Invalid Default Notices

[banker_rhymes_with]

Hello Lexis200!

 

you should ALWAYS keep ALL envelopes that DN's are sent in and staple them to the letter. Absolutely! Has anyone managed to work out the orange barcodes yet? Do they give posting date info?

I've been working on the Orange Barcodes for a while now, but the good news is that it appears, as I have always suspected, that they do contain a date.

 

The upper Orange Barcode is the key, as that contains a date element that can tell Royal Mail when the Barcode was printed down to within a 30 minute time slot, and tell them which machine printed it.

 

Thus, location of printing and time of printing are both contained in the upper barcode. If nothing else, this will confirm when a letter was in transit so, by this evidence, not yet Served. :grin:

 

If the date and location are known, say, if the Barcode was printed on a certain date by a certain machine and Royal Mail know where that machine was located, then it can help to prove who sent the envelope. If the machine was in, say, the Royal Mail sorting office in Chester, and the Default Notice is one from, say, MBNA or M&S (their Registered Offices are within brick throwing distance BTW), then it's pretty good evidence that whatever the envelope contained was sent by the bank concerned. Even better if the envelope has their Postal Licence or other marks that identify the bank/DCA in question.

 

The lower barcode again, as anticipated...that's if you have been following my ramblings on this...contains the delivery routing data. If you check your own envelopes, then you'll see the lower barcode is usually the same for all letters sent to your address, irrespective of who sent the envelope. That's because the letters are all being routed to you, so it contains routing data to make sure it gets to you, which will probably include your Postcode, and any additional characters to identify your home/building. Some people have Postcodes that cover a numer of properties near them, so Royal Mail do have extra characters that they use to pin-point a building if it shares the same Postcode as others near to it.

 

I regret I can't yet read these Oranage Barcodes. The Character Map is not in the public domain, and Royal Mail won't tell me what it is...so far! But, having got this far, I am not about to give up now!

 

We'll get there! The fact that these Orange Barcodes do contain a date is potentially knock-out information. A date can potentially render many Default Notices defective if this proves a later Date of Service than the bank has allowed for in the Default Notice. Indeed, it coud, potentially, allow some people to go back and have earlier Judgments set aside if this evidence proves a bank/DCA had no right of action, i.e. s87 was not actually available to them when a Judge thought it was in the absence of any clear evidence - at the time - to prove a late Date of Service.

 

I will post full details when I have more news.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Elsa!

 

BRW...Re the barcodes, this is from the Royal Mail Clearmail manual, you've probably already found this, but just in case...any good? Full manual

Many thanks, I too thought I'd found the answer when I found that bumf. Sadly, I am already well aware of those fellas, otherwise known as the Royal Mail 4 State Customer Code or RM4SCC for short.

 

You can read more about that Barcode here:

 

RM4SCC - Wikipedia, the free encyclopedia

 

Unfortunately, the RM4SCC isn't it, but does look similar, and is also a Postal Barcode. It's worth knowing how that one works, but all it tends to be used for is Addressing, i.e. for bulk senders to add a Barcode so that their mail can be sorted faster/easier. It's mainly used as a single Barcode, either printed by the sender on the envelope, or printed below the Address that is visible through a window envelope.

 

OTOH, the Orange Barcodes are also Postal Barcodes, but they use a Character Mapping that is unique, and Royal Mail have never published that in the public domain. IOW, there is no guide as to how they use the Bars when mapping Characters so, no guide if they use 4-Bars, 3-Bars, 2-Bars or a mixture.

 

Indeed, I think Royal Mail use algorithms to compress things to get more data into the Barcode. For example, they may use code within code, so even if I can de-code them, what is de-coded may not be in Plain English, but a code that only the Royal Mail System can make sense of...probably why they are reluctant to disclose the Character Mapping.

 

I suspect that it'll need Software to read and de-code, to produce the Data inside the Barcode, but that is not so important to know, the key is the upper Barcode does contain a Date element. I'm trying to ask Royal Mail if they will allow people to have selected Barcodes de-coded, or if they may agree to release the Code details so that, say, a licenced utility can be created to de-code them that avoids their confidential business information being made public. They are keen to keep the details of how they do it to themselves, possibly to see off rivals seeking to muscle in on their business.

 

However, the really good news is Royal Mail have admitted the Orange Barcodes do contain a Date so, that key data is in there! Now it's just a case of working out how to read it, or working out how to get Royal Mail to read it and tell us what it says!

 

Ideally, they may agree to post a Web Utility that will allow people to enter the Barcodes manually, i.e. F for a Full line, D for a Descender Line, A for an Ascender Line and T for a Track Line, and then the utility will tell you the Date and Sending Location etc without giving away too much else.

 

Anyway, getting them to admit the Date is there was the first big step because, before that, I could not even get them to fess up that there was a Date in there.

 

Remember folks...KEEP ALL ENVELOPES! OK!

 

Cheers,

BRW

[banker_rhymes_with]

Hello Elsa!

 

It should be mandatory to frank them in a clear manner.

 

Absolutely, I could not agree more.

 

However, the good thing about the date being hidden in the Orange Barcodes, is the idiot bankers never thought anyone would stand any chance of picking up that they had been tardy sending things like Default Notices.

 

But, the evidence is contained in the Barcode...their past arrogance could now be coming back to bite them, hard.

 

Good.

 

Cheers,

BRW

[banker_rhymes_with]

Hello DD!

 

I don't know how easy it is to fiddle with barcode machines as i have never seen let alone used one

Anything can be forged, but the neat thing about the Orange Barcodes is these are all added by Royal Mail when the letters are in their system and being routed, so it's not something added by the sender.

 

The Orange Barcodes are complex, because they have to generate unique codes to help Royal Mail route millions and millions of them to their destinations, and track exactly when the envelope went through a known location at a known time (down to a 30 minute interval).

 

It is therefore independent confirmation of when the envelope concerned was in transit, and thus pretty positive proof that the letter contained within it was not at the destination at that time, so the contents of the envelope could not have been Served at that time.

 

The good news is many Caggers have been saving envelopes for quite a while now, and we now know that all those with Orange Barcodes have data contained within those Barcodes that can prove when the envelopes were in mid-flight.

 

If a case was pivotal upon the Date of Service of, say, a Default Notice, then this evidence could, potentially, blow many Claims out of the water, both past, current and ones in the future until such time as the banks realise they cannot get away with using the fog of the postal system to blur the Date of Service issue.

 

The fog is about to clear on all envelopes printed with Orange Barcodes!

 

Cheers,

BRW

[banker_rhymes_with]

Hello DD!

 

...and would it be within the bounds of possibility for a litigant disputing the postage date of a DN to subpeona the other party to provide a person ( PO?) to court to explain the barcode?

 

No idea, but the Barcode contains key data. How to get that out is what I'm working on now.

 

Ideally, I will try to get Royal Mail's help, having already explained to them why this data is so important, and to so many.

 

The best way is to get their help, as forcing them is an option, but then they would probably dig their heels in and that would make things harder.

 

Softly, softly at the moment! Many are working on this behind the scenes, so bear with me...this has taken a while, but the end is in sight.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Tink!

 

Can a lender discontinue a claim because of defective default notice then just reissue a new default notice and issue court proceedings again? Halifax have just done that.................:con fused:

 

Halifax can try that, but if they Terminated the Agreement, which they clearly had when they first issued proceedings, then they are trying it on.

 

Read the following excellent Thread by Surfaceagentx20:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html#post1837307

 

Indeed, I think the main points may also be covered by this Thread!

 

This quote should also help:

 

By when proceedings have commenced the Claimant will have terminated the agreement. The language of a default notice is framed on the basis there is a current agreement. That language is prescribed. If the Claimant terminated the agreement, to deliver an effective default notice will involve the fiction the agreement is current and never terminated. It would also involve the Claimant reinstating unilaterally. The debtor would be unlikely to agree to reinstatement if to do so would cure the Claimant's difficulties.

 

x20

 

Hope that helps to explain the key issues.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Pinky69!

 

Did he really think I would cave in with all his drivel? I'm a CAGER born and bred!

 

Well done, let's see what their next dull move is.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Eggy!

 

Their defence was in by early Oct and DN late Nov is this grounds for a complaint...

I should say so, Cocoa!

 

If nothing else, it's confirmation that their original Claim had no merit because, in order to commence it if based upon a Regulated Agreement, they needed to have both a properly executed Regulated Agreement and a valid Default Notice, that's if they wished to enjoy the benefits of s87.

 

If this new Default Notice post-dates the date of their Claim, and they are trying to rely upon it to press their Claim, then their Goose is cooked. It confirms they had no Right of Action at the time the Claim was raised.

 

IOW, the demands they were making were not supported by their paperwork, and that is not how the Act works. I think it was X20 who said they must get their Donkey before their Cart!

 

Cheers,

BRW

[banker_rhymes_with]

Hello Folks!

 

I came to the conclusion a while back that the very worst thing we could do on CAG, is Post an Idiot's Guide explaining, in simple terms, what makes a Default Notice invalid/defective.

 

If we did that, then all it would serve to do is hand a Painting-by-Numbers template over to the bankers explaining how to get their Default Notices right!

 

A far better plan is to do just what we are doing here, and that's to discuss to death what is wrong with them, and take thousands of Posts doing it...the bankers can't be bothered to read so much, so lose interest and wander off to flick some more rubber bands at their mates across the polished Mahogany/Walnut desk.

 

By comparison, people who need to know all about what makes a Default Notice tick, because their home depends upon that knowledge, will read this Thread, and others, from front to back, and will gladly stay up all night to achieve it.

 

So, in summary, keep talking, keep discussing it, but avoid the temptation to draft an idiots guide to Default Notices...I thought of doing that once, then stopped myself, for the same reasons.

 

If an enemy keeps shooting at you with their gun pointing at their own chubby feet, then don't write a clear guide explaining how they should point their gun at you instead.

 

It is far more entertaining discussing the self-inflicted damage Default Notices do to our mutual enemy.

 

Cheers,

BRW

[banker_rhymes_with]

WRT the OFT Guidelines:

 

For those who haven't seen the new guidelines:

 

Well named. Con.

 

Attached Files OFT1175con.pdf (525.8 KB, 17 views)

I note there is a long list of groups who have been consulted...makes interesting reading...

 

LIST OF CONSULTEES

I note there was no mention of CAG (250,000 members and counting)! All I could see was a long list of the usual faces from the Debt Industry, plus a few beancounters, toothless Government departments, and any other Cheese-Eating Surrender Monkeys they could trawl in to fill in the numbers and make the list look impressive.

 

These guidelines are just the unimpressive OFT being unimpressive, yet again.

 

When reading these Guidelines, I went to check on the wording of s127(3) and noted that s127(3) has now disappeared from the on-line copy of The Consumer Credit Act 1974:

 

Consumer Credit Act 1974 (c. 39) - Statute Law Database

 

That's a PITA and not helpful for all those with Agreements that pre-date the disgraceful 2006 amendments to the Act.

 

Anyway, point of my Posting was to draw attention to Section 5.2 of the above OFT Guidelines. This covered a simple list of what represented Enforcement and what did not, all seemingly based on McGuffick. Some of this made interesting reading, and it might just be useful when it comes to Default Notices and Termination of an Agreement:

 

Not-Enforcement

 

• Saying nasty things about you to the Debt Reference Agencies.
  

 

• Demanding Payment (i.e. of sums already due).
  

 

• Issuing a Default Notice.
  

 

• Bringing Legal Proceedings.
  

Enforcement

 

• Obtaining Judgment.
  

 

• s76(1) and s87(1) actions, such as...
  

 

• Demanding earlier payment (i.e. of any sum not yet due).
  

 

• Recovering Possession of Goods or Land
  

 

• Treating any Right conferred on the Debtor by the Agreement as terminated, restricted or deferred.
  

 

• Enforcing any Security.
  

 

• Terminating the Agreement.
  

 

They left the best bit until last. Potentially useful that. Don't you think? I therefore bet it gets deleted when these draft Guidelines are finalised.

 

Cheers,

BRW

Edited February 21, 2010 by banker_rhymes_with
McGuffick URL added.

[banker_rhymes_with]

Hello Basil!

 

Is it absolutely necessary to have the envelopes (I havent got them), or will they stand as faulty DNs without these?

You should be fine if the Notices are faulty even when sent via 1st Class Post.

 

The Envelopes are more important when the 1st Class (+2 Working Days) or 2nd Class (+4 Working Days) issue could make all the difference between a Default Notice being defective or not...even then, a fair Judge would assume 2nd Class unless the Claimant/bank can provide strict proof that they sent the DN via 1st Class.

 

But do keep those Envelopes folks, all of them!

 

Cheers,

BRW

Edited February 23, 2010 by banker_rhymes_with
Typo

[banker_rhymes_with]

Hello emandcole!

 

Looking for a case if anyone can help out?!

 

The case refers to injury to credit and was perhaps after an unlawful rescission of contract. The vital component to the case was that the injured party did not have to prove actual loss, the mere entry of what turned out to be an invalid default notice on the credit file amounted to enough injury due to the importance society places on being able to obtain credit.

 

Have done an advanced search and just can't find out but I read it pretty recently on the forum so hopefully someone else read it too

 

I think from what you say you may mean...

 

Kpohraror v Woolwich Building Society

 

I regret I don't have a link for that, but there are PDF copies knocking around if you search on Google.

 

Cheers,

BRW

[banker_rhymes_with]

Hello E!

 

Didn't want you to think I'd forgotten my promise to do some scale tickling so I guess I owe you one

 

No need, happy to help. I think I'm all Green Blobbed Up anyway!

 

Cheers,

BRW

[banker_rhymes_with]

Hello angel 1!

 

I think this may help:

 

The applicable Date was 19/12/2006.

 

Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

 

3

 

A specification of:--

 

(a) the provision of the agreement alleged to have been breached; and

 

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

 

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

 

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

Then look further down to the notes towards the bottom...

 

NOTES

 

Amendment

 

Para 3: in sub-paras ©, (d) words "not less than fourteen days" in square brackets substituted by SI 2006/3094, regs 2, 3.

 

Date in force: 19 December 2006: see SI 2006/3094, reg 1.

This applies to all Regulated Agreements, so before that date it was 7 clear days, after that date, it became 14 clear days...after Service in each case!

 

Cheers,

BRW

Edited March 2, 2010 by banker_rhymes_with
Old Links are broken! :(

[banker_rhymes_with]

Sadly, my links for the above are out of date, so I can't link to the Statute, but you should be able to find that on CAG or via Google.

 

Cheers,

BRW

[banker_rhymes_with]

sending you all a virtual beer

 

Did someone mention BEER!

 

I'm in!

 

Cheers,

BRW

[banker_rhymes_with]

Thanks Vint!

 

http://www.johnpughschambers.co.uk/C...ons%201983.pdf

 

Cheers,

BRW

[banker_rhymes_with]

thanks for that- the company to which the funds refer was indeed incorporated- it was a limited company

I'm coming in a bit late here, but as lookingforinfo has said, small businesses are indeed classed as Consumers under both The Consumer Credit Act 1974 and The Consumer Credit Act 2006.

 

But it seems to cover only Sole Traders and Small Partnerships of three or fewer people.

 

Sadly, I read that as not including Limited Companies at all, even ones that have just one Director. That's because a Company is a Legal Entity, and a Director is technically both an Employer and an Employee.

 

I think a Limited Company can be a Partner in a small Partnership, but it's the Partnership that is the Consumer, not the Limited Company, so it can't do a lot that is protected by the Act, whereas the Partnership can and is.

 

But it's blurdy good news for Sole Traders and Small Partnerships, and I think this gives new hope on bank charges for such small businesses, i.e. using the CCA rather than trying to use UTCCR. That damned nice Scottish Judge has reminded many to look elsewhere for salvation.

 

Anyway, I'm heading off topic as usual! So, yes, check out the CCAs and you will find some small business are Consumers!

 

Cheers,

BRW

[banker_rhymes_with]

Hello Cosalt!

 

Your strategy for the next Hearing should be to make it clear from the outset that you are going to Appeal, and ask the Judge to speak nice and clearly, for the benefit of the Tape, why he is so determined to misdirect himself.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Cosalt!

 

Don't forget that your s87(1) Default Notice is Evidence.

 

Their copy of the Notice is Hearsay Evidence.

 

If their copy does not match yours, theirs loses every time, because you have the original, hard copy, all singing, all dancing...the real thing!

 

If yours shows that the Notice was defective, and theirs says something else, theirs is wrong, and their evidence and credibility should be undermined.

 

If the Judge is determined to misdirect himself, then all you can do is plan every step, and keep it all nice and structured. Summarise the issues, and run through the key points for the benefit of both the Tape and the Judge, then invite him to comment on your Summary, before asking him for permission to Appeal.

 

If you spell it out for him, and he still elects to misdirect himself, then at least it should make the Transcript nice and clear for the Appeal Judge.

 

But, all joking aside, re-plan your Case, and make damned sure you win this next time out. One way to bring all of this into perspective is to plan your Appeal now.

 

Pretend you have lost, and start going through the issues. Research your Grounds for Appeal, download an N161 Appellants Notice, read up on, say, Shakespeare62's Thread, and see what steps he has gone through to prepare his Appeal.

 

Then, when you walk into Court next time, you will be thinking one step ahead, and will know the key Appeal points before the opposition opens his/her trap.

 

You will be then be poised, like a coiled spring, ready to jump on any of the key points that you know you can Appeal on, and will know why they are strong Appeal points.

 

If you don't know why, then you are already on a hiding to nothing next time out. If you see my point. Do not be resigned that there is a Judge Lottery, instead work out how you will nail them this time around, so an Appeal is not then necessary.

 

But, I bet if you go in ready to Appeal, having considered all of the issues, and having split out what is just background noise from what really matters, you may well turn this around next time out.

 

I do hope this helps.

 

Cheers,

BRW

[banker_rhymes_with]

Hello DDY!

 

Just to say...

 

s98 does NOT apply to credit cards in any event- it applies ONLY to fixed term agreements

 

I fully agree.

 

Cheers,

BRW

[banker_rhymes_with]

Hello LA!

 

I really do not know why banks don't email documents...

Their chubby grasping hands are tied when it comes to s87(1) Default and s76(1)/s98(1) Termination Notices, because of...

 

Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

[(4A) Any notice to be given under a provision of these Regulations shall be in writing and given to the debtor or hirer in paper form.]

 

 

Cheers,

BRW