Invalid Default Notices

[diddydicky]

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?

 

the DN has more holes than a colander- it is (fortunately for you) a total and utter pigs ear

 

as pinky says accept the unlawful repudiation without giving the reasons why (you are not their lawyer) and let them stew in their own juice

[vint1954]

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?

Same situation over here. Take a look.

 

http://www.consumeractiongroup.co.uk/forum/mbna/203663-mbna-x-2-virgin-12.html#post2731881

[haggis1984]

A thought:

 

With the judicary seemingly confused by the CCA would a defence of unlawful recission due to invalid DN be stronger than defending on the grounds of unsatisfied s77-78 request/ improperley executed agreement?

[Bigdebtor]

I would say the dodgy DN followed by TN kills the debt outright once you accept the unlawful rescission (other than arrears - balanced by compensation) - whereas the unsatisfied s77-78 only delays it being enforced.

 

BD

[emandcole]

A thought:

 

With the judicary seemingly confused by the CCA would a defence of unlawful recission due to invalid DN be stronger than defending on the grounds of unsatisfied s77-78 request/ improperley executed agreement?

 

Having started three potential claims yesterday for just this I believe that a court will have a greater understanding of this. In fact I'm counting on it! If the creditors don't play ball with the threat I've made I for one will be testing it out this year sometime...which I will of course document fully on here.

[haggis1984]

Having started three potential claims yesterday for just this I believe that a court will have a greater understanding of this. In fact I'm counting on it! If the creditors don't play ball with the threat I've made I for one will be testing it out this year sometime...which I will of course document fully on here.

 

So you're gonna be the claimant rather than using unlawful recission as a defence?

 

Was thinking of taking this path myself - otherwise stuck with MBNA and god knows how many DCAs playing ping-pong with my account.

[Bigdebtor]

I think being claimant is very dangerous. Once you accept the unlawful rescission then the debt is dead and I would just let them take the initiative if they dare - threaten harassment if they keep hassling you.

 

BD

[diddydicky]

A thought:

 

With the judicary seemingly confused by the CCA would a defence of unlawful recission due to invalid DN be stronger than defending on the grounds of unsatisfied s77-78 request/ improperley executed agreement?

 

personally, i would , to be safe be using ALL arguments in the defence as either/or alternatives, in the event that one of them was tripped up- leading with the DN since the failure to comply means they cant claim entitlement to the benefits of s87 which in turn means they have no cause of action to claim "sums not yet due" which would have been included in their POC.

 

it is IMPORTANT to make sure if you are thinking of making a separate strike out application (perhaps before AQ's) that you FIRST file a defence (even a holding defence)

 

IMO

[diddydicky]

Having started three potential claims yesterday for just this I believe that a court will have a greater understanding of this. In fact I'm counting on it! If the creditors don't play ball with the threat I've made I for one will be testing it out this year sometime...which I will of course document fully on here.

 

wow, there 's a brave (or foolhardy) person

 

I am against starting actions myself but even so- i think i would have put my toe in the water with one of them first- just in case

 

hope you have some CFA arrangements or a large wallet- just in case

 

do please let us know how they proceed

 

have you got links to threads for them?

[diddydicky]

I would say the dodgy DN followed by TN kills the debt outright once you accept the unlawful rescission (other than arrears - balanced by compensation) - whereas the unsatisfied s77-78 only delays it being enforced.

 

BD

 

well, if they failed to comply with s78 and took you to court- then clearly they by that time have either/and terminated or claimed the full outstanding amount of the account (same thing) and unlawfully terminated the agreement,

 

If you accepted the court action (or prior demands for payment/termination letters) as an unlawful repudiation, the creditor would IMO be in exactly the same position as with the defective DN

 

He would have no means to enforce after he subsequently found the CCA

 

I think that when it is suggested that failure to comply with s78 "suspends" enforcement -it does not mean that the creditor can take you to court and then "suspend" the court action whilst he then goes to look for the CCA

 

i

 

IMO

[diddydicky]

The draft OFT document also is a total nonsence

 

it attempts to state that

 

Starting court proceedings may not count as enforcement

 

and then says

 

obtaining a judgment is enforcement

 

notwisthanding my disagreement that serving the DN onwards IS enforcement and parliament has clearly stated that it is,

 

are the OFT suggesting that the creditor take you to court, and in mid trial say to the judge

 

"please don't make a judgement in our favour because if you do that will be enforcement and we are not allowed to do that"

[vint1954]

are the OFT suggesting that the creditor take you to court, and in mid trial say to the judge

 

"please don't make a judgement in our favour because if you do that will be enforcement and we are not allowed to do that"

Either that or they know and accept the issueing of CC claims is just another threat tool.

 

I agree regarding enforcement, everyone in the real world does, with the exception of those loopy Judges who get where they are through the old boys network rather than ability.

 

If you enforce health and safety rules, these are done by taking steps to ensure that people perform to the rule, so any action against someone stepping outside those rules is enforcement. Same with smoking, speeding, drinking and on and on, until you get to some numpty who thinks the law is his own private playground.

[pumpytums]

Either that or they know and accept the issueing of CC claims is just another threat tool.

 

I agree regarding enforcement, everyone in the real world does, with the exception of those loopy Judges who get where they are through the old boys network rather than ability.

 

If you enforce health and safety rules, these are done by taking steps to ensure that people perform to the rule, so any action against someone stepping outside those rules is enforcement. Same with smoking, speeding, drinking and on and on, until you get to some numpty who thinks the law is his own private playground.

 

And additionally I do believe judges don't give the debtor a fair trial due to the fact that they cannot understand the circumstances. Everyone has different story, unfortunately as soon as you walk in the room I do think that 99% of judges think guilty prove otherwise.

 

If a DCA or creditor wants to take you to court thats fine but the amount of ineptitude makes a mockery of the legal system. You submit a CPR 31.14 or CPR 18, after a claim if they haven't fully responded within the 14 days it should be struck out automatically. At least prior to issuing a claim they should at least get the ducks in row CCA (check) T&C (check) DN(check) etc. Claims are thrown around like confetti at the moment, with the hope people won't defend and then win by default. I seriously wonder how many people actually defend.

 

One point though if a creditor wins by default do they still have to present the CCA, DN, DOA to the court before any type of CCJ is applied?

If this isn't the case I would love to do a social experiment send 100 badly written POC's to 100 people and see how many defend. I bet the results would be scary.

 

Pumpytums

[the_shadow]

One point though if a creditor wins by default do they still have to present the CCA, DN, DOA to the court before any type of CCJ is applied?

If this isn't the case I would love to do a social experiment send 100 badly written POC's to 100 people and see how many defend. I bet the results would be scary.

 

Pumpytums

 

Nope, and once they have the judgment of the court if someone doesnt defend they can initiate any enforcement action they choose with the given that the defendant is guilty just by not defending. There is no need to prove the case as someone not defending themself obviously is guilty in the eyes of the law

 

S.

[dizzyblonde1966]

Does the amount to remedy on a DN have to be correct to the exact penny? what if the figure quoted on th DN was less than the true arrears, would that be a breach?

 

If the account had been in dispute due to failure to comply to cca request(pre manchester hearing) would any charges added be unlawfull, ie late payment charges?

[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.

 

I'm still not sure what the assignee's position is with this. The OC says they 'sold' the debt (actually before the DN expiry date).

 

Has the new creditor bought an unenforceable debt?

 

Does he have to issue his own DN before claiming the balance.

[nks22]

Has the new creditor bought an unenforceable debt?

 

He's bought a debt that appears as if it ought to be unenforceable. That's not to say he can't still try to get it enforced nor that a sympathetic judge might not allow it, particularly if the case is undefended.

 

Does he have to issue his own DN before claiming the balance.

 

No. A DN is to end a credit agreement. The agreement has already been terminated. What the DCA has bought is the debt, not the agreement.

[basa48]

He's bought a debt that appears as if it ought to be unenforceable. That's not to say he can't still try to get it enforced nor that a sympathetic judge might not allow it, particularly if the case is undefended.

 

Oh it WILL be defended (if it comes to it).

 

 

No. A DN is to end a credit agreement. The agreement has already been terminated. What the DCA has bought is the debt, not the agreement.

 

OK.

 

Odd thing is the DCA claims (in writing) their client (who is not the OC) bought the debt and they are acting as agents. But the OC wrote that the DCA bought the debt. The DoA might be interesting.

 

You should note the OC sold the debt before the expiry date on the DN and the DN was for the full balance not the arrears, i.e. the DN was invalid.

 

Does any of that make a difference? Was there in fact any debt left to be sold?

[nks22]

I can't think a DN can ask for the full amount (unless it happened to be the final payment due anyway, I suppose) as it's not offering you an opportunity to remedy the breach. It'd probably help if you started a separate thread and posted up the DN (with personal details removed) as there are many more knowledgeable than me who could comment on it.

[diddydicky]

Does the amount to remedy on a DN have to be correct to the exact penny? what if the figure quoted on th DN was less than the true arrears, would that be a breach?

 

If the account had been in dispute due to failure to comply to cca request(pre manchester hearing) would any charges added be unlawfull, ie late payment charges?

 

no, a small variation can be a de minimus issue

 

for instance an error of 50 pounds on a claim for say 400 pounds owing in arrears would not be de minimus (IMO)

 

but if it were 50 pounds in a claim for arrears of say 3500 pounds the judge may well rule it so!

[welshperson3]

the answer to dizzydlonde1966 charges question

 

charges don't make the DN invalid (just one of the Rankine contributions) were the judge interpreted the law to fit the situation

[dizzyblonde1966]

Thanks guys,much appreciated

DB

[Stagparty]

Please bear with me, this post does relate to a default notice albeit in a slightly unusual way....

 

I have an account with Egg where I made a request under s78 CCA. Before they responded to the CCA request they issued a default notice and terminated the account.

 

The exact dates etc are listed below and I'm happy to scan up a copy of the default notice if that will help?

 

The CCA request was made 23 April 2009 and signed for by them 24 April 2009 (I've got the Royal Mail proof downloaded and filed safely)

 

The default notice was issued 27 April 2009 with a remedy date of 25 May 2009. The amount claimed was the alleged arrears plus the alleged overlimit amount.

 

The CCA request needed to be fulfilled by 14 May 2009, depending on which bit of paperwork you read from Egg they either complied October 2009 or the letter I received with the details in was in December 2009.

 

I wrote to them on 18 May 2009 formally putting the account into dispute. They signed for this on 19 May 2009 and I have the proof.

 

Right at the start when I realised I was in trouble financially I'd written and asked for a token payment plan. They agreed to this after terminating the account in June 2009 but as the s78 request had not been fulfilled I made token payments on a without prejudice basis only.

 

My question is what is the effect (if any) of issuing a default notice and terminating the account whilst a s78 CCA request remains outstanding? And any suggestions as to what to do next please?

[emandcole]

no, a small variation can be a de minimus issue

 

for instance an error of 50 pounds on a claim for say 400 pounds owing in arrears would not be de minimus (IMO)

 

but if it were 50 pounds in a claim for arrears of say 3500 pounds the judge may well rule it so!

 

Just to clarify this issue a little in Woodchester v Swayne and Co 1998, the Default Notice overstated the Arrears by 38.71% and was declared invalid, so any Notice that is at least that inaccurate should also be invalid based on that case history.

 

The degree of error will determine if the notice is invalid, an error greater than 38.71% will exceed the Default Notice error noted in Woodchester v Swayne and Co 1998, so can be considered invalid based on that precedent. Below 38.71% margin for error, and there will be a debate if the error is significant enough to invalidate the Default Notice, or if the error is just de minimis.

 

I believe de minimis is technically unspecified and as such wide open to abuse but case law such as that above does provide some much needed precedent to build on.

 

Of course a default notice that is even 1p out should be invalid, because any large and sophisticated financial institution ought to know down to the last penny what you owe. They are expected to have and use an expansive array of technology and information to get such matters right in the first place, strange how this doesn't happen.

 

Of course the ideal is to have a dn that is wildly innaccurate and the closer to 38.71% inaccuracy you can get, the better.

[beachcomber60]

Very interesting thread.

 

I've been served a default notice (now court claim) whereby besudes a few 'charges' the amount also includes a 'tracing' fee of £50 which the OC charged to the account because we had not informed tgem of our change of address, they later stated that it was their error & that they confirmed receiving our letters but lost them.

 

They said that the 'fee' would be waived but its still on the account & we are charged interest on it.

 

Would this make the DN invalid?