Invalid Default Notices

[vint1954]

That's what I thought too...:?

 

LA

Carey only dealt with s78, not documents in court, as PT says.

[vint1954]

If you have to go to court it can be included in your bundle not before surely?

Correct

[pt2537]

nope Carey did deal with evidence in court

 

it was held that the creditor can reconstruct, but it must then give evidence as to how such reconstruction was made and also , if the creditor reconstructs it is open to being hit hard if the document isnt an honest and accurate copy

[vint1954]

nope Carey did deal with evidence in court

 

it was held that the creditor can reconstruct, but it must then give evidence as to how such reconstruction was made and also , if the creditor reconstructs it is open to being hit hard if the document isnt an honest and accurate copy

Understand pt. So it is not possible to claim that a reconstruction is hearsay.

[pt2537]

ahh now were talking about the weight that the court gives the aforesaid evidence.

 

being able to construct and the weight its given are two different things

 

and also we must not forget that Carey didnt say they can reconstruct anything, only the agreement in controlled conditions

[vint1954]

Thanks pt.

[Lord_Alcohol]

How effective is the argument "well, they have given me several different versions of the original DN" in court?

 

Presumably this is offered as a way to illustrate the OC's performance. So how is this actually used to support the argument for a defective DN and that the OC has no recourse to s87(1)?

 

Sorry, but I just don't see it at all.

 

LA

:?

[ANDREAMOUR]

The Bank Holidays are only relevant for the service of the document - in this case 15/12 for First Class or 17/12 for Second. They're not excluded from the 14-day remedy period. Yours will only be out of time if it was sent second class (though every DN I've received has been). There may be other errors in your DN, so it's worth posting a copy up here (with personal details removed) for others to view.

 

Thanks guys here it is

 

[straftat]

Can someone clear up this reconstruction issue ?

 

It was my understanding that it was ok for CCA requests but for court action they would still need a true copy...

 

Also , if they have sent you 3 different templates of a DN then how can this prove service of a valid DN

 

Finaly not to go off topic but Im in court with a DCA that has also sent me 3 reconstructions of the Notice of Assignment , all are bogus and were never sent at that time as I have the original letter sent to me on that day and it was just another threatogram

[jowil1973]

Hi all,

 

Thanks for the replies!

 

If it helps here (attached I hope) is the DN in question.

 

Also I must have missed something, it may affect other DN's I've had too. Why shouldn't a dodgy DN be brought to their attention unless they have definitely terminated the account?

 

Doesn't it still count as unlawful rescision anyway?

 

edit 'sorry attachment is very small, how do I paste the letter in as per the one above?'

Edited July 24, 2010 by jowil1973
attachment too small

[nks22]

Why shouldn't a dodgy DN be brought to their attention unless they have definitely terminated the account?

 

Because they could then issue another one. They can keep issuing DNs so long as they haven't terminated; eventually they might get one right (especially if you've told them what's wrong with a previous one).

 

'sorry attachment is very small, how do I paste the letter in as per the one above?'

 

I upload mine to Photobucket (in which you can also erase stuff on the copy) and post a link.

[Lord_Alcohol]

Also I must have missed something, it may affect other DN's I've had too. Why shouldn't a dodgy DN be brought to their attention unless they have definitely terminated the account?

 

Doesn't it still count as unlawful rescision anyway?

 

I'm sorry if this is just regurgitation - there is a divergence of opinion about this (as you can see!).

 

nks22 is absolutely right - bringing a defective DN to the attention of the OC without the agreement being terminated beforehand is not a good idea.

 

To do so after termination - perhaps long afterwards - in my view can help, simply because at some stage there will be several DCA's seeking the 'debt', and none of them will have any idea that the DN is defective. This is my experience with Egg, BoS and RBS anyway.

 

By showing them the defective DN you may stop recovery action - a DCA may not wish to try and seek a debt where it is clear(ish) that there is no entitlement to do so. Again, that has been my experience (Egg and APEX, BoS and Moorcroft).

 

However, this is not the right approach for everyone. If you are looking to cause as much difficulty as possible to the OC then, sure, withhold the DN. The reason for doing so might be to force the OC to reconstruct (pt has questioned this - we do not know if it is in fact allowed) and, where the reconstruction differs from the original, you can show the court that the OC's procedures are as defective as their DNs.

 

Sadly, this is just a guess, as the proponent's of withholding a DN have not provided reasoning for doing so, and it would help to know what the reasons are and how doing so can enhance the prospect of success based on the defective DN.

 

My opinion, for what it's worth, is that, once the agreement is clearly terminated, it cannot hurt your position in the slightest to reveal the defective DN to anyone - unless you have an adversarial nature and wish to go directly to court, but then you run the risk of incurring the judge's annoyance as diddydicky pointed out elsewhere (not in this thread).

 

Again, just an opinion, although reasons from the others for withholding might change it !!

 

Apologies for the waffle

 

LA

[means2anend]

I agreed with pumpytums on this that you should not send in a copy..you have succinctly explained why..They could very well be alerted ,re-issue and terminate...

 

you also state that it depends on what the motive of the debtor is...

 

This approach is apt only if you can afford time to sit it out!!!

 

m2ae

[Lord_Alcohol]

I agreed with pumpytums on this that you should not send in a copy..you have succinctly explained why..They could very well be alerted ,re-issue and terminate...

 

you also state that it depends on what the motive of the debtor is...

 

This approach is apt only if you can afford time to sit it out!!!

 

m2ae

 

No, only send a copy if the ag is already terminated, as stated. Doing so beforehand is madness!

 

Yes, you're right about the time needed! My own preference is to avoid court or SDs, but I still have the option of bringing an action later. This is why I think it best for the debtor to decide based on personal choice, rather than anything else.

 

Pumpytum's reason for not disclosing the DN was that the OC could change the account number! My view is that diddydicky's preference for disclosure in the other thread is more persuasive, as it shows the court you alerted the OC to the error, made all possible attempts to negotiate and avoid court, but the OC pressed ahead anyway. My opinion is that this would curry favour with a court, whereas coercing the OC into making more mistakes will not.

 

Again, only my opinion and preference but can appreciate why the alternative view could be quite satisfying

 

LA

[means2anend]

LA

 

It appears that ''every which way but loose''

 

m2ae

[straftat]

Can someone clear up this reconstruction issue ?

 

It was my understanding that it was ok for CCA requests but for court action they would still need a true copy...

 

Also , if they have sent you 3 different templates of a DN then how can this prove service of a valid DN

 

Finaly not to go off topic but Im in court with a DCA that has also sent me 3 reconstructions of the Notice of Assignment , all are bogus and were never sent at that time as I have the original letter sent to me on that day and it was just another threatogram

 

 

....anyone?

[Guest unicorn4321]

Hi sorry to butt in but i have just found my dn from yb.

 

Would be extremly grateful if someone could take a look as i think it is unenforcable by what i have read on here.

 

Received it on 20/03/08 remedy it before 06/04/08.

 

But checked and it was easter weekend inbetween so i hav'nt got the required 14 days is that correct.

 

Also as i have got ccc form (have acknowledged it) does that mean they have terminated my account.

 

They also applied a overlimit fee and late fee on the 17/03/08 aswell as this the amount required on the dn was over £200 pds less than on the statement.

 

http://i859.photobucket.com/albums/ab157/unicorn4321/defaultnotice-1-1-1.jpg

many thanks for your input.

Edited July 25, 2010 by unicorn4321

[lord_tiger_putin]

Ypu have left personal info on 2nd image

[lord_tiger_putin]

they can also read the barcode, the 2nd image in actually not relevant

[lord_tiger_putin]

Sure you received it on the 20th? They mailed it on the 20th, if Easter then Date of Service is 26/03/2008 and Date of Remedy is 05/04/2008 (they said before 06/04/2008). Well clear!

 

If it wasn't Easter, then Date of Service is 24/03/2008 and Date of Remedy is 05/04/2008 - giving 13 days.

 

Therefore it is invalid (not unenforcable!)

[nks22]

Received it on 20/03/08 remedy it before 06/04/08.

 

But checked and it was easter weekend inbetween so i hav'nt got the required 14 days is that correct.

If sent First Class service was on 25/03/08 therefore remedy date can't be before 09/04/08. If sent Second Class service is on 27/03/08 so remedy date no earlier than 11/04/08. (Assuming Good Friday counts as a working day or is it a Bank Holiday?) Edited July 25, 2010 by nks22

[diddydicky]

Hi all,

 

Thanks for the replies!

 

If it helps here (attached I hope) is the DN in question.

 

Also I must have missed something, it may affect other DN's I've had too. Why shouldn't a dodgy DN be brought to their attention unless they have definitely terminated the account?

 

Doesn't it still count as unlawful rescision anyway?

 

edit 'sorry attachment is very small, how do I paste the letter in as per the one above?'

 

or, more to the point- their internal records- particuarly their computer files could be "doctored" prior to you getting copies of them through SAR's to show dates of issue/posting that were more compliant than what you have showed them is not!!!

 

it is sufficient for you to TELL THEM it is not compliant and why- not give them your defence before they have even started any litigation against you

 

the more you can pull a claim apart in court the more chance you have of persuading a court that your version of events is more credible than theirs

 

the more information you give them to enable them to adjust their claim to take account of their errors- the harder you will make you own job

 

If you harbour thoughts that the creditor will see your invalid DN and then not bother you anymore- forget it!! they wont admit the errors

[diddydicky]

Am just struggling to see what benefit is achieved by coercing the OC to forge copies when you have the original DN, other than (justifiably!) illustrating what a sod the OC is.

 

Does it actually have any benefit in the courtroom? Won't the judge just blow a gasket as DD suggested elsewhere, when he sees you had the original all along?

 

From recent posts, it seems the only advantage to be gained is to hope that the OC fails to reconstruct the DN properly and then to use that fact against him in court. However, I would think that a judge would dismiss this as irrelevant as, unless the reconstructed DN is used to grossly distort the truth, it doesn't alter the essence of the issue, which is that the DN was originally defective.

 

I am finding it puzzling that, as the original DN would have to be used in a submission to court anyway, the OC will have ample warning that any reconstructed DN is not accurate and would be able to come to an explanation before the case is heard.

 

So, what exactly are the benefits of withholding the original defective DN?

 

LA

 

well, for starters- the creditor has no obligation to "re construct " a DN- and you have no right to "demand" that he re constructs it. in fact once the creditor says that there is no hard copy- then you would be liable for costs if you sought to force the creditor to produce that which he has already said he does not have.

 

If he provides a copy of the company's internal computer records- which may typically show the date the document was raised together with the figure of arrears, total debt and time for remedy........... a court in 99% of cases in going to accept this, along with a sworn statement- that the DN was raised on that date- he is also going to accept that it would have been posted on the same day- if that was a working day- and in the absence of a sworn statement that it was posted first class by the creditor- is going to take the view that the DN was served on the fourth working day after that and that the time for remedy started on the day following service........... therefore there is absolutely no mileage to be gained by demanding a "reconstruction" of the DN nif the dispute is solely concerned with the time for remedy not being sufficient- the evidence you want is to be found in a SAR response

 

If the DN is defective in the prescribed wording or layout- then asking them to produce a copy may be very helpful to you IF they then produce a document that "corrects" the failings in the original and would bring grave doubt on their testimony or their ability to produce accurate evidence.

 

the ONLY purpose (IMO) to be served from sending the creditor a copy of the DN therefore is to allow them to look at their computer records- see that you have raised a genuine defect in the DN (usually dates) and to "tamper" with their records to straighten out the faults.

 

i would suggest it is a lot easier to alter a computer than a hard copy record!!

 

although it would not be necessary for a debtor to state that he had the original document all the time (he would probably have made an exhaustive search for it - and found it - during any litigation ............just as the creditor often starts actions without being in possession of the documents to support the case...so it is open to the defendant to find documents at a later date.............. in point of fact- it is for the claimant to provide the documentation to substantiate his claim- not for the (proposed) defendant to provide it for him in advance.

 

if anyone on the forum has a written admission from a creditor or DCA that the DN (of which the debtor has helpfully sent them a copy) is defective and therefore confirms that they will not start a legal action against them- then i will show my ar*e in burtons window with a rose shoved up it!!

 

The creditor-is a commercial organisation and has a duty to maximise its profits and minimise its losses

 

i dont think they would have much luck flogging debts off at 15p in the pound to a DCA with an accompanying admission that the debt is unenforceable!!

 

Your duty (to yourself) if a claim arises- is to be able to pull apart and cast as much doubt on the claimants evidence as possible so that your version of events is holding more sway with the judge than the claimant

 

whilst one could indeed take the view "why not let them have a copy" (and i have made the mistake previously of doing so) i would rather ask "why help them" get their claim in apple pie order and make it more difficult to defend!- by giving them part or all of your evidence in advance

Edited July 25, 2010 by diddydicky

[Bigdebtor]

Just catching up after a few days away. I was shocked to see the esteemed Lord Alcohol addressed as "Lord Booze" - such disrespect!

 

Booze is an adulterated concoction usually containing more water than Ethanol - e.g. beer might have around 4% alcohol (abv), wine around 10-14% abv and whisky (water of life) around 40% abv.

 

To call the venerable LA "Booze" is to suggest he is a weaker, adulterated and less fiery version of his 100% true self.

 

I await a humble apology on LA's behalf!

 

BD

[Undercover-Elsa]