Invalid Default Notices

[diddydicky]

Whatever termination came first, that is the termination that rescinds the agreement.

 

if the creditor attempts to UNLAWFULLY terminate the agreement- that is not in compliance with the CCA and associated regulations then his attempt is NOT termination since it is an unlawful attempt

 

his letter does not terminate since he can no more walk away from the agreement than you can.

 

In order to turn his unlawful act into termination YOU must accept his unlawful actions and relieve yourself of all the obligations it held you to by doing "some thing" which conveys your acceptance of his unlawful act

 

thus it is YOU that effectively terminates the agreement not him

 

if you do NOTHING then the agreement endures

Edited January 19, 2010 by diddydicky

[diddydicky]

Well, it is up to you how you play it. If you are SURE that it has been terminated, then you could write to the creditors head office, Canada Square, as follows:

 

Date xxxxxxxxxxxx.

 

Dear Sir/Madam

 

Re account no xxxxxxxxxxxxxxxxxxx Unlawful Rescission.

 

With reference to the alleged debt to your company, I refer to your Default Notice dated xxxxxxxxx 2009, posted second class and received by me on xxxxxxxx 2009, and your subsequent actions in which you unlawfully repudiate the agreement It is clear from your actions that your intent is to no longer perform therefore I accept your unlawful rescission of the agreement and consider myself relieved from any obligations in respect of this agreement .

 

[i note that you are now entitled to claim those arrears genuinely due at the time of the termination (not including any unlawful charges ) and i would be obliged if you would advise me of the exact amount of those arrears, against which may be a claim for unlawful rescission[/font]

 

I look forward to hearing from you.

 

Yours faithfully

 

Fretful I WOULD ADVISE WAITING FOR OTHER COMMENTS OR CONFIRMATION BEFORE FIREING THIS OFF. MANY MINDS ARE BETTER THAN ONE.

 

i have suggested an alternative

[Bill Shidding]

Hi Guys, as I lost a case on these grounds (at trial), I feel I need to make fellow caggers aware of the following cautions.

 

1) Should the DN or TN be ineffective, the agreement will endure until the borrower accepts the repudiation. Continuing non-performance or silence will not constitute acceptance.

 

2) As the DN or TN is ineffective, the termination is ineffective until the "acceptance" of the unlawful repudiation is brought to the creditors attention. The borrower will be liable for any arrears accrued up to the date of the acceptance (not up to the date/amount stated on the DN, because the DN is ineffective).

 

This is where an acceptance letter/action is time critical. The quicker the acceptance is sent or, an act of acceptance is brought to the creditors attention, the lower the sum of arrears that are recoverable.

 

This is irrelevant where the borrowings are in the form of a fixed term loan. A creditor may bring an action after the specified term of the loan has expired, and not have to rely on a DN or TN as evidence at all. This is because the creditor will not be seeking a remedy to the default, he will only seek to recover arrears. This, of course, is subject to the creditor serving compliant notices under section 86 b, d and f.

 

My main point is to ensure that (in future) caggers will be more aware of the benefits of a timely acceptance, and the pitfalls of leaving it too late.

Hopefully, I won't be crucified now.

 

Bill

[Bigdebtor]

What if the DN didn't give enough time to rectify things - is the subsequent TN also ineffective if issued too early (i.e. the day after the DN)?

 

I am getting VERY confused with the apparently contradictory stuff in this thread.

 

BD

[welshperson3]

Still trawling through this fascinating thread - and came against this beauty!

 

It strikes me practically EVERYONE who ends up with a DN will have had some unfair/illegal/default/penalty charges imposed - and since as Lexis states - these would change the total balance outstanding - then the arrears - minimum payment due multiplied by the number of missed payments - MUST be INCORRECTLY STATED.

 

Thus ALL DN's issued to ANYONE who has sufferred ANY unfair charges (and didn't make extra payments to cover these) must have an OVERSTATED BALANCE and therefore INCORRECT arrears - and therefore a dodgy DN!

 

Does any (non-banker) disagree?

 

 

 

 

the following is a paragraph from the judge in the rankie case

1. The default notice is dated 2O December 2005. In my judgment, it cannot invalidate a default notice if elements of the sums claimed in that notice are subsequently found to be irrecoverable by virtue of other legislation, such as the Unfair Terms in Consumer Contracts Regulations 1999. The obligation imposed on the lender is to state the sums due on the face of the agreement. To impose any other requirement would remove any certainty from the process, since it would require lenders to anticipate and calculate, in advance, a Court’s likely view as to a fair sum to levy in respect of default charges. This is a virtually impossible task which Parliament cannot have intended that lenders would have to carry out when issuing default notices.
   
2. In my judgment, Mrs Rankine was deliberately seeking to be perverse and untruthful in seeking to avoid a substantial debt despite having all the benefits of equipment she expects the credit company to pay for on her behalf. Her behaviour in Court was perverse, argumentative and obstructive.
   

wp3

[Pinky69]

A DN may SAY that they will do something but that doesn't mean to say they subsequently did and you would need concrete evidence of termination in order to claim unlawful rescission. In addition, there can be many errors on an initial DN but as long as the agreement continues there is no reason why they cannot issue a second DN. The dispute would not be about unlawful rescission but about the amount to remedy the breach if that was the bone of contention.

[Bigdebtor]

Welshperson3

 

An excellent response leaving no doubt - it was a nice thought while it lasted! Thesr Rankines have a lot to answer for!

 

I have tipped your scales in thanks.

 

BD

[Bigdebtor]

Pinky

 

As the venerable founder of this thread - which took up several (fascinating) hours of my life yesterday - can I ask if you (or any other well-informed cagger) would be good enough to confirm or correct my summary of understanding as below?

 

1. If you get a dodgy DN it can be corrected by the creditor any time UP TO TERMINATION.

2. If THEY send a termination notice based on you not complying with the requirements of a dodgy DN then the termination IS NOT VALID UNLESS YOU accept it in writing. They can still issue a further correct DN.

3. If you continue to make ANY further payments (even if lower than stated minimum) then you can be deemed to accept the agreement did not terminate despite the TN being issued.

4. To ensure termination is valid the debtor MUST accept it - and any arrears accruing up until this acceptance are still due - so the earlier it is accepted the better.

 

Is the above correct?

 

What about the case where you did not get the original DN and therefore don't know if it was dodgy?

 

I have one account where I note I have been charged for a default notice being issued - but did not get it - but got a TN and then I was told about a year letter the debt had been assigned. I was threatened with court action for the entire balance (but no further interest or charges had been added in the interim) which they demanded be paid in one go and then agreed further small monthly payments via CCCS together with freezing of interest.

 

If I do an SAR and the DN is supplied and proves to be faulty - can I NOW accept termination - based on only now getting the DN and discovering it was dodgy?

 

If so then can I now claim unlawful rescission and a refund of anything paid in excess of the arrears at time of DN?

 

Also what is deemed to be "arrears" if a new lower payment arrangement is agreed (like via CCCS)?

 

I am not too bothered about reclaiming any overpayment beyond the arrears as they stood - just getting the remaining current balance written off and the account marked as satisfied in full.

 

BD

Edited January 20, 2010 by Bigdebtor

[buzzard10]

3. If you continue to make ANY further payments (even if lower than stated minimum) then you can be deemed to accept the agreement did not terminate despite the TN being issued.

 

A direct debit payment went out of my bank, after the TN, however, this amount was the same as the arrears stated on the DN.

 

Will this be sufficient to say that now the arrears which were due are now paid, or does this mean that in effect I have not 'accepted' the termination?

[emandcole]

Buzzard that might be a problem. It is only the invalid default notice that they subsequently terminate on with another letter that allows you to accept with the letter you've just sent off.

 

I hate to write this given our earlier posts but I believe if that direct debit wasn't cancelled and money was paid to them after the termination notice was sent you are effectively seeking to keep the agreement live.

 

Other minds are going to be needed here for sure in order to establish exactly what this will mean.

 

I am hoping that the fact they issued an invalid default notice and then terminated is enough as after the payment went out you sent your letter accepting their termination.

 

Perhaps up until they receive that termination acceptance from you this payment is unimportant. Perhaps if you make a payment after you've accepted their termination that would be viewed as you seeking to keep the agreement live and would be more critical?

 

I very much hope that's the case, get that DD cancelled immediately if it's too late to stop the payment being processed and let's see what others think.

[frettful38]

Do not tell them about an unlawful DN until you are sure they have terminated the account either by telling you they have done so in writing or demanding the full balance. If you even mention the DN is unlawful before termination, they can send you another (lawful) DN putting right what you have told them is wrong with it!!

 

 

Thanks pinky69, I will not tell them about the unlawful termination, but I am certain that my contract is terminated because they have asked me for the full balance in a couple of letters, also they had instructed DCA's to demand the full balance from me also. So demanding the balance in full does amount to Unlawful Rescission.

 

Any idea's when I should mention this as the FOS are dealing with my complaint at present, and HSBC are prepared to accept token payments of £1 a month for 6 mths and then will review my situation.

 

Thanks in advance

[frettful38]

if the creditor attempts to UNLAWFULLY terminate the agreement- that is not in compliance with the CCA and associated regulations then his attempt is NOT termination since it is an unlawful attempt

 

his letter does not terminate since he can no more walk away from the agreement than you can.

 

In order to turn his unlawful act into termination YOU must accept his unlawful actions and relieve yourself of all the obligations it held you to by doing "some thing" which conveys your acceptance of his unlawful act

 

thus it is YOU that effectively terminates the agreement not him

 

if you do NOTHING then the agreement endures

 

 

diddydicky here is a copy of my DN, can you see if there is anything that you may point out if it is not correct please>

 

http://i450.photobucket.com/albums/qq223/sophiak_bucket/HSBCDN1.jpg

HSBC DN 2.pdf

[buzzard10]

Buzzard that might be a problem. It is only the invalid default notice that they subsequently terminate on with another letter that allows you to accept with the letter you've just sent off.

 

I hate to write this given our earlier posts but I believe if that direct debit wasn't cancelled and money was paid to them after the termination notice was sent you are effectively seeking to keep the agreement live.

 

Other minds are going to be needed here for sure in order to establish exactly what this will mean.

 

I am hoping that the fact they issued an invalid default notice and then terminated is enough as after the payment went out you sent your letter accepting their termination.

 

Perhaps up until they receive that termination acceptance from you this payment is unimportant. Perhaps if you make a payment after you've accepted their termination that would be viewed as you seeking to keep the agreement live and would be more critical?

 

I very much hope that's the case, get that DD cancelled immediately if it's too late to stop the payment being processed and let's see what others think.

 

Thanks emancole! I've been having a think about this though and if the dd going out is a problem, then maybe the dates will help me...............the termination letter is dated 13th January and the dd went out on the 15th January, so I received the termination letter in afternoon on the same day that the dd went out in the morning, so I could argue that I didn't have enough time to cancel it? Fingers crossed!

[vint1954]

Thanks pinky69, I will not tell them about the unlawful termination, but I am certain that my contract is terminated because they have asked me for the full balance in a couple of letters, also they had instructed DCA's to demand the full balance from me also. So demanding the balance in full does amount to Unlawful Rescission.

 

Any idea's when I should mention this as the FOS are dealing with my complaint at present, and HSBC are prepared to accept token payments of £1 a month for 6 mths and then will review my situation.

 

Thanks in advance

If you make the token payments, as previously advised, you will be acting as though the agreement endures. You cannot then claim unlawful rescission.

[vint1954]

Thanks emancole! I've been having a think about this though and if the dd going out is a problem, then maybe the dates will help me...............the termination letter is dated 13th January and the dd went out on the 15th January, so I received the termination letter in afternoon on the same day that the dd went out in the morning, so I could argue that I didn't have enough time to cancel it? Fingers crossed!

Or your letter could have been sent 14th January

[the_shadow]

diddydicky here is a copy of my DN, can you see if there is anything that you may point out if it is not correct please>

 

http://i450.photobucket.com/albums/qq223/sophiak_bucket/HSBCDN1.jpg

 

Well! not only have they mis-quoted the prescribed terms as defined and put the actual date in them but they havent given you enough time to rectify....

 

Issued on 19th May+two working days for delivery if first class, four if not, takes you to at least Thursday 4th June IMVHO.

 

S.

[vint1954]

i have suggested an alternative

alternative letter?

[emandcole]

Ok, you might have something there. First class mail is deemed to have been served after two working days, second class four working days. Given that fact even using first class you wouldn't have had it and even then they'd have to proce categorically that they used a first class service, if they can't it is assumed automatically that second class was used.

 

This is a bit of variation and I don't know the implications of your exact scenario but I hope you have a good argument.

 

To throw a few initial thoughts around until such time as the termination notice has been received you were merely providing a payment, which should have no bearing on the simple fact that they issued an invalid default notice.

 

Them choosing to terminate on the back of that is their choice and that was an offer you then chose to accept with your letter. Make sense? Hope so, let's stay positive.

[vint1954]

diddydicky here is a copy of my DN, can you see if there is anything that you may point out if it is not correct please>

 

http://i450.photobucket.com/albums/qq223/sophiak_bucket/HSBCDN1.jpg

Your DN will always be defective as tere are only 14 days between date of notice and rectification date

[emandcole]

Just thinking, an unlawful rescission claim is entirely seperate to accepting their termination on the back of the invalid DN. You made a payment which effectively kept the contract live but then accepted their termination. We must remember to keep these two issues seperate.

[Its WAR]

I have sent my letter off accepting the banks unlawful rescission. But still have no idea whether it has any chance. My overdraft was subject to review and because I had exceeded its limit , the bank withdrew the facility. My arrears suddenly jumped from £170 to £1170. BUT they issued a DN for the whole amount the day before the review letter stated was the date the overdraft was ending. So a faulty DN (only 14 days and asking for all the money).

 

The account is with the courts at the moment (I had a judgement which was set aside so the bank could defend). I am guessing that they cannot issue another DN or TN if the account is in such dispute.

[frettful38]

If you make the token payments, as previously advised, you will be acting as though the agreement endures. You cannot then claim unlawful rescission.

 

Thanks vint, like I said earlier I have not made any payments for over a year, and will not do until this whole mess is finally sorted out PROPERLY!!!!!!!!

[Bigdebtor]

If you make the token payments, as previously advised, you will be acting as though the agreement endures. You cannot then claim unlawful rescission.

 

Vint

 

What about the situation where token payments had been agreed with a 3rd party DCA some time after the notice of termination was sent out by the OC and payments to the OC had been suspended for quite some time - BUT - I was only made aware of the faulty DN and the TN coming too soon after it when I did the SAR on the OC and got the copy via SAR?

 

I genuinely did not get the original DN - although I see the £20 DN charge on my statement. In other words I have only now been made aware that the DN was issued the very day before the TN and was faulty as it did not give enough time to rectify.

 

Surely since I have only become aware of it I can now claim unlawful rescission - provided I immediately cease making any further token payments to the DCA?

 

BD

[frettful38]

Well! not only have they mis-quoted the prescribed terms as defined and put the actual date in them but they havent given you enough time to rectify....

 

Issued on 19th May+two working days for delivery if first class, four if not, takes you to at least Thursday 4th June IMVHO.

 

S.

 

Thanks shadow for your opinion, and yes I think it has already been agreed that my DN is far from correct and faulty. This leaves with what next to do stage. I have put in a complaint against HSBC, but not mentioned this. The FOS have advised me that HSBC are finally willing to accept token payments but my argument is that I do not want to set up anything until I receive my S.A.R 1st.

 

Finally in their to me this morning , they have finally agreed after waiting for over a year that they will be sending my request.

 

Letter is below:

 

http://i450.photobucket.com/albums/qq223/sophiak_bucket/HSBCSARRESPONSE1.jpg

 

SORRY GUYS AND GALS I SEEMED TO HAVE STRETCHED THE PAGE!

[Bigdebtor]

If you make the token payments, as previously advised, you will be acting as though the agreement endures. You cannot then claim unlawful rescission.

 

Sorry to be hijacking Pinky's thread a bit - but I have just checked my paperwork and note the amount I was in arrears when the DN and TN were issued was around £500 - on a balance which then stood at around £9500.

 

The amount "assigned" to a DCA a year or so later was just over £10k - presumably other charges applied by the OC but never notified to me? How can they do this after terminating the account?

 

I have since made token payments of around £200 to the DCA - leaving a current balance of £9800. I therefore have not even paid off the arrears at the time of the dodgy DN and TN - so surely my subsequent ongoing token payments to a 3rd party can't prevent me from now claiming unlawful rescission and offerring the balance of the arrears in F&F?

 

Please someone - do a Clint Eastwood and make my day in this?

 

BD