Invalid Default Notices

[Honeypot]

In short, if a DN is invalid for whatever reason then the creditor cannot lawfully terminate the agreement on the back of that.

 

Is that what is being said here?

 

If thats the case then surely doesnt that mean its game over regarding dodgy DN's?

 

Vicky

xxxx

[Bigdebtor]

Vicky

 

As I understand it from wading through this entire thread earlier this week the key point is that the creditor's subsequent termination on the back of a dodgy DN is unlawful rescission. If YOU then ACCEPT their termination then the agreement is ended by mutual consent - and ALL you have to pay are the lawful arrears at the time you accepted the unlawful rescission. You MUST accept it and the sooner you do so the lower the amount (accrued arrears only) you still need to pay.

You may well find you did exactly that just a week or so after the crditors notice of termination but had forgotten you had sent that letter (similar to ones earlier in this thread)!!!!

You could also claim compensation from them if you have some spare salt to rub into their wounds.

 

Diddydicky and Pinky69 (among others) have some excellent posts throughout this thread if you want to check back. i

Hope this helps - if so tip my scales!

 

BD

Edited January 22, 2010 by Bigdebtor
typos

[emandcole]

Thanks Bill, haven't done anything yet with this account as it's only just kicked off but will follow the usual SAR route and find out when this default was applied.

 

Didn't know they had up to 6 months to register it with the CRA's so thanks for the new info. Have tipped your scales accordingly

[Honeypot]

BigDebtor

 

Thanks for that.

 

I have (well I believe I have) a dodgy DN from Egg then they terminated.

 

I havent sent them anything back to accept the termination.

 

Is it too late to do that now?

 

Its been months and its been passed to ARC/Trevor Munn to collect on their behalf (not sold to them)

 

Vicky

xxxx

[Bill Shidding]

Hi emandcole,

 

Didn't know they had up to 6 months to register it with the CRA's so thanks for the new info. Have tipped your scales accordingly

 

Thanks for the thanks;)

 

The time limit is because the whole idea of keeping a credit file is to maintain "accurate and up to date" information. After all, if a creditor could decide when to file a default, it could take them years to get their act together!

 

Bill

[nks22]

I received a DN from MBNA dated 11 January requiring remedy by 28 January, so only in time if First Class. (I'm already in dispute over the validity of their CCA.) Today, though, I received a letter (dated 19 January) telling me the account had been sold to Direct Legal. I assume that qualifies as unlawful recission.

 

What should be my next step? Should I write to MBNA or Direct Legal?

 

(I have an MBNA thread at http://www.consumeractiongroup.co.uk/forum/mbna/224927-mbna-cca-legal.html and will upload the letters and provide links there shortly.)

[diddydicky]

So what happens if a contract is not terminated in writing, as I am going through the same thing with Welcome and I doubt they will be organised enough to terminate in writing!

 

they WILL either themselves or through a DCA demand you pay the outstanding balance of the account- and that is termination(unlawful repudiation - if done on the back of a defective dn or no dn)

[exchange]

BigDebtor

 

Thanks for that.

 

I have (well I believe I have) a dodgy DN from Egg then they terminated.

 

I havent sent them anything back to accept the termination.

 

Is it too late to do that now?

 

Its been months and its been passed to ARC/Trevor Munn to collect on their behalf (not sold to them)

 

Vicky

xxxx

 

Honeypot

 

You are in the same boat as me as I was not aware of the 'unlawful recission' theory at the time I had accounts terminated so did not reply at the time accepting this.

 

It would be helpful to understand what you should do in these circumstances.

 

Anyone?

 

Exchange

[Bigdebtor]

BigDebtor

 

Thanks for that.

 

I have (well I believe I have) a dodgy DN from Egg then they terminated.

 

I havent sent them anything back to accept the termination.

 

Is it too late to do that now?

 

Its been months and its been passed to ARC/Trevor Munn to collect on their behalf (not sold to them)

 

Vicky

xxxx

 

Vicky

 

I am sure you may find the letter you had forgotten you sent to Egg accepting it if you check your files!

 

Anything have paid since then will have been to repay the arrears as they stood at that time. If you have paid nothing since then that's presumably simply becasue you indeed regarded the agreement as terminated - as both parties had said so in writing.

 

Check back through this thread for a follow up letter to the DCA copying your "unlawful rescission" letter sent off to Egg by you within a week or so of receipt of the Egg termination letter.

 

The chances also are that the Egg agreement is not enforceable - check the Egg thread by PT2357 as well about this.

 

BD

[GAVBU28]

What happens with older accounts that have been sold on to DCA? Do they still fall under the same umbrella? Even though the account has been terminated years ago? DCA don’t send out DN apparently, but the original creditor did?

[nks22]

I've uploaded my MBNA letters at http://www.consumeractiongroup.co.uk/forum/mbna/224927-mbna-cca-legal-2.html#post2718155 and would be grateful for any comments/advice.

 

On a more general note, how do you calculate the arrears for a DN? What can and can't be included?

 

Thanks.

[Jim Pike]

That's a good question by nks22

as I have been wondering the same myself, I have on my statements variations of around £15 or so for interest due for the next month, this variation is from 1 month to the next but it maybe that they have included the £12 charge for late payment. Any ideas

Jim

[Jim Pike]

Just one more question if any can help. After being Defaulted can the creditors still carry on charging interest on the account for several months. and sorry another question, if creditor says account is closed does that constitute Termination?

Cheers

Jim

[nks22]

DCA don’t send out DN apparently, but the original creditor did?

 

If it's been passed to a DCA then the original CCA has, by definition, been terminated. You can't be in default with a DCA since you don't have any agreement with them on which to have defaulted.

 

There is some dispute (elsewhere on here) over whether or not it's necessary to accept an unlawful recission - after all, it's not as if you have the option to refuse a termination.

[Bigdebtor]

Just one more question if any can help. After being Defaulted can the creditors still carry on charging interest on the account for several months. and sorry another question, if creditor says account is closed does that constitute Termination?

Cheers

Jim

 

Jim I asked that very question earlier this week on another thread - but haven't got an answer yet. In my case I am witholding payment as they haven't provided a true copy cca - but they are threatening to continue to add interest and I don't think that's fair as the delay in my paying more is down to them.

 

On your accepting their actual termination - if it was unlawful rescission - then all T&C's are void as there is no longer any agreement by you to pay anything further - and your only obligation is to pay lawful arrears - but you can deduct unfair charges and contractual interest and (I think?) compensation too.

 

It seems to be ESSENTIAL to agree to the unlawful termination otherwise it is not actually termination by virtue of being unlawful.

 

Hope this helps - if so, tip my scales.

 

BD

[diddydicky]

this is a typical acceptance of an unlawful repudiation and i would make a copy of it for future use

 

Dear Sirs,

 

I refer to your letter of XXXXXXXXXX in which you terminate the agreement (Demand payment in full of the outstanding balance)

 

Your action is an unlawful repudiation of the agreement and i accept your unlawful action and now consider myself relieved of any obligations that may have existed in the event that the alleged agreement did indeed exist.

 

Kindly advise me of the (genuine) amount of arrears outstanding as at the time of termination of the agreement.

 

Against your arrears may be a claim for unlawful rescission

 

I wait your advices

 

 

Yours faithfully

 

XXX

 

 

i would send recorded delivery

[Bigdebtor]

If it's been passed to a DCA then the original CCA has, by definition, been terminated. You can't be in default with a DCA since you don't have any agreement with them on which to have defaulted.

 

.

 

NKS - are you sure? Can you point to case law or anything to confirm this? I can see there may be a difference if the DCA has BOUGHT the debt - but what if they are only chasing up on behalf of OC?

 

I hope you are right - but I just can't see it being that easy - otherwise no DCA could survive.

 

BD

[Bigdebtor]

BigDebtor

 

Thanks for that.

 

I have (well I believe I have) a dodgy DN from Egg then they terminated.

 

I havent sent them anything back to accept the termination.

 

Is it too late to do that now?

 

 

Vicky

xxxx

Vicky

 

Diddydicky has just posted a copy letter pretty similar to the one you sent to Egg just after their termination notice following their dodgy DN!

 

Remember it now:idea:

 

BD

[diddydicky]

If it's been passed to a DCA then the original CCA has, by definition, been terminated. You can't be in default with a DCA since you don't have any agreement with them on which to have defaulted.

 

There is some dispute (elsewhere on here) over whether or not it's necessary to accept an unlawful recission - after all, it's not as if you have the option to refuse a termination.

 

of COURSE you have the option to refuse an unlawful termination that is the WHOLE point

 

i think you need to re read the threads on dn's to get a better understanding

[Honeypot]

Vicky

 

I am sure you may find the letter you had forgotten you sent to Egg accepting it if you check your files!

 

 

Check back through this thread for a follow up letter to the DCA copying your "unlawful rescission" letter sent off to Egg by you within a week or so of receipt of the Egg termination letter.

 

 

 

BD

 

Hi BD

 

I havent sent any letter to Egg after they terminated nor have I paid anything.

 

So are you reckoning that I should have sent a letter?

 

Is it too late?

 

Getting muddled here

 

Vicky

xxxx

[diddydicky]

I've uploaded my MBNA letters at http://www.consumeractiongroup.co.uk/forum/mbna/224927-mbna-cca-legal-2.html#post2718155 and would be grateful for any comments/advice.

 

On a more general note, how do you calculate the arrears for a DN? What can and can't be included?

 

Thanks.

 

you dont- you ask them to do that within your acceptance of repudiation letter

[nks22]

of COURSE you have the option to refuse an unlawful termination that is the WHOLE point

 

I only know that this has been discussed at length and there is a difference of opinion. I wouldn't claim to know who is right, though. (I'll try to find a link but it'll take some time.)

[nks22]

NKS - are you sure? Can you point to case law or anything to confirm this? I can see there may be a difference if the DCA has BOUGHT the debt - but what if they are only chasing up on behalf of OC?

 

My understanding (and it's only an opinion) is that only the original creditor can default you, not a DCA, as that's who your agreement is with. Even if a DCA is acting on behalf of a creditor the DN will be in the name of the creditor, not the DCA.

[diddydicky]

tale of a dodgy DN is the main thread

[Bill Shidding]

You can't be in default with a DCA since you don't have any agreement with them on which to have defaulted.

 

Au contraire -

 

ICO Version 3 Defaults: A guidance note 02.08. 2007

The ‘sale’ or assignment of debts on defaulted accounts

52 When the rights to a debt are sold to a third party, the lender has to make sure the records with the credit reference agency are accurate, up to date and adequate. If they want information about the debts to continue on the credit reference file they will need to come to an agreement with the purchaser about who is to be responsible for this.

 

53 If the purchaser agrees to take control of the record, the customer should be informed that the debt has been sold or assigned and to whom. The credit reference agency file should be changed to show the name of the purchaser and that the rights to the debt have been sold or assigned. The purchaser should then make sure the record is kept up to date including changes to the amount still owed. The purchase should not affect how long the record is kept. It should be removed six years after the default.

 

54 Where the purchaser of the debt does not agree to take control of the record, the original lender, and at least in part the credit reference agency, will remain responsible if the original record is kept on the file. When the debt is sold or assigned, the customer will no longer owe any money to the original lender. If the record is not removed, the sale or assignment should be recorded and the balance should be shown as zero. The customer should still be told who the debt has been sold or assigned to.

The full document is here - http://www.ico.gov.uk/what_we_cover/data_protection/guidance/technical_guidance_notes.aspx

Edited January 22, 2010 by Bill Shidding