Invalid Default Notices

[SteveH2508]

But the interesting document is a template DN, the heading reads

This is a default notice served under section 54(2) of the consumer credit act 1995,

 

Then the usual text, but obviously as a template no dates or figures

 

This alledged credit card account is from 2001 and the application form clearly says regulated under the 1974 consumer credit act,

 

so why is the DN template saying seved under ,section 54(2) of the 1995 consumer credit act,? and where does that leave them now?

 

In Ireland I guess

 

Consumer Credit Act, 1995, Section 54

[dizzyblonde1966]

In Ireland I guess

 

Consumer Credit Act, 1995, Section 54

 

Oh Dear, i live in the north of England and always have done,

 

wonder how they could confuse that with Ireland?

 

So if they were to make a claim with that DN in their poc , what would happen then?

[DonkeyB]

Oh dear. Are they in Ireland?

 

Maybe they've nicked one of the internet and gotten it slightly wrong. Whoops! It would surely invalidate the DN? If they have terminated on the back of that, I'd imagine it's rescission of the unlawful kind.

[lexis200]

If there is a DN entry on a CRA all that will happen if you clear the debt are the words 'satisfied' that will eventually appear. The DN will however remain on the CRA file till it 'falls off' after 6 years. This is always the 'downer' to people who slipped up, had a DN issued and entered, then payed it off. Not really a thanks for paying it off as any potential finance provider will see the words DN and normally ignore anything extra.

 

Michael

 

But surely once there is no longer an agreement there is no longer any consent for them to process your data, so them marking it satisfied is fine if that's what you want, but if you don't want their info up there I don't see how they can argue the point as they no longer have any sort of contract with you?

 

Not meaning this to sound like I'm arguing with you, I'm just trying to sound it out for myself:)

[dizzyblonde1966]

Oh dear. Are they in Ireland?

 

Maybe they've nicked one of the internet and gotten it slightly wrong. Whoops! It would surely invalidate the DN? If they have terminated on the back of that, I'd imagine it's rescission of the unlawful kind.

 

just what i thought, but the risk is what if it got to court stage and they rectified their error,

I guess then i could go for the route of "any other evidence they submit your honour could also be incorrect /unreliable "

 

Im going to keep that template DN very safe ;-)

[mkb]

If they are in Southern Ireland ie non-uk, would they even have jurisdiction in any court claim?

[bilious]

Right have scanned my default notice and the final payment one can someone have a look and tell me if they are indeed invalid and what my next steps are much appreciated!!! (or should i just let cccs handle my case and get all the sh*t that will follow....)

 

 

 

http://i980.photobucket.com/albums/ae289/tuvelpit69/dn.jpg

 

http://i980.photobucket.com/albums/ae289/tuvelpit69/tn.jpg

 

 

 

 

Thanks in advance..

Edited April 19, 2010 by bilious

[DonkeyB]

The DN does not give enough time to remedy the breach. It just gives 14 days from the date of the letter.

 

The second letter is a bit meaningless in the context of a DN, but if they terminated on the back of that DN then they've mucked up.

[bilious]

Sorry am trying to get my head around this! So what do i do now as they've said contact them before 26th april etc? for payment etc What do i do now! send a letter for the cca? Or the sar?

[dizzyblonde1966]

If they are in Southern Ireland ie non-uk, would they even have jurisdiction in any court claim?

 

I dont want to name the dca for now as i dont want to alert them, but they are one of the bigger more well known ones and are based in England,

 

The template DN, was supplied by the original creditor to the dca , there is a screenshot within the cpr/data bundle with the dca"s cpr request to the original creditor for docs and then a reply back from them to the dca,

[brooooooooooce]

a demand for you to pay immediately, those sums which are not yet due under the agreement is an unlawful repudiation on the part of the creditor (they are refusing to allow you to continue making monthly payments ) since they are not entitled, by virtue of the defective DN, to make that demand therefore go ahead and make the punks day (accept their unlawful repudiation)

 

Bilious see post 2051

[DonkeyB]

Sorry am trying to get my head around this! So what do i do now as they've said contact them before 26th april etc? for payment etc What do i do now! send a letter for the cca? Or the sar?

 

Personally, I'd love it if they terminated on the back of that default notice - which effectively, they have with the demand for the full balance. I'd do nothing!

 

But that's not necessarily the best route for you.

 

What are you trying to get out of this, and why?

[bilious]

Hi! Am not trying to get out of this every time i have said to them i can only afford this amount they say no we can only accept x amount have only missed one payment and have been paying 50 to each of my cards... HSBC are just being the funny ones about it MBNA have put me on hardship etc and at the mom let me carry on paying the 50 pounds to them each month does that make sense?

 

Just want to know what my options are? The CCCs have looked at my I&E and said i can only afford 210 per month but at that rate it''l take 10yrs to pay off all my cards! Which i know they won't accept!! Options please?

 

And thanks for your help so far!!!

[DonkeyB]

Sorry, you misunderstood... I asked what you were trying to get out of it, ie. what info are you after and for what reason! Wasn't implying you were trying to get out of paying, of course. I'll always help where a creditor is being greedy, unsympathetic or is simply being an arsewipe.

 

It may get messy, but it looks to me like they have terminated on the back of a faulty default notice. That means you are, technically, only liable for the arrears (the 'overdue amount'). However, as this is now a case of unlawful rescission of contract, you could have a counterclaim for damages. (See brooooooooce's comment above. Hope I got enough 'o's in that.)

 

You need vint1954 to have a look at this! He is the oracle.

[bilious]

messy in what way? and what do i need to about the dn and the final demand?

[DonkeyB]

Messy because ... if a bank can't get a simple section of the Consumer Credit Act right, do you think they'll admit it? I don't! They will not say, "gee, thanks for pointing out our errors with Section 87. Wish we'd tried to shaft you sooner, we might not be in such a mess!"

 

No, they will claim their paperwork is in order.

 

Your next step - and please get this checked by someone like Vint1954 - is to write to them pointing out that they have unlawfully rescinded the agreement between you, but that you accept their breaking of the contract. In the light of the prejudice caused to you by the removal of this facility without adequate or proper legal warning, you will merely accept the outstanding arrears at the time of rescission as recompense for their breach.

 

Blimey, this is cheeky! But a bank of that size should have its house in order. If they want the benefit of S87, they have to comply with it.

[bilious]

Your being a great help thanks do i pm vint1954 with the dn and final demand? And should i phone them at all or just find a letter template here and send it off? Bit worried as we have our mortgage with hsbc and a loan in my name that finishes in 6months, don't want them being funny beggers!! have paid off our overdraft and we are shifting our accounts to seperate banks so they can't touch our funds is this right? but my main concern was to protect my wife from any link to me which the overdraft was the only thing apart from mortgage (which is fully paid up.) cards and loans are in my name only.... they can't touch her can they?

[DonkeyB]

Well, there are two ways of looking at it. They've been complete b*stards towards you. They will show no loyalty, even if you have a mortgage. They will trash your credit rating whatever. But, legally and with care, you can prove they have fecked up and the debt will disappear.

 

The other view is that you want to pay your debts but you'd like to give them a bloody nose. You could use this as a negotiating tool to get the result you desire.

 

Only you can make those choices!

 

Bear in mind also that I've made these judgments on only a little knowledge of your overall scenario, and a couple of clearly daft documents from a daft bank. There may be other relevant issues that make my views complete bollox... I'm not legally qualified either!

[DonkeyB]

Just PM Vint and ask him to look in. The man is a genius.

[bilious]

Many thanks will do that and ask him to take a look, funny my own bank have been twits with me, yet the ones i thought would be really bad mbna have thus far been okay, might get you to look at their dn as well lol

[DonkeyB]

Well, if you owe it and you're happy with them I'd urge you to reach an arrangement. Can't condone anything else!

[bilious]

Lol was only joking....As i've said i got into this mess myself and was happy to try and pay but the way hsbc dealt with me i thought okay then... or am i being stupid? As i've said i tried talking to them and they just will not listen so in two mnds which way to go with this (stressful eh!!) but you've been a great help thus far!!!

[egg-sterminator]

s98 does NOT apply to credit cards in any event- it applies ONLY to fixed term agreements

Hi DDY on a thread looking at full and finals but the mods have closed it . Could you point me anywhere helpful i noticed Pinky69 has done a few ? If its a full and final will the DN's disapear ? As i mentioned previously cap 1 are writing to an address i havn't lived at for over 9 yrs even though i met one of there reps at my current address not many months ago . One is an offer of reduced settlement . Could they be doing this to look resonable as they try for a backdoor ccj ? should i complain to oft or let them hang themselves .

[Lord_Alcohol]

Does anyone know of any case where a judge threw out a claim from a credit card company where the default notice was defective (and agreement terminated on that iffy DN)?

 

That assumes that the CCC was bold enough to make a claim with a defective DN of course...

 

I'm wondering how judges view defective DNs should a claim get to court, especially where the DN is defective in that insufficient time is given to remedy a breach. Would a judge consider a few days too few to be "de minimis" or not?

 

I have a Halifax DN that gives me 13 days and no time for service (it arrived 5 days before "expiry") and I think that Halifax are preparing a claim. Be useful to know what might happen.

 

Any ideas?

 

Ta

LA

[pumpytums]

Does anyone know of any case where a judge threw out a claim from a credit card company where the default notice was defective (and agreement terminated on that iffy DN)?

 

That assumes that the CCC was bold enough to make a claim with a defective DN of course...

 

I'm wondering how judges view defective DNs should a claim get to court, especially where the DN is defective in that insufficient time is given to remedy a breach. Would a judge consider a few days too few to be "de minimis" or not?

 

I have a Halifax DN that gives me 13 days and no time for service (it arrived 5 days before "expiry") and I think that Halifax are preparing a claim. Be useful to know what might happen.

 

Any ideas?

 

Ta

LA

 

I would hope that a few days short would never be classed as "de minimis" an act of parliment states :-

 

(2) A date specified under subsection (1) must not be less than [F114] 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 [F114] days have elapsed.

 

The devil is in the detail remember the ACT states "MUST NOT" not "SHOULD NOT" there is no variation. If any judge said that 13 days was acceptable I would ask them to clearly state why when an act of parliment clearly states 14. Somebody said here once if it was 13 days the act would have said 13 days.

 

Have Halifax since terminated on the back of the defective DN? or have they asked for the full amount?

 

I hope this helps.

 

Pumpytums