Invalid Default Notices

[nks22]

tale of a dodgy DN is the main thread

 

As I said, though, it's only that I recall having seen it disputed. I'm happy to accept your view on the matter.

 

And this post is probably a good guide: http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html#post1843811 "In Golden Strait Corporation v Nippon Yusen Kubishka Kaisha [2007], Lord Bingham said: 'The repudiation of a contract by one party ("the repudiator"), if accepted by the other ("the injured party"), brings the contract to an end and releases both parties from their primary obligations under the contract...'"

 

Regarding accepting unlawful recission, how soon after termination is it necessary to accept? I've had one or two where termination is implied (by a demand for the full sum, for instance) but no formal termination letter has been sent. I wouldn't want to alert a creditor to a dodgy DN but nor would I want to leave the acceptance of unlawful recission too long in the hope of receiving a formal termination letter.

Edited January 22, 2010 by nks22

[nks22]

Au contraire -

 

Maybe I'll shut up now. Or just stick to asking questions and not trying to give answers!

 

;-)

[frettful38]

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

 

 

 

This is a very good letter DD, you reckon I should use this to send to HSBC, as I too have an unlawful DN?

[Bill Shidding]

Hi nks22, I wasn't having a dig at you:D

 

Your quote above is from x20's original post.

If I remember correctly, x20's opinion was that any reasonable judge shouldn't require a lip to accept unlawful termination, this can be read in x20's later posts, in the further discussion thread.

[Honeypot]

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

 

Can any experienced CAGGERs comment on whether there is a time limit to send this letter by Diddydicky following a termination letter?

 

 

Thanks

 

Vicky

xxxx

[diddydicky]

As I said, though, it's only that I recall having seen it disputed. I'm happy to accept your view on the matter.

 

And this post is probably a good guide: http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html#post1843811 "In Golden Strait Corporation v Nippon Yusen Kubishka Kaisha [2007], Lord Bingham said: 'The repudiation of a contract by one party ("the repudiator"), if accepted by the other ("the injured party"), brings the contract to an end and releases both parties from their primary obligations under the contract...'"

 

Regarding accepting unlawful recission, how soon after termination is it necessary to accept? I've had one or two where termination is implied (by a demand for the full sum, for instance) but no formal termination letter has been sent. I wouldn't want to alert a creditor to a dodgy DN but nor would I want to leave the acceptance of unlawful recission too long in the hope of receiving a formal termination letter.

 

a demand for repayment of the full outstanding balance is a termination

 

think of it this way

 

the benefits of the agreement to the debtor is to be able to borrow money and repay it monthly in amounts of his own choosing (subject to a minimum)

 

the benefits to the creditor are more but mainly that they will make a nice profit on interest the longer you take to repay

 

Now, the creditor can ONLY lawfully take away that benefit (demand that you repay at once- that which the agreement says you can pay in future) IF he complies with the correct proceedure for doing so)

 

Thus a "demand" that you immediately pay sums "that were not yet due under the agreement! is a termination of the agreement, if it was done lawfully under the act .

 

But it is an UNLAWFUL ATTEMPT to terminate (a repudiation) otherwise

 

as it is done unlawfully (because the creditor failed to comply with the way it should lawfully be done) it is an unlawful repudiation of his part of the bargain

 

and thus can be treated in exactly as a letter "terminating" the agreement

 

it amounts to the same thing

Edited January 22, 2010 by diddydicky

[frettful38]

Excellent explanation there dd. If you have a dodgy DN and after this the bank demands payment in full then it is good news if you want to fight, because not only have HSBC sent me an unlawful DN by not allowing me enough time to remedy the breach, but also one month later they have demanded payment in full.

 

I have a clearer understanding now after reading the above. I will however be writing to HSBC about the Unlawful reccission, its just a matter of when I write it that I am confused about, as the FOS are currently dealing with my complaint and I am also waiting for my SAR from HSBC.

 

 

Thanks

[Pinky69]

I wouldn't tell them they can claim arrears. It's up to them to claim what they are due, not up to me to tell them.

[nks22]

I received a faulty DN from Halifax (insufficient time to remedy) with the debt since handled on their behalf by Wescot. One of Wescot's letters is headed 'Final Notice' and says that unless I contact them and "agree repayment of £xxx [the full amount] within the next 14 days the following action may be taken": door step collector or court action... I've also had a letter from their solicitors, Nelson Guest, saying that the balance of £xxx [the full amount] remains outstanding.

 

Should I regard that as termination and write to accept unlawful recission or just sit tight and wait for a formal letter of termination?

 

(The problem, it seems to me, is that they say we 'may' do this rather than we 'will' do it.)

[Bill Shidding]

Can any experienced CAGGERs comment on whether there is a time limit to send this letter by Diddydicky following a termination letter?

 

I'm not quite sure what you mean by experienced, but if you mean "been to court on this subject" then -

 

So long as you are 100% positive of an irregularity with the notices -

 

There is no time limit, but the sooner after receiving the TN, the better. Arrears are accruing up to the date of the acceptance deed/letter.

[Jim Pike]

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

 

Thanks Bigdebtor, In my case the DN is invalid but they did continue for several months to add interest, so I gather when demand for full amount is received there is no need to wait for Termination Notice.

Jim

 

P.S Where are the scales that can be tipped?

[emandcole]

 

P.S Where are the scales that can be tipped?

 

You'll find them on the left between the Triangle amd the Online indicator

[cab1ne]

The test for repudiation of a contract in our law is objective. The test is whether a reasonable person in the position of the innocent party would conclude that proper performance will not be forthcoming.

 

“Acceptance” of the repudiation by the innocent party, does not “complete” the breach. It simply illustrates the exercise by the innocent party of its right to terminate the agreement. Repudiation in itself is breach of contract.

 

 

cab

[cab1ne]

"DELETED" (WRONG THREAD)

but under contract law,

 

The election to cancel, as long as it is unambiguous, need not be communicated directly to the guilty party by the innocent party. It may be conveyed to the guilty party by a third party, once it has been made and manifested.

 

 

CAB

Edited January 22, 2010 by cab1ne
OOPS

[Honeypot]

There is no time limit, but the sooner after receiving the TN, the better. Arrears are accruing up to the date of the acceptance deed/letter.

 

 

Thanks Bill

 

Sorry to be asking dumb questions !

 

I will send a letter of tonight accepting termination.

 

What do you mean by arrears are accruing up to the date of the acceptance deed/letter?

 

I thought once the account has been defaulted and terminated that was it.

 

(I've noticed the figures that the DCA is claiming I owe is the same as when Egg terminated 5 months ago)

 

Vicky

xxxx

[diddydicky]

Excellent explanation there dd. If you have a dodgy DN and after this the bank demands payment in full then it is good news if you want to fight, because not only have HSBC sent me an unlawful DN by not allowing me enough time to remedy the breach, but also one month later they have demanded payment in full.

 

I have a clearer understanding now after reading the above. I will however be writing to HSBC about the Unlawful reccission, its just a matter of when I write it that I am confused about, as the FOS are currently dealing with my complaint and I am also waiting for my SAR from HSBC.

 

 

Thanks

 

i assume you refer to a credit card or loan and not a bank account!

[Bill Shidding]

What do you mean by arrears are accruing up to the date of the acceptance deed/letter?

 

When you argue that the DN/TN amount to unlawful rescission (because the notices are ineffective) legally the agreement endures until you "accept". Therefore, you would be liable for any arrears accrued until the acceptance is received by/brought to the attention of the creditor. Unless you get very lucky on the judge lottery.

 

The case law usually relied on (to pay the sum legitimately owing on the date of the DN) is Woodchester vs Swayne. Where a DN that mis-stated arrears left the debtor only liable for the actual arrears accrued up to the date of the DN.

Woodchester vs Swayne was a hire purchase agreement for a photocopier, I suspect that the photocopier was repossessed after Woodchester served Swayne with the DN or TN. As such (upon repossession of the photocopier) there were no further arrears to accrue.

In any case, Swayne was/is a firm of solicitors, so I would expect them to know all about rescission or repudiation. However, the appeal judgment does not mention whether or not Swayne even counterclaimed for unlawful rescission or, if they "accepted" the rescission.

 

I would still be very appreciative if anybody has the original (pre-appeal) judgment to share.

 

Bill

Edited January 22, 2010 by Bill Shidding

[Bigdebtor]

Thanks Bill

 

Sorry to be asking dumb questions !

 

I will send a letter of tonight accepting termination.

 

What do you mean by arrears are accruing up to the date of the acceptance deed/letter?

 

I thought once the account has been defaulted and terminated that was it.

 

(I've noticed the figures that the DCA is claiming I owe is the same as when Egg terminated 5 months ago)

 

Vicky

xxxx

 

Vicky

 

I'll pm you when I get time over the weekend. Don't send any termination letter before reading my pm.

 

BD

[exchange]

Vicky

 

I'll pm you when I get time over the weekend. Don't send any termination letter before reading my pm.

 

BD

 

Bigdebtor

 

Now you've got me wondering what you are PM'ing that you can't share on here!

 

I have a similar conundrum and would like to see opinions on here, what's to hide?

 

Exchange

[the_shadow]

Well it appears Amex have changed their defaults... they no longer give a remedy date but rather state....

 

"payment due on your account of ...must be received within fourteen calendar days from the date of service of this Notice of Default"

 

Good news for anyone defending amex claims I would suspect

 

On this thread:-->http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/239086-after-7-months-dispute-2.html#post2718873

 

S.

Edited January 22, 2010 by the_shadow

[Jim Pike]

Bigdebtor

 

Now you've got me wondering what you are PM'ing that you can't share on here!

 

I have a similar conundrum and would like to see opinions on here, what's to hide?

 

Exchange

 

Hi Exchange,

I think the answer lies in bigdebtors post number 985

Jim

[cashins]

"payment due on your account of ...must be reached within fourteen calendar days from the date of service of this default notice"

 

 

Well I think that must come from the errrrrrrrrr....special needs dept.

 

David

[the_shadow]

Well I think that must come from the errrrrrrrrr....special needs dept.

 

David

 

Eeek I'll put my crayons away honest...

 

Corrected the text in my original post

 

S.

[cashins]

Ha! Ha!

 

That said, I'm pretty good at typos myself:eek:

 

David

[diddydicky]

I wouldn't tell them they can claim arrears. It's up to them to claim what they are due, not up to me to tell them.

 

i dont agree,

 

if the matter goes to court the fact that you made no attempt to deal with the arrears would IMO not go to well with the judge

 

your claim for unlawful rescission will in 99% of cases far outweigh any arrears and you can then be seen to have been doing the right thing

 

It is also a double edged sword in that they will NOT respond with the amount of the arrears and by inference you can also argue later their failure to bleat at your suggestion can be seen to be an acceptance by them of that fact