974 binds them as much as it binds you. They can't just wake up one morning having a really bad underpants and wig day and elect to Terminate and extract themselves from the Agreement by lunchtime.

 

This is what s87/s88 is all about, and if you have done something wrong, then these are the steps they must follow to allow them to warn you, ask you to be good, and if you don't, then they can extract themselves from the Agreement that otherwise binds them every bit as much as it binds you.

 

If they elect to jump out of the Agreement Plane without a Default Notice Parachute and s87 Boots, then that could be an even bigger problem for them, because when they crash to earth, you can then start beating them around the buttocks with a Compensation Stick:

 

Furthermore, the 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 an unlawful rescission of contract which would not only prevent the Court from enforcing any alleged debt that was otherwise only payable in the future, but would give me a right to Counter-Claim for damages, see Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

Cheers,

BRW

Edited November 27, 2008 by banker_rhymes_with
Clarity

[banker_rhymes_with]

Hello GO'S!

 

I have a feeling that certain discrepancies with a Default Notice can be enforced by a judge.

 

It sounds like your Judge has overlooked a few issues.

 

Like most of the Consumer Credit Act 1974!

 

Cheers,

BRW

[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

[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

[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