Invalid Default Notices

[Lord_Alcohol]

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...

 

Watney's Red Barrel tasted surprisingly like urine. Does that mean I was sluicing good beer down the porcelain (when I should have been bottling it)?

 

LA

[Lord_Alcohol]

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

 

Alan

 

I think you're right. But I'd rather pay the arrears than the balance.

 

It's worth noting that the only claim the OC can lawfully make is for the arrears. Non-compliance with s88 has put s87(1)(b) and © out of his reach and he would (technically) be acting contrary to CCA were he to claim any unpaid amount other than the arrears at termination.

 

Also, the OC would be in breach of contract - allowing a claim for any damages costs that you may have incurred, such as having to deal with adverse credit.

 

LA

[Lord_Alcohol]

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

 

Have you tried the Boots home brewing kit, and using your own personal fluids instead of tap water?

 

A friend tells me the results are quite surprisingly good...

 

LB

[nks22]

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)

 

If you're accepting their termination isn't it reasonable to argue that the arrears can be calculated only up to the time they chose to terminate? After all, isn't it their termination you're validating, albeit at a later date? (Not that I've any idea but it seems a plausible argument.)

[Jamesx81x]

The Woodchester lease case is pretty clear cut as far as the law stands is it not?

 

It is a judgement handed down by the court of appeal stating that a notice has to be accurate so the consumer knows exactly what he/she has to do/pay to put it right otherwise the creditor loses all rights under Section 87.

 

How can any county court judge ignore this piece of case law knowing full well the court of appeals decision is binding. I do not see how a creditor or judge can argue against it.

[lord_tiger_putin]

In an attempt to determine more easily whether a DN is valid nor not, I made a checklist that can be used. This list is not suitable for a hire purchase or where the breach is not capable of remedy and only suitable for DN served under section 87(1). It is suitable for the more common case like fix-term loans and Credit Cards. Any corrections or comments to improve it will be appreciated. Also, if there any mistakes, please point it out.

Checklist - What a Default Notice should contain.pdf

[tedney]

Court Action certainly means it has been terminated.

Do you think this could/would apply to an bank overdraft please? Had "notice served under sections 76(1) and 98(1) of the CCA 1974". Bank issued claim (stayed at present) but continue to add interest on the account, despite nominal monthly payments. Am I wrong in keeping payments up i.e. keeping account open?

t

[lord_tiger_putin]

If you're accepting their termination isn't it reasonable to argue that the arrears can be calculated only up to the time they chose to terminate? After all, isn't it their termination you're validating, albeit at a later date? (Not that I've any idea but it seems a plausible argument.)

 

To me the argument is as follow:

 

If you claim Unlawful Rescission it is very doubtful that any Creditor will accept it and work out the arrears and tell you to only pay that and then close the account. This will most probable only be decided in court. Should a Judge finds in your favour for Unlawful Rescission, then you have a clear way of claiming damages for the Unlawful Rescission and it would be reasonable to claim an amount at least equal to any arrears. Any Creditor will anyway be on the back foot should you have a favourable outcome on Unlawful Rescission.

[lord_tiger_putin]

Do you think this could/would apply to an bank overdraft please?

t

 

Can you be more specific what you need to know, about termination or DN's?

 

These DN's can also be invalid but they have a date not less than seven days after the giving of the notice.

[jowil1973]

Because they could then issue another one. They can keep issuing DNs so long as they haven't terminated; eventually they might get one right (especially if you've told them what's wrong with a previous one).

 

 

 

I upload mine to Photobucket (in which you can also erase stuff on the copy) and post a link.

 

Think this should be it.... http://i983.photobucket.com/albums/ae313/jowil1973/MBNADNletter-1.png

Edited July 26, 2010 by jowil1973

[lord_tiger_putin]

Think this should be it.... http://i983.photobucket.com/albums/ae313/jowil1973/MBNADNletter.png

 

Too small!!

[jowil1973]

I've re-pasted... it's a bit better.

[lord_tiger_putin]

I've re-pasted... it's a bit better.

 

I am afraid it is valid:evil:, I assume you do not have the envelope? If you do not have it then the Date of Service will be the 14th of Aug and the Date of Remedy is the 29th of Aug, well clear. The rest is also fine.

[lord_tiger_putin]

I've re-pasted... it's a bit better.

 

Do you have the CCA?

[lord_tiger_putin]

Do you think this could/would apply to an bank overdraft please? Had "notice served under sections 76(1) and 98(1) of the CCA 1974". Bank issued claim (stayed at present) but continue to add interest on the account, despite nominal monthly payments. Am I wrong in keeping payments up i.e. keeping account open?

t

 

It will certainly be terminated.

[diddydicky]

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?

 

£400 out on arrears of say 2400 would not be the same as £400 out on 800

and so on

 

its all accordin- but in general i would say 400 quid is rather a lot to be "out"

[lord_tiger_putin]

Do you think this could/would apply to an bank overdraft please? Had "notice served under sections 76(1) and 98(1) of the CCA 1974". Bank issued claim (stayed at present) but continue to add interest on the account, despite nominal monthly payments. Am I wrong in keeping payments up i.e. keeping account open?

t

 

Did you also tried to claim back charges? I assume there are plenty of them but also claim back the interest on these charges, I haven't done it yet but it can be apparently a significant amount.

[Jamesx81x]

My point exactly i would say £400 is a substantial amount to be wrong on amount of default no matter what the arrears are! The amount needed to remedy the breach has to be accurate otherwise the default notice is useless.

 

As said in the woochester case a major company is expected to be able to calculate figures with accuracy give or take a pound here and there. They have all the systems to do so. If they mess it up and get it wrong that is to the detriment of the consumer therefore they lose any right they would of had under Section 87.

[diddydicky]

My point exactly i would say £400 is a substantial amount to be wrong on amount of default no matter what the arrears are! The amount needed to remedy the breach has to be accurate otherwise the default notice is useless.

 

As said in the woochester case a major company is expected to be able to calculate figures with accuracy give or take a pound here and there. They have all the systems to do so. If they mess it up and get it wrong that is to the detriment of the consumer therefore they lose any right they would of had under Section 87.

 

but i doubt that- if you argue that the 400 overcharge is the result of PPi premiums wrongly charged to the account- and is a matter you have never raised prior to receipt of the DN- that you might struggle a little with that argument in court

[Jamesx81x]

It is not a matter of PPI as there is none.

 

The creditor sends you a default notice for the sum of £1500. You take your statement of account add all missed payments and interest/charges and come up with £1100! Why the difference?

 

And how could you argue the figure on a default notice if you have never seen it until they send it?

[diddydicky]

i beg your pudding- i thought you mentioned PPI

 

it was not the fact of not arguing the figure on a dn i was referring to- but standing in court and arguing that the REASON for the wrong figure was based on a matter which hitherto you had never mentioned before to the creditor (mis sold ppi)

 

also did not say it would be impossible- but that it would be likely to be seen as "convenient" by the judge

[Jamesx81x]

I get what you are saying.

 

What i am referring to is a similar situation to what i am in at the moment with me having an account terminated on the back of what i beleive to be an inaccurate default notice. I have gone over my statements again and again and there is no explanation as to why there is such a difference. I get the same figure each time which is a way off what they have stated.

 

It is this question i am going to have to get them to answer when it goes to court but it is all really racking my head at the mo.

[Guest unicorn4321]

ltp in answer to your questions

 

yes i have filed acknowledgement of service within the 14 days.

 

I sent a cca request first on 09/07/10 to mortimers solicitors.

 

I was then advised to send a cpr 31.14 to mortimers this was sent on the 10/07/10.

 

I also sent a sar request to yb on the 10/07/10.

 

Received a reply back from ms who said "we believe that you may have already inspected the documents to which you refer as in the past they have been sent to you by the oc or dca " and they challenged the basis and purpose of my request and they wanted to know what docs i had in my possession.

 

I wasthen advised to send the following letter :

 

I am sure i do not have to remind you of the civil procedures rules.

if you fail to respond i will apply an N244 and request forthwith a strike out of the claim,I expect you to forward these documents within the next 7 days.

 

This letter was posted on the 21/07/10 i have had no response to date.

[diddydicky]

ltp in answer to your questions

 

yes i have filed acknowledgement of service within the 14 days.

 

I sent a cca request first on 09/07/10 to mortimers solicitors.

 

I was then advised to send a cpr 31.14 to mortimers this was sent on the 10/07/10.

 

I also sent a sar request to yb on the 10/07/10.

 

Received a reply back from ms who said "we believe that you may have already inspected the documents to which you refer as in the past they have been sent to you by the oc or dca " and they challenged the basis and purpose of my request and they wanted to know what docs i had in my possession.

 

I wasthen advised to send the following letter :

 

I am sure i do not have to remind you of the civil procedures rules.

if you fail to respond i will apply an N244 and request forthwith a strike out of the claim,I expect you to forward these documents within the next 7 days.

 

This letter was posted on the 21/07/10 i have had no response to date.

 

what documents you have in your possession are none of their business until a court orders disclosure however- the documents which support or give cause of action must be provided by the claimant when he issues his POC and in reality should be in their possession BEFORE they start a claim

[lord_tiger_putin]

what documents you have in your possession are none of their business until a court orders disclosure however- the documents which support or give cause of action must be provided by the claimant when he issues his POC and in reality should be in their possession BEFORE they start a claim

 

 

I could be completely wrong but it seems to me that they know they are in DEEP S&**& and try their up most best to use your "ignorance" to get a favourable outcome for them, hoping you will not know your rights and they can use that.

 

These people preying on the "Ignorance" of people is a very well known fact and it is probable their best weapon by far. It works and they know it!

 

Unfortunately for them, should you do know your rights, they provide you with these tactics plenty of rope to hang themselves!:D This is where CAG is very good in providing that knowledge.

 

I am also just learning the ropes of part of the process but I do believe going for a struck out after the allocated time is a very good options for you. You have done your part, you requested the documents, you proof you are reasonable by asking them again for the docs and giving them more time. Maybe someone else could second this strategy or provide another but it seems that they are on the back foot now.