Invalid Default Notices

[the_shadow]

I don't suppse the transcript of the AMEX v Harrison case is available; it would be interesting to know why that was determined on Sect. 98.

 

Agree, you do wonder if that case [Harrison]was an actual chargecard and hence the reason for the opening statements in the Brandon case.

 

S.

[Sagittarius]

From what PT was saying on one thread the case has been referred to the Court of Appeal

[Guest Jason King]

Parliament settled on a period of 14 days from service. It's not for a court to decide they were wrong.

 

As the-shadow has previously pointed out a court has seemingly done so.

 

The point I am trying to make in light of this viewpoint from the judge regarding the 14 day timescale, is that I would argue that (should I have a DN with just, say, 10 days to remedy set by the credit provider in a flawed DN) within the statutory 14 days I would have been able to pay the arrears but not in the 10 days set by the credit provider.

 

The issue then shifts from the judge considering whether or not I settled the arrears, or even having the opportunity some weeks later, which seemingly is the crucial point in this case, to my defence which would be that I only followed the (unlawful) DN, which shows I was not given the statutory time to pay.

 

My focus is that, Brandons was not.

 

It is for the Claimant to prove the legitimacy of a flawed DN.

[Bill Shidding]

parliament decreed (not all that long ago) that the creditor could not take "the next step"

 

I don't think that was parliament dd, I think it was Mr Gryffd (Woodchester v Swayne).

 

the DN (horse) comes before the entitlement to the benefits of s87 (the cart)- and the debtors actions in response to the DN are irrelevant

 

Precisely, DD .

 

A knowledgeable defendant may retort "I knew that the DN was not in accordance with sec88 and therefore the claimant was not (and is still not) "legally" entitled to terminate under cca74 or demand earlier payment of any sum. Furthermore, as the claimant is claiming sums he is not entitled to in the PoC, why are we here (Sir)?

 

Of course, the reply would depend on the judge lottery.

 

As far as terminating the account under the agreement t&c's, creditors have always been able to do that. Usually only where the borrower has outright lied to get the facility, or has been a very naughty borrower.

Whipping the facility from under the borrowers feet (because he is struggling) is/will be allowed under cca74 (98A), but they must give 2 months grace. I'm not sure if 98A is enacted (yet) but it is on legislation(dot)gov.

 

It will be interesting to see where a workaround materialises from. As I read somewhere "God shuts a door, but leaves open a window"

 

From what PT was saying on one thread the case has been referred to the Court of Appeal

 

God works in mysterious ways. Smiley face x2.

 

Bill.

[nks22]

The point I am trying to make in light of this viewpoint from the judge regarding the 14 day timescale, is that I would argue that (should I have a DN with just, say, 10 days to remedy set by the credit provider in a flawed DN) within the statutory 14 days I would have been able to pay the arrears but not in the 10 days set by the credit provider.

But having been told you must pay within 10 days you may have been led on a course of action that wouldn't have been followed had you been made aware that you had 14 days, e.g. decided there was insufficient time to consult a lawyer and so given into the threat without a full understanding of your situation.

 

I don't think that was parliament dd, I think it was Mr Gryffd (Woodchester v Swayne).

The court accepted that that had been the intention of Parliament. Courts interpret the law; they don't set it.

[Guest Jason King]

But having been told you must pay within 10 days you may have been led on a course of action that wouldn't have been followed had you been made aware that you had 14 days, e.g. decided there was insufficient time to consult a lawyer and so given into the threat without a full understanding of your situation..

 

Yes, this is my point.

 

Brandon was unable, or just didn't have the opportunity, to argue that the flawed DN caused a problem for him, hence why the judge felt the 14 day period wasn't relevant in this case.

 

In this situation I would argue that I would have been able to pay within the statutory 14 days, but not sooner, which is what my creditor demands.

 

It would be for the claimant to prove that anything less than 14 days didn't matter.

[diddydicky]

are you sure you have not got your "knickers in a twist" on this one

 

the act says that the creditor must give the debtor AT LEAST 14 days from the date of service in order to remedy

 

where are you getting "within the 14 statutory days"! from?

[bustthematrix]

Whipping the facility from under the borrowers feet (because he is struggling) is/will be allowed under cca74 (98A), but they must give 2 months grace. I'm not sure if 98A is enacted (yet) but it is on legislation(dot)gov.

Bill.

Hi Bill, do you mind clarifying your comments here please? Section 98 (1-6) already exists under the CCA1974. What are you referring to under '98A' and how would this change was is already in place?

 

Also your comment 'because he is struggling'. How would this be determined and is that not what the s87-8 are there for anyway? Why have a seperate provision for this under a s98A???

[Guest Jason King]

are you sure you have not got your "knickers in a twist" on this one

 

the act says that the creditor must give the debtor AT LEAST 14 days from the date of service in order to remedy

 

where are you getting "within the 14 statutory days"! from?

 

Are you being delibrately ignorant or is this your usual trait?

 

The 14 days are statutory as they are contained within an Act, in this case the CCA 1974 (as amended).

 

And this-

 

89 Compliance with default notice

 

If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or © the breach shall be treated as not having occurred.

 

88 Contents and effect of default notice

 

(1) The default notice must be in the prescribed form and specify—

 

(a) the nature of the alleged breach;

 

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

 

 

Hence, which is why I have accurately described the remedy of a Default Notice 'within the 14 statutory days.'

 

Don't tell me I am wrong because I have been to court several times where the bones of a DN have been picked over and the 14 days have been referred to, by all legal reps and the judge, as 'the statutory 14 days.'

 

edited

[lexis200]

Are you being delibrately ignorant or is this your usual trait?

 

The 14 days are statutory as they are contained within an Act, in this case the CCA 1974 (as amended).

 

And this-

 

89 Compliance with default notice

 

 

 

If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or © the breach shall be treated as not having occurred.

 

88 Contents and effect of default notice

 

(1) The default notice must be in the prescribed form and specify—

 

(a) the nature of the alleged breach;

 

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

 

 

Hence, which is why I have accurately described the remedy of a Default Notice 'within the 14 statutory days.'

 

Don't tell me I am wrong because I have been to court several times where the bones of a DN have been picked over and the 14 days have been referred to, by all legal reps and the judge, as 'the statutory 14 days.'

 

edited.

 

It is a statutory 14 days, but that must be 14 clear days left after they allow for postage and putting down the required 'before' element. If they give you a flat 14 days the DN will always be faulty as it technically only allows you 13 days to remedy as you have to pay before the given date. As you've just said, all your legal bods remarked on the statutory 14 days, not 13, 12 or otherwise. This is I suspect what DD was (correctly) talking about.

 

And just fyi, calling people ignorant and stupid is not exactly the best etiquette and really doesn't help you make your point.

Edited August 10, 2010 by IdaInFife
as original post was edited

[middenmess]

Jason King to DD

 

Now stop being stupid.

 

Settles down into comfy chair with sarnies and a cuppa and awaits for DD to respond;)

[Bill Shidding]

Hi bustthematrix,

 

Hi Bill, do you mind clarifying your comments here please? Section 98 (1-6) already exists under the CCA1974. What are you referring to under '98A' and how would this change was is already in place?

 

This amendment is/will be introduced on S.I. 2010/1010 reg 38.

May help if I give you the link to the amendment -

 

http://www.legislation.gov.uk/uksi/2010/1010/regulation/38/made

 

IMHO, In "non default cases" with open ended agreements (except personal and business o/d's), the creditor, upon enactment of this amendment can terminate an "included agreement" without any breach, so long as the agreement allows termination by either party. In fact, if the creditor has a look at your credit file, and discovers you are upto your neck, he can use that as a reason to terminate the account. Therefore, putting the poor borrower into deeper doodoo.

 

Hope that explains my previous comments.

[diddydicky]

i think the original jason king was also a w**ker..........- in gloucester bus station toilets with a few other guys helping him if my memory serves me correctly

[Guest Jason King]

It is a statutory 14 days, but that must be 14 clear days left after they allow for postage and putting down the required 'before' element. If they give you a flat 14 days the DN will always be faulty as it technically only allows you 13 days to remedy as you have to pay before the given date. As you've just said, all your legal bods remarked on the statutory 14 days, not 13, 12 or otherwise. This is I suspect what DD was (correctly) talking about.

 

And just fyi, calling people ignorant and stupid is not exactly the best etiquette and really doesn't help you make your point.

 

Oh dear, DickyDicky needs the cavalry hey? Why don't you let Dick speak for himself instead of 'suspecting' what he's talking about?

 

Now this is what he posted in his belligerent reply to my post-

 

the act says that the creditor must give the debtor AT LEAST 14 days from the date of service in order to remedy

 

where are you getting "within the 14 statutory days"! from?

 

Now, nowhere in the Act regarding DN's does the phrase 'AT LEAST 14 DAYS' exist. So that is incorrect.

 

However, the Act states two phrases that can be very accurately described as 'within 14 days' to remedy a DN.

 

If one was to settle on the 15th day then the breach would still have occurred as it was not within 14 days.

 

For you to now bring up 'clear' days is quite simply bizarre, it is still within 14 days whatever way you wish to view it, as 'within 14 days' (of the letter date) to remedy still gives 14 days to remedy as per Act.

 

How does 13 days come into it?

[lexis200]

as 'within 14 days' (of the letter date) to remedy still gives 14 days to remedy as per Act.No it doesn't. See below.

 

How does 13 days come into it?

 

If I get a DN dated the 1st of the month, with a remedy date of the 14th, they have not given enough time, even if they hand deliver it, precisely because of the wording of the Act.

 

For a debtor to pay within the timescale given would mean they would have to pay on the 13th day as if they left it to the 14th day they would no longer be paying within 14 days.

 

From the CCA1974

 

(2) A date specified under subsection (1) must not be less than seven days after the date

of service of the default notice, and the creditor or owner shall not take action such as is

mentioned in section 87(1) before the date so specified or (if no requirement is made under

subsection (1)) before those seven days have elapsed.

 

Bearing in mind that this has now been changed to 14 days, I think it's fairly clear that they cannot give you less than 14 days, so if they are to be inside the letter of the law, in order for them not to breach the 'less than 14 days' bit they must allow service time and an extra day due to the wording of the DN, ie 'within'; hence my assertion that if they give you 14 days to comply and don't allow for service or the wording of the DN, they will only have given you 13 days or less.

 

Now I will leave it alone, as I 'suspect' you are not worth talking to.

[steven4064]

OK that's enough. I think Jason's post calling DD stupid is out of order - CAG is to help one another not insult one another.

 

If this 'conversation' escalates, I will remove any posts I deem inappropriate.

 

An apology would be nice.

[Guest Jason King]

If I get a DN dated the 1st of the month, with a remedy date of the 14th, they have not given enough time, even if they hand deliver it, precisely because of the wording of the Act.

 

For a debtor to pay within the timescale given would mean they would have to pay on the 13th day as if they left it to the 14th day they would no longer be paying within 14 days.

 

From the CCA1974

 

 

 

Bearing in mind that this has now been changed to 14 days, I think it's fairly clear that they cannot give you less than 14 days, so if they are to be inside the letter of the law, in order for them not to breach the 'less than 14 days' bit they must allow service time and an extra day due to the wording of the DN, ie 'within'; hence my assertion that if they give you 14 days to comply and don't allow for service or the wording of the DN, they will only have given you 13 days or less.

 

Now I will leave it alone, as I 'suspect' you are not worth talking to.

 

What the...?

 

A DN dated the 1st could then allow 2 days for delivery (if 1st class), then a statement to pay within 14 days and then a remedy date (to midnight) of the 17th!

 

You're just making dates up to confuse the matter on purpose.

 

The fact of the matter is, by statute, to remedy a breach 14 days are given, or to pay within 14 days, midnight of the 3rd to midnight of the 17th in my example.

 

I'm outta here-it's too much like hard work!

[nks22]

For a debtor to pay within the timescale given would mean they would have to pay on the 13th day as if they left it to the 14th day they would no longer be paying within 14 days.

 

"A date specified must not be less than 14 days after the date of service", therefore if it's served on day 1 the specified date cannot be sooner than 14 days after that, i.e. day 15. "The creditor shall not take action... before the date so specified or... before those 14 days have elapsed". Therefore you can remedy the breach by paying on the 14th day.

[diddydicky]

my apologies ................. mine was more in humour than anger!!

[Undercover-Elsa]

What the...?

 

A DN dated the 1st could then allow 2 days for delivery (if 1st class), then a statement to pay within 14 days and then a remedy date (to midnight) of the 17th!

 

You're just making dates up to confuse the matter on purpose.

 

The fact of the matter is, by statute, to remedy a breach 14 days are given, or to pay within 14 days, midnight of the 3rd to midnight of the 17th in my example.

 

I'm outta here-it's too much like hard work!

 

But you're not out ...you're still here.

The accepted method of calculating the statutory 14 clear days is starting day 1 as the day (ie the first full day) after service up to and including the last day prior to the deadline date. Hence 14 clear/full/complete/whole days.

 

While its fine to discuss. even argue the fine points, your attitude and personal insults are out of line, hence the comments.

If you have a cavalier attitude, then expect the cavalry in response!

[basa48]

................your attitude and personal insults are out of line, ............

 

Seconded

[dx100uk]

urm... some people posting here are more then they appear to be

beware of wolves in sheeps clothing...

 

nuff said

 

dx

[patrickq1]

Its becoming a painful experiance entering some of these threads, too many sharp over critical point scoring i bash you if you bash me, just being childish and i for one am becoming increasingly very sceptical about cag for not nippin all this in the bud,,

i cant see the point,yes if the advice given is wrong then another cagger can correct it without a slangin match..

So just grow up and consider this that there are people who come here for real help this point is being lost

patrickq1

[beyondhope]

Its becoming a painful experiance entering some of these threads, too many sharp over critical point scoring i bash you if you bash me, just being childish and i for one am becoming increasingly very sceptical about cag for not nippin all this in the bud,,

i cant see the point,yes if the advice given is wrong then another cagger can correct it without a slangin match..

So just grow up and consider this that there are people who come here for real help this point is being lost

patrickq1

 

AGREED!!!!!!!! and to lose a member of 'staff' to a witch hunt is absurd!!! can we not all be grown ups here!!!

[charlie*]

Can I chip in here....

 

Just remember, despair caused by debt has resulted in children being taken

by the state, evicted from their home and parents have killed themselves.