Invalid Default Notices

[frettful38]

Just to be clear here:

 

1 You receive a dodgy DN.

 

2 Your account is CLEARLY terminated.

 

3 You accept the unlawful rescission of your contract with the bank.

 

4 Accept it or notify them before termination and they can rectify their mistake.

 

5 Continue to pay or act as though the agreement endured, following termination, then result is as in 4.

 

 

Thanks vint, so that means that I have a good chance here? all I am liable to pay for is the amount wanted to remedy the breach contained in the faulty DN and not the full balance outstanding, am I correct?

[vint1954]

Thanks vint, so that means that I have a good chance here? all I am liable to pay for is the amount wanted to remedy the breach contained in the faulty DN and not the full balance outstanding, am I correct?

You will have to refresh my memory here.

 

What was the issue date on the DN?

 

What was the rectification date on the DN?

 

How and when did they terminate the agreement?

 

The genuine arrears will be due, but you then say, from which you will deduct compensation for unlawful rescission.

[frettful38]

You will have to refresh my memory here.

 

What was the issue date on the DN?

 

What was the rectification date on the DN?

 

How and when did they terminate the agreement?

 

The genuine arrears will be due, but you then say, from which you will deduct compensation for unlawful rescission.

 

The issue date on the DN was the 19th May 09 and they wanted payment to remedy the breach by the 2nd June 09.

 

I do not know how they terminated the agreement, all I received was a few letters and a Final Demand letter on 30th June 09 which stated that I was to pay them the full amount within 14 days of this letter.

 

Then I received a letter from their in house debt collectors and so on.

 

Oh and in the DN it does not state under what terms I breached my contract, it just states that you have breached the terms of the payment clause of the Agreement, which requires you to pay a minimum amount in respect of each statement you receive.

Edited January 19, 2010 by frettful38

[Pinky69]

Not been to court yet Vint - still going through the complaint to creditor then ICO bit before court but the cases for damages are prepared and that incorporates default removal if the ICO doesn't play ball. Was ready to go to court then realised the court will expect me to have exhausted all out of court avenues first. The Companies Act breach has been raised with the ICO and will be raised in court if necessary. Basically they missed all the information required by the Act to be on their stationary and in doing so breached criminal law. An instrument breaking criminal law has no legal standing as a lawful instrument so that rules out any argument that I gave them permission to process my personal data on the application form.

[vint1954]

Not been to court yet Vint - still going through the complaint to creditor then ICO bit before court but the cases for damages are prepared and that incorporates default removal if the ICO doesn't play ball. Was ready to go to court then realised the court will expect me to have exhausted all out of court avenues first. The Companies Act breach has been raised with the ICO and will be raised in court if necessary. Basically they missed all the information required by the Act to be on their stationary and in doing so breached criminal law. An instrument breaking criminal law has no legal standing as a lawful instrument so that rules out any argument that I gave them permission to process my personal data on the application form.

Excelent

[vint1954]

The issue date on the DN was the 19th May 09 and they wanted payment to remedy the breach by the 2nd June 09.

 

I do not know how they terminated the agreement, all I received was a few letters and a Final Demand letter on 30th June 09 which stated that I was to pay them the full amount within 14 days of this letter.

 

Then I received a letter from their in house debt collectors and so on.

 

Oh and in the DN it does not state under what terms I breached my contract, it just states that you have breached the terms of the payment clause of the Agreement, which requires you to pay a minimum amount in respect of each statement you receive.

Well, it is up to you how you play it. If you are SURE that it has been terminated, then you could write to the creditors head office, Canada Square, as follows:

 

Date xxxxxxxxxxxx.

 

Dear Sir/Madam

 

Re account no xxxxxxxxxxxxxxxxxxx Unlawful Rescission.

 

With reference to the alleged debt to your company, I refer to your Default Notice dated xxxxxxxxx 2009, posted second class and received by me on xxxxxxxx 2009, and your subsequent actions confirming your previous written intentions to terminate the agreement. This termination has been recently confirmed to me as having taken place on ( date that fos advised you that the account was closed )

 

Notwithstanding that the default notice failed to give me the required statutory time in which to seek legal advice and/or remedy any alleged defect, as laid out in s87 of the CCA 1974. Your actions have resulted in insufficient time for me to even obtain an appointment with a solicitor let alone remedy the alleged default. Your actions have lead to you unlawfully rescinding the agreement.

 

I accept your unlawful rescission of the agreement I note that you are now entitled to claim those arrears genuinely due at the time of the termination (not including any unlawful charges ) and i would be obliged if you would advise me of the exact amount of those arrears, against which will be a claim for unlawful rescission

 

I look forward to hearing from you.

 

Yours faithfully

 

Fretful I WOULD ADVISE WAITING FOR OTHER COMMENTS OR CONFIRMATION BEFORE FIREING THIS OFF. MANY MINDS ARE BETTER THAN ONE.

[Bigdebtor]

breaking open a bottle of bubbly

 

if they terminated on the back of a faulty DN you legally only owe then the arrears on the account at the time of the termination

 

LESS your counter claim for unfair reccission of contract

 

happy days!!

 

Diddy

 

Sorry to pick up on your post from as long ago as 7 months or so back - but I have been reading these "faulty DN" threads with great interest and just need something clarified.

 

I got a DN followed by a Termination the very next day. I had stopped making monthly payments at that time and did nothing when I got these - and then heard nothing for about a further year - when I was told the debt (full balance shown on letter - but different card number quoted!) had been assigned to 1st Credit - and then I was chased by a DCA on its behalf. I agreed an affordable monthly payments towards this - along with a number of other card and personal loan debts via CCCS.

 

My query is this - by starting to make further payments to 1st Credit - and continuing to m,ake payments way beyond the amount of the arrears - did I let the OC off the hook regarding the termination which would otherwise be an unlawful rescission?

 

In other words have I screwed up and can I still be held liable for the balance assigned to 1st Credit (less subsequent payments) - or can I actually reclaim the excess repaid beyond the stated arrears at time of DN?

 

I note from some postings that it is recommended to "accept" the termination. I neither accepted it nor tried to get the agreement re-instated.

 

Any advice help from anyone who has knowledge or experience of this would be most appreciated.

 

BD

 

PS - if I am elegible what kind of counter claim could I make against unlawful rescission? I can prove that I had a big overdraft at that time on which I was paying 19.5% apr and which would have been smaller if I had not made these payments in error or under a false imnpresion created by misleading demands from 1st Credit.

[frettful38]

Well, it is up to you how you play it. If you are SURE that it has been terminated, then you could write to the creditors head office, Canada Square, as follows:

 

Date xxxxxxxxxxxx.

 

Dear Sir/Madam

 

Re account no xxxxxxxxxxxxxxxxxxx Unlawful Rescission.

 

With reference to the alleged debt to your company, I refer to your Default Notice dated xxxxxxxxx 2009, posted second class and received by me on xxxxxxxx 2009, and your subsequent actions confirming your previous written intentions to terminate the agreement. This termination has been recently confirmed to me as having taken place on ( date that fos advised you that the account was closed )

 

Notwithstanding that the default notice failed to give me the required statutory time in which to seek legal advice and/or remedy any alleged defect, as laid out in s87 of the CCA 1974. Your actions have resulted in insufficient time for me to even obtain an appointment with a solicitor let alone remedy the alleged default. Your actions have lead to you unlawfully rescinding the agreement.

 

I accept your unlawful rescission of the agreement I note that you are now entitled to claim those arrears genuinely due at the time of the termination (not including any unlawful charges ) and i would be obliged if you would advise me of the exact amount of those arrears, against which will be a claim for unlawful rescission

 

I look forward to hearing from you.

 

Yours faithfully

 

Fretful I WOULD ADVISE WAITING FOR OTHER COMMENTS OR CONFIRMATION BEFORE FIREING THIS OFF. MANY MINDS ARE BETTER THAN ONE.

 

Thanks very much vint. I have written to the FOS and told them that I will not sign and agree to HSBC's offer that they will accept a payment of £1 a month, until I receive my Data Request. HSBC have informed the FOS that they will send me this, even though I have waited over a year.

 

So I will wait to hear from the FOS and will let you know what their response is, before I send this letter above to HSBC.

 

One more thing vint, will I not get in to trouble with the FOS by not informing them about this faulty DN?

 

and I have tipped your scales:D

[AA99]

I have a Default Notice so am therefore subbing here but

 

I will not sign and agree to HSBC's offer that they will accept a payment of £1 a month, until I receive my Data Request. HSBC have informed the FOS that they will send me this, even though I have waited over a year.

 

I waited a year for my SAR from MBNA and finally got the ICO to obtain it for me:cool:

[frettful38]

I have a Default Notice so am therefore subbing here but

 

 

 

I waited a year for my SAR from MBNA and finally got the ICO to obtain it for me:cool:

 

Interesting AA99, it is such a pain in the rear isn't it, well I hope you got further than I have.

[Bigdebtor]

Does anyone have a good template for a letter to send regarding an incorrect DN.

 

I was sent a totally inadequate DN by Cahoot in March ( 14 days from date of letter etc ) I have now got an intended litigation for the full amount from Moorcroft so presumably this acts as a termination ?

 

I would like to inform them of their errors before it goes any further.

 

I am trudging my way through this thread - spell bound by Pinky!

 

This is the question I want answered - as well as knowing how Pinky got on. Can anyone point me to a template re dodgy DN?

 

BD

[humbleman]

Not clear and unambigous on the breach.............and they've gorn and demanded the full ammount.....oh dear.

 

David

 

This is the DN which is also the subject of a Judgment against me last week,

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/130101-humbleman-hfc-weightmans-court-38.html#post2709253

 

 

can you shade some more light, since I am looking at appealing the decision.

[Bigdebtor]

Ok, with the charges thing on DN's - how does that work exactly??

 

Is it that if you have ever received a penalty charge then in turn that will mean your DN will state the wrong amount and so will be cack, or is it specifically that the arrears shown must include charges (ie it should only show your min payment plus interest, but instead shows min payment plus interest plus a number of £'s of charges)?

 

I've never quite got my head around this and also not seen a straight answer to similar questions.

 

Still trawling through this fascinating thread - and came against this beauty!

 

It strikes me practically EVERYONE who ends up with a DN will have had some unfair/illegal/default/penalty charges imposed - and since as Lexis states - these would change the total balance outstanding - then the arrears - minimum payment due multiplied by the number of missed payments - MUST be INCORRECTLY STATED.

 

Thus ALL DN's issued to ANYONE who has sufferred ANY unfair charges (and didn't make extra payments to cover these) must have an OVERSTATED BALANCE and therefore INCORRECT arrears - and therefore a dodgy DN!

 

Does any (non-banker) disagree?

 

BD

 

(If you like this idea and want to use it then tip my scales).

[diddydicky]

The issue date on the DN was the 19th May 09 and they wanted payment to remedy the breach by the 2nd June 09.

 

I do not know how they terminated the agreement, all I received was a few letters and a Final Demand letter on 30th June 09 which stated that I was to pay them the full amount within 14 days of this letter.

 

Then I received a letter from their in house debt collectors and so on.

 

Oh and in the DN it does not state under what terms I breached my contract, it just states that you have breached the terms of the payment clause of the Agreement, which requires you to pay a minimum amount in respect of each statement you receive.

 

demands from ANYONE acting on the creditors behalf for you to pay the full balance is the same as the creditor himself asking

 

any demand to pay the full balance of the account amount to unlawful termination in this case

[GhostDebt]

Hi Pinky,

Hope its all going well. Seems like your up to date and keeping a close eye on things. Good luck.

 

On a seperate note, if a creditor/dca has sent a DN but not a termination notice, even though the DN was not satisfied can you still write to them stating you accept the termination and therefore the rescission or is it best to wait till you get a termination notice or court action before raising the issue of a defective DN?

 

Regards

[Pinky69]

Do not tell them about an unlawful DN until you are sure they have terminated the account either by telling you they have done so in writing or demanding the full balance. If you even mention the DN is unlawful before termination, they can send you another (lawful) DN putting right what you have told them is wrong with it!!

[griffin036]

Is there any relevant legislation that stipulates a Default Notice has to have a SPECIFIC DATE to remedy by, rather than a sentance that states: " .... ensure that the payment of £xxx is credited to your account within 17 days starting the day after the date on this Notice"

Any pointers on this gratefully needed.

[Pinky69]

The word "date" is specifically mention 5 times between the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 and the CCA 1974. There is no provision in either act for the period to remedy the breach to be given as a number of days.

[griffin036]

The word "date" is specifically mention 5 times between the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 and the CCA 1974. There is no provision in either act for the period to remedy the breach to be given as a number of days.

 

So if the account was terminated following no remedy after 17 days starting the day after the date on the notice, the Default Notice would be deemed to be Defective and the account unlawfully rescinded?

[Pinky69]

There is no template for unlawful rescission. You simply tell them they have breached they CCA 1974 S87 (1) by demanding the full balance after issuing an unlawful DN (tell them why it is unlawful) and in doing so have unlawfully rescinded the alleged agreement. In doing so they have forfeited payment of any sums deemed payable under the alleged agreement. Don't tell them they can claim arrears. Let them come up with that if they know and most of them don't.

[vint1954]

Thanks very much vint. I have written to the FOS and told them that I will not sign and agree to HSBC's offer that they will accept a payment of £1 a month, until I receive my Data Request. HSBC have informed the FOS that they will send me this, even though I have waited over a year.

 

So I will wait to hear from the FOS and will let you know what their response is, before I send this letter above to HSBC.

 

One more thing vint, will I not get in to trouble with the FOS by not informing them about this faulty DN?

 

and I have tipped your scales:D

No, you won't get into trouble with them.

[Bigdebtor]

There is no template for unlawful rescission. You simply tell them they have breached they CCA 1974 S87 (1) by demanding the full balance after issuing an unlawful DN (tell them why it is unlawful) and in doing so have unlawfully rescinded the alleged agreement. In doing so they have forfeited payment of any sums deemed payable under the alleged agreement. Don't tell them they can claim arrears. Let them come up with that if they know and most of them don't.

 

Pinky

 

Thanks - and congrats on an excellent thread. I have now finished reading it and have got all I need for the unlawful rescission letter. In my case I have more than paid the arrears to 1st Credit who got it assigned around a year after the dodgy DN and TN (issued the very next day after the dodgy DN!).

 

I have now stopped paying 1st Credit. Should I send them an unlawful rescission letter in the next few days - or refer to my acceptance of the original TN sent to Goldfish just a few days after their TN?

[Pinky69]

Whatever termination came first, that is the termination that rescinds the agreement.

[Pinky69]

Griffin, it is not quite as simple as that as a judge might deem that you should have been able to work out the date from the number of days given. Have you worked out the date using the date on the Notice and postage time as your base?

[diddydicky]

Do not tell them about an unlawful DN until you are sure they have terminated the account either by telling you they have done so in writing or demanding the full balance. If you even mention the DN is unlawful before termination, they can send you another (lawful) DN putting right what you have told them is wrong with it!!

 

well its advisable to wait for the termination but then again- if the termination doesnt come..........

 

technically it is not true that they can always re issue the DN prior to a termination letter

 

the DN itself can be an unlawful repudiation in itself- for instance if it overstates the amount due so as to include sums not yet due under the agreement

 

it can also be regarded as a termination letter itself if it says within in thet if you fail to comply in the given time that they WILL demand the full balance or WILL terminate then this is enough since it is reasonable, as this is a statutory notice for you to take them at their word.