Invalid Default Notices

[The Mould]

The Courts view contracts as private arrangements, a third party cannot interfere in that contract, or enforce that contract (subject to of course; novation, assignment and the provisions of the Third Party's Act 1999 being met), as it is "none of their business". In particular, parties to a contract are free, if they both clearly so agree, to abandon a contract or vary its terms.

 

In cases of this type, where the two parties are in agreement to the ending of the contract, the Court (a third party) have no right or say in the matter, as it has long been established in law that, no stranger to the contract can take advantage of a contract.

 

Again, I would look at the creditor's cause of action in these type of proceedings, and if the said cause of action was determined to be unjust, then the creditor has only himself to blame for the impossible position he now finds himself in, arrears due are to be paid and there is nothing else the Court can interfere with and certainly the Court is not going to cure the creditor's problems for him.

 

Kind Regards

 

The Mould

[Dotty50]

 

Do not use the words 'unlawful recission'.

 

Kind Regards

 

The Mould

 

Hi The Mould, Hope all well with you.

 

I used these words in the letters I sent to MBNA some time ago, as advised on here.

 

I have recently read that the correct term is repudiation, but MBNA denied it anyway, don't think it would have made any difference to them what word I had used!

[welshperson3]

Try looking at this there might be an answer to the problem in here

Consumer Credit (Enforcement, Default and Termination Notices) Regulations

1983

[basa48]

Hi

The creditor can terminate any time he wants as per the contract and Brandon.

 

not sure this correct peter. the creditor may restrict the credit aspect of an agreement; but terminate it??

 

Section 89 refers to remedying the breach in section 87 thus canceling the notice, not the breech of the agreement. That is why it is contained in part Vii of the act entitled Default and termination

 

but often the creditor goes on to cease performing the contract following breach of 88 where that remedy is unavailable. is that not repudiation?

 

A termination via contract can be followed by a termination under section 87. Obviously, if it wasn’t the debtor could terminate at any time, thus preventing enforcement, the liabilities under the contract do not disappear. Neither does the creditors right to recover

Peter

how can you terminate (by contract) then terminate (under 87) an already terminated contract? i do not understand this concept at all.

 

surely if a contract is terminated all clauses (including any maintaining repayment) are also terminated?

[means2anend]

The Mould your right ...it's 'privity of contract'

[means2anend]

Privity of contract is a common law doctrine...NOW while common law judges are no longer taking notice of 'the higher law (statute) will they also no longer take note of their ''own'' law...

 

I think this doctrine [is safe]

 

m2ae

[basa48]

Any ideas on when a creditor issues a dodgy DN , but then also terminates within the 14 days too?

Is that clear prejudice,? in the brandon case the judge is saying its not prejudiced him as Amex didnt terminate till well after the 14 days,

But what about those of us whos agreements were terminated 10 days into a dodgy dn?

 

Thanks

DB

 

as big debtor says - good point.

 

and so is wp3's.

 

how could the judge in brandon not see that the faulty dn prevented amex from terminating even if he did feel the fault didn't prejudice brandon?

[welshperson3]

It doesn’t say before he is entitled

But what it does say

(2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section

87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section

88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain--

[Bigdebtor]

Hi

I wonder how many judges have to say that this argument is flawed before some of you get the idea.

Peter

 

Peter

 

Which specific argument do you claim to be flawed? There have been many very good arguments posted here over recent days which have not received any response from you.

 

Does this mean that you think just one of these many arguments is flawed? If so, can I assume the corollary that you accept the other arguments as sound (i.e. unflawed)?

 

Incidentally how many DJ's HAVE actually said the argument to which you (don't) specifically refer is flawed?

 

It would certainly appear the Bannion case rests on the fact that AMEX did not issue a TN until well after the 14 days - even though their DN had threatened to do so earlier - and thus in practice the debtor's rights had not been unduly prejudiced - a matter of opinion and IMHO highly contentious. After all who could say if the debtor might have been able to fix things if given the correct amount of time in the first place? Only the debtor knows the answer to this.

 

However many posters have averred in recent posts that they have clear evidence of cases where the TN was issued well before the 14 days were up - and the default reported to CRA's - so restoring the original status quo was no longer possible. How is Brandon relevent to such cases?

 

It seems to me that the circumstances which led to Brandon are far from typical - and even if the perverse judgement is not overturned at Appeal then there are so many specifics that need to be considered that this cannot become a "one size fits all" judgement. However if it is deservedly thrown out at Appeal then I might reconsider that last sentence!

 

BD

[Bigdebtor]

Privity of contract is a common law doctrine...NOW while common law judges are no longer taking notice of 'the higher law (statute) will they also no longer take note of their ''own'' law...

 

I think this doctrine [is safe]

 

m2ae

 

m2ae/ This privity of contract sounds interesting. Where can we find out more?

 

BD

 

PS - I take it it's nothing to do with hedge funds or hedging bets?

[Guest]

welshperson3

 

how about, in your case, and in general, also submitting, not withstanding, that, despite being in breach yourself, it would be 'inequitable' to grant 'performance' to the cr as the cr themselves has failed to comply with a 'vital obligation'?

[Undercover-Elsa]

Hi,

 

I had a CC with MBNA and I was sent a invalid DN (not enough time and full balance asked for), I was waiting for a TN to accept unlawful recession but none has arrived. On Saturday I received a letter from Allied Credit International who now want me to call to discuss repayment options.

 

Can I take this as a TN? Do I still send the acceptance of unlawful recession to MBNA?

 

Thanks

 

Hi Debilde,

I'm sorry you received such a desultory and oblique response from one member to your request for help.

As you may have deduced there is much heated debate on thread and you wandered into the firing line!

Opinions vary, as I'm sure you've noticed.

However your MBNA Default Notice is differentiated from the Brandon case quoted, in that it demands payment of THE FULL BALANCE.

Clearly this is prejudicial and in itself constitutes an immediate and unlawful withdrawal of your rights under the contract.

As it's a credit card it also has an inbuilt condition for the creditor to terminate at any time under Section 98, by giving 7 days notice. However if the creditor wishes to excercise this right (which applies to non breach circumstances) then they must write to you stating this and quoting the relevant clause.

 

Originally quoted by Peterbard

Section 89 refers to remedying the breach in section 87 thus cancelling the notice, not the breech of the agreement. That is why it is contained in part Vii of the act entitled Default and termination

 

Sorry Peter, but with all due respect you've confused me here. What part of section 89 states this?

89.

Compliance with default notice.

If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or © the breach shall be treated as not having occurred.

 

Debilde, I'd start a seperate thread on your DN issue for a more specific response.

 

Kind regards,

Elsa x

Edited October 19, 2010 by Undercover-Elsa

[emandcole]

Morning all, don't know about you guys but I'm looking forward to more discussion on this...feel we're getting somewhere with it and the info unveiled recently has been very interesting

[DeBilde]

Thanks to the replies, I will leave the battle ground for now and get a acceptance letter off to MBNA.

[Bigdebtor]

DB

 

I would post te draft up here so it can be checked to make sure you don't shoot yourself in the foot!

 

BD

[DeBilde]

Re account XXXXXXXXXX Unlawful termination

 

I refer to your unlawful termination of the above agreement occasioned by passing the alleged debt to Allied Credit International who have demanded for me to pay the full outstanding balance of the account thereby unlawfully terminating the agreement.

 

You were not allowed under the CCA to demand any of the benefits of s87 without first having issued an effective default notice giving me an opportunity to remedy the alleged breach and pay any arrears claimed.

 

I formally accept the repudiation and, for the avoidance of doubt, confirm that as I have elected to accept the rescission of the contract I am therefore discharged from any ongoing liability under the former agreement. Your breach of contract gives rise to a claim for damages and Ilook forward to receiving your proposals

 

Yours faithfully

[pumpytums]

The problem with MBN$ is/was they always treated the issue of a DN as the last straw. In the past they would demand the full balance to remedy the breach, and then sell it on before the DN expired. Basically they went against everything a DN stands for and never gave the debtor a last chance to sort things out. To put the icing on the cake they would then give the new owner a default date prior to the actual DN been issued. All very bizarre and so in-line with their business practises.

 

 

Pumpytums

[emandcole]

Possibly one of the clearest examples of the creditor denying the rights of the borrower we have and leaving the borrower in an impossible (unless you have the full sum demanded and have no other need for it) situation. Complete bypass of the CCA protection.

[Basil Fawlty]

I've noticed a few of you have mentioned that you have a case if they ask for the full amount in a DN. How do you feel that I stand where MBN$ have sent a DN for the arrears, not the full amount, but the arrears are wrong (include charges), not enough days to rectify, and they have sold before that rectify date? Should I be sending them a letter accepting unlawfull rescission? And would anyone feel confident in court defending this?

 

BF

[pumpytums]

Possibly one of the clearest examples of the creditor denying the rights of the borrower we have and leaving the borrower in an impossible (unless you have the full sum demanded and have no other need for it) situation. Complete bypass of the CCA protection.

 

Darn tooting I believe MBN$ thought they were back in the Wild West. Until someone reminded them that the were in the UK. Of course after allegedly extremely dodgy/legal assignments said balances were transferred offshore.

 

Loss offset / Vat offset anyone and therein lies a tale.

 

Pumpytums

[Peterbard]

HI

I think I have just twigged the misconception that you have on here about entries on the credit file of a CRA.

There is talk of damages due because of ineffective DN I couldn’t really see what was meant.

I get it know, I think lot of you are under the false impression that the issuance of a default notice is something to do with a notice of default being put on your credit record

So you think that section 89 refers to remedying that as well as the breach of contract, it does not.

A creditor is entitled to enter information about your repayment record on your CRA, it is they who decide in line with ICO guidelines what constitutes a default nothing to do with the CCA,

They try to use the same criteria to all agreements even those that are not covered by the CA (Utilities phones etc)

They may send a notice of intent to issue a default on your file at the same time as a section87 notice

but they don’t have to, the two things a completely unrelated. If the breach under section 87 is cured it does not mean that the creditor has to remove anything from anywhere the payment history would not have changed, the ICO would say that it was the lenders obligation to give an accurate report of that fact that is all.

I know of many occasions where it was the case that the lender defaulted the credit file long before issuing a section 87 why shouldn’t they as long as they give notice before entering the record there is nothing to stop them.

Peter

[Gallahad]

At last a clear concise and accurate non ambiguous observation my congratulations PB

G

[Peterbard]

The Courts must look upon the creditor's cause of action in cases of this type.

 

Is the creditor's cause of action without legal excuse, is the creditor's cause of action a just one?

 

Without anyone thinking I am being funny, I would say "Quite frankly my dear I really don't give a dam what the act has to say in respect of the creditor's non-entitlement to do something without first having complied with his obligations as prescribed in the act".

 

There are many ocassions whereby a creditor has issued a DN as a result of just one missed payment by the debtor and there are also other ocassions whereby the creditor has issued a demand for the full balance without serving a non-defective DN first upon the debtor.

 

A simple breach of a condition by the debtor is not a fundamental breach of the contract, in such cases as this it is the creditor who is the contract breaker with his fundamental breach of the contract and that [is] repudiation of the contract, therefore the debtor need only accept his repudiation.

 

In the Woodchester case such a thing did happen, the two parties had agreed that the contract was at an end, the Court did not undo their agreement to the ending of the contract and on Appeal the claimant was awarded the arrears that were actually due and owing, the claimant was not entitled to the £13,000.00+ awarded to him in the lower Court, the goods on hire were taken back by the claimant but there was no longer a 'Live' agreement between the two parties, a re-issue of a valid DN was not available because of the agreed ending of the contract, the claimant (creditor) stuffed things up for himself as his cause of action was unwarranted it was done without legal excuse and was unjust.

 

Kind Regards

 

The Mould

 

ther was also no liabilites left under the contract unlike a credit agreement , this was a hire ageement.

 

Peter

[Peterbard]

Hi,

 

I had a CC with MBNA and I was sent a invalid DN (not enough time and full balance asked for), I was waiting for a TN to accept unlawful recession but none has arrived. On Saturday I received a letter from Allied Credit International who now want me to call to discuss repayment options.

 

Can I take this as a TN? Do I still send the acceptance of unlawful recession to MBNA?

 

Thanks

Hi

 

Do yourself a favour and contact the creditor and arrange a payment schdule. If you follow the advice on here you will end up with a trashed credit file, a CCJ and a huge bill for cosyts as others have, this advice is totally incorrect.

 

Peter

[Peterbard]

Hi Debilde,

I'm sorry you received such a desultory and oblique response from one member to your request for help.

As you may have deduced there is much heated debate on thread and you wandered into the firing line!

Opinions vary, as I'm sure you've noticed.

However your MBNA Default Notice is differentiated from the Brandon case quoted, in that it demands payment of THE FULL BALANCE.

Clearly this is prejudicial and in itself constitutes an immediate and unlawful withdrawal of your rights under the contract.

As it's a credit card it also has an inbuilt condition for the creditor to terminate at any time under Section 98, by giving 7 days notice. However if the creditor wishes to excercise this right (which applies to non breach circumstances) then they must write to you stating this and quoting the relevant clause.

 

Originally quoted by Peterbard

 

 

Sorry Peter, but with all due respect you've confused me here. What part of section 89 states this?

 

 

Debilde, I'd start a seperate thread on your DN issue for a more specific response.

 

Kind regards,

Elsa x

 

Hi

Sorry but section 98 is there to instruct the creditor to give notce when he teminates a fixed term acount(the clue is in the title) this is because there is no warning period required on the termination of an open ended agreement.

 

section 89 remedy refers to the default of agreements that is why it is ontained within the section defaults also a clue in the title.

Peter