Invalid Default Notices

[angry cat]

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

 

They would have to prove it...

 

DN's are generated by the firms computer and in reality arrive via contract mail.

[lord_tiger_putin]

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

 

Furthermore, only "the Creditor" can issue same!

 

What is UKMail express parcels & mail? Is it equivalent to RM 2nd class?

[lord_tiger_putin]

Also, will a statement that "it is the envelope it came in", be enough?

[angry cat]

More, like 3rd. class!

Royal Mail, normally delivery these.

 

"Mail delivered in the ordinary course of post"

[angry cat]

Also, will a statement that "it is the envelope it came in", be enough?

 

Always keep the envelopes;

Mark date received!

[lord_tiger_putin]

More, like 3rd. class!

Royal Mail, normally delivery these.

 

"Mail delivered in the ordinary course of post"

 

The Dn Issue Date was the14th, it dropped through my letterbox on the 16th. This date makes it unfortunately valid for me by keeping the envelope!

[diddydicky]

Also, will a statement that "it is the envelope it came in", be enough?

 

put yourself in the position of the judge

 

if the defendant has the envelope which the DN came in and discloses it to the court- would you think that this was the envelope the DN came in and which the defendant kept for evidence- or would you think that the defendant had obtained the envelope by some nefarious means and was seeking to mislead the court (bearing in mind that if the creditor calls him a liar- it has a postcode endorsed on it- and the creditor would then have to explain what other correspondence would have been sent at the same time to the debtor which would have been in that envelope

 

i really dont think many judges have got to the stage of thinking that LIP's are forging evidence yet

[diddydicky]

The Dn Issue Date was the14th, it dropped through my letterbox on the 16th. This date makes it unfortunately valid for me by keeping the envelope!

 

if you have admitted that it was received on the 16th then clearly that was the date of service of the dn- irrespective of any other evidence!!

[tastethediff]

I have a couple of questions for you guys regarding Default Notices served by Creditors.

 

1. Can a Credior issue multiple Default Notices on the same account(i.e. send a default notice in Jan and if you don't pay send another in Feb with a different amount on)?

 

2. Can a Creditor issue a default notice and then continue to charge interest after the default notice has been served?

[lord_tiger_putin]

if you have admitted that it was received on the 16th then clearly that was the date of service of the dn- irrespective of any other evidence!!

 

In the past I never kept any envelopes and truly have no clue when they actually arrived, therefore I can safely use the arguments discussed here for 2nd class and 4 working days for service.

 

After I became aware of these things I decided to make a note of the Date of Service and to keep the envelope. This action actually backfired!! If I was still ignorant about it and I would have revisit it a couple of months later, then I could use have used these arguments.

Edited July 29, 2010 by lord_tiger_putin

[lord_tiger_putin]

I have a couple of questions for you guys regarding Default Notices served by Creditors.

 

1. Can a Credior issue multiple Default Notices on the same account(i.e. send a default notice in Jan and if you don't pay send another in Feb with a different amount on)?

They can dish out as many as they like, as long as they don't terminate the account.

 

Termination happens when they either send a Letter of Termination (few do), demand the full outstanding amount or hand it over to a debt collection agency for collection (I have a question on this point though, BC handed it over to Mercers who only demands the arrears, is that termination?), etc. Once that have happened and they issue another, it is invalid.

 

2. Can a Creditor issue a default notice and then continue to charge interest after the default notice has been served?

Yes, they can. If they terminate the account then I am not sure, hopefully someone else will advice.

[DontPushMe]

Hi LTP,

 

I don't consider lying as acceptable as it will always catch you out but if the rules say that 2nd class post is counted as 4 days then that's the rules and by accepting the 4 days you're only playing by the rules.

 

DPM

[tastethediff]

Thanks for the speedy reply,

 

On point 2, if the account is terminated and sold to DCA(probably for p in the £) can the DCA then charge interest themselves on the full amount?

 

thanks

[middenmess]

LTP

I have a question on this point though, BC handed it over to Mercers who only demands the arrears, is that termination?

 

Not yet but give them time and Barclaycard/Mercers will eventually demand the O/S balance or send a termination letter.

 

Was your D/N sent by Mercers with no address for BC?

[lord_tiger_putin]

LTP

 

 

Not yet but give them time and Barclaycard/Mercers will eventually demand the O/S balance or send a termination letter.

 

Was your D/N sent by Mercers with no address for BC?

 

Yep, it is one of those famous ones but it seems they take their time to terminate it (Mercers running up their telephone bill:-D:-D)!!

[lord_tiger_putin]

Hi LTP,

 

I don't consider lying as acceptable as it will always catch you out but if the rules say that 2nd class post is counted as 4 days then that's the rules and by accepting the 4 days you're only playing by the rules.

 

DPM

 

I do not have to state that I am aware when it was Serviced, just play dumb and use the rules, as you say.

 

In this case it is actually not either 2 or 4 days, but either 2 or 6 days, seeing that 2nd clas will include the weekend.

 

Anyway, any of these arguments is far in the future, still trying to get them to refund the Insurance and theft charges, which, if succesfull, will leave very little left outstanding.

[diddydicky]

1/ the dn sent in feb would naturally have a different amount on since by then you would (presumably) be a furrther month in arrears

 

theoretically he could send as many as he likes- in practice- i think a court would frown on anything more than one attempt to correct the first

 

2/ yes-

 

 

3/ are you SURE you are referring to a default notice, rather than a notice of default- which is altogether different.!

 

can you post them both up?

[DontPushMe]

LTP the 4 days for 2nd class is 4 working days. As you so rightly say this could be 6 days if it includes a weekend and 7 days if it includes a Bank Holiday. Check your calendar!

 

DPM

[diddydicky]

I do not have to state that I am aware when it was Serviced, just play dumb and use the rules, as you say.

 

In this case it is actually not either 2 or 4 days, but either 2 or 6 days, seeing that 2nd clas will include the weekend.

 

Anyway, any of these arguments is far in the future, still trying to get them to refund the Insurance and theft charges, which, if succesfull, will leave very little left outstanding.

 

just to get this absolutely straight

 

the "rules" do indeed state that it will be assumed that second class postage has been used unless evidence as to first class postage is presented

 

HOWEVER

 

if you admit that you have received the document earlier than the 4th working day from the date of posting then the DN will be deemed to have been served on the day you state that you received it and NOT the fourth day.

 

the "purpose"" of the legislation is to "serve" the DN on the debtor

 

and the admission by the debtor that he received it on a particular day overrides the time for service that was "deemed" if that is an earlier date

 

i thought that you had admitted in an earlier post- receving the DN two days after it was posted (16th)- given the public nature of the forum i would advise that it would be very foolish to later declare otherwise

[diddydicky]

i would advise caggers to think about what information they post on the forums- it is well known that individuals can be identified in some cases and that some creditors/dca and solicitors monitor this forum

 

specific instances seeking clarification of dates etc should be hypothetical and not actual

[DontPushMe]

I have a DN which is OK regarding dates but it refers to an agreement with a company with which I definitely did not have an agreement, alleged or otherwise. My alleged agreement is with company XYZ and there, in the first paragraph is the claim that my agreement with ABC is in breach. Does this invalidate the DN? I'm totally confused as to what company I have an agreement. If it's invalid and it was registered on my CR file then can I seek damages from XYZ?

 

DPM

Edited July 28, 2010 by DontPushMe
typo

[means2anend]

Your DN insufficiently identifies the agreement!!!

 

This is a checklist only

 

Courtesy of Lord_Tiger_Putin

 

A statement that says: IMPORTANT--YOU SHOULD READ THIS CAREFULLY.

A statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974

A description of the agreement sufficient to identify it, i.e. Account Number.

The name and a postal address of the creditor.

The name and postal address of the debtor.

A specification of the provision of the agreement alleged to have been breached.

A specification of the nature of the alleged breach of the agreement, specifying clearly the matters complained of.

A specification of what action is required to remedy it.

The date, being a date not less than fourteen days after the date of service* of the notice, before which that action is to be taken.

The following Statement following directly under the above in CAPITALS:

IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH.

The following Statement following directly under the above in CAPITALS:

IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU.

A clear and unambiguous statement by the creditor indicating, if any of the above action is not duly taken, the action which he intends to take, i.e.

To terminate the agreement.

To demand earlier payment of any sum.

To treat any right conferred on the debtor by the agreement as terminated, restricted or deferred.

Requiring earlier payment of any sum as a result of the breach (usually fix-term loans):

Where a sum of money is required to be paid under the notice,

The amount of the sum before deducting the amount of any rebate on early settlement.

The accurate calculation of any rebate.

Where an agreement makes provision for the charging of post-judgment interest in connection with a judgment sum, a statement in the following form--

"You should be aware that if we take you to court and get a judgment against you requiring you to pay us the money you owe us under the agreement, you may have to pay us both the amount of the judgment and interest under the agreement on all the sums owed by you at the date of the judgment until you have paid these in full. This means that even if you pay off the whole amount of the judgment, you may still have a further sum to pay."

The following Statement in CAPITALS:

IF YOU HAVE DIFFICULTY IN PAYING ANY SUM OWING UNDER THE AGREEMENT OR TAKING ANY OTHER ACTION REQUIRED BY THIS NOTICE, YOU CAN APPLY TO THE COURT WHICH MAY MAKE AN ORDER ALLOWING YOU OR ANY SURETY MORE TIME.

The following Statement in CAPITALS:

IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE. FOR EXAMPLE YOU SHOULD CONTACT A SOLICITOR, YOUR LOCAL TRADING STANDARDS DEPARTMENT OR YOUR NEAREST CITIZENS' ADVICE BUREAU

A statement that says:

This notice should include a copy of the current Office of Fair Trading information sheet on default. This contains important information about your rights and where to go for support and advice. If it is not included, you should contact us to get one.

Edited July 28, 2010 by means2anend

[diddydicky]

only the owner of the debt can serve a default notice- and that company - if not the original creditor must be able to assume ALL of the obligations of the original creditor- and which includes being able to continue with the agreement if you remedy the breach

[nks22]

The situation I mentioned is with a "current" DN, the remedy date is the 2nd of Aug 2010. It was dated the 14th of July, send by UKMail and arrived on the 16th of July.

 

Does it matter when it arrived? (Maybe you happened to be away on holiday.) The creditor has to allow the required number of days when producing the DN. He can't anticipate that it will arrive sooner.

[nks22]

Several of my UK Mail envelopes have had no date stamp on them, BTW.

 

The Dn Issue Date was the14th, it dropped through my letterbox on the 16th. This date makes it unfortunately valid for me by keeping the envelope!

 

Incidentally, I don't see how the envelope can show that it was delivered on the 16th. The franking date will be when Royal Mail received it from UK Mail, won't it, not when it was delivered?