Invalid Default Notices

[egg-sterminator]

It shouldnt be to hard to pretend to be an idiot for the day! lol

 

In my default it says

 

The payment must be credited to your account no later than 17 days after the date of this notice shown above.

 

So no actual date mentioned

Then in the next paragraph

 

IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN, NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH.

IF YOU DO NOT TAKE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU

 

So in my argument they never stated a date

So the letter itself states twice there should be a date and and of course the prescibed terms state this . I think DD's point though should not be overlooked ?

[NPMBNA]

subbing

[diddydicky]

would the date argument hold more water if the CCA 88(1) were brought to his attention first "The default notice must be in the prescribed form" the word "must" gives a judge a lot less scope than the word "should" . Tied in with the CONSUMER CREDIT(enforcement,default and termination) REGS 1983 a "date being a date" I suppose from the judges point of view they have given enough time and any sensible person should be able to understand 14 days . SO all you have to do in court is convince the judge your an idiot and you may win ? Another point thogh they add charges and interest on charges onto the DN, would that make the DN invalid ?

 

Well i excluded "14 days" from my reply because it can be argued that it does NOT make it clear to the recipient that he has had 14 days from the date of service rather than the date of the letter,

 

however i feel that with 17, and certainly 21 and 28 days the judge may well take the view that you are seeking to find a "technicality"

 

I am of the opinion that the "law should be the law" and the the creditor should be held strictly to the wording of the act- i am merely pointing out that most judges tend to override the law and apply what They consider to be common sense- even though the law strictly may not permit this- it happens

 

if the judge is particularly "pro creditor" he will often take the view that if he makes a decision like this you can "always appeal it" - knowing that in reality you probably havnt got the nous or the funds to do so

[diddydicky]

It shouldnt be to hard to pretend to be an idiot for the day! lol

 

In my default it says

 

The payment must be credited to your account no later than 17 days after the date of this notice shown above.

 

So no actual date mentioned

Then in the next paragraph

 

IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN, NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH.

IF YOU DO NOT TAKE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU

 

So in my argument they never stated a date

 

more importantly, your notice, if posted on certain weekdays 2nd class (as is usual) and giving 17 days from the date of the notice will often fail to give enough time) check the dates on a calender, allow 4 working days AFTER the date on the letter for service and then count how many days (from the day after service) are left to you

[diddydicky]

sorry mkd just noted you already pointed this out

[egg-sterminator]

Well i excluded "14 days" from my reply because it can be argued that it does NOT make it clear to the recipient that he has had 14 days from the date of service rather than the date of the letter,

 

however i feel that with 17, and certainly 21 and 28 days the judge may well take the view that you are seeking to find a "technicality"

 

I am of the opinion that the "law should be the law" and the the creditor should be held strictly to the wording of the act- i am merely pointing out that most judges tend to override the law and apply what They consider to be common sense- even though the law strictly may not permit this- it happens

 

if the judge is particularly "pro creditor" he will often take the view that if he makes a decision like this you can "always appeal it" - knowing that in reality you probably havnt got the nous or the funds to do so

Very valid point after some rulings recently, and of course it would be a technicality , what do you think to charges and interest being added to the DN in light of the recent charges ruling against the OFT ?

[welshperson3]

after doing some research on faulty DN dates, i think the following argument about a specific date verses a amount of days is good if it goes before a judge.

 

if it says 14 days after the date of this letter then this can be confusing as it can mean two things,

 

1) are these 14 calender days.

2) are these 14 working days.

 

it is my view that the CCA says a date and if it says a specific date then there can be no confusion as to what date you have to comply.

 

if it says a number of days then this is open to various interpretations. and for clarity that is why it should say a date, not a number of days.

 

wp3

[Pinky69]

My view is that there is no provision in the Acts for the date for remedy of the breach to be set by reference to a muber of days. Both the CCA 1974 and the COnsumer Agreements Regulations state it must be set by date, no less than 5 times between the two Acts. As someone said on another thread, you wouldn't send a wedding invitation to someone and say " Jane Brown will be getting married to John Smith in 92 days." My argument in court will be that for the avoidance of all doubt, the date must be set as it is laid down in the Acts.

[The GodMother]

Well i excluded "14 days" from my reply because it can be argued that it does NOT make it clear to the recipient that he has had 14 days from the date of service rather than the date of the letter,

 

however i feel that with 17, and certainly 21 and 28 days the judge may well take the view that you are seeking to find a "technicality"

 

I am of the opinion that the "law should be the law" and the the creditor should be held strictly to the wording of the act- i am merely pointing out that most judges tend to override the law and apply what They consider to be common sense- even though the law strictly may not permit this- it happens

 

if the judge is particularly "pro creditor" he will often take the view that if he makes a decision like this you can "always appeal it" - knowing that in reality you probably havnt got the nous or the funds to do so

 

I partly agree with you here.

 

The issue i disagree with is the judge will be thinking u are trying to find a technicality.

I say this because what if the letter is not dated takes days to get to u. U will never know when the notice is up as cause as far as ur concerned it could have been posted 2 months b4 or summing.

[The GodMother]

after doing some research on faulty DN dates, i think the following argument about a specific date verses a amount of days is good if it goes before a judge.

 

if it says 14 days after the date of this letter then this can be confusing as it can mean two things,

 

1) are these 14 calender days.

2) are these 14 working days.

 

it is my view that the CCA says a date and if it says a specific date then there can be no confusion as to what date you have to comply.

 

if it says a number of days then this is open to various interpretations. and for clarity that is why it should say a date, not a number of days.

 

wp3

 

Another clear point. The 14 days we automatically assume to be 14 calendar days but it could be 14 working days, the same as a CCA.

 

I do say hat the law has to be more clear as in its 14 days from date of recieval giving 5 working days for royal mail first class delivery.

 

I know u will be suprised at that but on monday i sent a card to my mum that needs to go off else were. I sent it first class standard and to this day she has not got it. Please bear in mind the card hasonly had to travel 30 miles. The same day i send a letter to glasgow this was also sent by first class standard post and it got the the next day. RM have admitted failures in there delivery service times.

[ANDREAMOUR]

is the date on your default notice xx/xx/05 or is it in full xx/xx/2005

 

 

Hi not sur if this q is for me but my dn notice is dated

 

12 January 2009

[welshperson3]

hi pinky

 

i am not saying that my points above are a full defense but just a good part to put in.

 

if you start with the CCA it says a date, but it shows no example of how it should be laid out.

 

so if a lender can convince a judge that 14 days from date of letter dose end up at a specific date then you could be in trouble.

but by adding the bit about working days or calender days to the end of your defense you then come up with 2 different dates.

so as saying 14 days they have not suppled you with a specific date but 2 dates to remedy the breach.

 

wp3

Edited December 4, 2009 by welshperson3

[diddydicky]

I partly agree with you here.

 

The issue i disagree with is the judge will be thinking u are trying to find a technicality.

I say this because what if the letter is not dated takes days to get to u. U will never know when the notice is up as cause as far as ur concerned it could have been posted 2 months b4 or summing.

 

the notice would have been taken to have been posted 2nd class post and allow 4 days after the date of posting for service (or 2 days if they can show it was sent first class)

 

an argument presented to a court that you recieved it two months after being dated would hold no water at all in court unless (envelope franked for instance) you could PROVE that it was

[diddydicky]

Another clear point. The 14 days we automatically assume to be 14 calendar days but it could be 14 working days, the same as a CCA.

 

I do say hat the law has to be more clear as in its 14 days from date of recieval giving 5 working days for royal mail first class delivery.

 

I know u will be suprised at that but on monday i sent a card to my mum that needs to go off else were. I sent it first class standard and to this day she has not got it. Please bear in mind the card hasonly had to travel 30 miles. The same day i send a letter to glasgow this was also sent by first class standard post and it got the the next day. RM have admitted failures in there delivery service times.

 

the law will assume 14 consecutive days unless stated otherwise (working days)

 

i think caggers should also be aware of a common mistake- that of THINKING that if the creditor cannot PROVE service by first class post then posting by second class is deemed to have taken place

 

if fact what the act says is:-

 

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.

 

 

you will note that the act does not say "provide proof of postage " but simply "swear an affidavit" - very different

 

therefore if the creditor swears by affidvit that postage was made first class you will have to go to great lengths to disprove their statement and will then involve the costs of calling witnesses from their post room etc to disprove it- which is why it is ESSENTIAL that you keep the envelope

 

and why, incidentally it is a good idea, pre court to let them know that you have the envelope since they will then think long and hard before swearing an affidavit.

 

The original discussion really centres around what a judge would rule not necessarily what he should rule.

[diddydicky]

after doing some research on faulty DN dates, i think the following argument about a specific date verses a amount of days is good if it goes before a judge.

 

if it says 14 days after the date of this letter then this can be confusing as it can mean two things,

 

1) are these 14 calender days.

2) are these 14 working days.

 

it is my view that the CCA says a date and if it says a specific date then there can be no confusion as to what date you have to comply.

 

if it says a number of days then this is open to various interpretations. and for clarity that is why it should say a date, not a number of days.

 

wp3

 

i think your argument is slightly "skewed" but does have some merit in the fact that the act makes it clear that the debtor "must be left in no doubt as to the action he must take"

 

therefore if you can sow the seeds of doubt as to being confused by the dates you might get somewhere, then again you might not

 

judges are human beings and they are BOUND to have personal feelings on the matter and by and large i suggest they are looking to sort the wheat from the chaff (the wont pays from the shouldn't have to pays)

 

as an example i cite the dreadful decisions by the judge with regard to the Rankines- mainly because the rankines themselves were dreadful people and clearly got right up the judges nose

[welshperson3]

just a quick question

 

i have been researching faulty DN for a few weeks and have gathered a lot of strong points.

 

but they all are still open to argument and the Judges opinion,

if i can find some CASE LAW on faulty DN then when i act on mine it wont be so open to the Judges opinion.

 

so if anybody can point me in the direction of some good CASE LAW then i would be very grateful.

 

wp3

[ANDREAMOUR]

just a quick question

 

i have been researching faulty DN for a few weeks and have gathered a lot of strong points.

 

but they all are still open to argument and the Judges opinion,

if i can find some CASE LAW on faulty DN then when i act on mine it wont be so open to the Judges opinion.

 

so if anybody can point me in the direction of some good CASE LAW then i would be very grateful.

 

wp3

 

i will watch you closely Welshperson3

[Pinky69]

Kpoharor v Woolwich Building Society; Court of Appeal (Lord Justice Evans, Lord Justice Waite and Sir John May); 30 November 1995

 

Durkin Vs DGS et Al 2008

[welshperson3]

thanks pinky69

 

will research these over the weekend,

i have found some strong points and just need to add some good case law and then off to court.

[The GodMother]

the notice would have been taken to have been posted 2nd class post and allow 4 days after the date of posting for service (or 2 days if they can show it was sent first class)

 

an argument presented to a court that you recieved it two months after being dated would hold no water at all in court unless (envelope franked for instance) you could PROVE that it was

 

 

You would assume that but its not always possible.

 

I have recieved a DN with no date on it and as the company does not now use royal mail, they use TNT according to the envelope, then the DN is not franked. So how am i to know when the DN was produced and when i am to remedy by as it just says 14 days after recipt.

[vint1954]

You would assume that but its not always possible.

 

I have recieved a DN with no date on it and as the company does not now use royal mail, they use TNT according to the envelope, then the DN is not franked. So how am i to know when the DN was produced and when i am to remedy by as it just says 14 days after recipt.

If the DN is not dated, then it is useless. These are legal documents. I suspect that they rely on the date of the covering letter. Fools.

 

TNT, UK Mail or any other surface mail provider, apart from Royal Mail first class, is deemed second class mail.

[diddydicky]

You would assume that but its not always possible.

 

I have recieved a DN with no date on it and as the company does not now use royal mail, they use TNT according to the envelope, then the DN is not franked. So how am i to know when the DN was produced and when i am to remedy by as it just says 14 days after recipt.

 

as vint says- no date on the DN!- aren't you a lucky so and so!!

[The GodMother]

well that makes me 3x as lucky then case vint there is not covering letter just the DN and no CCA.

[littlefatbudha]

hi all, a friend has just received a default notice , which is dated 19th November 2009 and it states that it has to be corrected by 17 days from the date on letter.

the 19th is a thursday ,so would this be correct in saying that the 20th which is a friday is the first day of postage, then no saturday, no sunday, monday would be the second day and tuesday would be the day of service hich would be the 24th november.

Also 17 days from the issue of letter would be Sunday 6th December.

[diddydicky]

hi all, a friend has just received a default notice , which is dated 19th November 2009 and it states that it has to be corrected by 17 days from the date on letter.

the 19th is a thursday ,so would this be correct in saying that the 20th which is a friday is the first day of postage, then no saturday, no sunday, monday would be the second day and tuesday would be the day of service hich would be the 24th november.

Also 17 days from the issue of letter would be Sunday 6th December.

 

2 working days for first class, 4 for 2nd class (more likely)

 

therefore date of service for first class would be Monday 23rd - 14 days start from tuesday 24th

 

if second class date of service would be wednesday 25th and the 14 days start from thursday 26th

 

these dickheads increase the days to 17 and then post on a thursday

 

god if they had brains they would be dangerous!!

 

also always keep and check the envelope- it may contain a later poststamp

 

in these organisations it would be as rare as hens teeth for a letter to enter the postal system on the same day it was written!