Default notice - the date issue please?

[willtheywontthey]

Had a letter dated 14th March (Saturday) telling me to pay up x amount by 28th March (Saturday)

 

1. Can I confirm that this time requirement is valid or not valid for a DN to be enforceable?

 

2. Should they give 14 days clear notice? Obviously letter did not arrive until the 17th I recall. No postdate just a funny wierd bar code label stuck on envelope.

 

I'm not going to ask you about prescribed terms (yet) but rather concentrate on this date issue.

 

3. If date issue somehow makes the DN invalid what should I do then - I am assuming they will default me anyhow regardless? The FOS are not any use and I believe ICO doesn't do anything either? Am I up the creek without a paddle unless 'court' is mentioned?

 

4. I will need to check on CCA as I'm up to my neck in letter writing etc and tend to forget where I am up to and all that.

 

 

Thanks

[citizenB]

If the DN was dated the 14th and only gave you until 28th to remedy then that is invalid. You are to be given 14 days + a postage allowance of either 2 days 1st class or 4 days 2nd class (did you keep the envelope).

 

Apart from which, the 14th March, as you rightly say, was a Saturday. Weekends are discounted for postage so it couldnt possibly have been posted until the Monday, 16th. Effective delivery date 18th - 1st class, 20th - 2nd class. Reducing the amount of time allowed even further.

 

HTH

[the_shadow]

Had a letter dated 14th March (Saturday) telling me to pay up x amount by 28th March (Saturday)

 

1. Can I confirm that this time requirement is valid or not valid for a DN to be enforceable?

 

2. Should they give 14 days clear notice? Obviously letter did not arrive until the 17th I recall. No postdate just a funny wierd bar code label stuck on envelope.

 

I'm not going to ask you about prescribed terms (yet) but rather concentrate on this date issue.

 

3. If date issue somehow makes the DN invalid what should I do then - I am assuming they will default me anyhow regardless? The FOS are not any use and I believe ICO doesn't do anything either? Am I up the creek without a paddle unless 'court' is mentioned?

 

4. I will need to check on CCA as I'm up to my neck in letter writing etc and tend to forget where I am up to and all that.

 

 

Thanks

 

Hi willtheywontthey..

 

If the default notice was sent on a friday or saturday then two working days are required to provide "service" of the said document so monday + tuesday are out.. then the 14 days start to count.

 

So if it was sent Fri/sat, service is deemed on Wednesday 18th and then 14 days from that gives rectify date as tuesday 31st March. They can still issue another default notice up until they terminate the agreement so dont let them know tho:D

 

The date issue only becomes important if they take you to court for the full balance, the fact they havent given you time to rectify should mean they can only claim the amount mentioned on the default notice which is the arrears amount. They lose all rights to the outstanding balance prior to the arrears notice.

 

Relevant section in law about service below.

 

Hope this helps, PmW

 

1. Interpretation Act 1978, Section 7

 

This states:-

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "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 effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4. This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

[willtheywontthey]

love you lots and more xx

 

I understand what you say but not the legal speak!

 

These lot have previously sent a letter asking for full amount .. or house will be blown up, my employers will humiliate me etc etc - without a default notice... just one month late! Now i'm 2 months late - also had day after DN a statement thing which stated pay us X amount by Y date - later than date for DN!! (April!) - this got me even more confused.

 

What I'm afraid of I suppose is a SD - and a SD when I'm abroad for 2-3 weeks

 

 

 

Am I right to assume then that this credit card company has messed up 'in law' (disregard credit agreement validity) and that the DN is nto valid and this means remainder of debt cannot be claimed? ??? (by them or anybody else???)

 

sorry but once I start thinking I understand something my brain then goes all over the place and gets back to 'start' position!

 

Also - (argh!) - should I a. pay them (i) something (ii) nothing (iii) some other advice (assuming only this DN issue please).

 

Also No 2 ... - should I (i) tell them sometime about the date thing (ii) tell them later (why?) (iii) something else

 

 

I am now going to drink some wine........................

[the_shadow]

Am I right to assume then that this credit card company has messed up 'in law' (disregard credit agreement validity) and that the DN is nto valid and this means remainder of debt cannot be claimed? ??? (by them or anybody else???)

If they havent allowed for service days then yes they have messed up bigtime.

 

[Might be an idea for you to scan the default notice and post it up minus the personal details for a)confirmation that it is a valid default notice and b)everyone to look at and see what else may be incorrect about it. If its a valid default notice then not only the dates but also the text format must be correct as per the CCA1974 regs.

 

Also - (argh!) - should I a. pay them (i) something (ii) nothing (iii) some other advice (assuming only this DN issue please).

Thats a personal decision that I'm afraid only you can make.

 

Also No 2 ... - should I (i) tell them sometime about the date thing (ii) tell them later (why?) (iii) something else

DONT TELL THEM... if they terminate the agreement as it stands then they should not be able to claim the full amount outstanding only the arrears mentioned on the default notice.

 

If you tell them they will in all likeliness issue another default notice which they are allowed to do and this one will be valid and they then will be able to claim the whole amount if this gets to court stage.

 

PmW

[fuzzybobble]

Another small point on the date issue.

 

If it says. BEFORE XX date. Then that knocks another day off.

 

I had one that said arrears must be paid BEFORE the 18th Feb, so they really mean before midnight on the 17th. They must allow 14 full days. SO adding that to the fact they posted mine on a friday and it arrived on the monday, then they only allowed 11 full days and not the 14 required.

 

It's just one of 6 things I pulled them up on, and a few days ago they offer me a 40% discount if I pay within 7 days.

 

I pefer to wait and have a 100% discount in however many days it takes.

[the_shadow]

I pefer to wait and have a 100% discount in however many days it takes.

 

:D

[willtheywontthey]

Thanks again guys x

 

Another small point on the date issue.

 

 

It's just one of 6 things I pulled them up on, and a few days ago they offer me a 40% discount if I pay within 7 days.

 

 

Fuzzyone - If you tell them about their DN being incorrect will they not just send another one to you (correct this time) - or did you wait for the actual default to 'happen'.

[willtheywontthey]

oh - any reference to the legal / law section regarding that actual issue of the default and if it went to court? The postal issue I thik I understand but not sure where the legal jargon is for 'we sent you a DN - and defaulted you before time out so we cannot claim all the monies etc etc?'

[fuzzybobble]

Yes you should wait for them to terminate the agreement before letting them know their DN is improperly served. Otherwise they'll just send you one that is correct.

 

Once they terminate, they cannot issue another DN as there is no longer a live agreement to default on.

 

All the legal bits I have are as below. I'm still trying to get hold of the rest of it, as I'll be needing them myself soon.

 

 

Amendment

Para 3: in sub-paras ©, (d) words "not less than fourteen days" in square brackets substituted by SI 2006/3094, regs 2, 3.

Date in force: 19 December 2006: see SI 2006/3094, reg 1.

 

Service of Documents - First and Second Class Mail

"With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4. This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

8 March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

Taking section 6.26 from the above CPR Deemed service occurs on :-

"The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that day."

 

 

 

 

Here is what is required to be present in a DN

 

What's required in a default notice........

(88) Contents and effect of default notice.

(1) The default notice must be in the prescribed form and specify -

(a) the nature of the alleged breach;

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

© if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

(2) A date specified under subsection (1) must not be less than seven days (14 Days from 19/12/2006, see below) after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those seven days have elapsed.

(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the seven days mentioned in subsection (2) have elapsed (now 14 Days, see below), the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply with it.

(5) A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

The Act does mention the word Date, suggesting that is what Parliament wanted to see appear in a Default Notice...

Quote:

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;