Invalid Default Notices

[colin21958]

All imho of course;)

 

Yes, I do pretty much agree with what you have said, however, if a debt remains, as you accept and the agreement was terminated (let's assume it was terminated correctly), then the creditor is entitled to recover this amount. So, either he starts proceedings or tries to get the debtor to make reduced payments in order to get their money and avoid the hassle of legal action. So, if they make an agreement with the debtor to accept these reduced payments, what are the terms of this "agreement". The closest thing there usually is to a written agreement will be letters between the parties offering and accepting the amount of the payments. However, it is still a credit debt and one would think therefore still regulated by the CCA 1974? So, as no signed "agreement" complying with the regulations exist where does that leave the creditor? With an unenforceable debt? I don't think so, because the debt arose under a specific regulated agreement which was terminated correctly, but a subsequent "agreement" by paying and accepting payments was started, but this isn't as such a "new" agreement! I would suggest its a revival of the terms and conditions of the original agreement in as much as they can still apply. Otherwise, as I said, what happens if you then pay £1 per month until the end date of the original agreement and then stop paying? Common sense says that the "new" agreement can't have an end date the same as the original agreement. Perhaps someone who knows more can explain?

 

All only my (very humble) opinion too of course. ;-)

Edited June 22, 2010 by colin21958

[crockie]

I should also just say that, if this stuff is making your head spin as it most likely is, then you really need to do lots of reading yourself. Read through all the threads you can find about DNs (have you read the whole of this one? Its worth you doing it). The point is, if you intend at any point to defend this and you want to do it yourself you are going to need to know the stuff, and the relevant parts of the Act, in detail, otherwise you would never argue it successfully before a judge. There is no substitute for learning and lots of it. If you at anytime feel this is too arduous or difficult a task then you may need to employ professional help...

 

Once again thank you to everyone for your input

 

When I say this is getting my brain going, I mean in a very positive way. This is incredibly interesting and I have been busy reading and reading.

 

I think my point now would be - If I stopped paying would Welcome have a clue what to do?

 

Out of interest, when I ring Welcome head office (not compliance) they know absolutely nothing at all about this new agreement Which has been part of my complaint to them.

 

How can they stick to an amended agreement (which reduces the amounts owed considerably) if they dont know it exists.

 

I have it in writing but they dont seem to have, emmm I can feel an SAR coming on to see just what they do know.

[diddydicky]

Well no, because if you didn't pay they would default you whilst the agreement was live (as they did, but evidently not very well), not once it had expired. It's not like they'd wait till the end then go 'oh no, we forgot to default him!'

 

This is a quote from x20, a very respected member (sol or barrister as I recall) who used to post on here. He puts it far more eloquently than I could!

 

 

 

In this case the agreement was finished last Sept, so they are unable to issue a second default now.

 

 

there is bound to be provision within the contract for them to sue for unpaid amounts even though the contract has ended- otherwise- as has already been said- it would be possible to abuse the system

[DontPushMe]

Colin, in post 3229 (!) you say that following a DN, successful or otherwise, a contract is terminated by the creditor asking for the full balance thus ending the contract but if the debtor then pays after the termination that the contract endures because the debtor, by paying something has resurrected the contract. Just wanted to clarify...

 

DPM

Edited June 22, 2010 by DontPushMe
typo

[colin21958]

Colin, in post 3229 (!) you say that following a DN, successful or otherwise, a contract is terminated by the creditor asking for the full balance thus ending the contract but if the debtor then pays after the termination that the contract endures because the debtor, by paying something has resurrected the contract. Just wanted to clarify...

 

DPM

 

Yes, it has been discussed and suggested by several more knowledgeable people than me on here that if a contract is terminated unlawfully, continuing to pay rather than stopping and writing to accept their unlawful termination, could be argued as the debtor rejecting the (unlawful) termination and preferring to continue the agreement (of course such a rejection must be accepted by the creditor as well, but they would obviously do this if they realised they c**ked up the DN!); they could use this argument if unlawful rescission is not accepted in writing as soon as possible after it is acknowledged, and payments continue to be made, hence an invalid DN could become useless in rejecting the agreement... So, it is very important when unlawful rescission is determined to write to the creditor and accept their rescission immediately, and also to stop making payments... (make sure you have a water-tight argument though!)

Edited June 22, 2010 by colin21958

[DontPushMe]

Thanks for that. In order to accept the unlawful rescission then one has to write and accept the UR. Is it not acceptable to do nothing? I thought I read somewhere (don't ask where, altho Google will probably know) that by doing nothing the debtor is accepting the termination, lawful or not.

 

DPM

[Bigdebtor]

Much earlier in this thread are examples of UR acceptance letters which "reminded" many of us that we had actually sent these very letters out a few days/weeks after getting the dodgy DN's or TN's. It's amazing how often OC's and DCA's lose such correspondence!

 

Any subsequent payments made by us were only intended to pay off the lawful arrears and we had assumed the OC or DCA would advise us when that had been done - so any overpayments have been sent in error and we should request their immediate refund - but fully expect to be met with the unique Glaswegian negative, composed of a double positive "aye - right!"

 

BD (TIC)

[nks22]

In order to accept the unlawful rescission then one has to write and accept the UR. Is it not acceptable to do nothing?

 

It's a moot point. There was a case where the defendant's claim of UR was rejected by the judge because he'd done nothing different to show he'd acknowledged it (and presumably hadn't written to accept UR either). I believe that was a lower court, though. If you look at the Woodchester case in the Court of Appeal there's no mention of any requirement to accept UR. There's no point in not accepting UR, though.

[diddydicky]

Colin, in post 3229 (!) you say that following a DN, successful or otherwise, a contract is terminated by the creditor asking for the full balance thus ending the contract but if the debtor then pays after the termination that the contract endures because the debtor, by paying something has resurrected the contract. Just wanted to clarify...

 

DPM

 

 

not quite right.......

 

if a creditor, under a regulated agreement in which the debtor has defaulted, then wishes to terminate the agreement or to claim immediate payment of sums that are not yet due (the monthly payments) then he must first serve a valid default notice

 

the purpose of the default notice is to formally bring to the debtors attention, the alleged breach and to give him the statutory amount of time to remedy the default.

 

If the debtor complies then it will be as if the default never occurred (the status quo resumes) however if he does not then the creditor may then claim entitlement to the benefits of s87 (those listed above)

 

however, the law recongnises, whilst not condoning, that a party to an agreement may act unlawfully.

 

If the creditor unlawfully claims entitlement to the benefits of s87- having not first served a valid DN- then he unlawfully repudiates - in other words he is saying- i am no longer prepared to honour my side of the agreement

 

the performing party (the injured party) is then presented with TWO options.

 

1/ he can ignore the unlawful act and insist that the agreement endures- he can do so by writing to the lawbreaker and say- sorry pal- you must continue to perform OR

 

he can do nothing- and carrying on acting as if the agreement endures- continuing to make payments would be a perfect demonstration of the injured parties intent that the agreement should endure

 

OR

 

2/ He can take the opportunity to releive himself of HIS obligations under the agreement (ie you took your ball back- so now i am taking the goalposts home)

 

he can do so by writing and saying he accepted the lawbreakers actions

 

OR

 

he can act in a manner which indicates his acceptance of the unlawful repudiation

 

not making or ceasing to make payments would be one way

 

the PROBLEM with this way is that IF the debtor was ALREADY not making payments to the creditor (as is often the case) BEFORE the creditor unlawfully repudiated- and then continues not to make payments after the unlawful repudiation- then - how is a court to know if the debtor conciously stopped paying for one reason and then after the unlawful repudiation- then did not pay for the other reason( unlawful repudiation by the creditor) or if he simply carried on not paying as he had previously done

 

One cagger lost his case in this way as the judge was not convinced that his continued non payment was a result of a change of mind as to the reason for not paying.

 

writing therefore is a belt and braces way of making sure there is no doubt- although it is not strictly necessary.

 

therefore it would not be a case of payments made by the debtor RESURRECTING the contract- more than it continued to endure.

 

Once the debtor has accepted the unlawful repudiation then to all intents and purposes the agreement ends (save that the injured party retains the right to sue for damages)

 

Once the agreement ends- the only way it can be resurrected is if BOTH parties agree to that

 

hence when a creditor attempts to serve a DN (or a second DN) post termination- it can have no legal effect since the prescribed wording and the intent and purpose of a DN as laid down by parliament is predicated upon the DN being served on a debtor in an enduring agreement....not a terminated agreement

Edited June 22, 2010 by diddydicky

[DontPushMe]

Hi nks, I can understand that if given the golden opportunity of unlawful rescission then one must grab at it with both hands and dash off a letter of acceptance but most people, me included, are probably ignorant and suffering from the shell shock of receiving lots of harassing calls, (illegal) threatening letters etc. If it wasn't for CAGgers like you and Colin and all the other wonderful posters then ignorant people like me wouldn't recognise the opportunity but I'm learning. Thankyou CAGgers!

 

DPM

[diddydicky]

It's a moot point. There was a case where the defendant's claim of UR was rejected by the judge because he'd done nothing different to show he'd acknowledged it (and presumably hadn't written to accept UR either). I believe that was a lower court, though. If you look at the Woodchester case in the Court of Appeal there's no mention of any requirement to accept UR. There's no point in not accepting UR, though.

 

 

doing nothing- in general would indicate that the performing party intended the agreement to continue

 

consider a case where one party continually threatened to repudiate (not perform)

 

would it be reasonable to expect the performing party- in every instance to have to write and ensure that the agreement endured?

 

of course not- common sense dictates that

 

rather , - if the performing party was to rely on doing nothing-to indicate acceptance of repudiation - it would have to be a "nothing" that went against what he would or was normally doing (or not doing) prior to the unlawful repudiation- which is why -given that most caggers will have stopped making payments long before an unlawful repudiation by the creditor- it would be very unwise ( although not necessarily fatal) not to confirm acceptance in writing

 

even a mere reference in a later letter to the creditor- which mentioned their unlawful repudiation which you had accepted- is better than nothing

Edited June 22, 2010 by diddydicky

[DontPushMe]

Hi DD, you mentioned 'damages' being claimed from a creditor. I like the sound of that!

 

DPM

[diddydicky]

When an unlawful repudiation is accepted and the agreement is ended, the debtor still has a liability to the creditor (assuming the agreement was valid) as far as any arrears that were genuinely outstanding at the time of the unlawful repudiation

 

by asking the creditor-in the same letter - to advise you of the exact amount of arrears that were outstanding at the time of their unlawful repudiation- against which you may (play them at their own game!!)have a claim for damages as a result of their unlawful termination

 

you are in effect protecting yourself from any allegation by the creditor that you have not attempted to pay the arrears

 

the fact is that the creditor will NEVER give you that figure- for to do so would be an admission that he had unlawfully repudiated

 

so how can you pay the arrears if he wont tell you?

 

so the THREAT of a claim for damages is more useful that the claim itself (which in most cases would be very difficult to prove losses)

[Lord_Alcohol]

not quite right.......

 

if a creditor, under a regulated agreement in which the debtor has defaulted, then wishes to terminate the agreement or to claim immediate payment of sums that are not yet due (the monthly payments) then he must first serve a valid default notice

 

the purpose of the default notice is to formally bring to the debtors attention, the alleged breach and to give him the statutory amount of time to remedy the default.

 

If the debtor complies then it will be as if the default never occurred (the status quo resumes) however if he does not then the creditor may then claim entitlement to the benefits of s87 (those listed above)

 

however, the law recongnises, whilst not condoning, that a party to an agreement may act unlawfully.

 

If the creditor unlawfully claims entitlement to the benefits of s87- having not first served a valid DN- then he unlawfully repudiates - in other words he is saying- i am no longer prepared to honour my side of the agreement

 

the performing party (the injured party) is then presented with TWO options.

 

1/ he can ignore the unlawful act and insist that the agreement endures- he can do so by writing to the lawbreaker and say- sorry pal- you must continue to perform OR

 

he can do nothing- and carrying on acting as if the agreement endures- continuing to make payments would be a perfect demonstration of the injured parties intent that the agreement should endure

 

OR

 

2/ He can take the opportunity to releive himself of HIS obligations under the agreement (ie you took your ball back- so now i am taking the goalposts home)

 

he can do so by writing and saying he accepted the lawbreakers actions

 

OR

 

he can act in a manner which indicates his acceptance of the unlawful repudiation

 

not making or ceasing to make payments would be one way

 

the PROBLEM with this way is that IF the debtor was ALREADY not making payments to the creditor (as is often the case) BEFORE the creditor unlawfully repudiated- and then continues not to make payments after the unlawful repudiation- then - how is a court to know if the debtor conciously stopped paying for one reason and then after the unlawful repudiation- then did not pay for the other reason( unlawful repudiation by the creditor) or if he simply carried on not paying as he had previously done

 

One cagger lost his case in this way as the judge was not convinced that his continued non payment was a result of a change of mind as to the reason for not paying.

 

writing therefore is a belt and braces way of making sure there is no doubt- although it is not strictly necessary.

 

therefore it would not be a case of payments made by the debtor RESURRECTING the contract- more than it continued to endure.

 

Once the debtor has accepted the unlawful repudiation then to all intents and purposes the agreement ends (save that the injured party retains the right to sue for damages)

 

Once the agreement ends- the only way it can be resurrected is if BOTH parties agree to that

 

hence when a creditor attempts to serve a DN (or a second DN) post termination- it can have no legal effect since the prescribed wording and the intent and purpose of a DN as laid down by parliament is predicated upon the DN being served on a debtor in an enduring agreement....not a terminated agreement

 

DD - that's a very helpful summary of the situation.

 

I would just add one point - that the debtor is likely to be "unsophisticated" and not aware of legal terms/concepts such as "unlawful rescission". It is very likely, therefore, that his actions will be heavily influenced by the information given to him by the creditor. If the creditor tells him that its actions were completely lawful (honest guv!) and this is backed up by the usual barrage of legal-looking recovery letters, the debtor may agree to any repayment plan on offer if he can.

 

But he then learns of UR years later. He looks at his DN and finds it is faulty and that s87(1)(b) and © were therefore not available to the creditor at termination. He realises that he was only lawfully obliged to pay the arrears at termination, but he's since paid a lot more than that.

 

If the debtor then decides to invoke CCA by confronting the creditor, but the creditor says "sorry, you did not accept my unlawful rescission and under contract law your subsequent payments cause the agreement to endure even though I terminated it", he is immediately placed at a disadvantage because (a) how on earth will he understand the meaning of this unless he is "sophisticated" and (b) why was this not made clear to him at the outset?

 

I therefore think that it is perfectly reasonable for the debtor to state that he has uncovered the UR after "taking advice" and that he feels he was misled by the creditor into entering into a repayment plan when the regulating statute (CCA) clearly shows that the creditor may not seek sums unpaid. Therefore the debtor can reasonably state that he didn't know his lawful rights at the time (because the creditor hid them from him) and so he now seeks from the creditor the balance between arrears at termination and the total paid since.

 

The fact remains that it was the creditor that made the mistake in the first place and then subsequently hid his mistake from the debtor (deliberately or not), removing his lawful entitlement to (a) remedy the breach and (b) to lawfully rely on s87(1)(b) and © where s88 is breached by the creditor.

 

The OC can't have his cake and eat it. He can't lawfully end an agreement without full compliance with s88 and then expect the debtor to overlook his actions and comply with any old repayment plan he comes up with.

 

Just a thought (or two...).

 

LA

[Lord_Alcohol]

When an unlawful repudiation is accepted and the agreement is ended, the debtor still has a liability to the creditor (assuming the agreement was valid) as far as any arrears that were genuinely outstanding at the time of the unlawful repudiation

 

by asking the creditor-in the same letter - to advise you of the exact amount of arrears that were outstanding at the time of their unlawful repudiation- against which you may (play them at their own game!!)have a claim for damages as a result of their unlawful termination

 

you are in effect protecting yourself from any allegation by the creditor that you have not attempted to pay the arrears

 

the fact is that the creditor will NEVER give you that figure- for to do so would be an admission that he had unlawfully repudiated

 

so how can you pay the arrears if he wont tell you?

 

so the THREAT of a claim for damages is more useful that the claim itself (which in most cases would be very difficult to prove losses)

 

Exactly! All you can go on is the arrears claimed in the defective DN. If an offer to pay that is made (less damages) he will either accept or refuse, but to refuse would require him to provide either the actual amount at termination or a demand for the full amount, the latter being a breach of s87(1)(b)

 

LA

[Bigdebtor]

LA

 

Excellent points - you must be sober - or so drunk you can see everything really clearly (I know that state well!)

 

BD

[Lord_Alcohol]

LA

 

Excellent points - you must be sober - or so drunk you can see everything really clearly (I know that state well!)

 

BD

 

Yes I have just had my morning tipple...

[Bigdebtor]

Yes I have just had my morning tipple...

 

Such clarity of thought does not come from a single tipple!

 

I know that for a fact!

 

BD

[frettful38]

Yes I have just had my morning tipple...

 

 

Are you allowed to drink and advise on CAG? Advising whilst under the influence can carry serious consequences, not only for you but others who read what you write and say .

[Bigdebtor]

Are you allowed to drink and advise on CAG? Advising whilst under the influence can carry serious consequences, not only for you but others who read what you write and say .

 

As LA and I have found (but can't always quite remember) after a few modest tinctures of amber fluid we think more clearly, are much funnier, can sing better and feel much more at ease with the world as our worries disappear into oblivion.

 

Only our memory, driving capability and relationship with Mrs BD (or Lady A) are in any way impaired!

 

Slainte

 

BD

[pumpytums]

OK here is a scenario,

 

1. A creditor issues a invalid default notice, for some reason the debtor for some reason never receives it.

 

2. The account is terminated, the debtor due to their interest in wanting to work things out makes token payments unaware of the DN or its implications.

 

3. The Creditor issues proceedings and the debtor receives advice that the Creditor had in fact unlawfully rescinded the agreement after receiving a copy of the DN.

 

When in front of the judge the judge says "the account was unlawfully rescinded?? Mr Debitor how did you accept this?" The Debitor replies "I have now stopped making payments Sir". The Judge asks "well you made token payments after the UR please explain", "well I was unaware of the Unlawful recession both due to the DN that I never received and the fact as a layman I didn't understand the need for a DN. I just wished to do the right thing. However I now fully accept the UR."

 

The point is acceptance, has the debtor accepted the UR yes they have late but they accepted it. As is been said their needs to be a change. If the debtor stopped paying full-stop it would be very difficult to prove UR as they stopped before UR and after up to Court.

 

Failing that could this simply be a "Mistake of Law" the debtor was under the mistake that he had to pay the debt.

 

 

Discuss??

 

 

Pumpytums

[colin21958]

not quite right.......

 

if a creditor, under a regulated agreement in which the debtor has defaulted, then wishes to terminate the agreement or to claim immediate payment of sums that are not yet due (the monthly payments) then he must first serve a valid default notice

 

the purpose of the default notice is to formally bring to the debtors attention, the alleged breach and to give him the statutory amount of time to remedy the default.

 

If the debtor complies then it will be as if the default never occurred (the status quo resumes) however if he does not then the creditor may then claim entitlement to the benefits of s87 (those listed above)

 

however, the law recongnises, whilst not condoning, that a party to an agreement may act unlawfully.

 

If the creditor unlawfully claims entitlement to the benefits of s87- having not first served a valid DN- then he unlawfully repudiates - in other words he is saying- i am no longer prepared to honour my side of the agreement

 

the performing party (the injured party) is then presented with TWO options.

 

1/ he can ignore the unlawful act and insist that the agreement endures- he can do so by writing to the lawbreaker and say- sorry pal- you must continue to perform OR

 

he can do nothing- and carrying on acting as if the agreement endures- continuing to make payments would be a perfect demonstration of the injured parties intent that the agreement should endure

 

OR

 

2/ He can take the opportunity to releive himself of HIS obligations under the agreement (ie you took your ball back- so now i am taking the goalposts home)

 

he can do so by writing and saying he accepted the lawbreakers actions

 

OR

 

he can act in a manner which indicates his acceptance of the unlawful repudiation

 

not making or ceasing to make payments would be one way

 

the PROBLEM with this way is that IF the debtor was ALREADY not making payments to the creditor (as is often the case) BEFORE the creditor unlawfully repudiated- and then continues not to make payments after the unlawful repudiation- then - how is a court to know if the debtor conciously stopped paying for one reason and then after the unlawful repudiation- then did not pay for the other reason( unlawful repudiation by the creditor) or if he simply carried on not paying as he had previously done

 

One cagger lost his case in this way as the judge was not convinced that his continued non payment was a result of a change of mind as to the reason for not paying.

 

writing therefore is a belt and braces way of making sure there is no doubt- although it is not strictly necessary.

 

therefore it would not be a case of payments made by the debtor RESURRECTING the contract- more than it continued to endure.

 

Once the debtor has accepted the unlawful repudiation then to all intents and purposes the agreement ends (save that the injured party retains the right to sue for damages)

 

Once the agreement ends- the only way it can be resurrected is if BOTH parties agree to that

 

hence when a creditor attempts to serve a DN (or a second DN) post termination- it can have no legal effect since the prescribed wording and the intent and purpose of a DN as laid down by parliament is predicated upon the DN being served on a debtor in an enduring agreement....not a terminated agreement

 

Eloquently put; that was exactly what I meant and the way I understood it to be, but probably didn't explain it very well!

Edited June 23, 2010 by colin21958

[frettful38]

As LA and I have found (but can't always quite remember) after a few modest tinctures of amber fluid we think more clearly, are much funnier, can sing better and feel much more at ease with the world as our worries disappear into oblivion.

 

Only our memory, driving capability and relationship with Mrs BD (or Lady A) are in any way impaired!

 

Slainte

 

BD

 

 

Well if that's what makes you and LA think clearer then no more coffee for me as its obvious not making my mind any clearer, and as for Mr F, what he don't know won't hurt him ,

great job guys

 

ps: save the tinctures for the kick off for England at 3pm , business before pleasure? or is it the other way round? ;-)

[pumpytums]

Out of interest the amount of damages for UR how much is that generally? exactly the same as arrears or is that taking the amber fluid?

 

Pumpytums

[Bigdebtor]

Unless you want to risk a court action to claim more - or make a gift to the creditor - then I would assess damages as exactly the same as the arrears.

 

PS I trust you are thinking of a different amber fluid?

 

BD