Invalid Default Notices

[alangee]

diddydicky

 

can you expand on your reasoning in post #3035. I know there is a difference between a default notice and a notice of default, but where does it define a notice of default in that Lenders Code section?

 

Alan

[pumpytums]

Would I be in my right if a DCA had defaced my CRF with incorrect information to demand it corrected? Such as date of default, and amount.

 

And if they didn't could I claim injury to credit?

 

Pumpytums

[diddydicky]

diddydicky

 

can you expand on your reasoning in post #3035. I know there is a difference between a default notice and a notice of default, but where does it define a notice of default in that Lenders Code section?

 

Alan

 

the creditor can issue you with a notice of default in respect of unpaid arrears and can (i think it is 28 days) later then advise CRA's of your non payments

 

the Default Notice is served when a creditor intends to terminate or demand earlier payment of sums not yet due under the agreement

 

he does NOT have to issue the DN simply because he has issued the ND

 

the code you refer to does not say that the creditor HAS to issue a DN - just that if he does- he must not record the default for 28 days

 

the reason for that is that if you do remedy the default then under s89 it will be as if the default never occurred- in other words the "status Quo" is resumed

 

However, if the creditor has in the meantime reported the default to your cra records then clearly the status quo has not been restored since you would now have bad credit against your name.

 

 

in other words he may report your default on the agreement to the CRA's - but if and when he takes legal action to recover the debt is up to him!!

 

annoying as that might be- it is something you have to put up with

 

the only time you can claim estoppel (i believe) is if the creditor actually tells you that you no longer have to pay the debt (unlikely and if he does- i suggest you also buy a lottery ticket that week)

Edited June 12, 2010 by diddydicky

[diddydicky]

diddydicky

 

can you expand on your reasoning in post #3035. I know there is a difference between a default notice and a notice of default, but where does it define a notice of default in that Lenders Code section?

 

Alan

 

it doesnt because it is simply written confirmation that you have defaulted

[diddydicky]

Would I be in my right if a DCA had defaced my CRF with incorrect information to demand it corrected? Such as date of default, and amount.

 

And if they didn't could I claim injury to credit?

 

Pumpytums

 

you can write to the lender and ask him to correct or remove the information

 

if he refuses you can write to the CRA and inform them of the circustances and they will investigate it and ask the creditor to respond they will then act accordingly

 

if they refuse to alter your records and the cra also beleives the information to be correct then you can add a statement to the credit file about the entry you can use up to 200 words (but the shorter the better) disputing the entry

 

usually "disputed debt" would be better than a long diatribe which will bore the reader

[cerberusalert]

Would I be in my right if a DCA had defaced my CRF with incorrect information to demand it corrected? Such as date of default, and amount.

 

And if they didn't could I claim injury to credit?

Yes, incorrect information recorded on a credit file can give the claimant a claim for damages in the sum of £1000 (Kpophraror V Woolwich Building Society [1996] 4 All ER 119), although there have been higher awards.

[diddydicky]

but i personally would not attempt to sue them for that if they refused- unless i could show substantial damages

 

the cost would not IMO equal the benefit and would be a highly risky enterprise

[enslaved]

Hi All

What do you think of this reply regarding a dodgy DN? I quote;

 

The purpose of s.87 Notice is to remind the debtor or hirer that s/he is in breach and to give him/her the opportunity to remedy it (if capable of remedy). A conclusion that service of the Notice is a procedural requirement which exists independently of the cause of action arising does not undermine that purpose, particularly since the commencement of proceedings is a step taken with a view to enforcement, rather than constituting enforcement itself (see also McGuffick v RBS [2009] EWHC 235 (Comm) for an analogous decision on enforcement).

Many Thanks

[lexis200]

I think it's a big pile of poo personally. It's a legal document and they either get it right or wrong. If they get it right then we're stuffed, if they get it wrong they are.

 

They can't (well they can but they're not really allowed to) issue proceedings if they cock up the DN so they appear to have a rather severe case of the verbals going on here.

[diddydicky]

Hi All

What do you think of this reply regarding a dodgy DN? I quote;

 

The purpose of s.87 Notice is to remind the debtor or hirer that s/he is in breach and to give him/her the opportunity to remedy it (if capable of remedy). A conclusion that service of the Notice is a procedural requirement which exists independently of the cause of action arising does not undermine that purpose, particularly since the commencement of proceedings is a step taken with a view to enforcement, rather than constituting enforcement itself (see also McGuffick v RBS [2009] EWHC 235 (Comm) for an analogous decision on enforcement).

Many Thanks

 

dear sirs

 

it is recognised that as a result of a recent judgement, which many consider to be flawed, that threats of legal action and the commencement of legal action are not "enforcement" and has given rise to the ridiculous situation that the creditor- having taken a defendant to court cannot then ask the court to make an order- which would be enforcement

 

however this is in relation to a failure to comply with a s78 request

 

s87 however is indeed a legal pre requisite.

 

unless a creditor has served a (valid) default notice upon a debtor, and the debtor has failed to take the opportunity afforded to him to remedy the alleged breach , the creditor cannot take "the next Step" (which is to terminate or demand earlier payment of sums not yet due)

 

A creditor therefore who were to base a legal action upon claiming sums that were not yet due and/or sought to terminate the agreement on the back of a defective default notice would, in both instances unlawfully repudiate the agreement, which would then (should the debtor choose that course of action by word or deed) relieve both parties of any further obligations under the agreement and it would come to and end.

 

the creditor would then be left only with a legal entitlement to those sums that were truly due as arrears as at the time of the unlawful termination of the agreement, (assuming a legally enforceable agreement did exist) against which the injured party would have a counterclaim for damages as a result of the unlawful repudiation by the creditor.

 

the creditor would therefore have no legal cause of action

 

The creditor would then not ever be able to serve a valid Default Notice that would be capable of achieving the intent and purpose for which parliament intended- if it were served "post termination"

 

In the words of "Clint Eastwood" AKA Dirty Harry, if it is your contention that the creditor's position would not be thus- then please feel free to "make my day"

[lexis200]

As I said, big pile of poo:D

 

Personally I'd go with my response, but you know, if you want to use DD's longer and slightly more detailed one that's fine;)

[diddydicky]

that is the type of response i personally would send and is humorous but at the same time shows that i know what the score is

 

it doesn' t matter whose response you use as long as you tell them, as Lexis said that they are talking out of their A*se (i think that's where poo comes from)

[lexis200]

I was only joking DD, yours is a tad more eloquent:)

[InformedSearcher]

Michael,

 

I think you are confusing a Default Notice with a record on the CRAs showing a default here?

 

Not at all ...

Bank (or whoever) issues you with a DN, it can be right or wrong. As they tend to run a month behind (to cover their backs initially - now that alone is a laugh) the DN will appear on a CRA file. You see it, know it is incorrect and contact the CRA. They contact (THEIR!) client who comes back with 'it is accurate' and the CRA notifies you (sometimes showing their true responce). You now have a problem because they know if you challenge then YOU are doing the donkey work and 'justice (as such) is against you. They will now seldom go further except pester you by phone (often!) and the future decision is in 'your court'.

How do you proceed?

 

Michael

[DonkeyB]

but i personally would not attempt to sue them for that if they refused- unless i could show substantial damages

 

the cost would not IMO equal the benefit and would be a highly risky enterprise

 

Agree it's risky, but...

 

Durkin v DSG [2008] made it clear that such recording of false and therefore defamatory data is punishable by the award of considerable damages, irrespective of whether the subject has suffered a provable loss.

[jessie_girl6]

Can i just pose a question re Invalid Default Notices and deemed date of service.

 

I note that there were some earlier and very useful posts on this subject by Vint (c. post 2507) but I would really appreciate some clarification on the new CPR 6 rules (specifically 6.26) in relation to the 1985 Practice Direction which supports Section 7 of the Interpretation Act 1978.

 

The reason I ask is that i have a couple of invalid default notices, some followed by termination, whereby the deemed date of service meant that I did not get enough time to rectify the breach. My most immediate concern is where I am currently defending a CCJ on the basis that a DN which was posted using UK Mail (and my contention is that this is a 2nd class service) is invalid because it did not give me the full 14 days to rectify, only 11. However, a DJ has informed me that my reliance on the 1985 Practice Direction is outdated as the new CPR rules, which were updated in 2010, will take precedence and do not support my case.

 

Having read CPR6.26, she would appear to be correct as they state:

 

"A document, other than a claim form, served in accodance with these Rules or any relevant practice direction is deemed to be served on the day shown in the following table-

 

Method of service

1. First class post (or other service which provides for delivery on the next business day)

Deemed date of service

The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that day."

 

So, my questions are:

1. Does my DN fall under the CPR rules?

2. Do the CPR rules override the Practice Direction?

3. Why would the DJ advise in this way, intimating that I do not have a strong case?

4. Is there a more recent update on service dates out there?

 

Thanks in advance

JG

 

[enslaved]

Thanks, yet again DD

 

The slimebags after being pointed out the relevant statues and case law have now sent another DN.

 

Guess what, 4 days short.

 

They realised their mistake and so the claimants Solictor sent another........;-)

 

This is getting beyond a joke

 

Application on the way, me thinks

 

Many Thanks......again

[lexis200]

Not sure about the CPR question Jessie girl, but this is taken directly from the UK Mail site

 

UK Deliveries

 

Your mail is collected and transported through our system before it's passed over to your local postman for the last mile delivery.

 

You can choose to sort your mail into Local Delivery Office postcode areas before it's collected, or let us take the headache away from you and we will sort your mail by using our state of the art sorting machines.

 

Opt for our Business Class service if you would like two day definite delivery, or for less time sensitive mail try our Economy Class, three day definite option.

 

So according to their own website the quickest delivery they offer is two day - and this is presumably after it has reached them so unless it's delivered to them same day you can reasonably add another day.

 

This is clearly not first class, nor is it at any point offering next day delivery. I think your judge may need an update on postal methods nowadays - it's not all Royal Mail 1st Class!

[enslaved]

Sorry forgot to thank you lexis, thank you.

[diddydicky]

Not at all ...

Bank (or whoever) issues you with a DN, it can be right or wrong. As they tend to run a month behind (to cover their backs initially - now that alone is a laugh) the DN will appear on a CRA file. You see it, know it is incorrect and contact the CRA. They contact (THEIR!) client who comes back with 'it is accurate' and the CRA notifies you (sometimes showing their true responce). You now have a problem because they know if you challenge then YOU are doing the donkey work and 'justice (as such) is against you. They will now seldom go further except pester you by phone (often!) and the future decision is in 'your court'.

How do you proceed?

 

Michael

 

i'm not quite sure that i follow what you are looking for

 

are we talking about a defective DN (as opposed to a ND) if so and it is defective you are not going to get them to admit it is faulty as long as you have a hole in your B**side.

 

so long as you have accepted by word or deed- their unlawful repudiation that flows from the faulty DN then i am afraid you are stuck with the naff credit reference unless YOU take action against them

 

personally , i a quite happy for the bad credit rating as it helps me for six years to come to terms with not relying on credit cards and borrowing money

 

- back to the old days- if you aint got the money you cant afford it- so save for it or forget what it was you wanted to buy

 

suits me but i appreciate it wont suit all

[diddydicky]

Agree it's risky, but...

 

Durkin v DSG [2008] made it clear that such recording of false and therefore defamatory data is punishable by the award of considerable damages, irrespective of whether the subject has suffered a provable loss.

 

fully agree donkey- just my personal opinion

 

one has to weigh up the risks against the benefits

 

he- haw't to know which way to go:D

[diddydicky]

Can i just pose a question re Invalid Default Notices and deemed date of service.

 

I note that there were some earlier and very useful posts on this subject by Vint (c. post 2507) but I would really appreciate some clarification on the new CPR 6 rules (specifically 6.26) in relation to the 1985 Practice Direction which supports Section 7 of the Interpretation Act 1978.

 

The reason I ask is that i have a couple of invalid default notices, some followed by termination, whereby the deemed date of service meant that I did not get enough time to rectify the breach. My most immediate concern is where I am currently defending a CCJ on the basis that a DN which was posted using UK Mail (and my contention is that this is a 2nd class service) is invalid because it did not give me the full 14 days to rectify, only 11. However, a DJ has informed me that my reliance on the 1985 Practice Direction is outdated as the new CPR rules, which were updated in 2010, will take precedence and do not support my case.

 

Having read CPR6.26, she would appear to be correct as they state:

 

"A document, other than a claim form, served in accodance with these Rules or any relevant practice direction is deemed to be served on the day shown in the following table-

 

Method of service

1. First class post (or other service which provides for delivery on the next business day)

Deemed date of service

The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that day."

 

So, my questions are:

1. Does my DN fall under the CPR rules?

2. Do the CPR rules override the Practice Direction?

3. Why would the DJ advise in this way, intimating that I do not have a strong case?

4. Is there a more recent update on service dates out there?

 

Thanks in advance

JG

 

 

 

i think you will find that CPR26 refers to documents served in an action

 

DN's are not part of a court action and so not covered by the protocols you refer to

 

if you pm pt he might confirm that for you

 

more bovine excreta methinks from our erstewhile opponents

 

 

ps don't forget that in a defence - you should not just rely on what they SHOULD have done- it helps if you positively assert the date that the dn was actually served and then put the claimant to strict proof of what they allege was the date of service

[means2anend]

i think you will find that CPR26 refers to documents served in an action

 

DN's are not part of a court action and so not covered by the protocols you refer to

 

if you pm pt he might confirm that for you

 

more bovine excreta methinks from our erstewhile opponents

 

 

ps don't forget that in a defence - you should not just rely on what they SHOULD have done- it helps if you positively assert the date that the dn was actually served and then put the claimant to strict proof of what they allege was the date of service

 

 

DD CPR 6:26 NOT CPR 26

 

m2ae:confused:

[Drederick Tatum]

Hi everyone.

 

Just going back to the default by Mercers on behalf of Barclaycard, would this be acceptable as a unlawful rescission letter once they've terminated?

 

Dear xxxxxx,

 

Re account no xxxxxx Unlawful Rescission.

 

I refer to your Default Notice dated xx/xx/xxxx, posted first class and received by me on xx/xx/xxxx, I would add that these actions were taken by you, while the account was in serious dispute, owing to your failure to respond to my request under s78 of the CCA 1974.

 

The default notice failed to give me the required statutory time in which to seek legal advice and/or remedy any alleged defect on the basis that I was only given 13 days (from the 10th to the close of trade on the 23rd) to rectify the problem. Your actions resulted in insufficient time for me to even obtain an appointment with a solicitor let alone remedy the alleged default. It also fails to include the name and a postal address of the creditor or owner as set out in the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.

 

These actions by you, have resulted in you unlawfully rescinding the alleged agreement.

 

I accept your unlawful rescission of the agreement and 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

 

Yours xxxxxx

 

(Sorry for butchering a letter of yours in a different thread, Vint:oops:)

[mot22]

Greetings.

I am confused with respect to the amount of arrears due in relation to an UR?

Where one states in their letter of acceptance of UR:-

"...I note that you are only now entitled to claim those arrears genuiely due at the time of the termination..."

Are the arrears always and only those stated in the DN regardless of when termination occurs?

Because in some instances termination (via either a letter of termination or demanding full balance) is some time after an invalid DN.

Thanks for any assistance..