Invalid Default Notices

[lord_tiger_putin]

and they wanted to know what docs i had in my possession.

 

Looks like a phishing exercise .....

[Undercover-Elsa]

Which translated means "Hmmmmm....dare we fabricate or do they have original copies?"

 

[diddydicky]

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.

 

good points but i think many caggers get the impression that "strike outs" are an easy way out of litigation

 

IMO applying to strike out is highly unlikely to succeed.

 

courts in general are extremeley reluctant to strike out claims, not least because it can be a waste of the courts time if the other side then makes an application to restore- but more because the courts will not deny justice on a whim - where deadlines and court process has not been met -

 

you will find that creditors and lawyers will be given a great deal of slack in terms of compliance- mainly on the basis that unlike most LIP's - they deal with hundreds if not thousands of cases at any one time.

 

like it or lump it- that is the situation- therefore they are going to have to test the courts patience to quite a large extent before the court will consider striking out their claim

 

far better in most cases to apply for orders to compel the other side to provide the information/do what it is you want them to do than apply for strike out

 

then follow the unless route if they do not comply with the initial orders

 

The one exception however is where a claim is very poorly particularised/ the claimant cannot/will not supply the supporting documents/the documents supporting the claim are clearly and evidently not sufficient to show a cause of action under CPR3.4.2. in which case it would (IMO) be a good idea to ask the court to strike out the claim

[bustthematrix]

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.

It will help if you write to them asking them to explain the stated arrears. It may well be something obvious that you've missed like a legal charge or valuation fee or whatever. Better to give them the opportunity to justify that figure now than serve a curve ball in court later.

[bustthematrix]

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.

James, I take it you've read Woodchester vs Swayne & Co? Then you will note that the main failure in the Default Notice that was served there was that the arrears amount stated was wrong!!!

 

While it's good to identify multiple failings in a Default Notice, just one important failing seemed to be enough for the Judges in Woodchester...unless I've read it wrongly...which is not impossible.

[bustthematrix]

In Woodchester vs Swayne & Co, LJ Kennendy in his submissions said:

I return now to the facts. On 12th January 1995 Woodchester sent to Swayne & Co a default notice which they contend complied with the provisions of the 1974 Act and the Regulations made thereunder. Swayne & Co accept that in most respects the notice did comply with the statutory requirements, but they contend that it had one critical flaw. It described the action required to remedy the alleged breach of contract as "payment of the sum of £879.90 by 24/01/95". In fact, as the assistant recorder found, the arrears of rental at that time amounted to £634.30. Woodchester claimed the higher figure because they wrongly increased the rental by 7.5% at the end of year 2 as well as at the end of year 1. An important issue which the assistant recorder had to decide was whether that error, which was admitted by Woodchester at the start of the hearing, rendered the default notice ineffective for the purposes of the 1974 Act.

GROUNDS OF APPEAL In this court the second ground of appeal put forward by Swayne & Co asserts that the assistant recorder's conclusion in relation to the validity of the default notice amounted to an error of law. That is the only ground of appeal on which we have heard argument. We indicated yesterday, at the end of submissions in relation to that ground of appeal, that we were in the appellants' favour.

...Gosh they have a long winded way of agreeing with things don't they...

THE APPELLANTS' CASE Mr Hodgkinson (for Swayne & Co) submits that if that approach is adopted there can be no doubt about what was required to be contained in a default notice in a situation such as this if the default notice was to comply with the statute. It had to state with reasonable accuracy the sum of money which the hirer had to pay to remedy his breach. An error such as that with which we are concerned must render the notice ineffective.

Mr Hodgkinson goes on to submit that none of the authorities relied upon by the assistant recorder, when properly considered, suggests otherwise. He further submitted that this court has no discretion in the matter and invited our attention to other parts of the statute, particularly Section 60 and the sections associated therewith including Section 127 where it is clear that a discretion is given which is noticeably absent in the case of Sections 87, 88 and 89.

CONCLUSION

In my judgment, Mr Hodgkinson is right for the reasons which he has given. This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage. The contract is likely to be in standard form and relatively complex with a number of detailed provisions. If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take what Mr Gruffyd conveniently referred to as "the next step".

 

That, as it seems to me, is the scheme of the legislation.

I would say it's quite clear that there is little room for error, and getting the arrears figure wrong is a definite no-no.

 

That's not to say people should hang their hat on just one flaw in a DN, to the contrary I'd say the more the merrier and the more likely a lender is to settle outside of court.

[means2anend]

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.

 

 

''consequences of failing to remedy'

[Jamesx81x]

Hi bustthematrix thanks for your comments

 

With reference to asking them they have told me to put any concerns i have on my defence. Fair enough dont see why i should do them a favour by highlighting their mistakes anyway. It is up to them to prove in court their figures are correct and the notice is accurate.

 

All transactions made on the account should be detailed on the statement of account. Remember the default notice shows what arrears have incrued on the account ie, missed payment interest and charges etc. Legal fees will be added to court claim itself.

 

The points you have made regarding the woodchester case are what i am getting it. Its clear cut case law and is binding on all county courts. A county court judge just cant dismiss it as they please when it is the same sort of case.

 

How can you try settling out of court without giving them too much information in their favour. With the above points in mind i do not see how they have a claim other than for the arrears to date.

Edited July 27, 2010 by Jamesx81x

[jowil1973]

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.

 

I have the envelope, 2nd class.

 

Anyhow the account was marked as 'Default' with the CRA's 12 days before the date on the DN. Plus a DCA demanded the balance in full on 27th August!!

 

Hi all,

 

 

Unlawful Rescission

 

With reference to the alleged debt to your company, I refer to your Default Notice (DN) dated 12th August 2009, posted second class and a letter from Experto Credite, dated 27th August 2009, as well as to records held with the Credit Reference Agencies (CRA’s).

 

The account is marked as ‘Default’ with the CRA’s from the date 31st July 2009. This is 12 days prior to the date of the Default Notice.

 

Furthermore I have a letter from Experto Credite dated 27th August 2009 in which they state they have bought the account and also demand payment of the full balance.

[GeoffreyAlby]

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.

 

 

It isnt valid. They are demanding the full balance in the DN , they can only demand the amount due to remedy the default, ie the arrears.

[lord_tiger_putin]

I have the envelope, 2nd class.

 

That is good! Very few people keep it before they became aware of it. The Date of Service is the second working day after Date of Issue when you consider 1st class and have no proof. It is 4 working days for 2nd class BUT seeing that you have the envelope as evidence that it was 2nd class, then the date on it will serve as the date of Service. Can you decipher the date because that will probable put it short of the 14 days.

 

The other points you raised will probably be helpful, maybe someone else will throw some light on it.

[lord_tiger_putin]

It isnt valid. They are demanding the full balance in the DN , they can only demand the amount due to remedy the default, ie the arrears.

 

Sorry, I missed that point:x That alone will make it invalid!

[lord_tiger_putin]

I have the envelope, 2nd class.

 

Anyhow the account was marked as 'Default' with the CRA's 12 days before the date on the DN. Plus a DCA demanded the balance in full on 27th August!!

 

This happens when you look for the "usual suspects". It also states that a Default has already been registered with the DCA's. This clearly puts them in the &^^%.

 

Sorry that I initially missed these points, luckily there are others that could point that out!

Edited July 27, 2010 by lord_tiger_putin
spell error

[GeoffreyAlby]

Sorry, I missed that point:x That alone will make it invalid!

 

The fact that it has been sold to EC speaks volumes, they probably only paid 10% of the debt, so they only need to successfully intimidate a minority of accounts into paying to make a profit on these unenforceable debts.

[lord_tiger_putin]

Anyhow the account was marked as 'Default' with the CRA's 12 days before the date on the DN.

 

Them putting their breach of the ICO guideline in writing certainly should make very good support for the removal of the Default from the CRA's?

[GeoffreyAlby]

I would also be confident that they have put the wrong account number on your DN!

 

You seem to be in a batch of accounts that MBNA truly and royally fcuked up! and they know it... so they got out and sold to an Irish Company called Varde. There is an issue that foreign companies can claim back 17.5% VAT on outstanding debts, hence why they want to get involved...

 

EC and CMC now try to claim on these unenforceable alleged debts. Ignore them

 

Their tactic is to try to get you to acknowledge the unenforceable debt...to the extent of saying you only have to pay £10 a month..... once you acknowledge, they will abuse court process and bypass a County Court claim , but will go down the Statutory Demand route. Ignore these gutter rats.

Edited July 27, 2010 by GeoffreyAlby

[jowil1973]

Thanks again for the input everyone!

 

On top of this the DN was issued whilst legal proceedings were ongoing for other issues with the account, issued against MBNA on my behalf by CCLS.

 

CCLS had sought counsel (at a pretty big expense - I have the receipts now) and although MBNA issued a Defence to their first claim when the claim was then adjusted MBNA issued no Defence. CCLS then asked for Judgement by Default.

 

Unfortunately (for me!) CCLS were suspended by the SRA just after the Judge asked for a Statement from me. However I now have all the files and have also written to the Court to ask if I can carry on as an LIP.

 

Both MBNA and EC have basically just sat on this for over a year with their only action being the odd phone call and letter plus a Default on my credit file. It's only been with my learning more through this site that I realised the DN was invalid and wrote accepting unlawful rescision.

 

EC have now written to me asking for more details, although they have already had proof of Court proceedings.

[GeoffreyAlby]

Thanks again for the input everyone!

 

On top of this the DN was issued whilst legal proceedings were ongoing for other issues with the account, issued against MBNA on my behalf by CCLS.

 

CCLS had sought counsel (at a pretty big expense - I have the receipts now) and although MBNA issued a Defence to their first claim when the claim was then adjusted MBNA issued no Defence. CCLS then asked for Judgement by Default.

 

Unfortunately (for me!) CCLS were suspended by the SRA just after the Judge asked for a Statement from me. However I now have all the files and have also written to the Court to ask if I can carry on as an LIP.

 

Both MBNA and EC have basically just sat on this for over a year with their only action being the odd phone call and letter plus a Default on my credit file. It's only been with my learning more through this site that I realised the DN was invalid and wrote accepting unlawful rescision.

 

EC have now written to me asking for more details, although they have already had proof of Court proceedings.

 

 

My advice, for what its worth, would be to ignore their request. As long as you are communicating with them , they hold out the hope that they are going to get you to start paying on these unenforceable debts. If you do communicate with them, you need to have at the top of your letter NO DEBT IS ACKNOWLEDGED

Edited July 27, 2010 by GeoffreyAlby

[jowil1973]

Thanks, I'll bear that in mind.

 

What about my response to MBNA? I've already laid out my argument, they've said they believe they did things right but they've also said if they receive no response from me within 8 weeks of the date of their letter they'll view the matter as over... with me accepting they're in the right??

[GeoffreyAlby]

Thanks, I'll bear that in mind.

 

What about my response to MBNA? I've already laid out my argument, they've said they believe they did things right but they've also said if they receive no response from me within 8 weeks of the date of their letter they'll view the matter as over... with me accepting they're in the right??

 

But have they not already sold on the unenforceable debt to Varde? So at the end of the day they dont have any interest at all. So just send them a letter re iterating your arguments.

[diddydicky]

the dn is assumed to have been sent second class UNLESS the creditor swears a statement to the effect that it was posted first class. it is not true that the lack of an envelope in the debtors possession means first class is assumed

 

it is for the claimant to prove it was posted first class- not for the defendant to disprove.

 

personally i NEVER disclose to the claimant that i have the envelope-

 

i simply "slip it into the list of disclosures (if you put enough crap into your disclosure list- the creditor often takes the view that you are an idiot LIP who is listing everything plus the shopping list - and they then take their eye off the ball!)

 

I would rather they make a statement as to first class postage so that i can then disprove it by referring to the disclosed envelope which it came in as this then helps to discredit the rest of their evidence

 

also, a solicitors statement that the dn was sent by first class post would be hearsay evidence and not carry much weight

Edited July 27, 2010 by diddydicky

[lord_tiger_putin]

the dn is assumed to have been sent second class UNLESS the creditor swears a statement to the effect that it was posted first class. it is not true that the lack of an envelope in the debtors possession means first class is assumed

 

it is for the claimant to prove it was posted first class- not for the defendant to disprove.

 

also, a solicitors statement that the dn was sent by first class post would be hearsay evidence and not carry much weight

 

I agree that 2nd class is assumed unless proven otherwise by the sender. Wouldn't it be a risk to build your defence on that premise and all the other party has to do is to get a sworn statement from employee's that all DN's are been send 1st class?. Unless you know they send it 2nd class, it could very well backfire?

[diddydicky]

I agree that 2nd class is assumed unless proven otherwise by the sender. Wouldn't it be a risk to build your defence on that premise and all the other party has to do is to get a sworn statement from employee's that all DN's are been send 1st class?. Unless you know they send it 2nd class, it could very well backfire?

 

it could- but i don't believe that ordinary employees of these companies would be prepared to swear affidavits or statements that were not true

 

the solicitors (and we all know which ones they are) whose own staff make these statements are a different breed to the ordinary people working in these companies who dont get to see/hear of the goings on at this end of the game

[lord_tiger_putin]

it could- but i don't believe that ordinary employees of these companies would be prepared to swear affidavits or statements that were not true

 

True but what if the DO send it 1st class?

[angry cat]

Creditors, do not send DN's by 1st class post.

 

Furthermore, only "the Creditor" can issue same!