Invalid Default Notices

[patrickq1]

their is more to this than you could ever beleive,my solicitor was struck of a bank manager fired,the bank had at the time in 1992 my barristors report for five weeks before i even knew it had been finnished,thats when the sh** hit the fan,i had them all scrying about like rats,even at the time i got agreement from the factories and transport to withhold all their invoices for 180 days yet the bank started making phone calls ...soon all offers were withdrawn....but as the years go by you learn to live with it...hence when the first bank action group began in 1991/2 i was the origional member ..but then no internet like we have now so a lot of travelling took its toll and it ceased doing any work to help anyone,so you can iagine my feelings for banks..regardless what a bank tells me i would nt beleive it unless it was in writing,then you can act accordingly

[diddydicky]

i take you point pedross - on re reading it

[lookinforinfo]

Patrickq1, don't forget that if your bank does go down the business route with you, then you can use Unfair Contract Terms Act 1977.

 

By the way it can also be used by individuals though is more aimed at businesses. Section 11 is probably the one you want since it is the test for reasonableness. The onus is on the bank to show that its term is fair and reasonable.

 

Kind of difficult for them to do that when the lawyer representing the banks in the Supreme Court over the bank charges in the OFT case said-

 

Those charges will necessarily exceed by a large margin the costs to the bank of dealing with the particular transactions that occasion them, because they are actually a revenue stream essential to the funding of the whole current account operation and not just the particular transactions on current accounts which give rise to their charging.

[patrickq1]

yes ive looked at s11 and beleive that is an option i was just reading the section about statute barred and even on the deed of assignment they cannot come back and claim for that but we all know TELFORDGATE where my account is held...i will only know when i selll the property hopefully this year,very lucky ive no debt cept the HFO but that is also a dispute of MORGAN STANLEY not paying out on a secondary PPI another story hehe ...right bundle of trouble aint I ..

[AA99]

DN's

 

You'll enjoy a read of this court case today

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/224300-mandm-egg-loan.html#post2827148

[Undercover-Elsa]

DN's

 

You'll enjoy a read of this court case today

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/224300-mandm-egg-loan.html#post2827148

 

 

Thanks AA - made my day!!

Well done MandM and all who contributed.

 

Elsa x

[MandM]

Thanks AA - made my day!!

Well done MandM and all who contributed.

 

Elsa x

 

And thank you Elsa . Remember this thread? http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/200901-anatomy-default-notice.html If you look at post 40 onwards you'll see what I mean

 

M

[Undercover-Elsa]

Hehe indeed I do, as it's my thread

In fact, I think I'll mosey along there and put a triumphant link to your winning thread.....

[bigalig69]

hi Pinky

 

Im also subbing if I may - I have a default from First Direct which they refuse to move even though they failed to comply with Consumer Credit Act.

 

 

Kind Regards

 

 

Alan

[charlie*]

Would appreciate any comments about this letter.... I'm really looking for a deal... I won't claim the PPI if they cancel the credit card debt.

 

Many thanks...

 

charlie*

 

Dear BANK...

 

Ref loan 12345677

 

In previous letters, some sent under signature, some not, I have clearly indicated or implied my acceptance of your terminating the above agreement per your letter dated 25th November 2008 and have, since then, stated on a number of occasions that a) under no circumstances would I entertain any dealings with debt collectors and b) that I would pay (or arrange a plan to pay) any sum of money I might lawfully owe. I have even offered to pay any money I lawfully owe upon deliverance into my hands of the promissory note I originally signed, dated 29th October 2004.

 

None of my offers have been commented on which has served to spur my interest in this subject and only recently I have learned that following confirmation of terminating the agreement in your letter dated 25th November 2008, following your Default Notice dated 24th November 2008, you have failed to inform me of any default sums that remained unpaid… not to include charges or interest.

 

Should there be any doubt that your termination was quite out of order, may I refer you to s87/88 of the Consumer Credit Act 1974, Default and Termination Notices, 1983….

 

...and that a failure of a Default Notice or Termination Notice to be accurate not only invalidates such notice (Woodchester Lease Management Services Ltd V Swain & Co NLD 14 July 1998 but it is an unlawful rescission of contract which would not only prevent the court enforcing any alleged debt (Wilson V First County Trust Ltd [2003] UKHL 40, Wilson V Robertsons (London) Ltd [2006] EWCA Civ 1088, Wilson V Pawnbrokers [2005] EWCA Civ 147) - but would also give the claimant a claim for damages in the sum of £1000 (Kpophraror V Woolwich Building Society [1996] 4 All ER 119).

 

There is the question of PPI that I believe may have been wrongly sold and which I will address in due course.

 

Yours etc..

[Bigdebtor]

I think this is a bit too woolly and shows hesitancy/uncertainty. Be a lot more definite. Refer to their unlawful rescission due to TN coming so soon after DN - and your subsequent acceptance of termination. All you need to pay is lawful arrears - but can offset compensation against these.

 

BD>

[diddydicky]

it seems to me like you are contradicting yourself here

 

usually the time for settlements will come much further down the like when the respective parties get a feel for their true positions

 

personally i feel that the above letter is ill advised and i would not send it

[diddydicky]

Dear BANK...

 

Ref loan 12345677

 

You have unlawfully rescinded the alleged agreement and that rescission has been accepted by me

 

In the event that the original agreement were to have been properly executed and/or legally enforceable my indebtedness to you as a result of your unlawful termination would have be limited to the genuine amount of arrears that were outstanding at the time of the termination

 

Against which would be my counterclaim for unlawful rescission and for PPI premiums which i am at present taking advice on

 

It is my position that you do not have a properly executed and/or legally enforceable credit agreement therefore the matter of arrears do not arise, and that notwithstanding the foregoing, you in any event unlawfully terminated that which you allege to have been a valid agreement

 

I am prepared to listen to any other proposals you might have to resolve this matter failing which i suggest the proper course of action would be for you to confirm that this matter is now closed and no further action will be taken

 

 

Y F

[charlie*]

I bow to experience, as always and thank you for the

comments and suggestions.

 

I think my uncertainty came about because I did not

acknowledge the termination a year ago - did not really

even know what it meant then - I was given to understand

recently that I should have acknowledged it at that

time.

 

Looks to me diddydicky as tho your suggestion will fit

the bill nicely, but I will sit on it overnight. It serves

as a lesson too.... THANKYOU.

 

charlie

[Gallahad]

Very concise and pertinent as ussual DD

G

[Bigdebtor]

Charlie*

 

I am sure you will now "remember" acknowledging the unlawful termination a few days after you got the TN - but with a lot on your mind it can be easily forgotten until your memory gets jogged. .

 

In fact earlier in this thread you will find letters very similar to the one you sent! This was certainly enough to jog my memory!

 

Of course the OC may have mislaid it - and the balance of probabilities is that with the volume of mail they receive a few are bound to go astray!

 

BD

[diddydicky]

I bow to experience, as always and thank you for the

comments and suggestions.

 

I think my uncertainty came about because I did not

acknowledge the termination a year ago - did not really

even know what it meant then - I was given to understand

recently that I should have acknowledged it at that

time.

 

Looks to me diddydicky as tho your suggestion will fit

the bill nicely, but I will sit on it overnight. It serves

as a lesson too.... THANKYOU.

 

charlie

 

well if you didnt you have to face it out and make them think that you did= BBB

 

( Bull**** Baffles Brains)

[Gallahad]

The Ministry of Justice has closed down client Cartel review

G

[AA99]

I'm still very confused about acknowledging the unlawful termination. Is it essential to have done it in writing, or by ignoring it you have deemed to have accepted their termination:confused:

 

Claimant's don't have to prove a DN sent to a debtor, does that mean in this case that the debtor doesn't have to prove they acknowledged termination of the account.

 

Surely returning cut-up cards and no further spending is the same?

[nks22]

Somewhere there's a quote by a judge about accepting termination to the effect that you can do it either by word or by deed, i.e. your actions can demonstrate your acceptance. There's no reason not to accept in writing, as far as I can tell, though, and no time limit so long as you haven't acted in a way that suggests you didn't accept it.

[diddydicky]

there is debate as to whether in the case of a credit agreement- it is necessary to show what the performing party has "elected" to do

 

in general contract terms it is very important .

 

look at it this way:_

 

you agree to lend you pal 500 quid and he will pay you back 50 quid a month

 

after two months he says "Nah, changed my mind i'm not going to honour my agreement"

 

now then- if by doing nothing and ignoring his threat- that would signify the agreement was at an end- don't you think everyone in the land would do the same- enter an agreement then cancel it!!

 

once an agreement has been entered into , both parties are obliged to "perform"

 

if one party decides not to- it cannot be right that just ignoring him allows him to get away with it- it is surely more RIGHT that the other side cannot simply walk away from an agreement merely because you said nothing of his unlawful actions.

 

In contract law if one party decides "not to perform" then this immediately gives the still performing (or injured) party the right of "election"

 

he MUST if he wishes to accept the unlawful act make his " election " to accept the unlawful rescission clear and do so in words and/or deeds that leave no doubt as to his intentions

 

If he does nothing (and especially if he continues, thereafter to perform or attempt to perform the contract or agreement from his side) he is taken to have chosen that the contract or agreeement should endure

 

there is no "time limit" and it all depends on the circumstances- but the longer the injured party leaves it- the more doubt will be created

 

therefore , faced with differing opinions, you should ask yourself which is the lesser risk

 

1/ I accept the unlawful rescission

 

2/ I ignore the unlawful act and do nothing and/or continue to act as if i want the agreement to continue (making payments )

 

of the two, i suggest the former has no adverse consequence (save that it would be as meaningless as the unlawful rescission itself in the mind of someone who thought that it was not necessary)

 

and the latter could have the consequence (has as already occurred) that a court rules that having not made your election clear- you have been assumed to have intended the agreement to endure

 

your choice!!

[Bigdebtor]

Claimant's don't have to prove a DN sent to a debtor, does that mean in this case that the debtor doesn't have to prove they acknowledged termination of the account.

 

Exactly - the fact that they seem to have lost the letter you had forgotten you had actually sent accepting their unlawful rescission is not your concern! Big companies lose letters all the time - especially these sort of letters! (i wonder why??). Good job you've got your copy!

 

You don't need to have sent it recorded or get proof of posting (after all was the DN sent to you recorded?) - just stick to your guns that you are certain when you sent it - you'll have the date on your own copy - probably within a week of them doing theunlawful rescisssion (but not before they did so - unless you're clairvoyant!)

 

Even if you did continue to pay then you could claim you were simply paying off the arrears - and foolishly lost track of exactly how much they amounted to - or forgot to cancel the DD or SO mandate - if you have actually "overpaid". - You might even ask for a refund - but you may be told the "extra" you paid beyond the lawful arrears would be regarded as a gift (well the poor souls need every penny to pay their bonuses these days! )

 

It's another case of who blinks first - keep the head and win the day!

 

BD

Edited March 18, 2010 by Bigdebtor

[patrickq1]

as in my case unlawful frustration of contract ...different scenario

[patrickq1]

Exactly - the fact that they seem to have lost the letter you had forgotten you had actually sent accepting their unlawful rescission is not your concern! Big companies lose letters all the time - especially these sort of letters! (i wonder why??). Good job you've got your copy!

 

You don't need to have sent it recorded or get proof of posting (after all was the DN sent to you recorded?) - just stick to your guns that you are certain when you sent it - you'll have the date on your own copy - probably within a week of them doing theunlawful rescisssion (but not before they did so - unless you're clairvoyant!)

 

Even if you did continue to pay then you could claim you were simply paying off the arrears - and foolishly lost track of exactly how much they amounted to - or forgot to cancel the DD or SO mandate - if you have actually "overpaid". - You might even ask for a refund - but you may be told the "extra" you paid beyond the lawful arrears would be regarded as a gift (well the poor souls need every penny to pay their bonuses these days! )

 

It's another case of who blinks first - keep the head and win the day!

 

BD

 

tip your scales BD with all dem cases you got ime gonna ask you for a tip lol

[AA99]

Thanks for the replies;) However, I think you are assuming that payments have continued in some form! I'm talking "ok, you haven't been reasonable with my requests under financial hardship to tow the line so I might as well stop paying you". I am at the end of my tether pleeing with my OC's. I am a tenant living on benefits..... they can take me to court and I can plead blood, sweat or tears:(