How Precise should be the wording in a Default Notice?

[Monty2007]

I appreciate that this is probably covered elsewhere but could someone more expert in default notices comment on the wording in my Amex DN (issued Nov 2005) - this is the exact extract:-

 

IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE STATED DATE NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THIS BREACH. IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE STATED DATE THEN FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU.

Edited June 21, 2010 by Monty2007

[banker_rhymes_with]

Hello Monty2007!

 

Schedule 2 of Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561):

 

(5) Where any statement is required to be in a form specified in a Schedule to these Regulations and is reproduced in the notice, then apart from any heading to the notice, trade names or names of parties to the agreement--

 

(a) the lettering in the statement shall be afforded more prominence (whether by capital letters, underlining, large or bold print or otherwise) than any other lettering in the notice; and

 

(b) where words are both shown in capital letters and underlined in any statement specified in a Schedule to these Regulations, they shall be afforded yet more prominence.

 

It's the (b) above that kills them on your Notice.

 

THEY HAVE DONE IT LIKE THIS

 

WHEN THEY SHOULD'VE DONE IT LIKE THIS

 

IOW, the way the words should be set out is not explicit in terms of the use of Upper Case and Bold, but there are Prescribed standards that must be followed depending on the use of Bold for example.

 

So, it's reasonable to say that it would be wise to use UPPER CASE for the Prescribed Wording mainly because, to do otherwise, would not make it stand out. For example:

 

THIS STANDS OUT FROM THE BUMF ABOVE, BECAUSE I'VE USED UPPER CASE TO MAKE IT STAND OUT. SO, IF THIS WERE THE PRESCRIBED WORDS, THEN IT WORKS TO MAKE THEM STAND OUT FROM WORDS USING LOWER CASE.

 

I must admit that I need to find where it says how and where underline needs to be use, so I'll come back to that!

 

However, where underline is used with the Prescribed Wording, which is almost certainly in UPPER CASE already or else it won't stand out, then any underlined Prescribed Words should be afforded yet more prominence.

 

About the only way to do that is to use Bold.

 

THUS, IF THE PRESCRIBED WORDS ARE ALREADY IN UPPER CASE, THEN ANY THAT USE UNDERLINE SHOULD ALSO BE IN BOLD, LIKE THIS.

 

However, if they have already used Upper Case and Bold, then the Underlined Prescribed Words must be afforded yet more prominence.

 

If Bold has already been used up as an option, and assuming we can't use Flashing LED Lights, then one way could be to make them bigger:

 

IF THE PRESCRIBED WORDS ARE ALREADY IN UPPER CASE AND BOLD, THEN ANY THAT USE UNDERLINE SHOULD BE GIVEN EVEN GREATER EMPHASIS, PERHAPS LIKE THIS.

 

The only answer I don't have for you at the moment, is why some words need to be underlined!

 

I'll see if I can figure that out, or if someone will jump in and tell me!

 

Cheers,

BRW

[Monty2007]

,

 

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Edited June 21, 2010 by Monty2007

[banker_rhymes_with]

Hello Monty2007!

 

It will be amusing when you turn up in Court with an Original Copy of an invalid Default Notice dated 16th November, and they pitch up with a hearsay evidence copy with another date!

 

That'll take some explaining!

 

Rember that yours is the Original Default Notice! It's not a copy!

 

 

Cheers,

BRW

[Monty2007]

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Edited June 21, 2010 by Monty2007

[Monty2007]

I have also covered the DN in my defence, I will not post that up for now. When I am through I will post up my case and what I have gleaned from what I have found on the Ordinary Cause process in Scotland. It is not as daunting as I had thought!

[BlueSquirrel]

I have a default notice, it seems to be OK in most aspects but it does not state that it was issued under Section 87 of the CCA. Nor does it refer to a specific breach, just I am "in breach of the terms of the above agreement, which requires you to pay in instalments..."

 

The agreement is not stated above, it just mentions the agreement number in the reference to the side of the page.

 

Any thoughts BRW?

[banker_rhymes_with]

Hello BS!

 

It could be one of the new notices they have to send out when ever they levy a default charge, i.e. a Late Payment Fee or an over-limit fee etc?

 

I think they usually say s86 or something like that.

 

They are not Default Notices served under s87(1). People see the word default and think it's a s87(1) Notice.

 

I may be wrong, but that's a possible explanation.

 

Cheers,

BRW

[BlueSquirrel]

Hello BS!

 

It could be one of the new notices they have to send out when ever they levy a default charge, i.e. a Late Payment Fee or an over-limit fee etc?

 

I think they usually say s86 or something like that.

 

They are not Default Notices served under s87(1). People see the word default and think it's a s87(1) Notice.

 

I may be wrong, but that's a possible explanation.

 

Cheers,

BRW

 

Hello BRW!

 

It is definitely a Default notice with a you must do this or we will do that blurb but it is just headed Default Notice, no reference to the CCA. This is for a loan for 25K taken out in 2003. These are the first loan agreements I have to had to deal with ( I have this one and one with M & S Financial Services) so am a newbie on this front. My kind bank froze my account so all my direct debits have bounced so everything has come crashing down simultaneously, so have lots to deal with at the moment! You might want to look at some of my other Blue Squirrel tales if you have time.

[banker_rhymes_with]

Hello BS!

 

It is definitely a Default notice with a you must do this or we will do that blurb but it is just headed Default Notice, no reference to the CCA.

 

OK, if the Agreement was Regulated by the CCA, then this sounds like it's just an idle Threat Letter. I've seen quite a few of these pretend Default Notices. They are usually from gormless morons who think you do not know any better, and that it will scare the pants off you.

 

For example, Wescot like to send some out in bright red, that are phrased like a Default Notice, but when you read the childish nonsense, it soon becomes clear that it's just a Threat Letter...but using scary phrases or words like: you have 14 days to respond, or Default etc.

 

However, if they think it's a Default Notice, then don't spoil their happy state of mind until after they Terminate!

 

My kind bank froze my account so all my direct debits have bounced so everything has come crashing down simultaneously, so have lots to deal with at the moment!

 

Sorry to hear that, know the feeling!

 

Best advice I can give you is to get yourself another Bank Account now, don't waste any time. It's essential you get one ASAP before too much adverse Data hits the fan.

 

Make sure it's with a bank that is as far removed from the one you are with as you can get. That's because you don't want your new bank to merge with your old bank, or you'll be back in the poo.

 

For example, remember how Halifax, TSB, BOS and Lloyds were once banks in their own right? Pretty soon they could be one big happy bunch of bankers, so if you had an account with one, and they merge, you are back with the same old bank again, with Set Off rights to go plundering your Cash from your new bank account.

 

Once you have a new bank account, then push all money into that.

 

Then start Paying ONLY the key Bills, like: Mortgage, Council Tax and Utilities needed to survive at a basic level.

 

Don't ever set up a Direct Debit on that new account. Pay everyone via Cheque or via BACS...use Standing Order last.

 

Get a home accounts package, or create a Spreadsheet, and start to manage your Cash down to the Penny level.

 

Dump all non-essential expenditure, that's assuming you have any left after the bank cut the legs away from all of your Direct Debits.

 

Get rid of everything you do not need. Then consider carefully the ones you do need...Car Insurance, Telephone, Broadband.

 

Then start Selling off anything that has a value that you can still sell in this Market, and push Cash into that new account.

 

Then start re-building your life from there. You can't fight the bankers if you run out of Cash, as your whole world will implode before you get a chance to take the battle back to them.

 

You might want to look at some of my other Blue Squirrel tales if you have time.

 

Will do. But I'm going to be pretty busy now until the start of Feb, with end of year Accounts and our Tax Returns etc...as well as running a business and fighting a dozen battles of our own!

 

Good luck with it all.

 

Cheers,

BRW

[BlueSquirrel]

OK I will sit tight and see what they do. So you are saying without the proper heading then it is not valid?

 

Thanks for your advice and concern. I do have a new bank account, in a different country, so I think I am ok for now

[banker_rhymes_with]

Hello BS!

 

OK I will sit tight and see what they do. So you are saying without the proper heading then it is not valid?

 

I regret I can't say for certain, but if you read up on what a Default Notice must contain, what it should say and how, what it must allow in terms of time, and how accurate it must state the breach you have made and the Remedy you need to do to fix the default...then you may see if yours is a valid Default Notice or just a scrap of paper sent to goad you into Paying.

 

Start with the Consumer Credit Act 1974 and read s87 and s88 in detail.

 

Then read the PDFs on CAG here...

 

See: Consumer Credit Act (1974) and related Regulations

Because not everything is stated in the Act, many of the Prescribed issues are contained within Statutory Instruments.

For example:

Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

The PDF you want is Post #4 of the above Sticky Thread, and it's PDF number 6...

Section 2

 

(5) Where any statement is required to be in a form specified in a Schedule to these Regulations and is reproduced in the notice, then apart from any heading to the notice, trade names or names of parties to the agreement—

 

(a) the lettering in the statement shall be afforded more prominence (whether by capital letters, underlining, large or bold print or otherwise) than any other lettering in the notice; and

 

(b) where words are both shown in capital letters and underlined in any statement specified in a Schedule to these Regulations, they shall be afforded yet more prominence.

 

I regret it just comes down to reading and reading, and then you can help me when you spot if I've got the wrong end of the stick on an issue!

 

Cheers,

BRW

[BlueSquirrel]

Well..... I am sure someone will correct me if I am wrong but it looks to me like they have to tell you it is a Default notice issued under section 76 (1) I don't have that or the "important notice" in schedule 8. So is it a threatogram rather than a default notice from our chicken related friends. You would think they would have got the hang of it by now, huh? Isn't it considered a bit naughty to misrepresent the situation in these sort of circumstances.

 

Also they mention that this default will result in me having difficulty obtaining "any form of credit in the future." Isn't there a 6 year cut off point?

[unison-man1]

Hi sorry to sit on side of this thread but am unable to start new one.

 

Long story: Feb 2001 default on credit card registered. default dropped off Feb 2007.

 

This morning got a notice from creditor,

 

This Notice is being sent to you as required by the Consumer Credit Act 1974 because you are behind with your payments

 

Details of last two payments- either missed or only partial payments recived:- Nov 08 Dec 08 nil paid

 

Default sums and interest

You may have to pay th default sums and interest in relation to the missed or partly made payment indicated above in addition to any default sums and interest already included in this notice.

 

When I phoned this morning advised to ignore it as no longer enfocabel last contact with me in May 2000 and the Government has made them do this to all old accounts with balances on them.

 

Any ideas?

[Monty2007]

Hi sorry to sit on side of this thread but am unable to start new one.

 

Long story: Feb 2001 default on credit card registered. default dropped off Feb 2007.

 

This morning got a notice from creditor,

 

This Notice is being sent to you as required by the Consumer Credit Act 1974 because you are behind with your payments

 

Details of last two payments- either missed or only partial payments recived:- Nov 08 Dec 08 nil paid

 

Default sums and interest

You may have to pay th default sums and interest in relation to the missed or partly made payment indicated above in addition to any default sums and interest already included in this notice.

 

When I phoned this morning advised to ignore it as no longer enfocabel last contact with me in May 2000 and the Government has made them do this to all old accounts with balances on them.

 

Any ideas?

 

This does not sound right. The debt is statute barred so they should not be chasing you or update you CRA files - you will need to check. I have not heard of any Government legislation that requires them to do this?

 

Can you post more details of the creditor, DCA etc?

[joneseyblod]

subbing

[Varuna]

Subbing

[NGEddie]

Hi everyone,

 

I am trying to find which section this :-

 

IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE STATED DATE NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THIS BREACH. IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE STATED DATE THEN FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU.

 

Falls into on the CCA, I thought it was 89 but I am looking here

Results within Legislation - Statute Law Database

and cannot see it

 

Any ideas please?

 

Thanks

 

E

[Guest HeftyHippo]

Hi everyone,

 

I am trying to find which section this :-

 

IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE STATED DATE NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THIS BREACH. IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE STATED DATE THEN FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU.

 

Falls into on the CCA, I thought it was 89 but I am looking here

Results within Legislation - Statute Law Database

and cannot see it

 

Any ideas please?

 

Thanks

 

E

 

Its in a separate document - the Consumer Credit Act (Enforcement, Default and Termination Notices) Regs 1983 [sI: 1983/1561]

 

Beware, the copy circulating on the web from (John Harris or somebody) chambers does not have the correct formatting to that section.

 

have a look here instead

[manchestman]

Hi HeftyHippo

Tried your link, but photobucket is asking for password. Any chance of replying in this thread with password, please? - lol! Just kidding!

 

Seriously though, is there any way to view it anywhere else? Thanks

[Guest HeftyHippo]

Not been on for a while. Try it again. I think I've sorted out the password thing. Let me know if it works

[manchestman]

Hi Hefty

works perfectly, thank you!

[Guest HeftyHippo]

Youre welcome. That is a genuine copy from what used to be HMSO.

 

The 'more prominence' bit is a bit confusing, but it means what it says, as well as bold and undelined, text can be in a bigger font, or I guess, maybe even indented left and right - anything to make it more prominent.

 

There are a couple of copies of that doc on the web and at least one source has mistakes in it - the bit dealing with prominence.

 

Hopefully, you can download and print my copy