Invalid Default Notices

[Undercover-Elsa]

It's difficult to assess without having the full transcript.

[Undercover-Elsa]

Not suprised DM..this questionable judgement has thrown a spanner in the works, but fingers crossed that an apeal will be allowed.

[The GodMother]

My thread is:- http://www.consumeractiongroup.co.uk/forum/showthread.php?262556-Sainsburys-Bank-now-assigned-to-Cabot

 

and the DN's are in #14, I received 2, the first giving 14 days, the second giving 5! Neither obviously giving time for postage to be taken into account. I do also have the added bonus of a reconstituted agreement which has a major flaw (but which I don't want to disclose due to DCA's nosying around this site).

 

I'm slowly losing the will to live with all this DN stuff

 

I have had DN that dont give me enough days especially when you add postage. My LTSb credit card one only gave me a saturday and sunday toand had to be rectifed by 9am the monday morning. There were sent by UK mail and as such could have been posted by them whenever as they did not have a post mark on them.

[Duffers Mum]

Should it be that difficult for judges to all read from the same song sheet? Its disgraceful that one can say one thing and another something else. Unfortunately they rarely seem to come down on the side of poor old Joe Public firstly companies had to provide proper copies of CCA's, now because of one stupid judge, reconstructed agreements are allowed, now similar with DN's...

[middenmess]

Re.Brandon excerpt

 

So whats with the 'not less than 7 days notice' garbage!!

[Undercover-Elsa]

Re.Brandon excerpt

 

So whats with the 'not less than 7 days notice' garbage!!

 

Because he's quoting (WRONGLY!!) from the Termination Notices (non default) section

[robinredbreast]

An argument is also, how did the Judge know without doubt, that the Debtor had no intention of satisfying the DN no matter what time period he had been allowed (i.e 14 days or 114 days....) he couldn't ... full stop... and to make a ruling based on his opinion that the Debtor had no intention of satisfying the DN in any event, is pure conjecture and speculation on the Judges side ... God knows why Brandons legal team let him get away with this ...

 

My arguement would be that the Debtor realising that he couldn't get togther what ever was reqd to satisfy the DN in the time allowed in the DN ... is that he merely "gave up" in any attempt to even try and remedy the Dn, which was incorrect as the time for remedy given was wrong and mis-leading ... i.e insuffient time allowed ...

 

Thereby the Debtor was prejudiced from the outset ... as it could argued that his non-compliance to the DN issued was as a direct result of the incorrect data promoted by the Creditor in the DN ...

 

Surely to God Brandon has got to be overturned on appeal .. after all ... the construction of a DN has to strictly meet the terms of the CCA74 etc, statues of parliment, which were passed for one purpose ... to protect the rights of the consumer ... or has the world gone completely mad .. !!!

Edited August 7, 2010 by robinredbreast
typo

[The GodMother]

An argument is also, how did the Judge know without doubt, that the Debtor had no intention of satisfying the DN no matter what time period he had been allowed (i.e 14 days or 114 days....) he couldn't ... full stop... and to make a ruling based on his opinion that the Debtor had no intention of satisfying the DN in any event, is pure conjecture and speculation on the Judges side ... God knows why Brandons legal team let him get away with this ...

 

My arguement would be that the Debtor realising that he couldn't get togther what ever was reqd to satisfy the DN in the time allowed in the DN ... is that he merely "gave up" in any attempt to even try and remedy the Dn, which was incorrect as the time for remedy given was wrong and mis-leading ... i.e insuffient time allowed ...

 

Thereby the Debtor was prejudiced from the outset ... as it could argued that his non-compliance to the DN issued was as a direct result of the incorrect data promoted by the Creditor in the DN ...

 

Surely to God Brandon has got to be overturned on appeal .. after all ... the construction of a DN has to strictly meet the terms of the CCA74 etc, statues of parliment, which were passed for one purpose ... to protect the rights of the consumer ... or has the world gone completely mad .. !!!

 

I agrr the judge could not prove the debtor had no intention of satisfying the DN. If the judge did have what evidence was that?

[Bill Shidding]

He would get 7 days notice if it was an amex "charge card". No need for any DN if there is no breach of contract, just cancelling the agreement for some reason.

 

Is cca74, sec 98A in force?, as I think that is directly attributable to a charge card (but not O/D'S).

 

I look forward to seeing the full judgment.

[nks22]

An argument is also, how did the Judge know without doubt, that the Debtor had no intention of satisfying the DN no matter what time period he had been allowed (i.e 14 days or 114 days....) he couldn't ... full stop... and to make a ruling based on his opinion that the Debtor had no intention of satisfying the DN in any event, is pure conjecture and speculation on the Judges side ...

 

As I understand it the judge is simply saying that a DN was not required in this case because either party could terminate at any time. He doesn't make any ruling on the debtor's intentions regarding the DN or the time period given in the DN. He regards the DN as irrelevant because in this case there was no requirement to serve one.

 

However Brandon is about a notice served under Sect. 98(1) of the Act. It is not about a notice served under Sect. 87(1) and, since Sect. 87 does not have a clause equivalent to Sect. 98(2), it has no relevance to - and sets no precedent for - notices served under Sect. 87.

 

From the excerpt available the judge in Brandon appears to have been entirely correct. However it is of no concern to most of us because we will have received notices served under Sect. 87(1).

[The GodMother]

brandon as in thetford?

[basa48]

From the excerpt available the judge in Brandon appears to have been entirely correct. However it is of no concern to most of us because we will have received notices served under Sect. 87(1).

 

Except for the 160,000 Egg customers who received a notice of termination when not in default.

[GeoffreyAlby]

brandon as in thetford?

 

Brandon as in Case no 9JU75140 Bristol County Court , heard by HHJ Denyer, sitting as a Judge of the High Court in a County Court..

 

 

 

This Section 98 issue is very very interesting, opens a whole new can of worms.....

[robinredbreast]

Fantastic ... if there's a defence to this baffling judgement from the Judge ..

 

But from what I understood and whats been discussed, the Judge has basically set a HC precendent in that if the Debtor is relying as a defence, the creditors mistake in their DN on the time for remedy, as to avoid repaying the whole amount owed, than if taken that the Debtor had no intention anyway of satisfying the default, than the length of time given is immaterial - as the debtor had no intention of satisfying it no matter what ... and thats why he ruled for Amex

 

I don't think it matters under which part of the act is issued under, a DN is a DN, and thats what he was dealing with ... don't shoot me only my thoughts .. !!!

 

Of course this is only a problem, if you have a valid CCA and theres absolutely nothing wrong with the rest of the DN .. i.e they haven't demanded the whole amount owing (unless thats what the total arrears amount to), the total amount of arrears are correct, and everything else is formatted as it should be ...

 

Of course .. we have all heard cases which have been heard by the High Court, where we have a precedent set, but which CC Judges happily ignore .. so why this should be any different we'll see ...

 

My own view is that if my only gripe was that I had a defective DN based on the remedy for time, I wouldn't initiate any legals, and let sleeping dogs lie until they did .. hopefully by that time we've had a successful appeal and things will be a bit clearer ...

 

Robin x

Robin .. x

[nks22]

Except for the 160,000 Egg customers who received a notice of termination when not in default.

That may be. The Brandon case does appear to be specifically about a Sect. 98 notice, though.

 

Fantastic ... if there's a defence to this baffling judgement from the Judge ..

I don't think it is baffling. It is, as far as I can see, a valid interpretation of Sect. 98(2).

 

But from what I understood and whats been discussed, the Judge has basically set a HC precendent in that if the Debtor is relying as a defence, the creditors mistake in their DN on the time for remedy, as to avoid repaying the whole amount owed, than if taken that the Debtor had no intention anyway of satisfying the default, than the length of time given is immaterial - as the debtor had no intention of satisfying it no matter what ... and thats why he ruled for Amex

I'm only going by the excerpt available. Maybe there's more to it but my reading of what's there is that the judge ignores the DN because under Sect. 98(1) there is no requirement for a DN and under Sect. 98(2) there is no requirement to give notice of termination.

 

As I said, I'm going only on what's in that excerpt. I'm no lawyer and may be completely wrong but all of my DNs have been served under Sect. 87(1), including the two from Egg.

 

The Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 state that Sect. 87(1) applies to defaulted agreements while Sect. 98(1) applies to non-defaulted ones. The regulations for Sect. 87(1) include "the necessity to serve a default notice in accordance with section 88" while those for Sect. 98(1) make no mention of DNs but instead "relate to the duty to give notice to the debtor or hirer of termination".

[nks22]

Having said that, looking again at the excerpt, most of it is the judge quoting from a different case - one involving a Mr Harrison. We really need to see the full transcript to understand Brandon. It doesn't alter the main point, though: a Sect. 87 notice requires a DN whereas a Sect. 98 notice does not.

[Undercover-Elsa]

Having said that, looking again at the excerpt, most of it is the judge quoting from a different case - one involving a Mr Harrison. We really need to see the full transcript to understand Brandon. It doesn't alter the main point, though: a Sect. 87 notice requires a DN whereas a Sect. 98 notice does not.

 

Exactly nks22.. without knowing the basic details of the case, it was assumed that it was a default situation. If it is then section 98 should not apply. If it isn't it's a different ball game. HOWEVER...I've seen letters on here from Amex quoting this case in response to people in default circumstances giving faulty DN's as a defence/informing them of repudiatory breach. Rather deceptive, I think and unfair too when the whole transcript isn't apparently available for analysis.

I'd suggest anyone getting this response should query it's relevance, if they are in a default situation, and demand a transcript.

 

Elsa x

[robinredbreast]

I agree Elsa ... I posted up what I could find .... so apologise its only a snippet ... anyone with access to the law directories etc may be able to get the whole thing .. which will make things much clearer ...

 

I don;t disagree at all with NKS22, or anyone else saying they don't believe its relevant for a s87 default ... its just my thoughts were how a CC Judge may see it, if raised as a defence by any Creditor taking you to court ... so it makes good practice to have some solid retaliation ready if that happens .. which is exactly what this debate has done ..

 

As I say I didn't know anything about it until it was raised on my own DN thread ... and I just wanted to give all a heads up .. in case others too didn't know about it, until it was presented with a flourish by the Creditor in any hearing ...

[the_shadow]

Looking at the snippet I have to say it reads like the judge thinks a default notice is not needed EVEN when the defendant is in breach of the agreement and cites the Harrison case where the defence stated they were in breach due to non-payment.

 

The Judge in this case says thats not relevant (perhaps because the DN in that case didnt allow the 7 required days(?) and hence was not in default and therefore no default notice was required?

 

Very very puzzling to say the least

 

S.

[nks22]

The Judge in this case says thats not relevant (perhaps because the DN in that case didnt allow the 7 required days(?) and hence was not in default and therefore no default notice was required?

If Mr Harrison had an agreement that could be terminated at any time (using Sect. 98 ), the fact that he had also defaulted wouldn't have imposed any extra obligations on the creditor. He had defaulted so they'd issued a (faulty) DN but they hadn't needed to because they were entitled to terminate even if he hadn't defaulted. Therefore the DN was irrelevant (and shouldn't have been issued). It would clearly be absurd if a debtor who defaulted had more rights than one who didn't.

 

That's my reading of it, anyway.

[Bill Shidding]

AFAIK -

 

A section 98 notice would only be served when the account is repayable "on demand" (such as an overdraft or charge card).

 

The creditor is entitled to demand the repayment of the account immediately (it will give the borrower xxdays to pay).

 

If the borrower fails to repay on/by that date, he is in default (of the contractual requirement to repay the account "on demand")

 

A default notice is served because the borrower is in default of the demand to repay the whole balance.

 

After (7) days the creditor can issue LBA/proceedings.

 

Section 98 A will/does allow the borrower 2 months to repay the balance.

 

IMHO, this case does not relate to a "credit card account"

[means2anend]

Surplus to requirement and an overuse in the correct way of terminating...which may be the cause of the confusion here.

Edited August 8, 2010 by means2anend
coinfusion to confusion

[diddydicky]

Fantastic ... if there's a defence to this baffling judgement from the Judge ..

 

But from what I understood and whats been discussed, the Judge has basically set a HC precendent in that if the Debtor is relying as a defence, the creditors mistake in their DN on the time for remedy, as to avoid repaying the whole amount owed, than if taken that the Debtor had no intention anyway of satisfying the default, than the length of time given is immaterial - as the debtor had no intention of satisfying it no matter what ... and thats why he ruled for Amex

 

I don't think it matters under which part of the act is issued under, a DN is a DN, and thats what he was dealing with ... don't shoot me only my thoughts .. !!!

 

Of course this is only a problem, if you have a valid CCA and theres absolutely nothing wrong with the rest of the DN .. i.e they haven't demanded the whole amount owing (unless thats what the total arrears amount to), the total amount of arrears are correct, and everything else is formatted as it should be ...

 

Of course .. we have all heard cases which have been heard by the High Court, where we have a precedent set, but which CC Judges happily ignore .. so why this should be any different we'll see ...

 

My own view is that if my only gripe was that I had a defective DN based on the remedy for time, I wouldn't initiate any legals, and let sleeping dogs lie until they did .. hopefully by that time we've had a successful appeal and things will be a bit clearer ...

 

Robin x

Robin .. x

 

 

 

well, if the judge can show that part of the CCA s87/s88 which the rest of us cannot see- then perhaps he might have a point!!

 

 

where is the bit in the act, which the judge seems to be reliant upon that states "

 

 

" unless the creditor then waits for an undisclosed period of time to carry out the actions he states he will carry out and the debtor fails to take advantage of this undisclosed "extra" time to remedy and which he is not privvy to knowing!!

 

The judge in this case (and i don't often accuse judges of being biasied) was either totally incompetent in his interpretation of the act, or had some other "agenda"

 

As has been pointed out earlier on the thread- there is a "proviso" in s98 which excludes it's use in "default" situations- it was therefore the clear intention of parliament that s98 did not apply to agreements that were already in default.

 

the proviso is right at the top of the section and therefore should not (IMO) be applied to a situation where a debtor is in default

 

that is what s87/88 is for and where parliament CLEARLY intended for the debtor to have a "final chance" - to put things right

 

further

 

if the creditor, in this important and prescribed document (the OFT leaflet confirms it to be thus) states his intention at the expiry of the time stated for remedy, to terminate or demand earlier payment etc- then the unsophisticated debtor- whom the act is designed to protect is entitled to believe that if he does not take the action mentioned in the DN within the time stipulated then the actions mentioned as a consequence of his failure to remedy WILL occurr

 

the Act specifically states that the notice must leave the debtor in do doubt

 

the fact that the creditor then does not carry out the stated actions in the event of the debtors failure to remedy for another 3 weeks, 3 months, 3 years....... is a matter which would only be obvious with the benefit of hindsight!

 

It is obvious that in the majority of cases- a debtor who has missed several repayments (unless he was deliberately witholding them) - is therefore unlikely to be able to easily obtain the amount (usually several months) stated in the DN and would need all the time available to try to do so

 

Therefore, if he realises that he cannot do so within the time specified -especially if it is short and will inevitably include weekends (when solicitors and lenders do not operate- -and presumably why parliament extended the time from 7-14 days) may well make the decision to "throw in the towel" - thus making a decision which is based on a false and misleading statement made by the creditor as to what would happen after the 14 days , 13 days 8 days-or whatever the DN stated

 

However- had the creditor said in the default notice- you have until XXx date to remedy the defect BUT we are not likely to do what we just told you we would do right away- so therefore you may have another 3 weeks , 3 months 3 years more to pay- - then it makes a total mockery of the intent and purpose of the Dn and furthermore may well have led to the debtor making an entirely different decision to that which he previously made.

 

Further still it is entirely likely that were a debtor to pay the sum of outstanding arrears contained in the Dn to the creditor say 3 days after the expiry of the DN- that the creditor would say "thank you very much" we'll take that on account- now you owe us the entire balance of the account and we are still going to terminate because you did not comply with the DN in the specified time .

 

in short the judge was a total ass

Edited August 8, 2010 by diddydicky

[robinredbreast]

Diddy

 

My point exactly in post 4068 ... the creditor's "error" has put the debtor at a disadvantage from day one of the DN .... yet the Judge allowed that disadvantage to remain and influence his judgement on enforceablility ...

 

I tell you what .. I can't wait to see what the appeal judge makes of it all ... !!

[diddydicky]

AFAIK -

 

A section 98 notice would only be served when the account is repayable "on demand" (such as an overdraft or charge card).

 

The creditor is entitled to demand the repayment of the account immediately (it will give the borrower xxdays to pay).

 

If the borrower fails to repay on/by that date, he is in default (of the contractual requirement to repay the account "on demand")

 

A default notice is served because the borrower is in default of the demand to repay the whole balance.

 

After (7) days the creditor can issue LBA/proceedings.

 

Section 98 A will/does allow the borrower 2 months to repay the balance.

 

IMHO, this case does not relate to a "credit card account"

 

hello bill- nice to see you again