Invalid Default Notices

[Lord_Alcohol]

Swaine & Co won on the basis of a defective DN in 1998. It seems (to me) clear that a defective DN is, in itself, a perfectly valid defence. In fact, this point seems to be accepted earlier on in the thread.

 

diddydicky, you yourself suggested that pulling the DN out of the hat in court when the defendant had caused the OC to create one or more different versions prior to the hearing might anger the judge; the following is from a post of yours in the Howard Cohen thread from April;

 

The difficulty a LIP might have i suspect, is in waving the original DN at the judge and proclaiming that the creditor or his agent is a liar- to which the judge will ask himself- if you have the original DN (which you must have in order to call their reconstruction a lie) then why have you been wasting the courts time with all this tomfoolery!!

 

which I completely agree with!

 

My aim is to arrive at a solution that hopefully avoids court. That is my personal preference, and I suggest that there are others who may prefer this route as well. Part of this approach is showing the OC's error beforehand. If I merely state that the DN was defective and do not provide proof, the OC can reproduce something anyway. If his reproduction is genuine, then he will see the error. If it isn't, then you will have an opportunity to score points.

 

I think there is disagreement on this one point but ample consensus, which is very reassuring. I'm not quite sure why diddydicky wants to expose his florally-encumbered rear-end in public but I'm happy to attend the unveiling and will do so with both curiosity and interest, as long as it is legal.

 

LA

[Lord_Alcohol]

Just catching up after a few days away. I was shocked to see the esteemed Lord Alcohol addressed as "Lord Booze" - such disrespect!

 

Booze is an adulterated concoction usually containing more water than Ethanol - e.g. beer might have around 4% alcohol (abv), wine around 10-14% abv and whisky (water of life) around 40% abv.

 

To call the venerable LA "Booze" is to suggest he is a weaker, adulterated and less fiery version of his 100% true self.

 

I await a humble apology on LA's behalf!

 

BD

 

:D:D

 

I didn't even notice - must have been somewhat bladdered that evening...

 

LB

[diddydicky]

Swaine & Co won on the basis of a defective DN in 1998. It seems (to me) clear that a defective DN is, in itself, a perfectly valid defence. In fact, this point seems to be accepted earlier on in the thread.

 

diddydicky, you yourself suggested that pulling the DN out of the hat in court when the defendant had caused the OC to create one or more different versions prior to the hearing might anger the judge; the following is from a post of yours in the Howard Cohen thread from April;

 

The difficulty a LIP might have i suspect, is in waving the original DN at the judge and proclaiming that the creditor or his agent is a liar- to which the judge will ask himself- if you have the original DN (which you must have in order to call their reconstruction a lie) then why have you been wasting the courts time with all this tomfoolery!!

 

which I completely agree with!

 

My aim is to arrive at a solution that hopefully avoids court. That is my personal preference, and I suggest that there are others who may prefer this route as well. Part of this approach is showing the OC's error beforehand. If I merely state that the DN was defective and do not provide proof, the OC can reproduce something anyway. If his reproduction is genuine, then he will see the error. If it isn't, then you will have an opportunity to score points.

 

I think there is disagreement on this one point but ample consensus, which is very reassuring. I'm not quite sure why diddydicky wants to expose his florally-encumbered rear-end in public but I'm happy to attend the unveiling and will do so with both curiosity and interest, as long as it is legal.

 

LA

 

thanks- i am not perfect and i cannot recall what the alleged discrepancy was with that DN i

 

Your memory is tainted by alcohol- mine by old age so i cannot remember that particular thread however i think that this response probably presumed that the poster was intent on "ambushing" the creditor in court with the DN and had not previous to the proceedings brought its failings to the attention of the creditor

 

indeed it is ALWAYS advisable- in terms of mitigation of costs issues- to bring any points of law to the attention of the creditor before proceedings

 

i still however maintain- that in general terms it is not advisable to send copies of documents to a creditor who may then commence proceedings against you

 

as with most things it is not a question of one is right and one is wrong- more as i said (IMO) that there is a far higher likelyhood of the creditor using what you supplied to him to HIS advantage than yours!

[diddydicky]

Just catching up after a few days away. I was shocked to see the esteemed Lord Alcohol addressed as "Lord Booze" - such disrespect!

 

Booze is an adulterated concoction usually containing more water than Ethanol - e.g. beer might have around 4% alcohol (abv), wine around 10-14% abv and whisky (water of life) around 40% abv.

 

To call the venerable LA "Booze" is to suggest he is a weaker, adulterated and less fiery version of his 100% true self.

 

I await a humble apology on LA's behalf!

 

BD

 

absolutely disgraceful post- it is clear that LA is a complicated and sophisticated piece of human engineering designed to turn alcohol into urine!!

[diddydicky]

LA

 

 

My aim is to arrive at a solution that hopefully avoids court. That is my personal preference, and I suggest that there are others who may prefer this route as well. Part of this approach is showing the OC's error beforehand. If I merely state that the DN was defective and do not provide proof, the OC can reproduce something anyway. If his reproduction is genuine, then he will see the error. If it isn't, then you will have an opportunity to score points.

 

i see the logic of your argument (indeed it is one i started out with myself) however the (sad) truth is that this action does not lead to the desired outcome!! at best the creditor will seek to "regularise" his records and at worst flog the debt on- but he WILL NOT admit that the DN is defective

 

i can show you a letter on the Forum in which Restons admitted to a court that a DN which was defective on dates could not permit his client to continue his claim.................... but will then write (i have a recent one myself)to a debtor pointing this fault out pre trial that such a DN is not defective and will not result in his client discontinuing!

[Guest unicorn4321]

thanks lpt and nks have amended it

 

lpt you said my dn is invalid (not unenforcable!) does that mean they can still pursue the claim confused not done this before

 

thanks

[lord_tiger_putin]

An invalid DN is equal to no DN.

 

It has to do with this part of the CCA 1974:

 

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

 

Therefore, no DN, they are not allowed to terminate the agreement. If they terminate without a DN then it is unlawful termination and they cannot demand earlier payment of any sum (amounts not due at that stage, the arrears, however, were due and they can demand that). Therefore you have to claim Unlawful Rescission. You can also claim damages for the Unlawful Termination.

 

Off course, they will completely ignore this fact and try to recover the full amount plus interest. The first thing you have to do is to claim Unlawful Rescission, here is a template letter which you can use:

 

Template Letter 1:

 

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

Dear Sir/Madam

Re:− Account/Reference Number xxxxxxx

***Unlawful Rescission***

 

I refer to your Default Notice dated xxxxxxx, received by me on xxxxxx and your subsequent letter terminating the agreement by demanding the balance in full, dated xxxxx, received xxxxxxxxxx, in which you confirm that you had in fact terminated the above agreement by demanding the balance in full.

 

The default notice failed to give me the required statutory time in which to seek legal advice and/or remedy any alleged defect. Your actions resulted in insufficient time for me to even obtain an appointment with a solicitor let alone remedy the alleged default. These actions by you, have resulted in you unlawfully rescinding the alleged agreement.

 

I accept your unlawful rescission of the agreement and I note that you are now entitled to claim those arrears genuinely due at the time of the termination (not including any unlawful charges ) and I would be obliged if you would advise me of the exact amount of those arrears, against which will be a claim for unlawful rescission.

 

Yours faithfully

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

 

This is a long time since the DN. What happened in the time since then? If you made payments then they will claim that you implicitly accepted the termination. Your counter claim is that you were not aware all these things, how could you?, most people don’t know these things.

 

The bottom line is that they will probable continue to pursue it, you just have a much stronger case because of the invalid DN and you can argue they can only claim the arrears due at time of termination. You can claim that by entering a Default on your credit file, they provided inaccurate information and you can sue them for that. They have to remove it from your credit file. This is the theory but the reality is that it is a long uphill fight because they, including the CRA’s, simply do not play by the rules.

[Pumpkinhead]

Quick question please? Am I right in thinking that a DN is not valid if issued by a DCA on their headed paper (not the credit card co) even if they say they are acting as agent?

[Guest unicorn4321]

Thanks for clarifing that lpt.

 

In answer to your question on the 14/04/08 i received a letter from sutcliffs saying yb had instructed them to recover the full balance.

 

Then brunswick,then got a statment from yb adding intrest since then

letters from call serve in all about 20 just ignored them.

 

Then in nov 09 letter from both yb and marlin saying my account had been assigned, received more dm letters then on the 29/06/2010 a county court claim form.

 

I have sent in my acknowledge of service defending all the claim

 

this is where i need assistance sent off a cca /sar/31.14 requests unfortunatly they have all been returned

 

31.14 because they say i may have already inspected the docs as they have been sent to me and they don't want to duplicate. i have sent a cpr on 21/07 waiting for reply.

 

cca because no payee is stated on po.

 

sar as there are anomalies in my address on my letter and statments (there is a b inplace of d and e not r)town postcode right also acc no

they too want po made payable to them and letter signed.

 

do i just file my defence online or do i have to wait for a letter from the court to fill in.

 

I am really a novice at this but they are trying to add 1370pds in intrest aswell as court fee and sol fees even though apparently marlin and mortimers are one in the same'

 

help would be appreciated

[Guest unicorn4321]

can i just add i have not informed them of any paperwork i have

 

thanks

[lord_tiger_putin]

Quick question please? Am I right in thinking that a DN is not valid if issued by a DCA on their headed paper (not the credit card co) even if they say they are acting as agent?

 

Are you talking about Mecers? The requirements are as follows

 

2. Parties to agreement

(1) The name and a postal address of the creditor or owner.

(2) The name and postal address of the debtor or hirer.

 

IMO it depends on whether they bought it or not. It must be the Creditor's Address on the DN, if they act on behalf of the Creditor, then they are not the Creditor and cannot use their Name and Address. If they bought it then they are the owner of the debt and one can argue that they can issue a DN. Are being the owner making them the Creditor? The regulations above refer to the owner in a hire agreement IMO. Would be interesting to see what others say.

 

I think this point has been discussed before.

 

Mercers are acting on behalf of Barclaycard and I believe their DN's are invalid.

[lord_tiger_putin]

Thanks for clarifing that lpt.

 

In answer to your question on the 14/04/08 i received a letter from sutcliffs saying yb had instructed them to recover the full balance.

 

Then brunswick,then got a statment from yb adding intrest since then

letters from call serve in all about 20 just ignored them.

 

Then in nov 09 letter from both yb and marlin saying my account had been assigned, received more dm letters then on the 29/06/2010 a county court claim form.

 

I have sent in my acknowledge of service defending all the claim

 

this is where i need assistance sent off a cca /sar/31.14 requests unfortunatly they have all been returned

 

31.14 because they say i may have already inspected the docs as they have been sent to me and they don't want to duplicate. i have sent a cpr on 21/07 waiting for reply.

 

cca because no payee is stated on po.

 

sar as there are anomalies in my address on my letter and statments (there is a b inplace of d and e not r)town postcode right also acc no

they too want po made payable to them and letter signed.

 

do i just file my defence online or do i have to wait for a letter from the court to fill in.

 

I am really a novice at this but they are trying to add 1370pds in intrest aswell as court fee and sol fees even though apparently marlin and mortimers are one in the same'

 

help would be appreciated

 

I would suggest that you get the letter of Unlawful Rescission out anyway.

 

The rest of the stuff is a bit out of my depth but can i suggest you start a new thread seeing that it is already going to court? Add in the title you need help with a case going to court. I think you will get better help that way.

 

Just my opinion!

[Pumpkinhead]

Are you talking about Mecers? The requirements are as follows

 

2. Parties to agreement

(1) The name and a postal address of the creditor or owner.

(2) The name and postal address of the debtor or hirer.

 

IMO it depends on whether they bought it or not. It must be the Creditor's Address on the DN, if they act on behalf of the Creditor, then they are not the Creditor and cannot use their Name and Address. If they bought it then they are the owner of the debt and one can argue that they can issue a DN. Are being the owner making them the Creditor? The regulations above refer to the owner in a hire agreement IMO. Would be interesting to see what others say.

 

I think this point has been discussed before.

 

Mercers are acting on behalf of Barclaycard and I believe their DN's are invalid.

Yes, it is Mercers. I've heard that they are the in-house collections for Bcard. DN doesn't have Bcard address or reg office on. Not received a NOA and believe Bcard still own.

[lord_tiger_putin]

Yes, it is Mercers. I've heard that they are the in-house collections for Bcard. DN doesn't have Bcard address or reg office on. Not received a NOA and believe Bcard still own.

 

Yes, they are their in-house collectors. Barclaycard do still owe the debt.

 

I have a number of them and they DO NOT want to terminate the account so that I can claim Unlawful Rescission!!

 

As long as they do not terminate the agreement BC can still issue a valid DN. I have seen some been issued by Barclaycard themselves. I am playing a waiting game and hope they will terminate the accounts and will therefore not be able to issue a valid DN's.

[Pumpkinhead]

Yes, they are their in-house collectors. Barclaycard do still owe the debt.

 

I have a number of them and they DO NOT want to terminate the account so that I can claim Unlawful Rescission!!

 

As long as they do not terminate the agreement BC can still issue a valid DN. I have seen some been issued by Barclaycard themselves. I am playing a waiting game and hope they will terminate the accounts and will therefore not be able to issue a valid DN's.

 

I'm in the same boat or rather my OH is as this one's his. Have my doubts about the agreement too. Think I will just wait on this one. Many thanks for your help LTP.

[nks22]

I have a number of them and they DO NOT want to terminate the account so that I can claim Unlawful Rescission!!

 

On the other hand there's not much they can do to you in the meantime other than send threatening letters. Without ending the agreement they can only demand payment of arrears.

[lord_tiger_putin]

On the other hand there's not much they can do to you in the meantime other than send threatening letters. Without ending the agreement they can only demand payment of arrears.

 

and wasting their money... i have a nice mobile phone that simply auto rejects their calls and they leave then a message .. it is getting to 60 or 70 ... costing them money ...

 

Anyway Barclaycard returned my SAR without any statements!! Need to get the PPI back as well!! I see another one going to the ICO ....

[Guest unicorn4321]

how do they terminate an agreement do they have to send a letter to terminate or does the fact that court proceeddings have been issued terminate it think i have read this on here

[lord_tiger_putin]

Terminations

 

The credit agreement provides the facility to repay the balance over time. If the creditor withdraws that facility they have terminated the credit agreement by their action. The account is not terminated, only the credit agreement. This can be done by demanding the full balance because it is removing your right to pay in instalments. The creditor can also terminate the agreement by a formal letter of termination. Up until the point of termination the agreement is still live, if they terminated on the back of a faulty DN you legally only owe then the arrears on the account at the time of the termination LESS your counter claim for unfair rescission of contract.

 

Before the creditor can terminate the credit agreement the creditor have to first proper serve[1] a valid Default Notice[2],[3]. If they fail to proper serve a Default Notice they are lawfully prevented from claiming entitlement to the benefits of section 87(1) which are to terminate the credit agreement or to demand earlier repayment of sums not yet due under the agreement[4].

 

By losing these rights and still terminates the agreement is Unlawful Rescission which cause injury to the debtor. The agreement did not terminate but it gives the injured party the right to choose to either hold the creditor to the agreement or to accept the unlawful repudiation and relieve himself of his continuing obligations.

 

Should the injured party accept the unlawful repudiation and relieve himself of his continuing obligations the agreement effectively ends (at this point and not before). It is now left to the injured party to claim damages[5] for the creditor’s unlawful repudiation if so he/she so wish.

 

 

[1] Interpretation Act 1978 Section 7

 

[2] Consumer Credit Act 1974 Section 88

 

[3] Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

[4] Consumer Credit Act 1974 Section 87(1)(b)

 

[5] Kpohraror v Woolwich Building Society - [1996] 4 All ER 119

[lord_tiger_putin]

how do they terminate an agreement do they have to send a letter to terminate or does the fact that court proceeddings have been issued terminate it think i have read this on here

 

Court Action certainly means it has been terminated.

[GeoffreyAlby]

Amex v Brandon

 

 

 

People need to look at this.

Edited July 25, 2010 by GeoffreyAlby

[Guest unicorn4321]

thank you ltp

can i just ask is there a time limit on dn as this was sent in 2008 and does it matter that it was yb who sent it before the account was assigned to marlin?

 

will draft the letter up. i take it this goes to mortimers

[diddydicky]

if a dca serves a Dn and the creditors name and address are stated along with yours and the rest of the DN is ok then i would say that would be accepted by a court

 

the rules say that the creditors name and address must be on the Dn NOt that the DN must be on the creditors letterhead

[lord_tiger_putin]

thank you ltp

can i just ask is there a time limit on dn as this was sent in 2008 and does it matter that it was yb who sent it before the account was assigned to marlin?

 

will draft the letter up. i take it this goes to mortimers

 

There is no "limit" on a DN, it is necessary for them to terminate the agreement before they can ask the full amount and take further action. There were some debate on regarding claiming Unlawful Remission after a significant time after the issuing of the DN, the argument you can use is that you were not aware of these things, you only claimed it when you became aware of it. I think why should their being a time limit until you can claim UR?

 

It must go to the Original Creditor, they terminated the agreement unlawfully. You can send a copy to mortimers.

 

Do not expect much, if anything, from any of them, YB or mortimers, after sending your letter, they will disagree, doesn't mean they are right though! It is for your benefit when defending their claims.

[lord_tiger_putin]

if a dca serves a Dn and the creditors name and address are stated along with yours and the rest of the DN is ok then i would say that would be accepted by a court

 

the rules say that the creditors name and address must be on the Dn NOt that the DN must be on the creditors letterhead

 

DD is right but Mercers do not have Barclaycard's address on the DN. I am very familiar with them, have quite a nice collection by now.