Invalid Default Notices

[MDK]

can you be made bankrupt by one company, but have other debts that are in dispute? what happens to them? are they not in dispute but you won't have enough time to sort it out before the bankruptcy?

 

please help

[Desperate Daniella]

That is a very interesting question.

 

I don't know the answer, but I do know that if you are being made bankrupt the court will ask you for all your creditors as these must be taken into account and allowed to be part of any proceedings.

 

Now, if you are not agreeing that you owe them the money because it is in dispute I would think the court would have to rule on that. If you agree that you owe them money then they must be advised of the bankruptcy and put in their claim.

 

One company will start the bankruptcy proceedings unless you choose to do it yourself, and you will have to list all the others so they can be contacted.

 

If you really are going bankrupt you might as well get shot of the whole lot of them at the same time. IMO.

 

DD

[Desperate Daniella]

Do you have a thread on this? If not, it's probably best to start one.

[banker_rhymes_with]

WRT the OFT Guidelines:

 

For those who haven't seen the new guidelines:

 

Well named. Con.

 

Attached Files OFT1175con.pdf (525.8 KB, 17 views)

I note there is a long list of groups who have been consulted...makes interesting reading...

 

LIST OF CONSULTEES

I note there was no mention of CAG (250,000 members and counting)! All I could see was a long list of the usual faces from the Debt Industry, plus a few beancounters, toothless Government departments, and any other Cheese-Eating Surrender Monkeys they could trawl in to fill in the numbers and make the list look impressive.

 

These guidelines are just the unimpressive OFT being unimpressive, yet again.

 

When reading these Guidelines, I went to check on the wording of s127(3) and noted that s127(3) has now disappeared from the on-line copy of The Consumer Credit Act 1974:

 

Consumer Credit Act 1974 (c. 39) - Statute Law Database

 

That's a PITA and not helpful for all those with Agreements that pre-date the disgraceful 2006 amendments to the Act.

 

Anyway, point of my Posting was to draw attention to Section 5.2 of the above OFT Guidelines. This covered a simple list of what represented Enforcement and what did not, all seemingly based on McGuffick. Some of this made interesting reading, and it might just be useful when it comes to Default Notices and Termination of an Agreement:

 

Not-Enforcement

 

• Saying nasty things about you to the Debt Reference Agencies.
  

 

• Demanding Payment (i.e. of sums already due).
  

 

• Issuing a Default Notice.
  

 

• Bringing Legal Proceedings.
  

Enforcement

 

• Obtaining Judgment.
  

 

• s76(1) and s87(1) actions, such as...
  

 

• Demanding earlier payment (i.e. of any sum not yet due).
  

 

• Recovering Possession of Goods or Land
  

 

• Treating any Right conferred on the Debtor by the Agreement as terminated, restricted or deferred.
  

 

• Enforcing any Security.
  

 

• Terminating the Agreement.
  

 

They left the best bit until last. Potentially useful that. Don't you think? I therefore bet it gets deleted when these draft Guidelines are finalised.

 

Cheers,

BRW

Edited February 21, 2010 by banker_rhymes_with
McGuffick URL added.

[Bigdebtor]

They hav sent a termination with the threat of whole balance being due and repo happening without further notice (its a HP agreement that has serious issues)

 

Surely if they now take the car then that is theft and you should get the police involved?

 

Is it worth writing again - referring to your earlier acceptance of their unlawful termination - offerring to pay lawful arrears and telling them if they take the car you will have them charged with theft?

 

BD

[InformedSearcher]

Surely if they now take the car then that is theft and you should get the police involved?

 

Is it worth writing again - referring to your earlier acceptance of their unlawful termination - offerring to pay lawful arrears and telling them if they take the car you will have them charged with theft?

 

BD

 

 

The Police will consider this a civil matter - HP agreement. This is a time when you really need to read the HP agreement carefully.

 

Michael

[diddydicky]

can you be made bankrupt by one company, but have other debts that are in dispute? what happens to them? are they not in dispute but you won't have enough time to sort it out before the bankruptcy?

 

please help

 

 

one creditor can commence bankruptcy proceedings by first serving a statutory demand

 

he cannot serve against a disputed debt

 

it will cost him the best part of 1500 quid

 

once started he loses ALL control of the bankruptcy proceedings,

 

secured creditors take first bite of the cherry followed by un secured creditors(including the creditor who started the ball rolling) on a pro rata basis

 

hence the reason why 99% of bankruptcy threats are just that- threats!!

[Basil Fawlty]

I'm just looking through the SARs for my cards with Barclaycard and have found copies of Default Notices from Mercers in there. I dont remember receiving these last year, or if I did, they have been mislaid/thrown away. On all of them the date to rectify states ''before'', so when I work out the dates they all give less than 14 days both 1st class and 2nd class. Is it absolutely necessary to have the envelopes (I havent got them), or will they stand as faulty DNs without these?

 

thks

 

BF

[banker_rhymes_with]

Hello Basil!

 

Is it absolutely necessary to have the envelopes (I havent got them), or will they stand as faulty DNs without these?

You should be fine if the Notices are faulty even when sent via 1st Class Post.

 

The Envelopes are more important when the 1st Class (+2 Working Days) or 2nd Class (+4 Working Days) issue could make all the difference between a Default Notice being defective or not...even then, a fair Judge would assume 2nd Class unless the Claimant/bank can provide strict proof that they sent the DN via 1st Class.

 

But do keep those Envelopes folks, all of them!

 

Cheers,

BRW

Edited February 23, 2010 by banker_rhymes_with
Typo

[cadwallader]

Doesn't a default notice have to be issued by the creditor rather than the DCA?

 

C

[Basil Fawlty]

Thanks for that BRW.

 

Good question Cadwallader. Can anyone answer this please?

 

BF

[the_shadow]

Thanks for that BRW.

 

Good question Cadwallader. Can anyone answer this please?

 

BF

 

It has to be issued by the debt owner and as its part of terminating an agreement I would say it can only be done by the intiial contract partner.. namely the original lender.

 

To sell an account requires either a default/termination and sale or the new owner to be able to provide the same ongoing contractual obligations as the original... as DCA's dont lend money I cant see how they can then re-issue or issue a default and terminate, ergo the contract has already been terminated and no further default or even first default can be issued.

 

All just my thoughts on the matter tho.

 

S.

[tedney]

It has to be issued by the debt owner and as its part of terminating an agreement I would say it can only be done by the intiial contract partner.. namely the original lender.

 

To sell an account requires either a default/termination and sale

If an account has only had a DN, without a termination, can this be sold/assigned?

[haggis1984]

It has to be issued by the debt owner and as its part of terminating an agreement I would say it can only be done by the intiial contract partner.. namely the original lender.

 

To sell an account requires either a default/termination and sale or the new owner to be able to provide the same ongoing contractual obligations as the original... as DCA's dont lend money I cant see how they can then re-issue or issue a default and terminate, ergo the contract has already been terminated and no further default or even first default can be issued.

 

All just my thoughts on the matter tho.

 

S.

 

Morning caggers

 

Had some thoughts on this recentley. A few caggers have put forward the same argument Shadow - the DCA can't lend so ergo the contract has been terminated.

 

The OC would usually put a block on the account some time before selling to a DCA though, therefore the availabillity of credit has already been withdrawn. Doesn't seem likely to me that it a court would accept that the account was terminated at this point IMO. If we saying that withdrawl of credit facilities = termination then the contract was terminated before being sold.

 

So.... with that in mind would you still say that the withdrawl of credit facillities = termination?

Edited February 24, 2010 by haggis1984
Its morning, im tired, ugh

[the_shadow]

Morning caggers

 

Had some thoughts on this recentley. A few caggers have put forward the same argument Shadow - the DCA can't lend so ergo the contract has been terminated.

 

The OC would usually put a block on the account some time before selling to a DCA though, therefore the availabillity of credit has already been withdrawn. Doesn't seem likely to me that it a court would accept that the account was terminated at this point IMO. If we saying that withdrawl of credit facilities = termination then the contract was terminated before being sold.

 

So.... with that in mind would you still say that the withdrawl of credit facillities = termination?

 

Yep I see where you are coming from.. good point well made.... however.....

 

Turn it on its head...

 

If you paid up all the arrears would the DCA be able to instigate the credit facilities you would have had... after all you havent been terminated in this scenario if you accept the above argument and hence if the default is rectified even out of time if its before termination shouldnt the contract endure?

 

If they are unable then the contract has been ended imvho.

 

S.

[the_shadow]

If an account has only had a DN, without a termination, can this be sold/assigned?

 

For the very reasons I mentioned that it needs to be terminated to be sold I think you would class the selling as a termination in all but name.

 

Depends if the judge agrees with Haggis's arguments I suppose.

 

S.

[haggis1984]

Yep I see where you are coming from.. good point well made.... however.....

 

Turn it on its head...

 

If you paid up all the arrears would the DCA be able to instigate the credit facilities you would have had... after all you havent been terminated in this scenario if you accept the above argument and hence if the default is rectified even out of time if its before termination shouldnt the contract endure?

 

If they are unable then the contract has been ended imvho.

 

S.

 

 

Im with you - as the DCA can't facilitate a rolling credit agreement when the arrears have been paid this is termination.

 

Howver, there have been cases on CAG where the OC has withdrawn credit facilities (perhaps due to a change in circumstances of the debtor) whilst the account had an outstanding balance. The OC then still allows the debtor to make monthly repyaments at the same rate as before, just doesnt allow anymore borrowing.

 

So are we saying that in this instance there is no termination as the OC could choose to re-facillitate credit availabillity (however unlikely, dont think Ive ever heard of this happening)?

[the_shadow]

 

So are we saying that in this instance there is no termination as the OC could choose to re-facillitate credit availabillity (however unlikely, dont think Ive ever heard of this happening)?

 

Not quite the same but MBNA restricted my credit and defaulted me, I managed to come to an agreement via FOS and repay fixed amounts, I now have use of credit after paying all the arrears off.

 

I'm not saying this will work but its how I would counter the scenario you mentioned above in any court room I was dragged into.

 

S.

[haggis1984]

Not quite the same but MBNA restricted my credit and defaulted me, I managed to come to an agreement via FOS and repay fixed amounts, I now have use of credit after paying all the arrears off.

 

I'm not saying this will work but its how I would counter the scenario you mentioned above in any court room I was dragged into.

 

S.

 

Think Id be fairly confident arguing that in court too. Comes down to the old judge lottery again I suppose.

[the_shadow]

Think Id be fairly confident arguing that in court too. Comes down to the old judge lottery again I suppose.

 

Oh yes :mad:

 

S.

[Undercover-Elsa]

Another aspect of termination is on CRA files. I recently noticed in my Experian records that a disputed account, not paid for 12 months is now marked as "8" which in the explanatory notes states "8 - terminated"

Now this a/c has the dodgiest DN ever dodged by Dodgy McDodge, and they demanded full balance months ago but have never sent a termination letter. I'm pretty sure the demanding full balance is enough evidence of termination, but wonder how the Experian report would stand up in Court...

[haggis1984]

Another aspect of termination is on CRA files. I recently noticed in my Experian records that a disputed account, not paid for 12 months is now marked as "8" which in the explanatory notes states "8 - terminated"

Now this a/c has the dodgiest DN ever dodged by Dodgy McDodge, and they demanded full balance months ago but have never sent a termination letter. I'm pretty sure the demanding full balance is enough evidence of termination, but wonder how the Experian report would stand up in Court...

 

Old Dodgy Mcdodge gets around a fair bit doesnt he - sure he did my default notice too

[Undercover-Elsa]

I always find it helps if I go into Black Adder mode when writing to DCAs

[haggis1984]

I always find it helps if I go into Black Adder mode when writing to DCAs

 

Cunning!

[Undercover-Elsa]

And always offer them "frothy" coffee if they do a doorstep visit...