Invalid Default Notices

[straftat]

someones asleep at the wheel !

[straftat]

im not even going into the PPI scandal or the pensions scandal the endowment policy scandal or the bank charges etc etc etc

 

its endless rip off after rip off

 

they even stopped me having a smoke while im been shafted !

[Bigdebtor]

Many thanks will do that and ask him to take a look, funny my own bank have been twits with me, yet the ones i thought would be really bad mbna have thus far been okay, might get you to look at their dn as well lol

 

MBNA were "very nice" with me too - offering me a 65% discount on a total debt of over £3ok on 2 MBNA and 2 A&L cards - which I grabbed as soon as I could gather £11k to pay it. However it now seems my 4 agreements were unenforceable - so ask yourslefy why MBNA were nice? I could have saved a further £11k if I had known to do so earlier - pre CAG:-x

 

BD

[Lord_Alcohol]

OK, so we have a defective DN and the CCC terminates the ag on the back of that. That I guess is "unlawful rescission" which is then accepted by the debtor leaving the creditor in serious poo :grin: - unless it goes to court and finds a sympathetic judge

 

Whether the ag is lawful or not (I think that's a separate arg), I'm struggling to understand what happens next.

 

Should I wait for the court claim from the CCC/DCA (and argue for the claim to be thrown out on the basis of a dodgy DN), or should I take the initiative and start an action to get the default de-registered with the CRAs (and presumably leaving the 'debt', whether enforceable or not)?

 

If it goes to court and I argue for unlawful rescission, what is the legal instrument to use for limiting the debt to the arrears and not the full amount? I don't want the judge to ask me why the CCC's claim should be limited to the arrears and not having a clue!

 

TIA

LA

[vint1954]

OK, so we have a defective DN and the CCC terminates the ag on the back of that. That I guess is "unlawful rescission" which is then accepted by the debtor leaving the creditor in serious poo :grin: - unless it goes to court and finds a sympathetic judge

 

Then you appeal on a point of law if the Judge misdirects himself.

As discussed previously you will have had to accept this state, as if you do or did nothing, then the OC is able to argue that you acted as though the agreement endured.

 

Whether the ag is lawful or not (I think that's a separate arg), I'm struggling to understand what happens next.

 

Yes it is.

You ask when you accept their UR, for a note of true arrears at the point of termination, against which you will claim for unlawful termination. This would or should have been in your letter accepting UR, had you sent one.

 

Should I wait for the court claim from the CCC/DCA (and argue for the claim to be thrown out on the basis of a dodgy DN), or should I take the initiative and start an action to get the default de-registered with the CRAs (and presumably leaving the 'debt', whether enforceable or not)?

 

Most unwise in my opinnion to be the claimant. You will need to prove your case. Can you?

 

If it goes to court and I argue for unlawful rescission, what is the legal instrument to use for limiting the debt to the arrears and not the full amount? I don't want the judge to ask me why the CCC's claim should be limited to the arrears and not having a clue!

 

Read s87-88 of the act, it will become clear. Monies not yet due.

 

TIA

LA

Vint

[brooooooooooce]

Vint

 

Hi Vint. Which bit of s87 / 88 specifically states that you are only liable for the arrears at the date of the DN following unlawful rescission? Or is it that up to that point the contract prevailed i.e. you were both bound by its terms (so the arrears were due as part of the contract) and after the repudiation nothing is due other than that already contractually due ie the arrears. Is that it?

[vint1954]

Well it's here:

 

87.—(1) Service of a notice on the debtor or hirer in accordance with section 88 (a "

default notice ") is necessary before the creditor or owner can become entitled, by

reason of any breach by the debtor or hirer of a regulated agreement,—

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as

terminated, restricted or deferred, or

(e) to enforce any security.

 

If the DN is not in the prescribed form, they cannot legally go on to do any of the above.

 

Therefore when they terminate, they close the agreement. Doing so unlawfully, leaves them only able to collect ammounts due at that time.

 

Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but gives rise to a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

[Desperate Daniella]

But judges are still ruling for creditors even if there is an invalid DN, and appeals can cost a lot of money.

 

Do you think we could start a No. 10 Petition about this - requiring that they have to stick to the CCA 1974?

[vint1954]

But judges are still ruling for creditors even if there is an invalid DN, and appeals can cost a lot of money.

 

Do you think we could start a No. 10 Petition about this - requiring that they have to stick to the CCA 1974?

Or that judges need to know what they are doing.

[vint1954]

Or that judges need to know what they are doing.

After all, you don't get people off of the sweet counter in woolworths ( when they were around ) being allowed to repair your car in a garage.

[DonkeyB]

So maybe special courts with specialist judges that deal with consumer credit issues, in the same way there are criminal, company and fraud courts? The establishment would never buy it!

 

(They'd sell it though, along with their grandmothers...)

[vint1954]

Indeed DB.

 

It is however strange that Scottish Judges do not seem to misdirect themselves so often.

 

Makes you wonder if it is deliberate here. Maybe conflicting interests.

[Desperate Daniella]

I'm sure it's deliberate here.

 

Most of us will be LiPs against a solicitor or barrister, and we get scre**ed when case law is thrown at us - or most of us would - or they come up with some part of the CCA which they haven't mentioned they intend to rely on in court. Unless you know the Act like the back of your hand and have prepared an argument on every bit of it you are likely to come unstuck - not least because you'll be rushed by the judge who'll accept the solicitor's "interpretation" of the law and go along with it, and rule against you.

 

A lot - ?most - judges think it is a simple matter of paying back the money. "You've had it, so why aren't you paying it back?" and they

actually don't approve of people "getting away with it" on a technicality, so they will be inclined to side with the banks.

 

This is not criminal or matrimonial or even company law, where various people will be giving their version of events. It is a law - an Act of Parliament - designed to protect the consumer, not the banks. It's all written down very clearly and needs to be followed without any exceptions, and that's why I think we should consider a petition.

[DonkeyB]

In small claims, it's even more difficult as the judges can rule on 'probability", whatever that is!

[middenmess]

In small claims, it's even more difficult as the judges can rule on 'probability", whatever that is!

 

 

The Judge can rule on the probability as to whether something happened or occurred or didn't happen or occur but surely they cannot rule as to if it was probable or not probable that Parliament passed the 1974 CCA and made everything in it the law of the land and not to be altered or ignored by the judiciary.

[DonkeyB]

Have you ever tried telling a judge he's wrong? Yeah, agree. But they usually get away with it because LiPs don't always stand their ground or appeal, or have the speed of knowledge to argue the point at the time.

 

(I have actually argued with a judge, and I'm still here... he apologised and agreed with me, though.

 

Mind you, I only asked him the time...)

[Mydogsawestie]

Do you ever get a choice on the Judge?

After all, if you needed heart surgery, you wouldn't let a brain surgeon do the job instead, would you?

 

As Dotty50 mentioned it just sooooooo brings home to you what your up against in court on the day when you dont have a judge that is fully aware of the CCA.

 

But judges are still ruling for creditors even if there is an invalid DN, and appeals can cost a lot of money.

 

Do you think we could start a No. 10 Petition about this - requiring that they have to stick to the CCA 1974?

 

Desperate danielle you make a good point about having a petition, its about time it got addressed I for one believe in justice hence happy to go on in my appeal.

 

Or that judges need to know what they are doing.

 

It would certainly save alot of time & money then on everyones part. So if a creditor hadnt submitted there paperwork on time, they shouldnt be allowed to get 2nd/3rd chances to still be able to submit things when timescales have not been adhered to, the system should recognise that fact & chuck out those cases from progressing thus bringing everyone/everything into line as the judiciary system should be !!

[pumpytums]

I know it's been raised before but please enlighten me.

 

If a DN is issued for an account, can the OC at a latter date issue another DN with larger arrears say a year latter?

I would have said no as the first DN notice is basically saying if you do not pay us £ by we are entitled to do the following. Now providing the DN is valid they are perfectly in their right to do what they say they want to. In issuing another DN haven't they just gone back on their first? The only time I would imagine 2 DN's getting issued are if the first was satisfied and the creditor then defaults again.

 

Thanks

 

Pumpytums

[emandcole]

I would certainly argue with a judge if I was certain they were wrong and secondly (vitally), that I could show how they were wrong. Of course there is a certain level of respect to be given but to my mind only when that individual, a judge or otherwise, demonstrates that they are deserving of it.

 

We must remember that a judge cannot make the law up as they go along, that is not their role. They are there simply to ensure the law is followed and that is perhaps where most of the difficulties occur.

 

In short, if you are heading off to court you must ensure you know your arguments, that you also know how those arguments fit (in the wider scheme of the CCA for example) and also that you can then back your argument up with well arranged and easily referenced proof to support that position. Basically, don't hand the other side or the court a box of ammo and be too surprised if you end up as canon fodder .

 

Standing there flapping as you hoped the judge would 'know what they were doing' won't cut it in many cases. You absolutely must be prepared to act as if the judge has never even heard of the Consumer Credit Act and be entirely mindful that they probably play golf with some of the banking execs at the weekend, that's if they're not busy meeting in halls wearing 'funny aprons' ...say no more.

[letsgetitsorted]

hi All

sorry to but in here, i have just received a DN from Vanquis. i have posted it here

http://www.consumeractiongroup.co.uk/forum/legal-issues/256540-vanquis-default-notice-received.html.

 

please can you guys n girls of greater wisdom have a look at it for me please to see whats wrong with it.

 

many thanks

[Lord_Alcohol]

Vint

 

Thanks Vint, this is a real help.

 

So, under s87(1)(b), a dodgy DN excludes the right to claim the full amount, leaving just the amount claimed as arrears on the DN? That makes sense - the arrears being "late payment" and not "early payment".

 

So, to then get the default de-registered, that would mean an action of some description, assuming the CCC isn't interested in helping. I guess that could be either a counter claim in defence of an action started by the creditor, or an action started by the debtor.

 

You don't sound too enthusiastic about the latter, but what might the pitfalls be? Is part of the problem (or in fact all of the problem) trying to argue that there has been no default, when clearly there has been?

 

Is the only real way to do it to use the defective/unlawful agreement argument and not a flaw in the DN?

 

Or is there something else I could do or argue?

 

Hope you've got time for this - your opinions are v. helpful and I'm sure not just for me !!

 

Cheers

LA

[brooooooooooce]

Thanks Vint, this is a real help.

 

So, under s87(1)(b), a dodgy DN excludes the right to claim the full amount, leaving just the amount claimed as arrears on the DN? That makes sense - the arrears being "late payment" and not "early payment".

 

So, to then get the default de-registered, that would mean an action of some description, assuming the CCC isn't interested in helping. I guess that could be either a counter claim in defence of an action started by the creditor, or an action started by the debtor.

 

You don't sound too enthusiastic about the latter, but what might the pitfalls be? Is part of the problem (or in fact all of the problem) trying to argue that there has been no default, when clearly there has been?

 

Is the only real way to do it to use the defective/unlawful agreement argument and not a flaw in the DN?

 

Or is there something else I could do or argue?

 

Hope you've got time for this - your opinions are v. helpful and I'm sure not just for me !!

 

Cheers

LA

 

Came across this letter on another thread. I haven't used it, so I don't know if it works!

 

 

Dear Sir/Madam,

 

Your ref:

 

I write in connection with a credit card account referenced above which is in dispute. I do not acknowledge any debt to the (Bank) or to any company affiliated with the (Bank).

 

In December 2007 I requested a copy of the credit card agreement for the account referenced above in accordance with Section 78 of the Consumer Credit Act 1974. I received a reply dated 7 January 2008 in which the respondent (Name), Customer Relations Adviser, wrote that what was enclosed was a copy of the loan application. Later the Bank admitted they did not have a “full agreement” for the disputed account. There is no such thing as a partial agreement and what I was sent doesn’t resemble an agreement in any sense.

 

This application form does not fulfil the requirements for a copy of an executed agreement under the terms of the Act and is unenforceable in law. It is a purely an application form and does not conform to the requirements of the Consumer Credit (Agreements) Regulations 1983. A credit card agreement must have the prescribed terms (credit limit, interest rate, and repayment schedule) within the same 4 corners of the agreement as the signature box. This application form has no prescribed terms and no Terms and Conditions whatsoever.

 

This is an unenforceable application form and the (Bank) do not have any documentation containing my express written permission to process my personal data in connection with this disputed account, in clear breach of the Data Protection Act 1998. The Bank have already breached the Act in passing my personal data to third parties, namely (DCA) and the credit reference agencies.

 

Furthermore, in 2007 the (Bank) sent me an invalid Default Notice in connection with this disputed account. The date by which to remedy the breach of the alleged agreement is given on the Notice as 14 days from the date on the Notice when in fact under the Consumer Credit Act 1974( as ammended in 2006) the time that must be given to remedy a breach of agreement is 14 days after the date of service. The date of service in law is deemed to be 2 days after the date on the Notice if it was if sent by 1st Class post and 4 days after the date on the Notice if it was sent by 2nd class post. There then must be 14 clear days after the date of service allowed to remedy the breach. All the Bank did was set a date 14 days from the date on the Notice, rendering the Notice unlawful as it did not allow sufficient time for the alleged breach to be remedied. The Bank then terminated the alleged agreement, unlawfully rescinding the disputed account. The Bank then entered an unlawful default on my credit reports as they did not serve me with a valid Default Notice before terminating the disputed account. The Information Commisioner is clear that all entries to credit reference reports must be made in accordance with a recognised industry standard. The Bank's actions have in my case not only fallen well short of the recognised standard but have been in clear breach of the consumer credit and data protection laws.

 

Unless the Bank can provide me with documentation in which I gave the Bank my express written permission to process my personal data, I require them to cease all use of my personal data with immediate effect and remove all entries from my credit reference reports. It will not be good enough to assert that I must have signed it – I require clear documentary proof of written permission.

 

The Bank has 21 days to reply and action as necessary. Failure to do so will result in further action from me, including but not limited to, formal complaints to the Information Commissioner and the Office of Fair Trading Consumer Credit Licence Fitness Department re gross misuse of my personal data and blatant breaches of the consumer credit laws.

 

I look forward to hearing from you. If there is anything about this letter you do not understand I advise you to consult a solicitor.

 

 

Yours faithfully,

 

Cc The Chief Executive of the (Bank)

 

Cc experian

Cc equifax

Cc Call Credit

[Lord_Alcohol]

Thanks brooooooooooce - very interesting!

 

Vint has got me thinking about the onus on the claimant to do all the proving - can't quite get my head around what I would need to do to prove a dodgy ag + dodgy DN = no debt + no bad credit.

 

The first puzzle (for me) is how to approach a situation where the DN is defo defective but the ag might not be. Ag terminated (unlawfully of course) but where does it leave the debtor? What can the debtor in fact do about the registration of the default with the CRAs, whether lawful ag or not?

 

Could it be argued that the debtor is in a worse position following the creditor's unlawful rescission, because now there is no possibility of avoiding a default being registered with the CRA's? With the ag terminated there is no going back. So might a judge see that and order the default to be removed from the CRAs?

 

If not, then there has to be an action by the debtor (assuming the creditor is happy to do nothing) to deal with this. But what action is that?

 

Help!

 

LA

[bradfordlad]

Hi all,

 

I need a bit of help. Can anyone point me towards a thread or post that suggests how to complete an Allocation Questionnaire N150 for a case where an account was terminated following a defective DN (on dates)?

 

No problem with the CCA itself (its an online application from 2008), but the only AQ's I can find all relate to missing docs.

 

I need an example of an AQ which shows me how to say, "they terminated ulwafully, I accepted, I've been paying off the arrears each month and this should never have come to court" - or words to that effect!

 

Any help would be great as the AQ has to be with the court by Monday.

 

Cheers

 

BL

[Its WAR]

Well it's here:

 

87

.—(1) Service of a notice on the debtor or hirer in accordance with section 88 (a "

default notice ") is necessary before the creditor or owner can become entitled, by

reason of any breach by the debtor or hirer of a regulated agreement,—

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as

terminated, restricted or deferred, or

(e) to enforce any security.

 

If the DN is not in the prescribed form, they cannot legally go on to do any of the above.

 

Hi Vint, Is a person having a current account overdraft, a debtor or hirer of a regulated agreement as far as 87:1 is concerned? If so, then a dodgy DN may still be a valuable document as it would appear that , even though the bank can withdraw the overdraft facility at any time, (they can do so because its written in the agreement). therefore having removed the facility they ask for the balance to be repaid, failing which, they issue a DN. They havent terminated the account, they have just removed the overdraft facility. Asking for the money back by issueing a dodgy DN.

 

Its confusing where overdrafts are concerned, easy when its hire purchase. Any chance of examining the position regarding overdrafts?