Invalid Default Notices

[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

 

Maybe DD can comment on this but I know there are different views on what the OC can claim in case of UR. Some argue that it is the arrears when the DN was issued, others argue it is when you accept the termination with the UR letter because that is the time when the agreement actually ends (when you send the letter of Unlawful Rescission). This can make a big difference in your case!

[lord_tiger_putin]

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 in place of d and e not r)town postcode right also acc no

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

 

Did you resend these? Seems that it is a conspiracy not to supply you with anything:-o:-o

 

Have a look at this thread. HSBC tried to fob me off with the signature story. They came with all kinds of stories but I succeeded, there is a letter that I used which worked and which point out to them that the Commissioners Office states that if they regular send mail to you at the address you supplied, then they should be happy that you are who you say you are. maybe the letter can be of use to you.

 

You have to get the CCA because that could be your "salvation":oops:

[lord_tiger_putin]

Oh, the thread!

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/268216-data-controller-hsbc.html

[Bigdebtor]

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

 

I have made it my life's work to search the Universe for a device to reverse this process - on behalf of all impecuneous tipplers everywhere - sadly without success.

 

I really don't know why Alchemists wasted their time trying to transmute lead into gold when this much worthier challenge existed!

 

The search continues!

 

BD

[Undercover-Elsa]

Perhaps you need to think outside the alchemist's box and investigate quantum physics, as indeed should it be possible to take the point in time (A) when you start ingesting the frothing pint and the point in time (B)when you finish voiding the frothing end product, and to repeatedly cycle by returning in a nanosecond from point B to point A then your problem is solved...

[lord_tiger_putin]

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.

 

As far as I have it you have 28 days to file a defence and could soon be running out of time!

 

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.

Which documents did you asked for? It seems that you haven't receive the CCA and they say you MAY have already inspect them. It seems to be to be a fob off to ensure you are not able to form a proper defence.

 

But I am a bit confused by your statement because you say you received a reply to a CPR 31.14 request but you have send a CPR on the 27/07.

 

It will be well worth to get the advice of someone much more glued up on these things to advice you but you will have to try to get more time to build your defence and the fact that they didn't responded properly to your CPR 31.14 request could certainly count against them for refusing to provide you with the info you need.

 

I think you will have to act quickly on this before your time for responding expires!

 

Did you filed your intention to defend it within 14 days?

[diddydicky]

Maybe DD can comment on this but I know there are different views on what the OC can claim in case of UR. Some argue that it is the arrears when the DN was issued, others argue it is when you accept the termination with the UR letter because that is the time when the agreement actually ends (when you send the letter of Unlawful Rescission). This can make a big difference in your case!

 

the agreement does not terminate when the creditor unlawfully repudiates (terminates or demands payment in full following an invalid or no DN)

 

the agreement comes to and end only when YOU accept that unlawful repudiation and releive yourself of your continuing obligations under the agreement

 

therefore the arrears amount owing at the time of unlawful termination will be different (and more) than those stated in the DN

[mot22]

the agreement does not terminate when the creditor unlawfully repudiates (terminates or demands payment in full following an invalid or no DN)

 

the agreement comes to and end only when YOU accept that unlawful repudiation and releive yourself of your continuing obligations under the agreement

 

therefore the arrears amount owing at the time of unlawful termination will be different (and more) than those stated in the DN

DD..

If an OC is demanding the full balance or Termination by letter (at or shortly after the due by date in the fualty DN) how can there be any further arrears beyond those stated in the DN, (regardless of how much later their UR is accepted) ?

appreciate your thoughts. Thx

Edited July 26, 2010 by mot22

[bustthematrix]

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.

ltp, maybe I've missed something but why have you not written to accept their UR, instead of waiting for them to 'terminate' or issue a valid DN and then lawfully terminate?

[lord_tiger_putin]

ltp, maybe I've missed something but why have you not written to accept their UR, instead of waiting for them to 'terminate' or issue a valid DN and then lawfully terminate?

 

You can only claim Unlawfull Rescission if they terminate the account unlawfully. If they terminate it lawfully, then you cannot claim UR. They haven't terminate the account lawfully or unlawfully because they haven't terminate it at all yet!

[lord_tiger_putin]

DD..

If an OC is demanding the full balance or Termination by letter (at or shortly after the due by date in the fualty DN) how can there be any further arrears beyond those stated in the DN, (regardless of how much later their UR is accepted) ?

appreciate your thoughts. Thx

 

My opinion is that if they unlawfully terminate the account, then it is NOT terminated unless you accept it. Only then it terminates. Although they have terminated it, because it is unlawfull, it has no effect and it is "still business as usual" and you are falling further behind on the contactual installments.

[emandcole]

ltp, maybe I've missed something but why have you not written to accept their UR, instead of waiting for them to 'terminate' or issue a valid DN and then lawfully terminate?

 

The sending of the invalid default is not evidence of unlawful repudiation in itself as the creditor still has the opportunity and right to re-issue a valid and compliant DN. If you accept at that point you will simply alert a reasonably clued up creditor to their error and they'll send you one that is valid.

 

Only when the creditor finally terminates the agreement, in whatever manner using the invalid default notice as a prior stepping stone towards further enforcement can you then accept the repudiation.

 

That has always been my understanding of the process. The DN is important but is only actually part of the unlwaful repudiation when the creditor then seeks to use it to secure the next step, termination.

[Bigdebtor]

Perhaps you need to think outside the alchemist's box and investigate quantum physics, as indeed should it be possible to take the point in time (A) when you start ingesting the frothing pint and the point in time (B)when you finish voiding the frothing end product, and to repeatedly cycle by returning in a nanosecond from point B to point A then your problem is solved...

 

Good point UE. I always wondered how all that theoretical guff could be used for mankind's benefit.

 

Where's that guy Einstein when you need him?

 

Perhaps he was really ahead of his time?

 

BD

[lord_tiger_putin]

you will simply alert a reasonably clued up creditor to their error

 

Don't seem it to be a problem with Mercers though:p:-D

[emandcole]

Don't seem it to be a problem with Mercers though:p:-D

 

Ha ha, the clue is in the reasonably clued up bit

 

Yep, Mercers are a nightmare.

[alangee]

LA

 

Reference your post #3812.

 

I am not sure that claiming that a faulty DN is a defence against a claim per se.

 

Before I get shouted down, let me explain. A claim can be made where the agreement and everything else is correct, except for the DN, which for whatever reason is deemed to be defective.

 

You can still lose the claim, but only have the arrears to pay.

 

Now if the arrears as a result of that DN are for only a few hundred pounds, as against a total debt of £5,000, you could and should claim a victory, but if the arrears amount to several thousand pounds, then the "victory" is not so sweet.

 

My point is that a defective DN on its own will not win the case for you. It may dissuade the OC to bring the case against you, if for example you will only be responsible for the arrears that had amounted to a few hundred pounds, but I guess that would be taken on economic grounds rather than anything else.

 

As I say, this is only my opinion, and I am ready to be shouted down.

 

I believe Rhodium78 made this point on another post

People won in the context of a faulty DN because a.) the opposing counsel with all due respect were incompetent and didn't realise they can get the arrears instead; b.) discontinued because the cost implications of going to court when compared to the judgement is not worth it as they would probably never get any return.

 

Alan

[mot22]

My opinion is that if they unlawfully terminate the account, then it is NOT terminated unless you accept it. Only then it terminates. Although they have terminated it, because it is unlawfull, it has no effect and it is "still business as usual" and you are falling further behind on the contactual installments.

 

Thx ltp.

 

I follow what you say, however, as far as the OC is concerned, by them Terminating or demanding the full balance, there is no longer any Agreement (contract), just an account (with a full balance owing on it).

 

Also this seems to touch upon a debtors "awareness" of his right to accept UR. Such that if an UR was accepted some time later, because a debtor is now aware he had the right to accept UR, it would be a contradiction of his "awareness" being a factor in acceptance if indeed he (the debtor) was now liable for all arrears up to the date of his acceptance of UR.

 

In other words, what is the benefit of the "awareness" of a right to accept UR (in a situation of it being a period after the UR) if a debtor was not able to take the situation back to the time of the original UR? (back to when the debtor was obviously not aware of his right to accept UR).

(Where's LA, I need a drink lol.)

Edited July 26, 2010 by mot22

[diddydicky]

DD..

If an OC is demanding the full balance or Termination by letter (at or shortly after the due by date in the fualty DN) how can there be any further arrears beyond those stated in the DN, (regardless of how much later their UR is accepted) ?

appreciate your thoughts. Thx

 

the arrears stated on the DN are those that were in arrear as at the time the DN was written

 

lets say for arguments sake the DN was written on 21 October and gave you 14 days from the date of the letter to remedy (invalid)

 

on 20th November they write and demand payment in full or "terminate" because you did not remedy the DN

 

 

No one party can unlawfully terminate and agreement without the consent of the other party (if only!!) therefore if i write to the creditor and tell him i am fed up and am terminating the agreement- he would simply ignore it- because i have no right under the agreement to do so and he can hold me to the agreement

 

Similarly, when the creditor unlawfully repudiates his obligations (demanding payment in full or terminating unlawfully which the agreement does not allow him to do) you CAN do the same as the creditor and ignore the demand as the writings of a fool

 

OR

 

because his actions are unlawful you (the performing or injured party) then have the right under contract law to ELECT

 

either

 

to do nothing as just mentioned in which case the creditor is still bound by the agreement

 

OR

 

accept their unlawful repudiation and consider yourself no longer bound by the terms of the agreement

 

(in schoolboy terms- they started it when they took their ball away- so now you are taking your jumpers which you used for the goalposts)

 

 

therefore it may be, say 28th November by the time you write to the creditor and "accept" his unlawful repudiation- and it is YOUR acceptance of his actions that effectively "ends" the agreement (since with no ball and no goalposts- there can be no football)

 

however you were still liable to be making payments from the time they sent you the DN ( 21 October) up until the time that you accepted their unlawful repudiation ( 28th November) so there are just over 2 more months of arrears of payments due to the creditor

[lord_tiger_putin]

as the writings of a fool

My oh my!! have I received some of those in my life!! Again one from Sven Lagerberg today stating implicitly that "CrapOne Law is above UK Law"! :evil:

[diddydicky]

The sending of the invalid default is not evidence of unlawful repudiation in itself as the creditor still has the opportunity and right to re-issue a valid and compliant DN. If you accept at that point you will simply alert a reasonably clued up creditor to their error and they'll send you one that is valid.

 

Only when the creditor finally terminates the agreement, in whatever manner using the invalid default notice as a prior stepping stone towards further enforcement can you then accept the repudiation.

 

That has always been my understanding of the process. The DN is important but is only actually part of the unlwaful repudiation when the creditor then seeks to use it to secure the next step, termination.

 

this is true up to a point

 

if the dn states that the creditor will terminate and/or demand payment in full if you do not comply by the stated date- then you are entitled as a layman to take him at his word- for the act makes clear that the DN which is a prescribed document and not just a demand for payment- must leave the debtor in no doubt as to what the alleged breach is what he must do to put it right and when- and what the consequences of his failure to remedy WILL be

 

( i therefore contend that Will and May have the same meaning in the wording)

 

however whilst it may be desirable to wait for a few weeks to see if a termination or demand arrives- it could be that many weeks or months pass by- in which case the crafty creditor leaves the door wide open to serve yet another DN

 

i would always suggest that if no termination or demand is forthcoming within say a month- i would write and accept the DN as the creditors unlawful repudiation

 

I say this because contract law clearly states that it is not just the refusal of one party to perform that is a repudiation but if he threatens not to perform it is equally as much a repudiation

 

in the case of a DN the creditor is clearly threatening/stating that on or after the date on the DN he will repudiate

 

the injured party does not have to wait for the event- indeed i would argue he would be mitigating his losses - as he is obliged to do (by way of continuing build up of arrears) in accepting the unlawful repudiation at the earliest opportunity

[lord_tiger_putin]

Seeing that this is many threads within a single thread:

 

I still believe one have a strong case if the arrears on the DN are grossly wrong. Say there is a clear cut case of PPI mis-selling (I have 2 cases, after receiving the CCA’s, I realised I didn’t tick the boxes stating that I want PPI and I also didn’t sign the PPI box, still they added it and I paid for it. I only realised this fact after receiving the CCA’s), then they have to refund the PPI because they owe me that money. Just because I haven’t asked for it yet, doesn’t mean that they do not owe it. Therefore, should this amount be higher than the arrears on the DN, then there is actually no arrears and the DN definitely invalid.

[Bigdebtor]

Makes sense to me LTP - but sense and The Law are sadly not always in concert! Perhaps you could sort it all on your next visit to the Upper House?

 

BD

[lord_tiger_putin]

MPerhaps you could sort it all on your next visit to the Upper House?

 

BD

Maybe I should use my Dictatorial Powers to make only 2 rules for Banks, CC Companies, DCA's , CRA's, etc:

 

Rule 1: You should adhere to the Law

Rule 2: Should you think you do not have to adhere to the Law, see Rule Nr. 1

[Jamesx81x]

So to keep it simple if a creditor terminates an agreement on the back of a dodgy default ie, £400 out on the actaul arrears then it is unlawful recission of contract?

 

This then means they are only allowed to claim for the current arrears and not enjoy the benefits of Section 87 CCA does it not?

[lord_tiger_putin]

So to keep it simple if a creditor terminates an agreement on the back of a dodgy default ie, £400 out on the actaul arrears then it is unlawful recission of contract?

 

This then means they are only allowed to claim for the current arrears and not enjoy the benefits of Section 87 CCA does it not?

 

Yes, to get the benefits of Section 87 they have to issue a DN.

 

A dodgy DN is equivalent to no DN, therefore when issuing a dodgy DN then it is as good as that they haven't issued a DN at all!! They wasted the paper!

 

Off course, the Judge must agree it is dodgy:?

Edited July 26, 2010 by lord_tiger_putin
Had to add data