Invalid Default Notices

[welshperson3]

in mydogsawestie case the judge has just circumnavigated the rules by applying his opinion on time of serves and used cpr 6.25 to calculate the time of service.

 

wp3

[diddydicky]

who puts they're interpretation on what you have written above ?

 

1 you ?

2 the lender?

3 the judge ?

 

if i was pushed into a guess personally i would go for 3

 

wp3

 

I went out of my way to provide you with the legal authority for the creditor to terminate the agreement

 

the least you could do, if this is an honest debate and not a "wind up" is provide me with the legal authority for your proposition that the creditor cannot lawfully terminate a credit agreement

 

i am waiting

[diddydicky]

in mydogsawestie case the judge has just circumnavigated the rules by applying his opinion on time of serves and used cpr 6.25 to calculate the time of service.

 

 

 

wp3

 

what's that got to do with the price of onions (leeks)??

[alfwithhair]

As with all things in life there is only one thing that is certain DEATH.

No matter how water tight you think your argument is in court, the wrong Judge on the wrong day and your stuffed.

 

I know this is true, been to court with a terminally ill freind.

 

No CCA, invalid default, unlawful termination, but still lost.

Judgement granted on the strengh of a cut in half credit card with the debtor signiture on.

 

You take your chances on the day, all you can do is hope the Judge is not a bespecticaled baffoon like we got.

 

Justice was done though as he died 6 weeks after the hearing so they got nothing.

 

RIP Terry

[welshperson3]

I am always up for a good debate, thats how we learn.

 

my point is this, never mind what you think is right in law there is always another view to the same point and it is the judge that makes the final decision.

 

as we have seen lately in the big test cases and also by members on here there have been some shocking results so it isn't what you or me think is right ultimately it is the judge.

[diddydicky]

I am always up for a good debate, thats how we learn.

 

my point is this, never mind what you think is right in law there is always another view to the same point and it is the judge that makes the final decision.

 

as we have seen lately in the big test cases and also by members on here there have been some shocking results so it isn't what you or me think is right ultimately it is the judge.

 

I am more than happy to debate, however i feel SURE we are at cross purposes here so can i take a step back

 

i corrected a statement you made in post 1117 when you said:-

 

lawfully or unlawfully one party cannot terminate only a court can do that

 

you have to understand that many new caggers can be easily misled into believing that such a statement is fact and they could get themselves into hot water or costs by presuming that to be correct and challenging perfectly lawful terminations

 

My point was that IF the creditor has a valid agreement, valid DN, has complied with all that is asked of him under the CCA then of COURSE he can lawfully terminate an agreement

 

CLEARLY if there are faults or failings then the (attempted) termination would be unlawful

 

You really must offer more than just your opinion for making such a statement or at least qualify that it is only your opinion if you are unable to substantiate the statement.

[welshperson3]

Diddydicky i have gained a lot by reading a lot of your posts and i will be issuing my first court proceedings shortly and i will start a thread and i would be grateful if you you look in now and then as your opinion is always welcome

[diddydicky]

i would be happy to

just pm me the thread details when you are ready

[welshperson3]

The point i was making in this statement.

(lawfully or unlawfully one party cannot terminate only a court can do that

If they lawfully terminate and then claim the benefits of s88 then it is still up to the judge.

 

my case for example they went for possession but the judge suspended it.

they had a right under s88 but the judge didn't grant what they wanted,

so effectively the court ordered that the agreement went on.

carry on making monthly payments same terms and conditions.

[diddydicky]

went for possession of what??

 

are you referring to an application for a charging order?

[welshperson3]

possession of my house, secured loan, sub prime lender.

thats what brought me to this site spent last 3 months researching getting closer now then its my turn to issue court proceedings

[diddydicky]

yes, i just read your thread and as i suspected you had a dodgy DN and therefore the purported termination was an UNLAWFUl attempt to terminate.

 

had that DN been compliant then the creditors termination would have been lawful.

 

as to the other issues well that's another matter

 

I see that they had a suspended order so i presume that they have obtained a ccj and the court has ordered you to make payments and that if you do so the application to take the house is suspended

 

this is not the judge ordering the agreement to continue it is the judge ordering the arrangement through the court to continue

 

in view of your payments after the unlawful DN you MIGHT find it difficult to argue that you had accepted the unlawful repudiation.

 

The creditor will argue that as the DN was not valid and he was therefore not lawfully entitled to terminate the agreement- therefore the termination itself was not valid and so the agreement endures and he lives to issue another DN.

 

His attempt to terminate unlawfully does not AUTOMATICALLY terminate the agreement- you would have to do some "thing" or act to show that you had accepted his unlawful action

 

if you did not communicate that acceptance to him and carried on making the payments you may be on a sticky wicket.

 

have you sought legal advice?

[welshperson3]

yes i have had a meeting with solicitor,have another meeting on 04/02/10.

 

on the acceptance point, i cant do anything yet as i am paying on a order of the court so i have no option,i cant accept termination but if i can get it set aside then it goes back to pre court stage then i can accept.

 

reason for set aside cca 140a unfair relationship (new evidence ) and the point of the dodgy dn.

[lexis200]

The point i was making in this statement.

(lawfully or unlawfully one party cannot terminate only a court can do that

If they lawfully terminate and then claim the benefits of s88 then it is still up to the judge.

 

my case for example they went for possession but the judge suspended it.

they had a right under s88 but the judge didn't grant what they wanted,

so effectively the court ordered that the agreement went on.

carry on making monthly payments same terms and conditions.

 

I think possibly you may be getting a little muddled with this - they can still have terminated the agreement (obviously as they've gone to court with it), but the judge doesn't have to allow them to do what they want off the back of that termination. If their request for whatever - full repayment, possession etc - doesn't seem fair or reasonable, for instance you've made every effort to sort it out and they've obstructed you the whole way (and providing you have that elusive fair and reasonable judge!!) then I don't believe they are bound to allow the creditors carte blanche simply because they've followed the rules of default and termination.

 

ps - I think you're right about the aftershave DD, I can smell you from here. Old Spice isn't it??:D

 

edit - just realised DD has said this in the first part of his post:rolleyes: Must remember not to post before I've fully woken up:)

[pumpytums]

Hi everyone,

 

Is evidence of an equatable assignment proof of account termination?

 

 

Pumpytums

[Pinky69]

No. An equitable asignment is where the rights and duties of the agreement are shared between the creditor and the DCA.

[diddydicky]

I think possibly you may be getting a little muddled with this - they can still have terminated the agreement (obviously as they've gone to court with it), but the judge doesn't have to allow them to do what they want off the back of that termination. If their request for whatever - full repayment, possession etc - doesn't seem fair or reasonable, for instance you've made every effort to sort it out and they've obstructed you the whole way (and providing you have that elusive fair and reasonable judge!!) then I don't believe they are bound to allow the creditors carte blanche simply because they've followed the rules of default and termination.

 

ps - I think you're right about the aftershave DD, I can smell you from here. Old Spice isn't it??:D

 

edit - just realised DD has said this in the first part of his post:rolleyes: Must remember not to post before I've fully woken up:)

 

my dad told me about that:)

 

blue blazer ( bugger- just as bad!!)

[diddydicky]

yes i have had a meeting with solicitor,have another meeting on 04/02/10.

 

on the acceptance point, i cant do anything yet as i am paying on a order of the court so i have no option,i cant accept termination but if i can get it set aside then it goes back to pre court stage then i can accept.

 

reason for set aside cca 140a unfair relationship (new evidence ) and the point of the dodgy dn.

 

because you are in such a precarious position with regard to charging orders and suspended orders on repossession i think that my advice would be innappropriate and i would suggest that you need legal representation on this one- but i'll watch with interest

[nks22]

Guidance on sections 77/78/79 of the Consumer Credit Act 1974

 

OFT consultation:

http://www.oft.gov.uk/shared_oft/consultations/OFT1175con.pdf

[redsue]

Hi everyone - I've been having an epic battle since Mar 07.

 

Could someone pop over to here to help?

http://www.consumeractiongroup.co.uk/forum/mbna/81907-mbna-ding-ding-round-5.html#post1375454

 

I have a cc agreement from 1993 with no prescribed terms, they have admitted they have no prescribed terms and sent me t&cs from 1995 to show me 'what they would have looked like'.

 

I've sent numerous letters and 3 SARs requests over a period of time but there is no sign of

 

- a default notice

- a termination letter

 

How can I find out if a valid DN exists? Surely it should be in the SAR requests? If there is also no termination letter I don't want to poke them for them to reissue another one 2 years in!

 

Apologies Pinky for hijacking

[MandM]

Hi everyone - I've been having an epic battle since Mar 07.

 

Could someone pop over to here to help?

http://www.consumeractiongroup.co.uk/forum/mbna/81907-mbna-ding-ding-round-5.html#post1375454

 

I have a cc agreement from 1993 with no prescribed terms, they have admitted they have no prescribed terms and sent me t&cs from 1995 to show me 'what they would have looked like'.

 

I've sent numerous letters and 3 SARs requests over a period of time but there is no sign of

 

- a default notice

- a termination letter

 

How can I find out if a valid DN exists? Surely it should be in the SAR requests? If there is also no termination letter I don't want to poke them for them to reissue another one 2 years in!

 

Apologies Pinky for hijacking

 

Proof of existance of a DN will be in the SAR paperwork and will show as a record in the Comms Log.

 

As for a copy of the DN the creditors tend not to keep a hard copy of what was sent out, merely a record that it was sent - so unlikely you'll get one.

 

M

[diddydicky]

Hi everyone - I've been having an epic battle since Mar 07.

 

Could someone pop over to here to help?

http://www.consumeractiongroup.co.uk/forum/mbna/81907-mbna-ding-ding-round-5.html#post1375454

 

I have a cc agreement from 1993 with no prescribed terms, they have admitted they have no prescribed terms and sent me t&cs from 1995 to show me 'what they would have looked like'.

 

I've sent numerous letters and 3 SARs requests over a period of time but there is no sign of

 

- a default notice

- a termination letter

 

How can I find out if a valid DN exists? Surely it should be in the SAR requests? If there is also no termination letter I don't want to poke them for them to reissue another one 2 years in!

 

Apologies Pinky for hijacking

 

the fact that they have admitted (hopefully in writing) that they cannot provide you with the terms and conditions that were applicable at the time of signing the agreement in 2003 is sufficient to prevent them from proceeding with court action -since they are clearly admitting that they have failed to comply with s78 and they are well aware that as a point of law they cannot enforce the DN argument will be a second line of defence

[basa48]

I had a letter from a CCC advising they were going to default me and then sell my debt.

 

A month later they issued the DN, but apparently sold the debt three days before the default expiry, (I had a letter from the assignee confirming the sale).

 

The default was for the full balance (not the arrears).

 

Is this DN invalid?

 

If so what effect does it have on the debt (if any) bearing in mind they sold the debt on?

 

Do I have to acknowledge the DN and the account termination to avoid them re-issuing the DN?

[Pinky69]

They cannot default you for the full balance and selling it 3 days before an expiry date is termination. You can accept their termination then tell them that as it was terminated after issue of an unlawful DN, the account has been unlawfully rescinded. What you do after that is entirely up to you. They can claim arrears but my view is that it is not up to me to inform them of what they can or cannot claim thereafter. I am not going to do their job for them.

[basa48]

They cannot default you for the full balance and selling it 3 days before an expiry date is termination. You can accept their termination then tell them that as it was terminated after issue of an unlawful DN, the account has been unlawfully rescinded. What you do after that is entirely up to you. They can claim arrears but my view is that it is not up to me to inform them of what they can or cannot claim thereafter. I am not going to do their job for them.

 

How would this affect the assignment of what (at least to the OC) is now an uncollectable debt?