Invalid Default Notices

[cosalt]

I have another question -

 

My Goldfish card has been passed to a DCA for the full balance, yet they have never sent me a DN. Presumably I can assume they have terminated the agreement.

 

What will happen if they took this to court and issued a correct DN and termination letter when they realise the error. They could date these whenever they want to fit in with the circumstances. How can I show they never sent one in the first place?

 

Cosalt

[Gazza112]

Hi Cosalt

 

If it ever went to Court, they will need to show that they sent you a Default Notice i.e. Recorded Delivery or Special Delivery.

I know they send them out 1st or 2nd class mail, but the onus is on them to prove they sent you these documents not you. Same goes with the Notice of Assignment.

 

Gaz

[lexis200]

I still don't agree that the formal acceptance of an explicit termination by the debtor is something that the normal person-in-the-street is expected to do. This relies on the standard debtor knowing intricate contract law. This is just not going to be the case with 99.9% of people in that situation.

 

As Vint's quote from x20 shows, he puts it much more clearly than I could hope to..

 

I am yet to be persuaded that in the context of a regulated consumer credit agreement and the receipt of an express notice or activity on the part of the creditor consistent with termination, that the agreement does not terminate unless and until the debtor signifies by word or deed that he accepts termination. The damned notice of termination says what it says.

 

For sure in those cases where the termination amounts to the anticipatory breach of the agreement by one of the parties to that agreement the law says the innocent party should elect either to accept the termination or inform the terminating party that he requires them to perform their obligations owing under the agreement. But we're not concerned with an anticipatory breach by the creditor. It's not as if the creditor having agreed to give credit has then decided not to loan after all. What the creditor is doing is calling in the loan he has already made ahead of the time when it would ordinarily have been repaid.

 

But in a regulated consumer credit agreement, what in reality can the court genuinely expect the innocent, ordinary and unsophisticated debtor to a consumer credit agreement, who is strapped for cash, do in response to the demands of the creditor? Write a letter saying 'I accept your repudiatory breach of contract'?. Of course not. Well I say of course not. That is a ludicrous expectation to hold. Was the Court of Appeal ever concerned to ascertain in Woodchester v Swayne & Co that Swayne had accepted Woodchester's termination on the back of their ineffective DN? Mais non. Swayne & Co had done nothing. Swayne & Co were a firm of solicitors in Cardiff for crissake. Yet they still were treated to the benefits of the Act as one intended for the protection of consumers. Swayne were, according to claue 9.1 of the terms of the agreement between Woodchester and Swayne, in repudiatory breach of contract, entitling Woodchester to immediately terminate the agreement. But all the same, Kennedy LJ held that the provisions of section 87 dictated what Woodchester were required to do in order for Woodchester to become entitled to claim early payment and demand the return of the photocopier let on hire under the agreement. This was regardless of what the agreement said.

 

Indeed in the context of activity, if Swayne & Co had paid some money to Woodchester they would have done themselves a favour because those payments would have been applied to the credit of the arrears.

 

Sorry pinky, just realised what thread I'm on. I won't go off topic again!

Edited September 30, 2009 by lexis200
just an apology!

[MARKWHEETY]

Hi All

 

Question for you!

 

When a bank doesnt issue a default notice and registers a default wrongly and then admits it (what are they entitled to). Can they reinstate the account and then come after you for the full balance?

 

Please help!

 

Wheety

[diddydicky]

well they should not record a default if they have not issued a DN since the DN gives you 14 days to rectify the alleged breach and if you do rectify the breach - it is as if the breach never occurred.

 

clearly if they adversly mark your file before you have had this opportunity then your right to have the breach considered a non event, by complying with a default notice is not met.

 

 

You therefore have a claim against them for defaming your creditworthiness- if you subsequently apply for and are refused credit, or other loans are called in as a result of this bad mark your claim against them would be substantial. You could even be refused certain jobs with such a mark on your credit files

 

it is normal for a default to signify that the agreement is terminated (some banks actually usefully write and confirm this)

 

so they can be said to have unlawfully rescinded the agreement - in which case they cannot then go back and issue a DN

 

i don't know how much you owe them but i would be inclined to advise them that they have unlawfully rescinded the agreement by their actions and suggest they remove the offending entry PDQ. and advise you what they intend to do by way of compensation to you

[vint1954]

Allthough my case was dismissed yesterday, i did have a dodgy DN also a Dodgy Notice of Assignment. But i never got to use it as i said my case was chucked out owing Howard Cohen not sending in the original Documents on the day.

 

Hi Gazza, was the original document that was missing, the agreement, meaning that the Judge was insisting on seeing the original?

 

But in my case my Default notice for example was issued on the 9th which was a friday and remedy date the 26th and was posted second class.

First postal day for that would of been the 12th allowing 4 working days, which would of come to the 16th. So they never left 14 clear days to remedy the breach.

 

The best part in my case is they sold it to CL Finance on the 22nd, defecting the Default notice once and for all.

But i must stress as to what the Judge said to me yesterday, they need the complete accounts from that account and a breakdown to get to the figure in both the DN and Notice of assignment.

 

So not only they breached both legal forms, MBNA even breached the Data protection act for allowing a third party to look at my data 4 days before they should have.

 

Hope this helps

 

 

Gaz

Vint

[the_shadow]

My case is in court next year. I recieved the DN and the wording wasnt highlighted but was underlined and capital letters. Also the date if sent 2nd class was one day out. I sent for the cpr 18 request and in my defence put them to proof of posting for the DN. The DN turned up from the cpr 18 request and in this "copy" they had now highlighted the DN and added on the extra day. I had also recieved the TN. The OC has taken me to court. I am not sure what I should do next I have received the order from the court which tells me I can alter my defence (by next week) if necessary - should I? Also I will have to send a list of documents ( I think) that I will use in court, is this when I show the DN and TN? Would appreciate any help as the whole defence is the proof of 2nd class posting and their "copy" be altered by them.

 

Do you have a thread open on this? If so you need to request it gets moved to the legal forum if its not there already as you'll need specific advice tailored to your needs.

 

S.

[vint1954]

Sorry pinky, just realised what thread I'm on. I won't go off topic again!:-D:-D:-D

 

I think we sometimes mix up the specific act of parliament, CCA1974 and contract law. I do not think that it should be necessary to accept the unlawful rescinding of the agreement, as that is covered in the act and the consequenses of such actions, but belt and braces and recent comments by Judges, makes it a good idea. By an act of acceptance, it does put an end to that matter. If a Judge then asks how you accepted the unlawful rescission, you can at least say, by letter on thexxxxxxx, rather than, by scratching my bum m'lord.

 

It has been the topic of a lot of debate on this forum, so it obviously has been a problem in the past, but you are right, you should not need to. I have done it twice to each creditor, worked into other letters. 1st saying "I have accepted......." 2nd saying " I have previously accepted........", just to be sure.

[vint1954]

well they should not record a default if they have not issued a DN since the DN gives you 14 days to rectify the alleged breach and if you do rectify the breach - it is as if the breach never occurred.

 

clearly if they adversly mark your file before you have had this opportunity then your right to have the breach considered a non event, by complying with a default notice is not met.

 

 

You therefore have a claim against them for defaming your creditworthiness- if you subsequently apply for and are refused credit, or other loans are called in as a result of this bad mark your claim against them would be substantial. You could even be refused certain jobs with such a mark on your credit files

 

it is normal for a default to signify that the agreement is terminated (some banks actually usefully write and confirm this)

 

so they can be said to have unlawfully rescinded the agreement - in which case they cannot then go back and issue a DN

 

i don't know how much you owe them but i would be inclined to advise them that they have unlawfully rescinded the agreement by their actions and suggest they remove the offending entry PDQ. and advise you what they intend to do by way of compensation to you

Sorry dd, should have read to the end of the thread.

[Bill Shidding]

Well done GAZZA12

 

Allthough my case was dismissed yesterday, i did have a dodgy DN also a Dodgy Notice of Assignment. But i never got to use it as i said my case was chucked out owing Howard Cohen not sending in the original Documents on the day.

 

Seems like you got a decent Judge!

 

Did you "ask" for Judgement?

 

Bill

[Gazza112]

Well done GAZZA12

 

 

 

Seems like you got a decent Judge!

 

Did you "ask" for Judgement?

 

Bill

 

 

Hi Bill

 

Thanks, No i let the judge do all the saying i just stayed quiet.

But did learn quiet a lot in that time while she was speaking.

 

 

Gaz

[vint1954]

Hi Bill

 

Thanks, No i let the judge do all the saying i just stayed quiet.

But did learn quiet a lot in that time while she was speaking.

 

 

Gaz

c'mon, spill the beans Gaz

[Artie44]

Are there any cases where the DN was determined to be invalid solely because the time allowed for the debtor to remedy the arrears was a day short?

[spartathisis]

wouldnt have thought so, vast majority dont get to court because the creditor doesnt want to risk it. I would have thought that an invalid DN is invalid no matter what the reason, mines a little more invalid than yours, dont think so.

 

Are you sure its only a day short?

[Guest suziedarkness]

i was just wondering if someone familiar with legalities of DN's could take a look at this and thell me what they think. I think its toilet paper.

 

Thanks

Suzie

[alfwithhair]

i was just wondering if someone familiar with legalities of DN's could take a look at this and thell me what they think. I think its toilet paper.

 

Thanks

Suzie

 

image is too small to read

[vint1954]

Are there any cases where the DN was determined to be invalid solely because the time allowed for the debtor to remedy the arrears was a day short?

A Default Notice is a legal document. It has to be accurate. End of story realy:)

[vint1954]

i was just wondering if someone familiar with legalities of DN's could take a look at this and thell me what they think. I think its toilet paper.

 

Thanks

Suzie

Hi Suzie,

 

To be valid, having been sent on the 3rd September, the date to rectify by will be the 22nd September if sent first class, 24th September if sent second class or UKmail. Did you keep the envelope?

[Cobra29]

Hi All, Sorry to hihack this excellent thread, but with so much usefull info on Default Notices, I thought it would help if someone could answer this question on this thread?

 

I am sure I have read that the "14 days to remedy" used to be only 7 days? When did this change and did the 2 or 4 days allowed for posting exist?

 

Thanks

[vint1954]

Hi All, Sorry to hihack this excellent thread, but with so much usefull info on Default Notices, I thought it would help if someone could answer this question on this thread?

 

I am sure I have read that the "14 days to remedy" used to be only 7 days? When did this change and did the 2 or 4 days allowed for posting exist?

 

Thanks

October 2006

[Guest suziedarkness]

Hi Vint,

 

yes I did keep envelope. The date on envelope was same as on DN 3rd Sept. It says that the breach must be remedied BEFORE 14th Sept to they quite clearly have not allowed enough time. I was wondering if anyone could spot anything else wrong with it. I am not experienced in this so like majority of population dont have a clue when being ripped off.

 

Suzie

[vint1954]

Hi Vint,

 

yes I did keep envelope. The date on envelope was same as on DN 3rd Sept. It says that the breach must be remedied BEFORE 14th Sept to they quite clearly have not allowed enough time. I was wondering if anyone could spot anything else wrong with it. I am not experienced in this so like majority of population dont have a clue when being ripped off.

 

Suzie

Hi suzie,

 

It's a bit too small to read but there are sections that need to be in bold print and underlined. They also need to state the breach and the amount to rectify the breach. This amount must not be the full amount nor must it contain charges.

 

Have they terminated the agreement yet?

[lexis200]

Hi Vint,

 

yes I did keep envelope. The date on envelope was same as on DN 3rd Sept. It says that the breach must be remedied BEFORE 14th Sept to they quite clearly have not allowed enough time. I was wondering if anyone could spot anything else wrong with it. I am not experienced in this so like majority of population dont have a clue when being ripped off.

 

Suzie

 

You don't need anything else wrong with it - if they terminate after allowing you 11 days (not including postage time) then they are kaput.

[Guest suziedarkness]

Vint, this has become very messy.

 

Basically this was a 2nd charge on my property. The property was repo'd in 2007 by GE leaving. Without saying to much, their conduct was far from good in how they handled the repo and basically they just accepted an offer for the property that covered their own liability once they had piled on another £25-£30,000.

 

As a consequence, this mob got nothing and have been chasing the debt since Jan 2008.

 

I have SAR but upto Jan this year they had not complied fully, key information was still missing. Anyway, in March I moved house. Up until I left that address, I had not received anything from them that was telling me they were taking me to court. The only thing I had was the DN the Sept before.

 

I checked my credit file just by chance at end of July to find out they had taken me to court and got judgement by default.

 

The debt is now almost £50,000:shock:.

 

I am thinking about trying to get this set aside so I can challenge it and need as much ammo as I can. The DN I thought was a good place to start. There are other issues such as misselling PPI, secret commissions etc.

SD

[Guest suziedarkness]

O by the way, the judgement date was beg of May, so there was literally a few weeks. I guess I need to get all info from the court to see exactly when papers were issued.