Invalid Default Notices

[Lord_Alcohol]

Originally Posted by Lord_Alcohol

Could this also apply to the arrears? Ie, the arrears are monies owed under an agreement that is no longer in existence due to unlawful termination. On what basis should those arrears now be paid?

 

Not realy, as the arrears were due until the contract was unlawfully terminated. The arrears are due, less the amount that you intend to claim for UR, say £1000.

 

s87(1)(b) is clear that no claim can be made for monies not paid unless a proper DN is issued, but it seems very unclear what happens to the claim for arrears where there is a defective DN + termination.

 

At this point the arrears as a separate entity disappear, to be replaced by the entire debt. The issue here is why now just pay an amount of this (the "arrears"). Paying nothing seems to be equally allowable and possibly more so!

 

You have to look at the state of the agreement at termination.

 

Vint

 

Sorry Vint I'm not entirely persuaded by this.

 

The arrears were due at time of DN, that's for sure. You say due until termination, which I think has to be correct.

 

However, the arrears are no longer due after termination. They have been subsumed into the entire debt. The arrears previously claimed now only represent a part of the new claim (for the whole amount), and are not differentiated by the creditor.

 

There is a breach of contract in accumilating arrears, hence a DN (defective or not). However, the OC breaches the law itself (ie, the CCA) where the DN is defective and the agreement ended. Where, then, is the mechanism by which the debtor must pay an amount previously demanded under a contract no longer in existence through unlawful termination?

 

My brain hurts.

 

LA

[pumpytums]

Just one more thing companies seem to see the whole Default Notice as a joke. In the end it is a legal Statutory notice and should be treated with more or equal respect of an agreement because without a valid one they are infact in trouble. The CCA 1974 is a shield it protects the consumer S87 is for the consumer not a simple cashback notice for daft companies.

 

Pumpytums

[Bigdebtor]

But be careful that you don't trip yourself up. It would be hard to prove that you just continued with the same payments to clear the arrears, while not having a clear statement of arrears from the OC. Don't forget that the arrears will increase from the sum stated in the DN, up to the point of rescission

 

Given the amount being paid monthly is probably an "affordable" amount surely it is logical, sensible and ethical to continue to make the same payments in order to allow the arrears to be repaid as quickly as you can afford?

 

To pay less each month might be seen as taking the p*ss out of the OC?

 

BD

[vint1954]

Hi Vint,

well my UR letter went off. I had been paying token payment they will now stop on the account. I actually had the in house DCA on the phone today and I asked them are you demanding the whole amount. They said yes so my UR letter is perfectly valid. They confirmed they would now be getting another DCA involved who may visit me oooo scary.

 

I actually tried to ask them why they had sent 3 DN's they said it was an automated system. Shame really I think they realised they had said too much in the end. Daft because I did explain to them (in the past) in about a year I will have the funds to pay it off in full. So if they had sat tight and kept accepting my payments they would have got their money back. Sadly all they will be getting back is a counter claim for UR and my PPI insurance.

 

Game over I'm afraid.

 

 

Pumpytums

Just keep pressing that home with the OC and DCA's

[vint1954]

Originally Posted by Lord_Alcohol

Could this also apply to the arrears? Ie, the arrears are monies owed under an agreement that is no longer in existence due to unlawful termination. On what basis should those arrears now be paid?

 

Not realy, as the arrears were due until the contract was unlawfully terminated. The arrears are due, less the amount that you intend to claim for UR, say £1000.

 

s87(1)(b) is clear that no claim can be made for monies not paid unless a proper DN is issued, but it seems very unclear what happens to the claim for arrears where there is a defective DN + termination.

 

At this point the arrears as a separate entity disappear, to be replaced by the entire debt. The issue here is why now just pay an amount of this (the "arrears"). Paying nothing seems to be equally allowable and possibly more so!

 

You have to look at the state of the agreement at termination.

 

 

 

Sorry Vint I'm not entirely persuaded by this.

 

The arrears were due at time of DN, that's for sure. You say due until termination, which I think has to be correct.

 

Yes, the arrears accrue until termination. Until the contract is terminated, nothing unlawful has taken place.

 

However, the arrears are no longer due after termination. They have been subsumed into the entire debt. The arrears previously claimed now only represent a part of the new claim (for the whole amount), and are not differentiated by the creditor.

 

No, the arrears are due. Think of it as renting a TV. You have a contract to pay x pounds a month and you get to enjoy the TV. if you enjoy the TV without paying, you owe the arrears until they terminate the contract.

 

There is a breach of contract in accumilating arrears, hence a DN (defective or not). However, the OC breaches the law itself (ie, the CCA) where the DN is defective and the agreement ended. Where, then, is the mechanism by which the debtor must pay an amount previously demanded under a contract no longer in existence through unlawful termination?

 

The arrears have accrued prior to the issue of the DN.

 

My brain hurts.

 

LA

This is contract law and not CCA.

[vint1954]

Given the amount being paid monthly is probably an "affordable" amount surely it is logical, sensible and ethical to continue to make the same payments in order to allow the arrears to be repaid as quickly as you can afford?

 

To pay less each month might be seen as taking the p*ss out of the OC?

 

BD

In my view, you would have trouble in convincing a court that your payments were in fact to go towards the arrears and not just a continuance of the agreed payments.

 

Additionally, you would not pay them arrears of say £500, when you intended to claim possibly £1000 for unlawful rescission.

[pumpytums]

Originally Posted by Lord_Alcohol

Could this also apply to the arrears? Ie, the arrears are monies owed under an agreement that is no longer in existence due to unlawful termination. On what basis should those arrears now be paid?

 

Not realy, as the arrears were due until the contract was unlawfully terminated. The arrears are due, less the amount that you intend to claim for UR, say £1000.

 

s87(1)(b) is clear that no claim can be made for monies not paid unless a proper DN is issued, but it seems very unclear what happens to the claim for arrears where there is a defective DN + termination.

 

At this point the arrears as a separate entity disappear, to be replaced by the entire debt. The issue here is why now just pay an amount of this (the "arrears"). Paying nothing seems to be equally allowable and possibly more so!

 

You have to look at the state of the agreement at termination.

 

 

 

Sorry Vint I'm not entirely persuaded by this.

 

The arrears were due at time of DN, that's for sure. You say due until termination, which I think has to be correct.

 

However, the arrears are no longer due after termination. They have been subsumed into the entire debt. The arrears previously claimed now only represent a part of the new claim (for the whole amount), and are not differentiated by the creditor.

 

There is a breach of contract in accumulating arrears, hence a DN (defective or not). However, the OC breaches the law itself (ie, the CCA) where the DN is defective and the agreement ended. Where, then, is the mechanism by which the debtor must pay an amount previously demanded under a contract no longer in existence through unlawful termination?

 

My brain hurts.

 

LA

 

 

Basically you have a valid agreement (hopefully) prior to the UR arrears accumulate which is OK. At the point of UR the agreement is terminated. So only the arrears are claimable as after the UR no agreement exists but it did prior to it. I hope this makes sense. They have terminated the agreement not you, by demanding monies not yet due or terminating the agreement on the back of an invalid DN. The CCA is very clear they are only entitled to sums not yet due and or terminate after valid DN is issued.

 

If they chose not to abide by S87 & S88 then they have broken the contract end of story, and this is unlawful recession. Additionally they can no longer use s87 to claim as the agreement is terminated.

 

I hope this helps

 

Pumpytums

[Bigdebtor]

Vint

 

In practice how any people would actually press a claim for unlawful rescission?

 

Surely the OC would be more likely to pursue/defend matters if such a claim were made than if both sides just called it quits once the arrears (or a good % of them) had been repaid? Also what justification would there be to repay arrears more slowly thanpreviously?

 

BD

[vint1954]

Vint

 

In practice how any people would actually press a claim for unlawful rescission?

 

Surely the OC would be more likely to pursue/defend matters if such a claim were made than if both sides just called it quits once the arrears (or a good % of them) had been repaid? Also what justification would there be to repay arrears more slowly thanpreviously?

 

BD

2 ways realy,

 

You could press them to comply and advise you of the true arrears outstanding at the time of UR, then submit your claim to them for their unlawful act. If you feel very brave ( or foolhardy )you could then take them to court if they don't accept your claim.

 

Or

 

Wait until they brave the courtroom and use it then.

[Lord_Alcohol]

Basically you have a valid agreement (hopefully) prior to the UR arrears accumulate which is OK. At the point of UR the agreement is terminated. So only the arrears are claimable as after the UR no agreement exists but it did prior to it. I hope this makes sense. They have terminated the agreement not you, by demanding monies not yet due or terminating the agreement on the back of an invalid DN. The CCA is very clear they are only entitled to sums not yet due and or terminate after valid DN is issued.

 

If they chose not to abide by S87 & S88 then they have broken the contract end of story, and this is unlawful recession. Additionally they can no longer use s87 to claim as the agreement is terminated.

 

I hope this helps

 

Pumpytums

 

Thanks Pumpy (and Vint) - that's a bit clearer.

 

So contract law, not CCA, allows the creditor to reclaim the amount owed (ie, the missed payments) up to UR, even if in breach of contract and law?

 

Just need to get this 100% clear in what I euphemistically call my "brain".

 

LA

[Bigdebtor]

2 ways realy,

 

You could press them to comply and advise you of the true arrears outstanding at the time of UR, then submit your claim to them for their unlawful act. If you feel very brave ( or foolhardy )you could then take them to court if they don't accept your claim.

 

Or

 

Wait until they brave the courtroom and use it then.

 

A typo completly changed the meaning of my question. I meant "how many" - not "how any" - but you have actually answered both questions - by inferring very few would or should risk going to court off their own bat to claim any compensation - so paying up the lawful arrears at an affordable rate would probably be regarded as a reasonable action by a responsible law-abiding debtor - not an admission the contract endured.

 

BD

[charlie*]

Hi fella's, I've just been running through the last page or 3 and see no mention of a disputed CCagreement....

 

Correct me if I'm wrong, please....

My understanding is that where a faulty DN is followed by a Termination letter terminated and the actual credit agreement was in dispute anyway, then the DN should not have been issued in the first place.

 

This being so, as the DN surely should not have been issued in the first place on the back of an unresolved dispute (ie; no specific terms etc, would the arrears still be payable?

 

I did have the answer to this, but, my brain hurts too, sometimes.

 

charlie

[means2anend]

Hi fella's, I've just been running through the last page or 3 and see no mention of a disputed CCagreement....

 

Correct me if I'm wrong, please....

My understanding is that where a faulty DN is followed by a Termination letter terminated and the actual credit agreement was in dispute anyway, then the DN should not have been issued in the first place.

 

This being so, as the DN surely should not have been issued in the first place on the back of an unresolved dispute (ie; no specific terms etc, would the arrears still be payable?

 

I did have the answer to this, but, my brain hurts too, sometimes.

 

charlie

 

 

I understand your logic on this...A default notice whether Defective or not is irrelevant as an issue until firstly and foremost the issue of a properly executed agreement has been satisfied.

 

I should agree with you on this primarily because as one looks at the STRUCTURE of the Consumer Credit Act 1974 itself and how it is laid out with certain conditions having to be satisfied before others can be fulfilled and intrinsically depend on preceding provisions to have been complied with.

 

Then it follows that when the debtor attempts to question the agreement there is an orderly 'checklist' which s/he should no doubt follow.

 

And if the agreement WAS/IS in dispute this matter must FIRST be sorted before progressing on to the next 'checklist'

 

Many debtors may not realise that their repayments are being made on the back of what is in effect a void agreement ab inito

 

m2ae

Edited May 11, 2010 by means2anend

[means2anend]

Another thing

 

I have just refreshed my memory and understanding of

Consumer Credit Enforcement Default and Termination Notices Regulations 1983

And 14 day countdown for 1st and 2nd class starts the day AFTER they have been deemed to have received it.

 

1st class-Monday 2 Days Deemed served Thursday

2nd Class-Monday 4 days Deemed served Saturday

Remember AFTER deemed service it's 14 CLEAR STRAIGHT DAYS

 

The above assumes that the actual act of posting did not take place on weekends or bank or public holidays...

 

Hope I am right but if wrong please advise...

 

m2ae

[middenmess]

Saturday is not counted as a working day so is excluded as far as I know .

[means2anend]

Saturday is not counted as a working day so is excluded as far as I know .

 

Are you saying that it is 14 WORKING DAYS .....after service?

 

I just need clarification

 

thanks

 

m2ae

[middenmess]

If posted 2nd class on Monday then rec'd Friday so I thought that days start from next working day-Monday then rectifying has to be within the next 14 consecutive days.

 

I could well be mistaken though!

[DeBilde]

Does a UR happen when say Moorcroft are appointed by Argos to collect payments on their behalf.

 

This is the letter they sent after an invalid DN. It is in Post 2 with the DN in post 1.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/258301-argos-moorcroft.html

 

Thanks

[Lord_Alcohol]

Hi fella's, I've just been running through the last page or 3 and see no mention of a disputed CCagreement....

 

Correct me if I'm wrong, please....

My understanding is that where a faulty DN is followed by a Termination letter terminated and the actual credit agreement was in dispute anyway, then the DN should not have been issued in the first place.

 

This being so, as the DN surely should not have been issued in the first place on the back of an unresolved dispute (ie; no specific terms etc, would the arrears still be payable?

 

I did have the answer to this, but, my brain hurts too, sometimes.

 

charlie

 

Well, how on earth does the creditor get out of this one?

 

Agreement terminated after issue of a defective DN, but issued when the agreement was in dispute?

 

I find it difficult to believe that the creditor would be entitled to anything at all, apart from a stiff kick up his corporate arse.

 

Anyway Charlie, it might be better if you accept the UR rather than arguing that the DN shouldn't have been issued - you could be arguing that the agreement is still 'live' and therefore you remain liable for the full amount

 

LA

[vint1954]

A typo completly changed the meaning of my question. I meant "how many" - not "how any" - but you have actually answered both questions - by inferring very few would or should risk going to court off their own bat to claim any compensation - so paying up the lawful arrears at an affordable rate would probably be regarded as a reasonable action by a responsible law-abiding debtor - not an admission the contract endured.

 

BD

No not realy. My opinion is that if you continue to pay, after termination, you act as if the agreement endures and have not chosen to accept their Unlawful Termination of contract.

[Lord_Alcohol]

Does a UR happen when say Moorcroft are appointed by Argos to collect payments on their behalf.

 

This is the letter they sent after an invalid DN. It is in Post 2 with the DN in post 1.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/258301-argos-moorcroft.html

 

Thanks

 

I would say yes. And no.

 

Yes, because the account is transferred to a DCA. No, because Moorcroft's letter claims £12 as per the T&Cs of the agreement which presumably would be unavailable to them after termination.

 

Could you call them and ask if the agreement (not account) has been terminated?

 

LA

[Bigdebtor]

Vint

 

I don't see how that can be interpreted if you speciically say you accept the UR - but I do agree it does show how important it is to send the letter accepting.

 

BD

[vint1954]

Hi fella's, I've just been running through the last page or 3 and see no mention of a disputed CCagreement....

 

Correct me if I'm wrong, please....

My understanding is that where a faulty DN is followed by a Termination letter terminated and the actual credit agreement was in dispute anyway, then the DN should not have been issued in the first place.

 

This being so, as the DN surely should not have been issued in the first place on the back of an unresolved dispute (ie; no specific terms etc, would the arrears still be payable?

 

I did have the answer to this, but, my brain hurts too, sometimes.

 

charlie

That is the view that the OFT took. The act says while the default continues, the creditor is not able to enforce the agreement.

 

Unfortunately, enforcement was defined in the high court, late last year in the mcGuffick case. That judge held that everything up to enforcement in the court, was not in fact enforcement, so they are only precluded from obtaining judgement.

[vint1954]

Another thing

 

I have just refreshed my memory and understanding of

Consumer Credit Enforcement Default and Termination Notices Regulations 1983

 

And 14 day countdown for 1st and 2nd class starts the day AFTER they have been deemed to have received it.

 

1st class-Monday 2 Days Deemed served Thursday

2nd Class-Monday 4 days Deemed served Saturday

Remember AFTER deemed service it's 14 CLEAR STRAIGHT DAYS

 

The above assumes that the actual act of posting did not take place on weekends or bank or public holidays...

 

Hope I am right but if wrong please advise...

 

m2ae

Not quite, Saturday is precluded from the postage or service period.

[vint1954]

Are you saying that it is 14 WORKING DAYS .....after service?

 

I just need clarification

 

thanks

 

m2ae

14 callendar days following service.