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Default Notice period - 7 CLEAR days ?


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Thanks for your input, its over £25k & is unregulated :sad:

 

 

Sorry but I'm not sure of the notice required on Default Notices for unregulated accounts.

:(

 

 

But found this on the web regarding The Consumer Credit Act 2006 changes :-

 

2.2 Removal of financial limits

Section 2 removes the £25,000 financial limit below, which the Consumer Credit Act currently

applies. All consumer credit and consumer hire agreements will be regulated by the Consumer

Credit act.

With these exceptions

A high net worth exemption: For this exemption to apply, the debtor must be a

natural person with earnings or assets over a threshold. The credit agreement will

need to include a declaration that the person is willing to forgo the CCA protections.

In addition, the creditor must obtain a current "statement of high net worth" in relation

to that person from a suitably qualified third party before entering into the agreement.

Loans below £25,000 to businesses: This exemption effectively re-imposes the

current £25,000 financial limit for loans entered into by the debtor "wholly or

predominantly" for the purposes of a business carried on (or intended to be carried

on) by him. There will need to be a form of declaration in the agreement to this effect,

which will then result in a presumption that the business exemption applied to the

agreement unless the creditor (or someone acting on behalf of the creditor - e.g. a

broker) knew or had reasonable cause to suspect that the agreement was not being

entered into for business purposes.

Unless one of these exemptions applies, then loans of any value will now be

regulated by the CCA. Credit agreements, which are currently unregulated, will

(unless varied in some way) remain unregulated.

 

 

 

It may help you.

 

Help us to keep on helping.

Please consider making a donation, however small, if you have benefited from advice on the forums.

This site is run solely on donations.

 

You can make a donation

HERE. Thank you.

 

Any advice & opinions given by supasnooper are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability.

Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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Hi

Thanks for the response, I have the default notice myself but not told the other side. They do not have the DN, they say they do not keep copies of DN or notices of termination. But have sent a template letter, that is nothing like anything I have ever got from them. They have sent copies of coputer screen shots showing that a DN was sent and that is it!

I have to submit an ammended defence by Weds,,is there a stated case that you know of,,or is it legal to say that they don't have the DN. I am sure I have read that they need to keep them but they haven't. This is RBS and I cannot believe that they are being so blatant bad at their record keeping. They are trying this on with lots of people and started action without ay warning. I have done my sums and the ammount on the DN is not correct,,but only by about £21.

 

Can anyone advise of me of what is the best way to go with this?

 

Thanks

 

Cups

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  • 7 months later...
  • 1 month later...

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ALL unsolicited PMs and E-mails should be posted up - Not all on CAG are who they appear to be

 

 

My views are my own. If in doubt, seek professional advice. If I can help though, I will. CAG helped me!!

 

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  • 1 month later...

Great to have some clarity on this! Have a default from HSBC on a managed loan from my student days which incidentally doesn't add up! Has been in dispute for about 8 months now but bank refusing to acknowledge this or provide me with details as to why it doesn't add up :rolleyes:.

 

They then broke the CCA amongst other regulations etc by issuing a default notice. Knew it was wrong but now I know it is for sure.

 

Date of signature on back is shown as the 8th December 2009 (Tuesday).

 

Their envelope had no postdates on it at all so giving them the benefit of the doubt and assuming first class and it being posted on the same day (which I doubt and will ultimately put them to proof of) the date of service would be the 10th December 2009.

 

They've given me until the 22nd to pay the amount (which given the fact that their loan doesn't add up is also technically an incorrect sum) which has only allowed me 12 days at best to comply.

 

If I let them go for it and issue proceedings I believe an invalid default is a complete defence, irrespective of the banks failures to respond to all my questions about the sums not adding up and them ignoring dispute status and issuing an incorrect default. I'd have the last laugh at least, let's face it, HSBC are dreadful.

 

I suspect a huge number of defaults are invalid so perhaps more of us should check any we have and go from there...

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Hi I need a help on the following, please!!!

 

Re: Invalid Default Notices

Hi

 

A friend of mine received a so called " default Notice " from their agent, Mercers, on July 2006 about a card defaulting.

 

Now it does say

 

"we act as agents for barclays bank plc trading as barclaycard"

 

It has got written Mercers's name and address, but there is not address for the original creditor which was barclaycard,

so question

(1) should it contain the address for the original creditor

 

question (2)

can an agent for a creditor issued the default notice?

 

Now I am aware that Mercers is part of Barclaycard so does it make legal??

 

 

Basically the address only found are:

 

1) Mercers Debt collections limited PO BOX No 55, liverpool, L32 8XX

 

2 Fax: 0151 549 7997

 

3) Registered Office: citypoint, One Ropemaker street, london EC2Y 9SS

 

4) REGISTERED IN england: 2550639

 

5) it also say literally quote:

 

" we act as agents for Barclays Bank trading as Barclaycard"

 

6) But there is not original creditors address anywhere and not even a name of Barclaycard at the heading of the letter.

 

7) I does say "visa account number and then The number XXXX XXXX XXXX XXXX" WHICH belongs to a barclays card and is the correct

number

 

there is NOT barclays address or telephone number and not barclaycard logo anywhere

 

9) Finally it does say "default notice served under section 87(i) of the CCA 1974"

 

So is it vaLID????

 

mostly appreciate your response

 

Thanks

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  • 1 month later...
Hello Shakespeare62!

 

OK, now back to your Dates...

 

 

OK, here's my opinion on this:

 

07/07/2006 Friday - Date of Default Notice

Assumed they Posted same Day via 1st Class Post

 

08/07/2006 Saturday - WEEKEND

09/07/2006 Sunday - WEEKEND

 

10/07/2006 Monday - 1st Working Day after Postage

 

11/07/2006 Tuesday - 2nd Working Day after Postage

This is Date of Service (see below)

 

12/07/2006 Wednesday - 1st Clear Day

13/07/2006 Thursday - 2nd Clear Day

14/07/2006 Friday - 3rd Clear Day

15/07/2006 Saturday - 4th Clear Day

16/07/2006 Sunday - 5th Clear Day

17/07/2006 Monday - 6th Clear Day

18/07/2006 Tuesday - 7th Clear Day = Statutory Deadline

 

On the above basis, I'd say the Default Notice was invalid.

 

If they had sent it via 2nd Class Post, then they'd be even more stuffed, as the Date of Service would be based on 4 Working Days after Posting.

 

Below is what you may need to quote when confirming the Date of Service based on Date of Postage:

 

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

 

Cheers,

BRW

 

Excellent clarification BRW!!!

 

m2ae

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Hello m2ae!

 

Excellent clarification BRW!!!
It's also important to note that the bank's deadline cannot fall on the Statutory Deadline, or else they are not allowing that to be a clear day, i.e. a whole day.

 

In the above example, the bank's deadline stated in their s87(1) Default Notice would have to be no earlier than Wednesday 19/07/2006...otherwise they would be guilty of nibbling into one of the clear days, and that is not allowed.

 

Indeed, if I were a bank, I'd add a few days on top, just to be sure. But, many bankers are so keen to deny people any more time than they have to allow, they take things as close to the limits as they can (and cock-up in the process).

 

Who am I to disabuse them of the obviously poor wisdom of that particular nasty habit!

 

Cheers,

BRW

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I have a Default Notice dated on a Saturday. I see that the Interpretation Act says that weekends cannot be included as a working day. BRW has an example where posting on Friday 1st class means delivery on Tuesday, the second working day.

 

What is the situation when it is posted on Saturday? Some Post Offices are open on that day and will accept normal post as well as recorded and special delivery items. Does that mean that the first working day after posting is Monday and delivery 1st class would be deemed to be Tuesday?

 

Some clarification on this point would be great.

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I have a Default Notice dated on a Saturday. I see that the Interpretation Act says that weekends cannot be included as a working day. BRW has an example where posting on Friday 1st class means delivery on Tuesday, the second working day.

 

What is the situation when it is posted on Saturday? Some Post Offices are open on that day and will accept normal post as well as recorded and special delivery items. Does that mean that the first working day after posting is Monday and delivery 1st class would be deemed to be Tuesday?

 

Some clarification on this point would be great.

 

Postal service is classed as 'working days', weekends + Bank Holidays do not count, also a court assumes that service is by second class mail and is deemed to take 4 working days unless the creditor can prove otherwise.

Anthrax alert at debt collectors caused by box of doughnuts

 

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  • 5 weeks later...

If a DCA is threatening legal action over a bought debt, and the DN sent by the Original Creditor did not allow 7 clear days...

(it was dated saturday 16th - making earliest Date of Service Tuesday 29th, and stated the breach had to be remedied by the 26th)

...does the discrepancy with the OC's DN make the DCA's claim invalid? I have a DCA demanding a decision from me today and my only defence now is based on this. I am torn between giving in and fighting on these grounds but a judge may see the discrepancy in the dates of a DN from the OC as de minimis and dismiss it as trivial, which is my worry.

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The Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983, and that a failure of a Default Notice or Termination Notice to be accurate not only invalidates such notice (Woodchester Lease Management Services Ltd V Swain & Co NLD 14 July 1998 but it is an unlawful rescission of contract which would not only prevent the court enforcing any alleged debt (Wilson V First County Trust Ltd [2003] UKHL 40, Wilson V Robertsons (London) Ltd [2006] EWCA Civ 1088, Wilson V Pawnbrokers [2005] EWCA Civ 147) - but would also give the claimant a claim for damages in the sum of £1000 (Kpophraror V Woolwich Building Society [1996] 4 All ER 119).

 

In the final paragraphs of the costs order in BOS v Robert Mitchell June 2009 judge langan said;

 

 

"11. Finally, I have to consider whether the costs of the defendant should be assessed on the standard or on the indemnity basis. In my judgment the assessment should be on the indemnity basis. The only realistic view of what has happened is that the bank has surrendered on a straightforward point of law, to which it has on several occasions been alerted by the defendant or his solicitors. A large commercial enterprise which proceeds with litigation in the face of warning signs of the kind which were erected here, adopts a high risk strategy. The point in question was a simple one. There was no relevant controversy as to the evidence. To choose to abandon the claim on the very day of the hearing is doing a serious disservice to the efficient administration of justice, and comes very close to constituting an abuse of process. At the very least, the bank's conduct of the litigation falls comfortably within the range of cases in which, on the modern authorities, an assessment of costs on the indemnity basis is appropriate"

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2166205.html

Anthrax alert at debt collectors caused by box of doughnuts

 

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So where it is states "failure of a [DN] to be accurate..." this not only refers to the content of the DN re. sums owed, breach etc, but to the allowance of sufficient time, which was 7 days at time of issue?

 

So the fact that the DN was posted on a Saturday, making date of service the Tuesday, and giving the date of remedy as the following Tuesday (ie with a weekend in between) makes the DN unlawful?

 

OK, I get that, but why would that negate the right of a DCA to claim the debt? They didn't issue the DN and are not the original creditor. It's that bit that I can't compute.

 

The DCA obviously can't compute it either, as they say:

 

"Notwithstanding that we do not accept that the Default Notice issued by Bank of Scotland was served incorrectly it is submitted that the Assignor or Claimant would only be required to send such a Notice under s87(1) of the Consumer Credit Act 1974 (The Act) if the Claimant wished to:

a) terminate the agreement

b) demand earlier repayment of the sum

c) recover possession of any goods or land

d) treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or[/font]

e) enforce any security

 

The Claimant submits that as it does not wish to enforce any of the circumstances listed in s87 of the Act, accordingly, neither the Claimant nor the Assignor was required to send a Default Notice under that section, irrespective of whether they did or not. The sums claimed by the Claimant as Assignee of the debt relate to arrears only and as stated previously due to the expiry of the term of the loan the entire outstanding balance is arrears. An assigmnment of the debt does not terminate the agreement."

Edited by Yog sothoth
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OK, I get that, but why would that negate the right of a DCA to claim the debt? They didn't issue the DN and are not the original creditor. It's that bit that I can't compute.

 

Hi, my understanding is that it's all about the rights (the money they can demand from you) and duties (the legal stuff they try to ignore) that the DCA gained after an absolute assignment e.g. they are solely responsible as the creditor through sale disposed all rights and duties to the DCA.

 

Think it's section 189 of the CCA that confirms the DCA becomes a creditor in their own right and again undertake all rights and duties, in effect they become fully responsible and in turn liable for any mistakes the creditor may have made in the past...all part of the risk in buying debt sums for a fraction of the actual value.

 

The DCA has a consumer credit licence, again confirming that the DCA fully anticipates becoming a creditor in their own right and as such must bear both the reward of that as well as any potential risk and/or losses.

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Once they have issued a defective DN and terminated the agreement either by demanding repayment of the full amount, sending a termination letter or selling the debt to a third party it becomes unlawful rescission of contract and it's game over for them and the mugs who bought the debt. As said above, a DCA acquires the 'rights & responsibilities' of the agreement... warts and all. ;)

 

Incidently, the remedy period is now 14 days not 7.

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How solid is the statement that if the claimant cannot prove first class postage then second class postage will be deemed the method of postage used?

 

Is there a nice juicy bit of case law somewhere, or is it enshrined in a piece of legislation?

 

Put it this way, when the Judge peers at you in court and says "where did you come by this piece of information you horrible little defendant you" is there something tangible to respond with?

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How solid is the statement that if the claimant cannot prove first class postage then second class postage will be deemed the method of postage used?

 

Is there a nice juicy bit of case law somewhere, or is it enshrined in a piece of legislation?

 

Put it this way, when the Judge peers at you in court and says "where did you come by this piece of information you horrible little defendant you" is there something tangible to respond with?

 

Hi Dp77

 

Check out The Interpretation Act 1978 first.

 

7. References to service by post. Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “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 been effected at the time at which the letter would be delivered in the ordinary course of post.

 

 

m2ae

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Hi Dp77

 

Check out The Interpretation Act 1978 first.

 

7. References to service by post. Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “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, .

 

 

m2ae

 

That's a great start.

 

But in this situation would it be good enough?

 

Our cast - LiP, a stout fellow, but regrettably short in pocket. Claimant's Barrister, oil on wheels @ £225 per hour with a hint of permatan, The Judge, a fully paid up member of Shoot The Poor and Kiss A Banker.

 

LiP "You cannot show what method of postage was used"

Claimant's Barrister "My client always uses first class post"

LiP "Prove it"

The Judge "the claimant is a respected firm, I have no reason to doubt their word"

LiP "But the Interpretation Act says....unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post'

Claimant's Barrister "And my clients ordinary course of post was first class"

LiP "That's not proof!"

The Judge "It is to me"

 

Okay, childish, but you get the point. Will it stand up in court? Does 'ordinary course of post' mean second class?

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So where it is states "failure of a [DN] to be accurate..." this not only refers to the content of the DN re. sums owed, breach etc, but to the allowance of sufficient time, which was 7 days at time of issue?

 

So the fact that the DN was posted on a Saturday, making date of service the Tuesday, and giving the date of remedy as the following Tuesday (ie with a weekend in between) makes the DN unlawful?

 

OK, I get that, but why would that negate the right of a DCA to claim the debt? They didn't issue the DN and are not the original creditor. It's that bit that I can't compute.

 

The DCA obviously can't compute it either, as they say:

 

"Notwithstanding that we do not accept that the Default Notice issued by Bank of Scotland was served incorrectly it is submitted that the Assignor or Claimant would only be required to send such a Notice under s87(1) of the Consumer Credit Act 1974 (The Act) if the Claimant wished to:

a) terminate the agreement

b) demand earlier repayment of the sum

c) recover possession of any goods or land

d) treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or[/font]

e) enforce any security

 

The Claimant submits that as it does not wish to enforce any of the circumstances listed in s87 of the Act, accordingly, neither the Claimant nor the Assignor was required to send a Default Notice under that section, irrespective of whether they did or not. The sums claimed by the Claimant as Assignee of the debt relate to arrears only and as stated previously due to the expiry of the term of the loan the entire outstanding balance is arrears. An assigmnment of the debt does not terminate the agreement."

 

 

This is the view from OFT re-Creidtors/DCA's Rights/Obligations...also as you will see there has been a consultation paper recently too on this subject that is awaiting outcome

 

Read This from post 2412 Vint1954-Post Angry Cat 2420 page 121

 

Dissecting the Manchester Test Case.... - The Consumer Forums

 

m2ae

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