Invalid Default Notices

[Craigbadger]

Think those are just locations on your pc

 

Need to put on photobucket like your others

[frettful38]

Think those are just locations on your pc

 

Need to put on photobucket like your others

 

 

I did CB, but the second page got saved as pdf, and I cannot download it on photobucket

[Craigbadger]

CB

 

yes it does, it reads that if I do not remedy the breach they will terminate my agreement and I will be liable to pay the whole amount owing.

 

Like I said my DN is almost identical to yours, mine having the benefit of having a Bank Holiday in the 14 days given

 

Strange that my brothers is just stating the arrears.

 

[colin21958]

Hi,

 

Just a quick question, I don't wish to hijack this excellent thread, but perhaps someone could just give me a bit of advice on two default notices I have received (Two different accounts). The first one says "14 days from the date shown..." (this one relates to the Santander Card (B & Q store card) which I have a thread on... No 3 in the list in my signature below) the second says "28 days from the date shown...". Neither has a definite date by which to remedy the default.

 

The first of these was issued on 27/09/09 and was followed by a letter referring back to the default notice demanding the full balance dated 12/10/09. This means that the account was terminated on the 15th day after the default notice date, i.e., it allows no time for postage (I understand it should allow 2 days?). Does this make it definitely invalid as I assume it does?

 

The second default notice is dated 15/12/09 and is followed by a statement of default dated 17/01/10. If my calculations are correct this means that the account was terminated on the 29th day (after allowing for Christmas and New Year bank holidays) after the default notice was issued. Does this mean that this is also definitely invalid as it did not follow its own timescale, even though I know they only have to give 14 days?

 

Any opinions would be gratefully received. Also, if anyone could look at my other threads I would be grateful. Thanks.

 

Regards,

 

Colin

[Bigdebtor]

Colin

 

I think you are OK on the first one being dodgy in they did not give you the full time allowed by law. You should definitely send out a letter accepting their Unlawful Rescission PDQ - or perhaps you can "find " one you did send out a week or so later? What has happened since?

 

Not sure on the second one - given they did allow nearly 4 weeks.

 

BD

 

PS - You're not hijacking - this is what this thread is all about!

[colin21958]

Hi BD,

 

Thanks for your reply. This was the account which was taken to court and judgement was given in default because I wasn't aware the action had been taken; they issued the claim using my old address even though they were aware of my current address (a point I can easily prove beyond doubt), so I have applied for the judgement to be set-aside and I have heard back from the court that the case is being transferred to my local CC for the set-aside hearing.

 

The second one is not a problem if it's not invalid, because that was my Capital One card for which Capital One fraudulently fabricated an Agreement when they found they didn't have one; and again I believe I can prove beyond reasonable doubt that they have done this!

[vint1954]

Hi vint good to see you again, please could you have a look at my post above. You have helped me immensely in the past for which I am very grateful thanks.

Read through this and understand it, before sending to HSBC, copy to DG.

 

Dear Sirs,

Ref Acc noxxxxxxxxxxxxxxxxx Unlawfully Rescinded.

I was somewhat bemused to receive your letter dated xxxxxxxxxxxxx, explaining that you did not consider your Default Notice, issued xxxxxxxxxxxxx to be improperly executed.

To explain simply, why your conclusion is incorrect, I would refer you to the consumer credit act 1974, in particular to sections 87 & 88 below.

Section 87. Need for Default Notice

 

(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.

 

The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

Section 88.

(1) The default notice must be in the prescribed form

and specify—

(a) the nature of the alleged breach;

(b) if the breach is capable of remedy, what action is required to remedy it

and the date before which that action is to be taken;

© if the breach is not capable of remedy, the sum (if any) required to be

paid as compensation for the breach, and the date before which it is to be paid.

(2) A date specified under subsection (1) must not be less than fourteen days after the date of service of the default notice, and the creditor or owner shall not take action

such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection ( 1)) before those fourteen days have elapsed.

(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes Operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (I) is not duly paid, or (where no requirement is made under subsection ~1)) if the fourteen days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply with it.

(5) A default notice making a requirement under subsection (1) may include a

provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

You will note from section 87 above, that for HSBC to enjoy the benefits of that section, you are required to issue a Default Notice, compliant with section 88 of the act. Part 2 of section 88 above, demands that the debtor be given 14 clear days from service, to rectify any breach. I have highlighted that point, to enable you to easily find it.

For the avoidance of doubt, Service, in this instance by post, is laid down in the Interpretation Act 1978, further updated 1116th April 1985. The relevant section is copied below for your convenience.

1. Interpretation Act 1978, Section 7

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

2. Practice Direction

Service of Documents - First and Second Class Mail.

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4. This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

The default Notice issued by HSBC failed to allow for service as clearly required by the act, and as such was defective. The 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

I hope that you can see from the above, why your letter dated xxxxxxxxxxxxxxxx, is misguided in its contents and how the Default Notice issued to me on xxxxxxxxxxxxxxx, is fatally flawed. Your subsequent actions, seeking the benefit of s 87 of the consumer credit act 1974, following the issue of a defective Default Notice, led to an unlawful rescission of contract, which I have previously accepted in writing.

I await your response, detailing the true arrears at the time of rescission, against which I will make a claim against HSBC for that unlawful rescission.

Yours xxxx,

[frettful38]

Oh geeex vint no wonder why so many of us rate you so much. You really know what to do at the right time, on a brighter England won the world cup Twenty Twenty and I am so happpppppppppy. At last some good news for us hey

[Bigdebtor]

Hi BD,

 

Thanks for your reply. This was the account which was taken to court and judgement was given in default because I wasn't aware the action had been taken; they issued the claim using my old address even though they were aware of my current address (a point I can easily prove beyond doubt), so I have applied for the judgement to be set-aside and I have heard back from the court that the case is being transferred to my local CC for the set-aside hearing.

 

Colin

 

I would see if you can get the Law Society interested in such sharp practice!

 

BD

[Craigbadger]

Oh geeex vint no wonder why so many of us rate you so much. You really know what to do at the right time, on a brighter England won the world cup Twenty Twenty and I am so happpppppppppy. At last some good news for us hey

We didnt just win it we absolutely hammered it :eek:

[colin21958]

Colin

 

I would see if you can get the Law Society interested in such sharp practice!

 

BD

 

Excellent idea; I will do...

[Worsteve]

......

I think

Wednesday 1st Class

and

Friday 2nd Class

 

But I could be wrong, usually am.

 

All comments caustic or otherwise received with thanks

--------------------------------------

 

Then it states underneath, if its not paid, the bank will terminate and demand full settlement. The Termination letter came 12 weeks later.

 

 

The DN I am doing for my son does not carry the following paragraph....

 

'This notice should include a copy of the current OFT information sheet on default. This contains important info about your rights and where to go for support and advice. If is not included, you should contact us to get one'

 

I'm sure I recall seeing somewhere that this is a prescribed requirement and where not present, is another invalidating factor...

charlie

 

Hello Charlie

 

My DN had the very same paragraph missing......and the date could have been remedied if they had proved it had been sent 1st class......but they have just discontinued....and I go to court today to have a chat with the judge about it......and my loan was over £28k.......so yes....it is a faulty DN!!!!

 

Go get-em!

 

Worsteve

[Bigdebtor]

Worsteve

 

Best of luck today! Please let us know how you get on!

 

One thing which keeps cropping up in these threads is the judge asking "Did you borrow the money?" and, when you admit you did, then (wrongly) bending over backwards to find for the creditor.

 

I think it would be good to go into court knowing not only exactly how much you did borrow - but also how much you have paid back to date (capital and interest) - so if you have more than paid back the original you can say "Yes - I borrowed £x and so far I have repaid it plus £y in interest and charges. I accept there was £z owing on lawful arrears at the time of the creditor's unlawful rescission of the contract which I am prepard to repay and will not raise any claim for damages due to this unlawful rescission.

 

I.e. Make it easy for them to apply the law without feeling they are letting you "away with it".

 

Hope this helps and again the very best of luck today.

 

BD

Edited May 17, 2010 by Bigdebtor
typos

[haggis1984]

When asked if the money is actually owed something along the lines of:

 

"I accept that this money was borrowed, and following a ruling on enforceability I am sure that I can come to a mutually acceptable agreement with the creditor."

 

That way you're telling the judge that if he rules the agreement unenforceable there may still be a possibility of you making repayment.

[Worsteve]

Hi BD

 

my general line of attack was suggested earlier in this thread and is this;

 

"One proposal you may wish to ask for (which they should agree to given the fact they've discontinued, if that's what they've done) is that they acknowledge in writing that this debt is now settled fully and that they will not sell it on to any third party in the future. This would end the matter for good and ensure they can't sell it to a DCA who then harrasses you for months to come.

 

You could even push your luck and insist that they correct your credit file too!"

 

I have received a letter from the oppositions solicitors that they have discontinued and will not be attending court and they have a letter sent to the court which states that they have discontinued. I will take a copy of the letter in with me as well as my defence and proof of all the payments made to date. A grey area I have though is this. Since they have discontinued, am I still liable to pay the arrears at the time of the unlawful recission.......or does this discontuation mean that they have given up the game completely?

 

I will send a letter to them requesting that the debt be settled in full now, but I want to make sure I have the right argument in front of the judge.

 

Regards

[Bigdebtor]

If it were me I would show the judge you are a reasonable guy and are quite prepared to pay the arrears as they were at date of the UR if he/she says you should do so, even if you could claim compensation to match or exceed this amount - in return for the OC repairing your credit rating with all CRA's.

[Lord_Alcohol]

One thing which keeps cropping up in these threads is the judge asking "Did you borrow the money?" and, when you admit you did, then (wrongly) bending over backwards to find for the creditor.

 

You're right there BD - homework is needed before facing the judge.

 

Here are some ideas;

 

1. You did borrow the money, but it was on the basis of a lawful agreement (which may not exist and therefore a possible 'mistake of law') and the creditor not breaching the contract (eg, the lender has not performed the contract in some way).

 

2. You did borrow the money, but the credit was agreed on the basis of information given at the time that has subsequently proved to be wrong.

 

3. You borrowed the money, but the lender subsequently varied the contract in his favour and you feel this is unfair and the cause of the problem. You then ask the court to make an order under s140...

 

4. For credit card accounts, the lender will have profited from purchases made, over and above capital repayment, charges and interest. This will be a significant sum for long-term credit card accounts. This money comes from the retailer.

 

5. The case has been brought to court under CCA s87(1)(b), in which the lender claims all sums due. However, you merely claim the same protection as the creditor and do not seek preferential treatment from the court. The fact remains that the creditor did not adhere to s88 (the DN was faulty). All you ask is that the court applies the law fairly as it is stated, and is not swayed by an argument that is not central to the law.

 

So maybe sensible to say that you did borrow the money, but it was on this basis [insert as appropriate] and that all you seek now is the same benefits of the CCA as the lender obtains.

 

The question that the judge may ask ("Did you borrow the money?") is therefore too simplistic to answer with a similarly simple "yes" or "no". I think BD is right and that this question needs to be prepared for.

 

LA

[vint1954]

You're right there BD - homework is needed before facing the judge.

 

Here are some ideas;

 

1. You did borrow the money, but it was on the basis of a lawful agreement (which may not exist and therefore a possible 'mistake of law') and the creditor not breaching the contract (eg, the lender has not performed the contract in some way).

 

2. You did borrow the money, but the credit was agreed on the basis of information given at the time that has subsequently proved to be wrong.

 

3. You borrowed the money, but the lender subsequently varied the contract in his favour and you feel this is unfair and the cause of the problem. You then ask the court to make an order under s140...

 

4. For credit card accounts, the lender will have profited from purchases made, over and above capital repayment, charges and interest. This will be a significant sum for long-term credit card accounts. This money comes from the retailer.

 

5. The case has been brought to court under CCA s87(1)(b), in which the lender claims all sums due. However, you merely claim the same protection as the creditor and do not seek preferential treatment from the court. The fact remains that the creditor did not adhere to s88 (the DN was faulty). All you ask is that the court applies the law fairly as it is stated, and is not swayed by an argument that is not central to the law.

 

Always remembering to add that the CCA 1974 and subsequent amendments, came into force to protect the borrower against sophisticated financial institutions.

 

So maybe sensible to say that you did borrow the money, but it was on this basis [insert as appropriate] and that all you seek now is the same benefits of the CCA as the lender obtains.

 

Never deny that you borrowed some money

 

The question that the judge may ask ("Did you borrow the money?") is therefore too simplistic to answer with a similarly simple "yes" or "no". I think BD is right and that this question needs to be prepared for.

 

LA

It's an old egg that has been discussed a lot. You admit entering into an agreement with them, that the capital and more than reasonable interest has benn paid, but the law is the law and it says..........................

[Worsteve]

Hi one and all!!

 

Well I got to court and there was no entry in the schedule for me. I checked with the Clerk of the court and they said it was a clerical error and that it should have stated 2pm...instead of 10am....:-? Anyway, as the 'Notice of Discontinuance' had only arrived that morning, the judge would not have seen it. I was informed that I did not need to attend since there was an Official 'Notice of Discontinuance' on the case. The Court Manager also said I didn't need to return this afternoon and that I would receive official documentation from the Judge stating it had been Discontinued/Thrown out of Court. Not sure how to take this. I am drafting a letter to the opposition to agree to settle the debt in full and to not sell the debt onto any third parties and to clear my credit rating, in order that I don't make a counterclaim for damages. You see....I work overseas and lost a rather lucrative contract by having to stay here and represent myself......to the tune of 10's of £1000's. I don't want to Counterclaim though. I just want the debt settled and my credit rating repaired.

 

It was only a Case Management Conference to see how to take this forward. In the words of the immortal song...".....should I stay or should I go now.......";)

Edited May 17, 2010 by Worsteve
Typo

[vint1954]

If it's not too far away, I would go.

[pumpytums]

It's an old egg that has been discussed a lot. You admit entering into an agreement with them, that the capital and more than reasonable interest has been paid, but the law is the law and it says..........................

 

In my case If asked I would state when asked

 

"Did you borrow the Money?"

 

"A Contract between myself and the original creditor existed which was covered by the Consumer Credit act 1974. "

 

Does that sound right I would like to put something similar at the start of my witness statement.

 

"The defendant does not deny borrowing money from the Original creditor under a contract/agreement covered by the Consumer credit Act 1974 and subsequent amendments. Providing the agreement, all rights and duties have been correctly assigned and and the Consumer credit act 1974 adhered to then the Defendant admits they are indebted to the Claimant. Providing the Claimant can prove the amount claimed is correct and all relevant acts have been followed by both themselves and the original creditor"

 

 

 

How does that sound?

 

Pumpytums

[Worsteve]

Really tough thing this 'Borrowing Money'. I now know I never borrowed it....but created it using my signature. If the Judge asks me if I borrowed the money, I will answer him with, 'Am I not right in saying the bank did not lend me any money?.......Am not right in saying that my signature created the money?!'

Not sure if that will go down well with the Judge though. But I am telling the truth and I am under oath I believe. Still, my case has been discontinued, and all I will ask is that the debt is settled, and that it is not sold onto third parties, and my credit rating is repaired,in order that I do not counterclaim against them.

 

Let see.....I will be back in my suit again to go back down to the court again this afternoon.

[Bigdebtor]

OK - Good Luck yet again. I'm not sure the judge will be particularly happy to see you if he was just going to rubber stamp things. I would not be too clever - just ask him to clarify if that means the debt has been wiped out, the OC has written it off, no DCA can buy it or chase you for it and if the CRA's must be informed of this.

 

BD

[Worsteve]

OK - Good Luck yet again. I'm not sure the judge will be particularly happy to see you if he was just going to rubber stamp things. I would not be too clever - just ask him to clarify if that means the debt has been wiped out, the OC has written it off, no DCA can buy it or chase you for it and if the CRA's must be informed of this.

 

BD

 

Thanks BD. Yes I agree with the above. I will ask him for his understanding of my ignorance of the judicial system, but I thought it prudent and good manners to make an appearance even though the opposition failed to show. I will ask him the above and if the Claiamant can be so kind as to put this into writing for me.

 

thanks again and off to the Courts again........clerical errors:mad:........

[Worsteve]

Hi everyone

 

well I went back to the court today, and sat waiting for the Usher to give me my slot, and when they arrived, I said I wanted to ask the judge a few things. They took my 'Notice of Discontinuation' and gave it to the Judge. After 45mins of waiting, the Usher came to me and said that the Judge did not want to see me and that the case was closed due to the claimant discontinuing. I asked if I could see the Judge as to my costs and to see if the Claimant will wipe the debt, but the Usher said that the Judge was highly unlikely to award me my costs and that they cannot order the claiment to settle the debt. I have a feeling I was being a little steamrollered and the DJ just didn't want to see me.

 

I guess all I can do is write a letter to the claimant asking for the debt to be registered as paid in full, that it will not be sent off to a DCA and for my file to be cleared with the CRA.

 

Still, what will be will be. But another win for the DN's and one less for me to concern myself with.

 

Thanks to one and all here.....and to those just beginning....believe that you are right, know that you are right, and read, read, read somemore and heed the valuable advice of the wonderful people on this site.

 

Good luck and may the truth set you free!!