Invalid Default Notices

[Undercover-Elsa]

Not sure why you think you have been proven correct, Peter? This is an ongoing debate, and you would get your points across a lot better by being less aggressive.

 

Section 170. Look it up yourself, sir.

The whole section (as I've already pointed out to you elsewhere) Part XI Enforcement of Act (s 161 to s 173) refers to enforcement action which may be taken AGAINST CREDITORS by the OFT, not to action which creditors can take against debtors.

My own research shows that other areas of law CAN be used with the CCA if the CCA des not stipulate the required action. In the Woodchester version I have, for instance, it states:

 

The decision would apply equally where the default notice states too small a sum as required to cure the breach. Here, the

position is that the owner is not bound by that statement by virtue of s 172, but arguably might be estopped at common law

from demanding more;

[postggj]

wolfy

 

if the creditor or dca has started court action, and that termination is on the back of a defective default notice, all the creditor would be able to claim are the arrears up to the default date and nothing else as the account has been terminated

 

ILL SAY IT AGAIN

 

ONLY INFORM THE CREDITOR OF A DEFECTIVE DEFAULT NOTICE AFTER AN N1 CLAIM HAS BEEN ISSUED

[Peterbard]

i have read and re read all these posts since peter posted recently and it seems that his position is based solely upon one judgement (which i admit i have yet to fully read)

 

however i just don't buy it

Not supprising you didnt buy my arguments on the egg thread either.

 

it is true that the creditor cannot unilaterally (lawfully) terminate an agreement where the debtor is in arrears- and that he is correct - to say that if the DN is invalid- then so is the resultant (attempt at lawful) termination

No

to say however that the law neither tolerates or accommodates a party to an agreement acting " unlawfully" is patent nonsense. - it does- and is what gives rise to the right to the performing party to "elect" (to either hold the lawbreaker to his contract to to relieve himself of any continuing obligations)

The law does not tollerate unlawfulness, the clue is in the name.

To propose that the creditor could "temporarily" repudiate......... remove the benefits of the agreement to the debtor- whilst he then makes however many attempts to serve a valid DN is equally daft.

The benifits were removed due to the breach of the debtor, repudiate does not mean temporarily remove

what sections of the CCA permit this- and which sections of the CCA dictate how many "months" this temporary repudiation may exist until the creditor eventually serves a valid DN?

section 87

What section of the CCA takes the act out of the scope of general contract law

Consumer credit act

what section of the CCA removes the obligations confirmed by high court judges that a man is "bound by his words" in a written communication

The breach is the debtors lets not forget

What section of the CCA states that a creditor may breach the terms of the agreement and not be held to account by the other party

See above

What would have been the purpose of drafting s87/8 if parliament foresaw that any old wording in a DN would do - until the creditor got it right

to enable the debtor to have time to remedy,not to provide a get out clause for the debtor

In short, The CCa does NOT override contract law - and if the creditors actions step outside of the CCA by being unlawful then the performing party then has the right to "elect" either to hold the creditor to the contract- or to relieve himself of his continuing obligations by accepting the creditors unlawful action

Tell the judge that dont tell me you have already.

the "proposition" that a creditor can unlawfully repudiate an agreement- following an invalid DN- and deny the benefit of the rights that the agreement gives to the debtor whilst he make umpteen attempts to serve a valid DN- until he gets it right- is just as barmy!

 

He cant he isnt nothig unlawful about it see above

 

In fact the creditor needs only to ENVINCE the intention not to perform- for the other party to be able to elect.

Garbage

It seems to me that it would be in the interest of creditors to divide discourage and dissuade caggers from defending these unlawful repudiations- and i wonder (yet again) about the motives of those attempting to do this work for the creditors

 

Had a few minutes.

 

Peter

[alangee]

Peter

 

After having read your posts, is there any point in having a Consumer Credit Agreement?

 

Alan

[Peterbard]

Peter

 

After having read your posts, is there any point in having a Consumer Credit Agreement?

 

Alan

 

Certainly as protection not a device to evade payment

[cab1ne]

Hi where to start.

The inclusion of the new regulations in the CCA next year are there to clarify the existing rights of the creditor to terminate an open ended agreement.

The appeal in Brandon is not because of the termination this is an accepted fact.

Yes we all know that the repeal of section 127(3) was not retrospective that was not the point.

Yes the creditor can most certainly issue another DN he would have to re file and give time to remedy so he may not want to but yes.

You think he looses entitlement to his money because of what could be a typo.

Peter

 

what is one of them ?????

 

cab

[Guest HeftyHippo]

Not sure why you think you have been proven correct, Peter? This is an ongoing debate, and you would get your points across a lot better by being less aggressive.

 

I don't think he can behave any other way. IMHO he enjoys causing confrontation and controversy by splitting hairs and playing on words. I dont think he's here to 'educate' the poor unfortunates who are not blessed with his gifts, just here to have fun by stirring things up.That's what the evidence suggests anyway.

 

I think his behaviour has all the hallmarks of attention seeking and egotism. Quite why so many indulge him is beyond me.

 

I read about his posts, to the effect that they have the element of seeming truthful which is likely to deceive the reader that the whole of his argument is correct. Whether that is a common comment about his posts, I don't know. I find his interpretation of things rather unique, puzzling even, and he gives me the impression of clutching at the smallest thing that he can use to justify his argument, and proclaims it as cast iron proof. Of course if you dispute what he says, you run the risk of being accused of not being able to see the truth, and that seems sufficient justification to him, to be rude and sarcastic.

 

I'd have some respect for him if he was able to actually discuss a point and answer questions about his point of view in a respectful manner without ducking and diving and without making short flippant remarks that don't answer the questions which were put forward in an attempt to understand his views.

 

Mind you, in my opinion, he doesn't want anyone to understand his views, the more confusion he can create and the less people understand what he is claiming, the more fun he can have by being rude and the more people ask him to explain, the more his ego is massaged by having so many 'followers'. If people understood what he said, he wouldn't be able to feel important or superior to the rest of us.

 

Of course, in response he will probably either be rude and flippant, attempt to say something profund or philosophical, or simply sulk and go away claiming that we're not worthy of his time.

Edited September 20, 2010 by HeftyHippo

[emandcole]

wolfy

 

if the creditor or dca has started court action, and that termination is on the back of a defective default notice, all the creditor would be able to claim are the arrears up to the default date and nothing else as the account has been terminated

 

ILL SAY IT AGAIN

 

ONLY INFORM THE CREDITOR OF A DEFECTIVE DEFAULT NOTICE AFTER AN N1 CLAIM HAS BEEN ISSUED

 

If you have a termination notice how does the progression to litigation change things?

 

If the creditor has defaulted badly and then clearly closed the account with such a notice and the demand of the full balance are they not now prevented from 'taking all of that back' and attempting to start again?

 

Is this advice aimed at ensuring people don't go rushing in and pre-warning creditors of their default errors or is there an important point between confirmed termination and the actual commencement of litigation?

 

Thanks.

[postggj]

we then go onto not the termination but the sale

 

a creditor will terminate an agreement (relationship) prior to selling an account to a dca

 

the dca then has the rights and responsabilities of the agreement

 

the issue is

 

was the agreement terminate and not just assigned under the law of property act 1925

 

remember two types of assignment

 

1/ equitable

2/absolute

 

and was the debtor given a termination notice prior to sale

[postggj]

a creditor can sell the rights and duties of the agreement with out terminating the agreement to a dca

 

you would need to see the deed, not notice of assignment to confirm that

[BarclaysSAR]

Hi

Sorry to just jump in on this interesting thread, but can someone tell me the following:

 

If a DN has to give you 14 clear days, does a letter from a DCA asking for money also have to give 14 clear days to pay, or can they just pick any number of days they like. I.E 5 days therefor 2 days to deliver by post, 2 days to reply, so only 1 day to respond.

 

Thanks and keep up the interesting topic

[Undercover-Elsa]

Hi BC,

No there's no Statutory time scale for DCA begging letters, but clearly they must be seen to be being reasonable.

 

Elsa x

[postggj]

if you have had a default notice from a dca

 

they mean squat

 

only the original creditor can issue a default notice

[BarclaysSAR]

Hi Elsa and postggj

 

DCA have not issued me a DN, but lots of threatening letters and SD. Finally got fed up and wrote to OFT and FOS, it must have worked because DCA has wrote back asking to talk. I think really what they want is to look good in front of the OFT and FOS by saying, 'look we are asking to talk'.

 

Anyway i never told the DCA, OFT and FOS about defective DN, but in letter from DCA they are asking why i think DN is defective and i owe nothing.

 

Not sure how to reply to this, if i do not reply to them, then i look bad in eyes of OFT, FOS. If i do reply what do i say without showing my hand.

 

I should actually be writting this in my own post

[diddydicky]

Had a few minutes.

 

Peter

 

 

i did not have ANY comments regarding the Egg matter- as you falsely state

 

my sole contribution with regard to the Egg matter was the way in which you slagged off PT and called him a liar when he said the appeal was pending- and at which time due to confidentiality he was not able to provide the further proof you demanded a matter for which you never apologised despite your erroneous allegations

 

nor have you ever aplogised to this forum for your comments on the trade forums in which you heavily criticised this forum and its posters- and yet you return to it to try to create more unrest and confusion

Edited September 20, 2010 by diddydicky

[diddydicky]

from PB in answer to

 

In fact the creditor needs only to ENVINCE the intention not to perform- for the other party to be able to elect.

 

Quote "Garbage" Unquote

 

 

so, chitty is garbage- man you are in a world of your own

[diddydicky]

if you have had a default notice from a dca

 

they mean squat

 

only the original creditor can issue a default notice

 

to be accurate- a DCA- or anyone for that matter- acting on behalf of a creditor CAN serve a DN- provided that the DN is compliant and contains the name and address of both creditor and debtor- it would be valid

[postggj]

may i ask then how a dca can issue a default notice when the agreement has allready been defaulted prior to sale to a dca

[postggj]

when an account is assigned to a dca, the dca takes on the rights and duties of the agreement and original creditor

 

an account can only be defaulted once

[postggj]

ill give you all a typical example

 

say cabot default you over a barclaycard debt,

you rectify the default by clearing any arears within the presumed 14 days so no default exsists as such

 

now where cabot fail is they dont offer or issue credit cards

 

ANSWERS ON A POSCARD

[diddydicky]

may i ask then how a dca can issue a default notice when the agreement has allready been defaulted prior to sale to a dca

 

just to clarify.....................

 

my point was not related to an already defaulted or sold agreement....... merely to the point that the Dn does not HAVE to be isued or served by the creditor alone- which is what i thought you were implying

 

any dca solicitor butcher, baker or OAP acting on his behalf can do so

 

just thought i would make that clear

[diddydicky]

when an account is assigned to a dca, the dca takes on the rights and duties of the agreement and original creditor

 

an account can only be defaulted once

 

sorry to disagree again - but this is incorrect

 

if an invalid DN is served- and before the debtor has accepted it as an unlawful repudiation either by words or deeds- the creditor may indeed "save the day" by serving a second valid DN (IMO)

 

what he cannot do however (IMO) is serve a second DN "post termination"

[postggj]

Yep

 

to true

 

the lop act 1925 does tend to confuse matters being equitable or absolute

[postggj]

again to true

 

the key word is a termination notice

[postggj]

that is why you hit them with a defective default notice only after a court claim has begun, not before as by issuing a court claim, the account has been terminated