Invalid Default Notices

[lexis200]

thank you pinky for your quiet determination and allowing us to follow your journeys - its fab

 

keep up the good work, hope you enjoyed the icecream

 

we have horrible weather today

 

laters angel x

Thanks for the update angel - it's grey here with the prospect of brightening up:D

[lexis200]

Hi GTP how are you?

 

generally speaking it is not a good idea to challenge a defective DN - since although a second DN cannot rectify it after termination it CAN rectify it before the time limit is up- always best to stay quiet!

 

clearly the termination should not take place before the time given to rectify but some lenders do and rejoice if they do because this is the BEST outcome with a DN (faulty or not)

 

technically you do not have to wait for the termination notice- once the time they gave you to comply is up you have the right to believe that what they threatened to do has actually happened- although having said that it does not hurt to just sit and do nothing - there is no hurry if you know the DN is defective

 

I'm not sure I'd trust them to follow on from what they say will happen in a DN if you are intending on relying on it with any argument you may make in the future.

 

The things they quote that can happen on a notice (default, early repayment, termination etc) are all options to them, not a given. If you just trust that they have terminated simply because it's one of the things stated you may come up a cropper. Lloyds defaulted me about 2 years ago, but to date have not recorded this on my credit file (they have terminated though - woohoo, best of both worlds:D)

 

I'd go with your second option and do nothing until they request full balance or set in writing that termination has taken effect.

 

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?

 

hope this helps

 

[lexis200]

Hey Beachy:)

 

Pretty much as GKTP and diddydicky were saying - they've lost all rights to the balance and can only claim the arrears shown on the DN (assuming the arrears did not contain charges, otherwise they're stuffed on them too).

 

As long as the DN is properly ineffective (ie not enough remedy time, arrears reasonably wrong, no breach shown, that sort of thing) and not just dodgy due to the form, then they've not got a leg to stand on. If it is just set out incorrectly, although this would technically invalidate it AFAIK, I doubt it would be a deal-breaker if you got to court with it.

 

That however is as far as I go, and then I get a bit stumped. BRW suggests waiting until they issue proceedings, then bring up the DN/termination combo in court to bring things to a swift close. This is no good for us as I need things done more quickly, and am a complete wuss so would like to avoid court at all costs:)

 

Personally my tack is likely to be to use it as a bargaining tool for a f+f offer, or in some cases a write off if I can. Either way I will be going for removal of markers on both our credit files in with my offers:)

[lexis200]

If there aren't enough days to remedy it's cut and dried. It is very clear that you must have 'not less than 14 days' to remedy. Once you include service (assuming it's posted and not handed to you), this effectively means they must give at least 16 days from the date on the notice to any remedy date.

 

Faulty DN's are much more a black and white area, rather than the shades of grey involved with agreements. There are some bits that I would not want to try in court and so would fall into the grey area bracket (underlining in the wrong place etc - technically it would make it ineffective but it doesn't seem enough of an issue to cause them a huge problem), but most of the problems you see on here with DN's are major rather than incidental.

 

Of course you do always run the risk of an uninformed judge making a silly decision, but if that happens you will need to get them to set out their findings so that you can use it to appeal.

 

If the DN is fundamentally flawed they are screwed, as it is very clear what they can and can't do; there really isn't room for error on their part.

 

I've just realised we're on Pinky's thread here, so probably best to carry on elsewhere to save hijacking further - the 'Tale of a Dodgy DN' is a very good thread with a ton of information on this. Look out for posts by x20 and Banker Rhymes With, as they are both well informed on the subject.

 

ps - sorry Pinky!

[lexis200]

the DN is defective as soon as it is sent- and cannot be un- defected by the creditor then adding a few days weeks or years on to the end of the stated deadline

 

it can only be Un- defected by the issue of a correct DN BEFORE the time limit stated on it has expired

 

if it looks like a defective DN smells like a defective DN and quacks like a defenctive DN- then it is a defective DN

 

Why? If they have not acted on the DN then it can be re-issued. Up until the point of termination the agreement is still live, and as long as they have not taken the actions afforded to them once a DN is not remedied they are at liberty to have another go. This is why you need to know it's terminated and not trust that it has just happened.

 

An ineffective DN is no use to you unless they terminate, as until they do that they have every opportunity to make it right, not just within the remedy date they've allowed you.

[lexis200]

I can't blob you for your post BRW, but I've done it in spirit:)

[lexis200]

because you are entitled to beleive that what the DN says will happen will happen within the time given an they quite clearly say that after a given period THE FULL BLANCE will then become due - therefore for instance you could have given up trying to raise the funds to rectify the breach as you were "out of time"- this puts you at a disadvantage as had you known you had more time you may have been able to raise the funds

 

i AGREE it is wise to wait until you get the termination notice or if there is a lengthy delay with no news then do a SAR which will give you the information you need

 

Ok, that makes sense - I give:D

[lexis200]

I don't think the integrity of the information given to the CRAs can be taken as a given when someone has questioned the integrity of that information and pointed out that their processing it is in breach of the DPA 1978. I can see how the CRAs would base initial entries on someone's report on the integrity of the information given but it behoves them to question and clarify the integrity of that information once they have been told it is unlawful. The CRAs are also subject to the DPA 1998 and if they breach it they too can be held accountable for it. They are not exempt from the law. I asked them to remove the default and gave them the reasons why and so far they haven't done it. If I am successful in my court claims I intend to take them to court too for processing my information unlawfully after they had been informed they were doing so.

 

I couldn't agree more. If they are simply going to accept the banks/DCA's word for it that markers should be there, then why would they not give equal measure to our word?

 

If then you add in the fact that you, and many many others are able to prove that these markers should categorically not be there, or have ever been there, then it seems they are knowingly allowing incorrect financial information to stay, simply because the banks are saying they are whiter than white.

 

You are right, they should be under an obligation to check that these markers (that have the ability to stop people getting mortgages etc!) are correct.

[lexis200]

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

 

Without wanting to start off another discussion on it (as we obviously both have strong views and are unlikely to agree:D), and bearing in mind I do actually agree with your reasoning dd, (that if they say they're going to terminate you may act in a different manner which may be detrimental to you), the way I read this quote still says unless the account is terminated they can still re-issue.

 

To me it seems it is still all based on the termination coming into effect, as opposed to the assumption that the termination will occur. This still leads me to believe that unless they terminate in some way shape or form they can still issue a 2nd Default Notice up until that point.

 

As I said, I'm aware we don't all share the same view, but seeing as we are only proffering an opinion on our interpretations of DN's, I think it's fair enough to consider both.

 

Lexis:)

[lexis200]

Absolutely - if they issue a demand in some way for the full balance I think it's fair to say we all agree this is the same as them terminating the account.

 

Unfortunately for the banks it seems quite a few of them do this without remembering they really ought to get round to sending a DN out first:rolleyes:

 

We need to hope none of us decide to go and work for the banks you know - that would be the end of all of this rubbish, and everything would be done as it should be!

[lexis200]

Hey Elsa:)

 

I think the 'depending on any legal notice we are required' part acknowledges that they have to follow certain protocols before demanding the full balance, so I reckon you're ok:)

[lexis200]

And they've run out of biccies:D

[lexis200]

I found this excellent site some time ago, this is my first posting. So if I waffle on a bit...

About 15 months ago, I got into a serious dispute with Barclays Pinching & Fiddles, Glasgow. It concerns an Account that was Settled & Closed in 2007. I went to the FOS at Xmas 2008.

Just been informed by them, they are starting enquiry in 3 weeks time.

Mercers (BPF) have at the same time, slapped a Default Notice on me.

Although I have read everything going in here, my counting I have to do

on my fingers. I haven't got enough, and anyway, they are crossed in the

hope someone on here can advise me.

Notice is dated 30th May (a Saturday). It was on my doormat when I got

home afternoon of Friday 5th June. It came with that UK mail post (no I

didn't know about keeping envelopes then) It is standard format as shown

in these Posts. The Time Limit is given as Friday 19th June.

 

Are you saying the account was closed in '07 but they have recently sent you a DN? They can't do this???? The account is no longer active, that's their first issue, but in addition if you've settled then surely there is no balance owing, therefore no remedy available for you to offer??

[lexis200]

Whoah Nelly, that's a lot of jiggery pokery going on there from Barclays!

 

My initial reaction would be to get a Subject Access Request out to them to see exactly what has gone on. You can get details of how to do this and a template letter in the 'template letters' forum.

 

With regards to the rest, it looks like you have letters confirming everything that has gone on. It also looks like both the original loan and the bit that was added on when consolidated have been paid. If that's the case, I think you could also do with getting a letter out to BC with references to the correspondence you've had, asking them what the hell is going on (or words to that effect;))

 

I think you could really do with some more specific help here, and the best way to do that is to start your own thread (probably in the Barclays forum) which'll get you more people who actually know what they're on about:)

 

Not sure if that helps too much, but as I say, that's probably how I'd deal with your situation as it stands.

 

Lexis:)

[lexis200]

Sorry Pinky. Again:oops:

 

Colsthe1 - have pm'd you:)

[lexis200]

I would love to see you trounce them with this Pinky. I'd be very interested in what the chairman has to say about it all!

 

Can I just ask how you managed to find the CEO address? Do you just send it to the normal address marked FAO CEO, or did you manage to find a proper address?

 

I only ask as I'm trying to do the same for several banks but I'm having a hard time finding anything. I've Googled but come up with so many names I think I'll end up sending them to the wrong people:rolleyes:

[lexis200]

But that would be really simple and would take hardly any time or research :D

 

I am feeling a little that it didn't occur to me in the first place:)

 

Thank you:)

[lexis200]

Thanks all for the input - very handy reading.

 

Lexis:)

[lexis200]

so I have been cutting and pasting the best bits from each of them and inserting them in the other.

 

naughty person- did you train as a DCA then! (LOL)

 

I doubt it; they don't bother with choosing the best bits, it's just wherever the curser happens to be pointing is where they take their chunk of text from!

[lexis200]

Great letter Pinky.

 

I'm interested in what Vint mentioned about the DN too...

[lexis200]

To be pedantic it's 12 working days from day of service.

 

For a DN?

[lexis200]

I hate it when that happens:D

 

Trouble is it's a frequent occurrence for me:rolleyes:

[lexis200]

tsk cerberusalert, see what you've caused:D;)

[lexis200]

I still don't agree that the formal acceptance of an explicit termination by the debtor is something that the normal person-in-the-street is expected to do. This relies on the standard debtor knowing intricate contract law. This is just not going to be the case with 99.9% of people in that situation.

 

As Vint's quote from x20 shows, he puts it much more clearly than I could hope to..

 

I am yet to be persuaded that in the context of a regulated consumer credit agreement and the receipt of an express notice or activity on the part of the creditor consistent with termination, that the agreement does not terminate unless and until the debtor signifies by word or deed that he accepts termination. The damned notice of termination says what it says.

 

For sure in those cases where the termination amounts to the anticipatory breach of the agreement by one of the parties to that agreement the law says the innocent party should elect either to accept the termination or inform the terminating party that he requires them to perform their obligations owing under the agreement. But we're not concerned with an anticipatory breach by the creditor. It's not as if the creditor having agreed to give credit has then decided not to loan after all. What the creditor is doing is calling in the loan he has already made ahead of the time when it would ordinarily have been repaid.

 

But in a regulated consumer credit agreement, what in reality can the court genuinely expect the innocent, ordinary and unsophisticated debtor to a consumer credit agreement, who is strapped for cash, do in response to the demands of the creditor? Write a letter saying 'I accept your repudiatory breach of contract'?. Of course not. Well I say of course not. That is a ludicrous expectation to hold. Was the Court of Appeal ever concerned to ascertain in Woodchester v Swayne & Co that Swayne had accepted Woodchester's termination on the back of their ineffective DN? Mais non. Swayne & Co had done nothing. Swayne & Co were a firm of solicitors in Cardiff for crissake. Yet they still were treated to the benefits of the Act as one intended for the protection of consumers. Swayne were, according to claue 9.1 of the terms of the agreement between Woodchester and Swayne, in repudiatory breach of contract, entitling Woodchester to immediately terminate the agreement. But all the same, Kennedy LJ held that the provisions of section 87 dictated what Woodchester were required to do in order for Woodchester to become entitled to claim early payment and demand the return of the photocopier let on hire under the agreement. This was regardless of what the agreement said.

 

Indeed in the context of activity, if Swayne & Co had paid some money to Woodchester they would have done themselves a favour because those payments would have been applied to the credit of the arrears.

 

Sorry pinky, just realised what thread I'm on. I won't go off topic again!

Edited September 30, 2009 by lexis200
just an apology!

[lexis200]

Hi Vint,

 

yes I did keep envelope. The date on envelope was same as on DN 3rd Sept. It says that the breach must be remedied BEFORE 14th Sept to they quite clearly have not allowed enough time. I was wondering if anyone could spot anything else wrong with it. I am not experienced in this so like majority of population dont have a clue when being ripped off.

 

Suzie

 

You don't need anything else wrong with it - if they terminate after allowing you 11 days (not including postage time) then they are kaput.