Invalid Default Notices

[diddydicky]

if the amount claimed is overstated then the DN would be invalid it would depend on the amount by which it was overstated compared with the actual amount

 

the lack of the agreement is of no significance save to say that if they have not complied with s78 then they should not be attempting to enforce the agreement.

 

they will argue however that everything up to actually getting a court to give a judgement is not enforcement

 

if you are in any doubt and they terminate or demand payment of the full account- it will not hurt to accept their unlawful rescission and then you can argue the toss afterwards

 

if they are in default of their s77/9 obligations then the fact that you are not making payments as a protest against their failure is not of your making but theirs- therefore they should not be applying charges (IMO) although if and when the agreement is produced and if it is found to be valid- then they can claim all the interest for the period during which they were in default since the agreement was obviously valid.- but not the charges since these would not have been incurred if they had done what they were supposed to do within the 12 + 2 days

 

what were the dates on the DN ( sometimes they may look like they are right but not necessarily)

Edited March 25, 2010 by diddydicky

[welshperson3]

unlawful charges on the amount stated DO NOT MAKE a faulty DN

 

EXAMPLE

 

DN states £2000

unlawful charges =£1500

 

the above will not make the DN faulty

 

 

wp3

[cosalt]

unlawful charges on the amount stated DO NOT MAKE a faulty DN

 

EXAMPLE

 

DN states £2000

unlawful charges =£1500

 

the above will not make the DN faulty

 

 

wp3

 

Hi, where did you get this information from ? I was of the impression that the default amount must be only the contractual payments and if there are unlawful charges on the account the amount would be incorrect.

 

Cosalt

[welshperson3]

one of the rankine cases

 

1. The default notice is dated 2O December 2005. In my judgment, it cannot invalidate a default notice if elements of the sums claimed in that notice are subsequently found to be irrecoverable by virtue of other legislation, such as the Unfair Terms in Consumer Contracts Regulations 1999. The obligation imposed on the lender is to state the sums due on the face of the agreement. To impose any other requirement would remove any certainty from the process, since it would require lenders to anticipate and calculate, in advance, a Court’s likely view as to a fair sum to levy in respect of default charges. This is a virtually impossible task which Parliament cannot have intended that lenders would have to carry out when issuing default notices.
   
2. In my judgment, Mrs Rankine was deliberately seeking to be perverse and untruthful in seeking to avoid a substantial debt despite having all the benefits of equipment she expects the credit company to pay for on her behalf. Her behaviour in Court was perverse, argumentative and obstructive.
   
3. ConclusIon
   
4. In my judgment, the Claims by the Rankines do stand dismissed and the Claim by Tesco and counterclaim by HFC be allowed.
   

His Honour Judge Simon Brown QC

Sitting as a High Court Judge at Birmingham Civil Justice Centre

Authorised by Section 9 of the Supreme Court Act 1981

16th May 2008

[Bigdebtor]

Even more to thank the Rankines for! They must be real heroes to the banks and DCA's now!

 

BD

[welshperson3]

Even more to thank the Rankine's for! They must be real heroes to the banks and DCA's now!

 

BD

 

 

If there is one thing for everyone to learn from the Rankine cases.

 

is how easy it is for a judge to interpret the law to fit the outcome he wants to achieve.

 

the judge shows he dislikes the Rankine's

 

and the point that they lost all the cases they brought i surmise is just a coincidence.

 

hate or love the Rankine's the point is the judicial system isn't as straight as they would like us to believe

 

wp3

[Bigdebtor]

"straight" ????

 

C'mon WP3 - grown men waltzing around in white tights, red robes and wigs???? How can they be "straight"? The female ones usually look much more masculine!!!

 

BD

[professorgbr]

Check out this one, Opinions please

 

http://i991.photobucket.com/albums/af33/theprofessor_album/Defaultnoticepage1edited.jpg

 

http://i991.photobucket.com/albums/af33/theprofessor_album/Defaultnoticepage2edited.jpg

[middenmess]

8 days max to remedy is not the 14 required by law!

[middenmess]

How about this received after an arrears notice on this thread...

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/251420-arrears-notice-then-demand.html

 

[the_shadow]

Check out this one, Opinions please

 

http://i991.photobucket.com/albums/af33/theprofessor_album/Defaultnoticepage1edited.jpg

 

http://i991.photobucket.com/albums/af33/theprofessor_album/Defaultnoticepage2edited.jpg

 

Err this is a DCA issuing a default notice... if its been sold to them you should have had a default notice from the original creditor as I understand it... then a termination by selling.

 

If I ever received a default notice from a debt collector I'd be inclined for writing to them requesting they confirm in writing that if the default is cleared they will provide me with credit facilities the same as the original creditor

 

S.

[vint1954]

Err this is a DCA issuing a default notice... if its been sold to them you should have had a default notice from the original creditor as I understand it... then a termination by selling.

 

If I ever received a default notice from a debt collector I'd be inclined for writing to them requesting they confirm in writing that if the default is cleared they will provide me with credit facilities the same as the original creditor

 

S.

 

professor

 

Are they actually that daft.

 

As shadow points out, the original creditor needs to issue the default notice, before he can enjoy the rights of s87.

 

It is possible that they can issue on behalf of the OC as their agrents, if the OC still owns the debt.

 

Have you had a DN from the OC ?

 

They have only given you a week to rectify, if posted first class, if second class then only a few days. Keep the envelope.

 

In the body of the DN they have specified the full ballance as being required by 2nd April. This again invalidates the DN.

 

Hold on until they terminate.

 

Do you actually know who owns the debt?

[vint1954]

How about this received after an arrears notice on this thread...

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/251420-arrears-notice-then-demand.html

 

Clearly they need to issue a DN, before they can do the above.

 

I would write and ask for a copy of the DN for the personal loan, as long as it is regulated.

[MandM]

Hi Mrs M here.

I have a thread going on this account wondered if someone could look at the following letters and give me an idea. I have drafted a letter for Unlawful Rescission but after talking to Oilyrag he thinks I should not give them to much info. He also thinks this would be a termination of the account.

Well Mercers have excelled themselves.

 

 

 

Then I noticed the following letter.

 

 

So they sent the DN on the 23 Sep 08 giving her I think not enough time to remedy the breach, but then sent a letter the next day 24 Sep 08 and told her to pay the full balance within 48 hours.

 

On the continued page of the DN it clearly states:

 

If you do not take the action required by this notice before the date shown then the further action set out below may be taken against you.

 

A debt collection agency will send a formal demand to you. This will ask for repayment of the whole balance.

 

Has anyone else had this.

 

Mrs M

[vint1954]

Not sure that a DCA can send a default notice.

 

If it was sent first class, then the dates are just ok, if second class then they are not.

 

cannot see anywhere in the second letter, where they demand the ballance in full. If they have then clear UR.

[vint1954]

I see the full ballance now.

 

Did BC send a DN previously?

 

This is from the student law journal.

 

Default Notices

Section 87(1) of the 1974 Act allows the creditor to send you a default notice giving you fourteen days from the date you receive it to pay the arrears. The default notice must contain all of the necessary information under the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 ('the 1983 Regulations'), which includes

• a statement saying the notice is a default notice served under section 87(1) of the 1974 Act
  
• a description of the agreement
  
• the name and address of both the debtor and the creditor
  
• details of the breach (i.e. late payment) and, if the breach can be remedied, the date by which it must be remedied or, if the breach is not capable of remedy, the amount required to be paid after the expiry of the specified date;
  
• a statement saying: if the action required by this notice is taken before the date shown no further enforcement action will be taken in respect of that breach
  
• a statement saying: if you do not take the action required by this notice before the date shown then the further action set out below may be taken against you
  
• a clear and unambiguous statement saying that if the action is not taken by the date specified, what it will do (for example, if will it terminate the agreement and recovery possession of the motor vehicle)
  
• if the agreement is one of hire purchase or conditional sale, a statement saying: but if you have paid at least one third of the total amount payable under the agreement set out below (or any installation charge plus one third of the rest of the amount payable). The creditor may not take back the goods against your wishes unless he gets a court order. (In Scotland, he may need to get a court order at any time.) If he does take them back without your consent or a court order, you have the right to get back all of the money you have paid under the agreement set out below
  
• if an amount of money is required to be paid, the amount before deducting any rebate on early settlement
  
• statements saying:
  if you have difficulty in paying any sum owing under the agreement or taking any other action required by this notice, you can apply to the court which may make an order allowing you more time
  if you are not sure what to do, you should get help as soon as possible. For example you should contact a solicitor, your local trading standards department or your nearest citizens' advice bureau
  

Edited March 26, 2010 by vint1954

[emandcole]

What a joke! Looks as if they've issued a DN and Terminated it before the remedy time has passed on the DN they've sent by threatening action in their second letter. Priceless. Although they haven't actually stated 'Pay us the full balance now or else' the fact that they've listed that balance threatening action if you failt to act within 48 hours could be construed as termination but it would depend on your angle.

 

I feel most laymen would read that, panic and assume they have 48 hours to pay the amount they've shown (full balance) or they'll be in real trouble.

 

Keen to know however if Barclaycard have already defaulted you, they are quick to register defaults with the CRA's so this could add extra weight to your argument against them.

[MandM]

Thanks Vint & Emandcole.

 

In answer to your questions.

 

BC have never sent a DN for this account only Mercers.

 

Did not even know this was a Morgan Stanley account until recently when Moorcroft sent back her copy statements because we did not know what the debt was for.

 

Looking at your post Vint I would have to say that they have failed on a number of the points from the Student Law Journal.

 

The main point being that they did not give her enough time to remedy the breach before asking her for the full amount.

 

I think I will send the letter I have drafted and see what they come back with.

 

Mrs M

[InformedSearcher]

Check out this one, Opinions please

 

http://i991.photobucket.com/albums/af33/theprofessor_album/Defaultnoticepage1edited.jpg

 

http://i991.photobucket.com/albums/af33/theprofessor_album/Defaultnoticepage2edited.jpg

 

 

....and bankruptcy over £750 outstanding - They might wish me thinks. I like the 2nd one that says to 'avoid default', when I'll bet the CRA files show a DN?!

 

I really think these DCA's have spent so long on scaring the hell out of people they have lost the plot. In fact I think they should all become MP's too. LOL

 

Michael

[diddydicky]

unlawful charges on the amount stated DO NOT MAKE a faulty DN

 

EXAMPLE

 

DN states £2000

unlawful charges =£1500

 

the above will not make the DN faulty

 

 

wp3

 

i have to disagree

 

the rankine judgement concerned the inclusion of charges on the DN which the rankines incurred by non payment of their credit cards- as far as i am aware - the creditor had not failed to comply with s78 -when the rankines were not making payments.

 

the rankines argument re the charges were the usual argument as to whether they were in fact "penalties" rather than a true reflection of the costs of administering the account

 

One also has to bear in mind that the judge was out to get the rankines- due to their behaviour- on every point he could

 

it is widely regarded as bad law

 

In this case we are talking about charges (of any amount) being charged to the card holder when the creditor is in breach of his s78 obligations in failing to provide what is required and during which time he may not enforce the agreement

 

 

if the creditor had complied within 14 days and supplied the debtor with a true copy of a properly executed agreement- the debtor would then have been in a position to accept that the agreement was valid and would not subsequently have refused to make payments

 

since the removal of the criminal sanction - refusal to pay instalments is the only option left to a debtor for force the creditor to comply)

 

clearly there would be no pressure on a creditor to comply with s78 if the debtor is maintaining payments!!

 

the proposition that the creditor- having been responsible by their non compliance could then impose charges on the debtor (of any amount) whilst not in compliance is nonsense

 

if the agreement transpires to be not valid then there is no lawful demand that can be made for those charges

 

if the agreement transpires to be valid- then the creditor can claim only the interest that was not paid by the debtor during the period of non compliance - since clearly that interest would have had to have been paid anyway

 

but the creditor cannot claim charges that arose solely due to his own non compliance with his s78 responsibilities and if he includes them in the DN they overstate the true amount of arrears that are required to remedy the alleged default

 

this argument would IMO be accepted by a fair minded judge

[diddydicky]

8 days max to remedy is not the 14 required by law!

 

not to mention the missing prescribed text

 

mega cock up on the DN front methinks!!

[diddydicky]

professor

 

Are they actually that daft.

 

As shadow points out, the original creditor needs to issue the default notice, before he can enjoy the rights of s87.

 

It is possible that they can issue on behalf of the OC as their agrents, if the OC still owns the debt.

 

Have you had a DN from the OC ?

 

They have only given you a week to rectify, if posted first class, if second class then only a few days. Keep the envelope.

 

In the body of the DN they have specified the full ballance as being required by 2nd April. This again invalidates the DN.

 

Hold on until they terminate.

 

Do you actually know who owns the debt?

 

they could issue on behalf of the OC but it wouold need to have the OC's full name and address and it dont

[diddydicky]

Hi Mrs M here.

I have a thread going on this account wondered if someone could look at the following letters and give me an idea. I have drafted a letter for Unlawful Rescission but after talking to Oilyrag he thinks I should not give them to much info. He also thinks this would be a termination of the account.

Well Mercers have excelled themselves.

 

 

 

Then I noticed the following letter.

 

 

So they sent the DN on the 23 Sep 08 giving her I think not enough time to remedy the breach, but then sent a letter the next day 24 Sep 08 and told her to pay the full balance within 48 hours.

 

On the continued page of the DN it clearly states:

 

If you do not take the action required by this notice before the date shown then the further action set out below may be taken against you.

 

A debt collection agency will send a formal demand to you. This will ask for repayment of the whole balance.

 

Has anyone else had this.

 

Mrs M

 

it was sent on behalf of the OC the OC is bound by mercers actions

 

write and accept the unlawful rescission - quick before they realise their mistake

[dasby]

The DN says a debt collector will send a Formal Demand but the next letter says 48 Hours Notice. Is it reasonable to regard it as a Formal Demand?

[diddydicky]

if i see correctly , even the DN itself demands the full outstanding balance- if that is correct then the DN itself (unless the whole balance is due as arrears) is a termination notice itself

 

d