Invalid Default Notices

[diddydicky]

I received a faulty DN from Halifax (insufficient time to remedy) with the debt since handled on their behalf by Wescot. One of Wescot's letters is headed 'Final Notice' and says that unless I contact them and "agree repayment of £xxx [the full amount] within the next 14 days the following action may be taken": door step collector or court action... I've also had a letter from their solicitors, Nelson Guest, saying that the balance of £xxx [the full amount] remains outstanding.

 

Should I regard that as termination and write to accept unlawful recission or just sit tight and wait for a formal letter of termination?

 

(The problem, it seems to me, is that they say we 'may' do this rather than we 'will' do it.)

 

yes

[nks22]

If anyone could advise on my Halifax query I'd be very grateful.

 

#1010: http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/196312-invalid-default-notices-51.html#post2718493

[nks22]

Oops - cross posts!

 

Thanks.

[diddydicky]

Bigdebtor

 

Now you've got me wondering what you are PM'ing that you can't share on here!

 

I have a similar conundrum and would like to see opinions on here, what's to hide?

 

Exchange

 

there may be odd occasions when pm's might be prudent, however as a general rule advice by pm has three main drawbacks:-

 

the one party may be a troll or have another agenda

 

his/her advice may be incorrect and cannot be challenged

 

his/her advice may be bonza and others are denied of it

 

just my thoughts

[nks22]

yes

 

(You do mean 'yes' to "write to accept unlawful recission", don't you?)

[Bigdebtor]

there may be odd occasions when pm's might be prudent, however as a general rule advice by pm has three main drawbacks:-

 

the one party may be a troll or have another agenda

 

his/her advice may be incorrect and cannot be challenged

 

his/her advice may be bonza and others are denied of it

 

just my thoughts

 

Based on this I am NOT going to PM anyone - in case they are not who they say they are - or believe I am not genuine. I think the contents of my intended PM can be deduced by anyone looking back through my previous posts (and diddydicky's) in this thread.

 

I would just repeat - it is amazing how often seeing a similar letter (posted in here) to one that you had forgotten you had sent some time ago can jog your memory to the fact you had sent it just after you had received the Termination letter following the dodgy DN.

 

It is a fact - although a great pity - that sometimes not only do creditors' letters to us go astray - our responses to them - even very important ones - can go astray too - but legally these are still deemed to be delivered by 2nd class 4 days (I think?) after date of posting - no proof of posting or of delivery is required legally but of course it is important for us to keep dated copies of all letter s we send to creditors etc.

 

While it might not be too late to send the acceptance of unlawful termination at any time after receiving it (not sure?) the earlier it is sent the better (definitely) as arrears cannnot continue to grow once the contract has been terminate by your accepting the unlawful rescission. However it does seem essentila to send the letter at some time - as an unlawful termination cannot be imposed by just one party - it needs to be accepted by the 2nd party to actually take effect - hence the need for that "forgotten" letter -and the earlierthe better.

 

I think this info is all kosher - I gained most of this much earlier in this thread which I read right through earlier this week - so it can be checked by anyone doing likewise.

 

I hope this clarifies things for those confused or alarmed by my PM suggestion.

 

BD

[Its WAR]

I'm still stuck. If an overdraft is repayable at any time, and they tell you a date to repay it by, then they send a flawed DN asking to be paid sooner (one day), in full. Does that constitute unlawful rescission?

[diddydicky]

(You do mean 'yes' to "write to accept unlawful recission", don't you?)

 

yes

[diddydicky]

Based on this I am NOT going to PM anyone - in case they are not who they say they are - or believe I am not genuine. I think the contents of my intended PM can be deduced by anyone looking back through my previous posts (and diddydicky's) in this thread.

 

I would just repeat - it is amazing how often seeing a similar letter (posted in here) to one that you had forgotten you had sent some time ago can jog your memory to the fact you had sent it just after you had received the Termination letter following the dodgy DN.

 

It is a fact - although a great pity - that sometimes not only do creditors' letters to us go astray - our responses to them - even very important ones - can go astray too - but legally these are still deemed to be delivered by 2nd class 4 days (I think?) after date of posting - no proof of posting or of delivery is required legally but of course it is important for us to keep dated copies of all letter s we send to creditors etc.

 

While it might not be too late to send the acceptance of unlawful termination at any time after receiving it (not sure?) the earlier it is sent the better (definitely) as arrears cannnot continue to grow once the contract has been terminate by your accepting the unlawful rescission. However it does seem essentila to send the letter at some time - as an unlawful termination cannot be imposed by just one party - it needs to be accepted by the 2nd party to actually take effect - hence the need for that "forgotten" letter -and the earlierthe better.

 

I think this info is all kosher - I gained most of this much earlier in this thread which I read right through earlier this week - so it can be checked by anyone doing likewise.

 

I hope this clarifies things for those confused or alarmed by my PM suggestion.

 

BD

 

i often have peeps PM me for my opinion- i always go to the thread they refer to and reply there

 

i urge others to do the same

 

if there is something that prying eyes should not see thats a different matter

[MandM]

Have PM'd you about this DD & BD

 

M

[nks22]

yes

 

Thanks.

[BornAgainBiker]

the creditor may not enforce the agreement whilst he is in default of his s78 obligations so the dn will be unlawful

 

but be careful as to whether to creditor is in fact in breach of s78 or you just think he is

 

 

what i mean by that is if there is a dispute as to what he has sent does or does not comply

 

obviously if nothing at all then that is clear cut

 

CHEERS DD

[AA99]

Upon receiving an invalid Default Notice, we should immediately accept the creditor's unlawful recission? Can someone give us a link to a template letter:confused:

[Pinky69]

How can arrears accrue on a rescinded account?? The agreement no longer exists, as was made clear in Khoparor. As for telling them they can claim arrears after rescission, I doubt a judge will be asking if you did their job for them.

[MandM]

Upon receiving an invalid Default Notice, we should immediately accept the creditor's unlawful recission? Can someone give us a link to a template letter:confused:

 

DN followed by TN

 

M

[mkb]

Upon receiving an invalid Default Notice, we should immediately accept the creditor's unlawful recission? Can someone give us a link to a template letter:confused:

 

 

The rescission only occurs after termination on the back of a faulty DN. The faulty DN on its own is not rescission.

 

So the stages are 1) invalid DN followed by 2) termination on basis of non-compliance with invalid DN so at this point, the debtor would be advised to accept the termination and post a letter to the creditor informing them of their acceptance.

DD has posted an excellent acceptance letter in post 992 of this thread.

 

When the debtor accepts the rescission, the contract no longer endures so the only money that can be claimed legally are the arrears at the time of the termination. However, the debtor can claim for breach of contract & the damages claimed would usually be enough to clear the arrears owed.

 

Does this help clear it up?

Edited January 23, 2010 by mkb

[cab1ne]

The rescission only occurs after termination on the back of a faulty DN. The faulty DN on its own is not rescission.

 

So the stages are 1) invalid DN followed by 2) termination on basis of non-compliance with invalid DN so at this point, the debtor would be advised to accept the termination and post a letter to the creditor informing them of their acceptance.

DD has posted an excellent acceptance letter in post 992 of this thread.

 

When the debtor accepts the rescission, the contract no longer endures so the only money that can be claimed legally are the arrears at the time of the termination. However, the debtor can claim for breach of contract & the damages claimed would usually be enough to clear the arrears owed.

 

Does this help clear it up?

 

when did the acceptence of a termination come into force:confused:

 

cab

[frettful38]

i assume you refer to a credit card or loan and not a bank account!

 

 

Yes dd, this is for a credit card.

[diddydicky]

How can arrears accrue on a rescinded account?? The agreement no longer exists, as was made clear in Khoparor. As for telling them they can claim arrears after rescission, I doubt a judge will be asking if you did their job for them.

 

the arrears that existed up to the time that the agreement terminated ARE legally due, they dont accrue after the termination - they had already accrued before !

 

As i have said before, in 99.999% of cases (IMO) the debtor DOES have a debt to the creditor and has clearly borrowed/used money, supplied by the creditor. ( there may be disputes as to how much is owed) but the purpose of the court proceedings are(should be) to establish whether the creditor has a right to LEGALLY ENFORCE the debt- not that the debt should no longer exist and be wiped out

 

The desired result being a win for the debtor in court and then the debtor and creditor can negotiate or whatever with regard to the debt which is still owed in most cases outside of the legal system and on an even playing field

 

I suggest you read the humbleman thread if you dont beleive judges take "a view" on the debtors behaviour

 

you need to present yourself (IMO) to the court not as a person who is out to avoid every penny but one who is prepared to deal with what is genuinely owed but not to have an unenforceable debt "enforced"

 

only my (real world) opinion of course

Edited January 23, 2010 by diddydicky

[nks22]

Upon receiving an invalid Default Notice, we should immediately accept the creditor's unlawful recission?

 

No, absolutely not. You should only accept after termination. Unless terminated the creditor can simply issue a fresh DN.

[diddydicky]

as a broad principal yes but there are exceptions!

 

i would say always post on here when you receive a DN as each case can be different

 

there are occasions when you can (or should sometimes ) accept the DN itself as an unlawful rescission

 

ALWAYS keep the envelope

[Pinky69]

I realise that. It wasn't me who said interest accrued after termination - it was said on a previous post, which was why I was asking the question - I know interest doesn't accrue after termination following an unlawful DN. Also, I am not going to court to dispute any debts - my debts have already been written off because of unenforceable agreements or no agreements at all. My sole reason for going to court is to have defaults removed and claim damages for them being there. And even if I did have a debt to a creditor, if it was unenforceable then I wouldn't be negotiating anything. If they cannot be bothered to issue properly executed regulated agreements that are enforceable then it is up to them to prove that I owe them money - it is not up to me to prove it for them - and the only way they can do that is with concrete evidence. If they didn't have any then after court the only thing I would be giving them is a big raspberry. Banks are so useless that 99.9% of the time they don't have any evidence. They send you illegible application forms, T&Cs from another bank and computer-generated statements that all say the same thing. In my real world, personal experience my non- negotiable stance has led to me being debt free. When I had difficulties after I became disabled they didn't bend over backwards to help me and in return they all ended up with absolutely nothing, which was more than they deserved. I had 7 defaults last April, I have 3 left and I didn't get 4 off being nice to creditors. As for court, no one can know what a court will say. Some judges are creditor- friendly, some throw them out of court after 5 minutes but as the saying goes, the law is an ass. I'll take my chance using the my legal side of the argument and let the creditor speak for themselves without my help.

[cab1ne]

question.

 

when a default notice is issued and the 14 days has ran out to rectify the breach, is there a time limit before they can terminate the agreement due to the breach. i have seen somewhere??? that when a default is not fulfilled by the 14th day they have to give it 1 clear month or x amount of days before they can terminate.

 

cab

[cab1ne]

I realise that. It wasn't me who said interest accrued after termination - it was said on a previous post, which was why I was asking the question - I know interest doesn't accrue after termination following an unlawful DN. Also, I am not going to court to dispute any debts - my debts have already been written off because of unenforceable agreements or no agreements at all. My sole reason for going to court is to have defaults removed and claim damages for them being there. And even if I did have a debt to a creditor, if it was unenforceable then I wouldn't be negotiating anything. If they cannot be bothered to issue properly executed regulated agreements that are enforceable then it is up to them to prove that I owe them money - it is not up to me to prove it for them - and the only way they can do that is with concrete evidence. If they didn't have any then after court the only thing I would be giving them is a big raspberry. Banks are so useless that 99.9% of the time they don't have any evidence. They send you illegible application forms, T&Cs from another bank and computer-generated statements that all say the same thing. In my real world, personal experience my non- negotiable stance has led to me being debt free. When I had difficulties after I became disabled they didn't bend over backwards to help me and in return they all ended up with absolutely nothing, which was more than they deserved. I had 7 defaults last April, I have 3 left and I didn't get 4 off being nice to creditors. As for court, no one can know what a court will say. Some judges are creditor- friendly, some throw them out of court after 5 minutes but as the saying goes, the law is an ass. I'll take my chance using the my legal side of the argument and let the creditor speak for themselves without my help.

 

"bravo" 100%

 

cab

[Pinky69]

They can terminate after the 14 days has expired ie on the 15th day. It varies for bank to bank. In one of my cases they sent the unlawful DN in August but didn't terminate until January.