Invalid Default Notices

[Pinky69]

For a DN issued in 2005, only 7 days was required to remedy the breach. The legislation to increase this to 14 days didn't come in until 2006 and it wasn't retrospective but applied to all pre and post 2006 agreements thereafter. As for whether a date on a letter sufficed as the date the DN was sent, that would be a matter for a court to accept or reject, it would depend on the contents of the letter. It is the date of receipt that matters, not the date it was sent, and it would depend on whether the court believes there is sufficient evidence to regard it as reasonable that you received it on a certain day in keeping with the Queen's Bench Practice Direction on postage.

 

The relevant legisaltion is the CCA 1974, the 2006 amendments and the Consumer Credit(Enforcement, Default and Termination Notices) Regulations 1983.

[tamarindo]

For a DN issued in 2005, only 7 days was required to remedy the breach. The legislation to increase this to 14 days didn't come in until 2006 and it wasn't retrospective but applied to all pre and post 2006 agreements thereafter. As for whether a date on a letter sufficed as the date the DN was sent, that would be a matter for a court to accept or reject, it would depend on the contents of the letter. It is the date of receipt that matters, not the date it was sent, and it would depend on whether the court believes there is sufficient evidence to regard it as reasonable that you received it on a certain day in keeping with the Queen's Bench Practice Direction on postage.

 

The relevant legisaltion is the CCA 1974, the 2006 amendments and the Consumer Credit(Enforcement, Default and Termination Notices) Regulations 1983.

 

 

thank you

 

Tam

[johnerog]

Dear Pinky

I have spent most of the day reading your thread. I hope you have enjoyed the feastive season and you are ready to stuff several more old turkeys in the new year.

Excellent.

 

John

[Pinky69]

Thank you, John - I am working on it! I am waiting for the ICO to complete their investigation on Bank 2 then I go to court with that. They haven't even acknowledged my complaint with Bank 3 yet. The cases against the DCA and the bank connected to it I can lodge when the court opens again next week.

[johnerog]

I look forward to hearing about it. All the best.

John

[Saint2K]

Quick question, does a default notice have to be issued for a debt owed to a mobile operator, which is not governed by the CCA 1974?

[vint1954]

Quick question, does a default notice have to be issued for a debt owed to a mobile operator, which is not governed by the CCA 1974?

No, not in the same way as a regulated agreement.

[Saint2K]

Thanks for clarifying!

[biscuits42]

I've been looking all over for clarification on whether or not a DN must state the actual date they require the account remedy to be made, or whether they can just state "within 14 days from receipt of this notice".

 

Stating "within 14 days from receipt" strikes me as a bit vague, considering I could claim I'd not received the letter for weeks as it was not sent my any traceable means. Would the lack of a proper date for remedy render a DN invalid? Also can anyone point me to a list of required particulars for a DN to be valid as I've been getting allsorts of rubbish sent through from Santander so want to ensure their DNs are valid! For example, they use the phrase "To remedy this breach you must pay the arrears within 14 days from receipt of this notice." But then later state that the action required must be taken "before the date shown" - but there is no actual date shown!?

[vint1954]

Technically they must show a date, especially if using 14 days. If they used 28 days, then they may get away with it, although still technically wrong.

 

s88.-(1) The default notice must be in the prescribed form Contents

and specify- and effect

of default

(a) the nature of the alleged breach ; notice.

(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 fourteen days 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

50 c. 39 Consumer Credit Act 1974

DEFAULT fourteen days mentioned in subsection (2) have elapsed, the

AND TERMI- creditor or owner may treat the failure as a breach and section

NATION 870) 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.

Compliance 89. If before the date specified for that purpose in the default

with default notice the debtor or hirer takes the action specified under section

notice. 88(1)(b) or © the breach shall be treated as not having occurred.

Retaking

[biscuits42]

Thanks for that! What is the best course of action to take against incorrect defaults? I've been looking for a letter template but don't seem to be able to find one.

[Pinky69]

There isn't one. You don't want to approach the creditor/DCA about unlawful DNs unless you are absolutely sure they have terminated the agreement. If you are then approaching them to tell them they have rescinded the account and you want defaults removed from your credit reference reports, that is tricky and you have to start by asking the creditor/DCA to remove them, pointing out why they breached the Data Protection Act ie why the DN is unlawful and the account was rescinded unlawfullly. They will ignore you, as will the credit reference agencies. Then can go through the ICO and if that doesn't work, take them to court.

[littlefatbudha]

My original default notice ireceived, did not have creditors name and address on it, i am in court 5th January for car repo hearing.

Their solicitor sent me a copy of the said default and termination notices on 2nd of december,which also did not have creditors name and address on it, part of the cpr request, although they have not complied with anything else listed in it.

I received a witness statement on 31st December 2009 , included in this is a copy of the default they claimed to have sent, magically this one now includes the creditors name and address, i have the original and the copy from their solicitors without these details.

Car finance agreement

[Mydogsawestie]

littlefatbudha from my experience (day in court) when I got served copies of my supposedly orig DN's I mentioned that if that was a true copy of the default notice (in my case incorrect acct no's on it) it breached the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as it failed to set out the name and a postal address of the creditor or owner as laid out in schedule 2 of the regulations, regulation 2(2) paragraph 2.

 

My copy DN from Restons was missing the MBNA's bits on the top & reg no etc (like the original had) so this meant it had breached the companies act, as it did not bear the companies registered address and registration number on it so was not a representation then. The judge asked the solicitor what he had to say in response to this to which his reply was along the lines of he thought it did have the details on it. The judge then corrected him by telling him it didn't as he had a copy of there DN from me in front of him

I dont know if any of this info will help you too for your court appearance on 5th Jan but hope it does if your DN is missing this information too.

 

Also useful threads to read that helped me in my many an hour on this forum beforehand were (also print off the relevant acts to hand & use postik notes within them for quick ref)

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/191353-what-if-judge-asks.html

GOT A COURT DATE? Important, please read......

 

 

Edited January 2, 2010 by Mydogsawestie

[MandM]

Hi Mydog,

 

"What if the judge asks............."

 

This link goes to a menu page http://www.consumeractiongroup.co.uk/forum/191353-what-if-judge-asks.html . Do you know where the actual page is as i'd like this one also,

 

Many Thanks

 

M

[Mydogsawestie]

Hi Mydog,

 

"What if the judge asks............."

 

This link goes to a menu page http://www.consumeractiongroup.co.uk/forum/191353-what-if-judge-asks.html . Do you know where the actual page is as i'd like this one also,

 

Many Thanks

 

M

 

Sorry here goes will edit the above too...

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/191353-what-if-judge-asks.html

[MandM]

Sorry here goes will edit the above too...

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/191353-what-if-judge-asks.html

 

 

Big thanks :D:D.

 

Stumbled across this before and have never found it since.

 

TY

 

M

[littlefatbudha]

Thanks Mydog, there are copies of the default notice on my link, have had some advice from postggj, he is always good to help.

Getting worried now, getting close !

[biscuits42]

Thanks for the advice Pinky. It may come in very useful at some point.

[diddydicky]

it is very unusual i think for a letter to state "within 14 days of receipt"- most state "within 14 days of the date of this letter"

 

service is deemed (unless proved to the contrary) to have taken place 2 (working) days after the demand was posted first class or 4 days if second class

 

in any event a notice giving 14 days to remedy can NEVER be correct UNLESS it was personally served on the debtor on the day on which the notice is dated- which IMO would be slightly difficult to do.(unless you so unlucky that both you and the process server both live in the same street as the creditor!)

 

if a letter states that an action must be taken BEFORE a date shown then this would mean by 2359 hrs on the day before the date shown, whereas "within" XX days would include up to 2359 hours on the last date shown or the latter of the 14 days quoted.

 

basically any DN that has the magic 14 days quoted in it is likely to be defective

[biscuits42]

Lol... we don't live on the same street so the letters both did arrive by post. They are both from Santander, but for two separate debts, one in my name and one in my partners. We have been making token payments on the accounts since sending our first letter stating that we could no longer afford the payments following redundancy and asking them to accept a token payment. Our other creditors accepted the offers for 6mths and subsequently sent DNs saying they had to issue a DN in order to proceed with the short term concessionary payment agreement but Santander just sent the DN anyway and still will not accept the reduced payments for 6mths. So I'm preparing myself as much as possible for anything that may happen. This is the full thread dealing with Santander http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/233872-santander-card-loan.html

[C2K]

it is very unusual i think for a letter to state "within 14 days of receipt"- most state "within 14 days of the date of this letter"

 

service is deemed (unless proved to the contrary) to have taken place 2 (working) days after the demand was posted first class or 4 days if second class

 

in any event a notice giving 14 days to remedy can NEVER be correct UNLESS it was personally served on the debtor on the day on which the notice is dated- which IMO would be slightly difficult to do.(unless you so unlucky that both you and the process server both live in the same street as the creditor!)

 

if a letter states that an action must be taken BEFORE a date shown then this would mean by 2359 hrs on the day before the date shown, whereas "within" XX days would include up to 2359 hours on the last date shown or the latter of the 14 days quoted.

 

basically any DN that has the magic 14 days quoted in it is likely to be defective

 

Hi DD or other knowledgeable member

 

I have been following your posts about invalid DN and unlawful rescission with great interests. I have a DN from the OC and TN from a DCA Triton, please can you comment on these if:

 

1. it's a valid DN?

2. it's an act of termination as the full balance is demanded?

3. why is the balance on the TN differred to the one on DN?

 

Do I potentially have a case here? But what if I have contacted them on 22/01/2009 proposing a reduced payment, I have been paying until 26/10/2009 when I CCA'd them and they sent me a non-compliant CCA. Will the OC argue that I have allowed the contract endure in this circumstances. Your advice would be greatly appreciated. Thank you.

 

** I am sorry Pinky for hijacking your thread!

 

oops! just been told that some people should not be here might be watching, so the attachments have been removed for obvious reason. edited 20:26 02/01/09

Edited January 2, 2010 by C2K

[diddydicky]

Lol... we don't live on the same street so the letters both did arrive by post. They are both from Santander, but for two separate debts, one in my name and one in my partners. We have been making token payments on the accounts since sending our first letter stating that we could no longer afford the payments following redundancy and asking them to accept a token payment. Our other creditors accepted the offers for 6mths and subsequently sent DNs saying they had to issue a DN in order to proceed with the short term concessionary payment agreement but Santander just sent the DN anyway and still will not accept the reduced payments for 6mths. So I'm preparing myself as much as possible for anything that may happen. This is the full thread dealing with Santander http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/233872-santander-card-loan.html

 

creditors are not known for their charity and they did not "have to" issued DN's in order to offer you terms- they did so so that they could then terminate at some future date and demand the full balance

 

i would post them all up on different threads and let us have a butchers

[diddydicky]

Hi DD or other knowledgeable member

 

I have been following your posts about invalid DN and unlawful rescission with great interests. I have a DN from the OC MINT and TN from a DCA Triton, please can you comment on these if:

 

1. it's a valid DN?

2. it's an act of termination as the full balance is demanded?

3. why is the balance on the TN differred to the one on DN?

 

Do I potentially have a case here? But what if I have contacted them on 22/01/2009 proposing a reduced payment, I have been paying until 26/10/2009 when I CCA'd them and they sent me a non-compliant CCA. Will the OC argue that I have allowed the contract endure in this circumstances. Your advice would be greatly appreciated. Thank you.

 

** I am sorry Pinky for hijacking your thread!

 

what is the date of the DN- it is important

 

the "TN" isnt much of a TN and it carefully avoids demanding payment of the whole balance

[C2K]

what is the date of the DN- it is important

 

the "TN" isnt much of a TN and it carefully avoids demanding payment of the whole balance

 

Thanks DD

 

The DN is dated 09/12/2008.