Invalid Default Notices

[welshperson3]

hi just a quick question

i have a suspended posetion order from 2 years ago got on the back of a dodgy DN (no date it says 14 days from date of letter) but never got a letter termanating the account.

 

my question is.

by taking court action i asume the agrement is termanated. if this is right then i wil go for a set aside on the grounds of a faulty DN

 

WP3

Edited November 23, 2009 by welshperson3

[welshperson3]

after doing some research on faulty DN dates, i think the following argument about a specific date verses a amount of days is good if it goes before a judge.

 

if it says 14 days after the date of this letter then this can be confusing as it can mean two things,

 

1) are these 14 calender days.

2) are these 14 working days.

 

it is my view that the CCA says a date and if it says a specific date then there can be no confusion as to what date you have to comply.

 

if it says a number of days then this is open to various interpretations. and for clarity that is why it should say a date, not a number of days.

 

wp3

[welshperson3]

hi pinky

 

i am not saying that my points above are a full defense but just a good part to put in.

 

if you start with the CCA it says a date, but it shows no example of how it should be laid out.

 

so if a lender can convince a judge that 14 days from date of letter dose end up at a specific date then you could be in trouble.

but by adding the bit about working days or calender days to the end of your defense you then come up with 2 different dates.

so as saying 14 days they have not suppled you with a specific date but 2 dates to remedy the breach.

 

wp3

Edited December 4, 2009 by welshperson3

[welshperson3]

just a quick question

 

i have been researching faulty DN for a few weeks and have gathered a lot of strong points.

 

but they all are still open to argument and the Judges opinion,

if i can find some CASE LAW on faulty DN then when i act on mine it wont be so open to the Judges opinion.

 

so if anybody can point me in the direction of some good CASE LAW then i would be very grateful.

 

wp3

[welshperson3]

thanks pinky69

 

will research these over the weekend,

i have found some strong points and just need to add some good case law and then off to court.

[welshperson3]

Still trawling through this fascinating thread - and came against this beauty!

 

It strikes me practically EVERYONE who ends up with a DN will have had some unfair/illegal/default/penalty charges imposed - and since as Lexis states - these would change the total balance outstanding - then the arrears - minimum payment due multiplied by the number of missed payments - MUST be INCORRECTLY STATED.

 

Thus ALL DN's issued to ANYONE who has sufferred ANY unfair charges (and didn't make extra payments to cover these) must have an OVERSTATED BALANCE and therefore INCORRECT arrears - and therefore a dodgy DN!

 

Does any (non-banker) disagree?

 

 

 

 

the following is a paragraph from the judge in the rankie case

1. The default notice is dated 2O December 2005. In my judgment, it cannot invalidate a default notice if elements of the sums claimed in that notice are subsequently found to be irrecoverable by virtue of other legislation, such as the Unfair Terms in Consumer Contracts Regulations 1999. The obligation imposed on the lender is to state the sums due on the face of the agreement. To impose any other requirement would remove any certainty from the process, since it would require lenders to anticipate and calculate, in advance, a Court’s likely view as to a fair sum to levy in respect of default charges. This is a virtually impossible task which Parliament cannot have intended that lenders would have to carry out when issuing default notices.
   
2. In my judgment, Mrs Rankine was deliberately seeking to be perverse and untruthful in seeking to avoid a substantial debt despite having all the benefits of equipment she expects the credit company to pay for on her behalf. Her behaviour in Court was perverse, argumentative and obstructive.
   

wp3

[welshperson3]

hi bigdebter

 

this is just my view on your situation and hopefully others might add to this view

 

first you say that you never received the original DN, it is my view that they don't have to prove that it was sent they only have to say it was sent, and if it has not been returned to sender then it is deemed served.

 

so on the above rule would no doubt be the same for when you sent your acceptance of The unlawfull termination.I'm sure i have seen a copy of the letter that you sent a long time ago on here some were.

 

now that only leaves the arrears to pay witch you have been paying monthly but now think that they are about all paid,

 

so you should send them a letter requesting how much of the arrears are left to pay, and also a copy of your original acceptance letter with the date that you sent it just in case they didn't get the original.then when you finish paying the arrears that were stated in the original DN this should be all over.

 

wp3

[welshperson3]

you are almost there

 

you cannot make a DN "valid " by accepting an unlawful one

 

Hi diddydicky

 

I'm a Little bit confused by the above maybe we have crossed wires some were.

 

my thinking on this is that one party to a agreement can't unlawfully terminate.

so if one party tries to terminate and then the other party then agrees to the termination it becomes mutually agreed and at the point of agreement it becomes terminated, so bigbepters acceptance is for the termination and nothing to do with accepting the DN

 

WP3

[welshperson3]

the important point is that you acept the termanation.

 

1 if it is unlawfuly termanated and you accept the termanation then the agrement ends.

2 if it is legaly termaneted by both partys then it ends.

3 so if the lender says that they are termanating and you agree then it is by mutual consent so it ends

 

my point being is as long as you accept the termanation all is well

 

wp3

Edited January 20, 2010 by welshperson3

[welshperson3]

The point i am trying to get across (not very well )

 

There are some people of the opinion that as the creditor has sent a faulty DN and then sends out a termination notice think that the agreement is over.

 

What i am trying to get across to people is that it is not over,the agreement is still live.

 

We must POINT OUT that it is not the creditor that ends the agreement in this situation, but the debtor by sending a letter of acceptance

 

so a dodgy DN and a definite notice of TERMINATION means nothing unless you can show in court that you accepted the kind offer of termination

 

it is up to the individual debtor to end the agreement and if they don't they could be in trouble trying to argue in court that the creditor ended the agreement

[welshperson3]

Hi diddydicky

 

I think we are reading from the same page although i may be having trouble repeating the story.

 

the acceptance letter is a must do that is my point in a nut shell

[welshperson3]

My understanding is that a demand for full payment is termination as the lender is indicating that the option of regular repayments under the original credit agreement is no longer available.

 

One party to a agreement cannot terminate without the other the other party's agreement.

 

So this is only the offer of termination it is up-to you whether u wish to accept it or not.

 

Termination occurs when you accept the offer.

 

wp3

[welshperson3]

One party to an agreement cannot UNLAWFULLY terminate without the other party's agreement

 

lawfully or unlawfully one party cannot terminate only a court can do that

[welshperson3]

with respect i think you need to read up a bit more,

 

If you are breach of the agreement the creditor may serve upon you a DEFAULT NOTICE giving you the opportunity to remedy the alleged defect,

 

if the default notice is valid and you fail to comply the creditor can and will "take the next step" as authorised in s 87 and either/or terminate, demand full payment of sums not yet due And this is were the judge comes in

 

If you attempted to take the matter to a court you would need to fill out a particulars of claim in which you state the legal basis for asking a court to rule on the matter

 

the creditor (if not the court itself upon reading your application and supporting documents) would strike out your claim As i have not yet written any POC i can only assume you seen what i would write in your Cristal ball, on that point could you tell me whether i won or lost the case.

 

wp3

[welshperson3]

who puts they're interpretation on what you have written above ?

 

1 you ?

2 the lender?

3 the judge ?

 

if i was pushed into a guess personally i would go for 3

 

wp3

[welshperson3]

in mydogsawestie case the judge has just circumnavigated the rules by applying his opinion on time of serves and used cpr 6.25 to calculate the time of service.

 

wp3

[welshperson3]

I am always up for a good debate, thats how we learn.

 

my point is this, never mind what you think is right in law there is always another view to the same point and it is the judge that makes the final decision.

 

as we have seen lately in the big test cases and also by members on here there have been some shocking results so it isn't what you or me think is right ultimately it is the judge.

[welshperson3]

Diddydicky i have gained a lot by reading a lot of your posts and i will be issuing my first court proceedings shortly and i will start a thread and i would be grateful if you you look in now and then as your opinion is always welcome

[welshperson3]

The point i was making in this statement.

(lawfully or unlawfully one party cannot terminate only a court can do that

If they lawfully terminate and then claim the benefits of s88 then it is still up to the judge.

 

my case for example they went for possession but the judge suspended it.

they had a right under s88 but the judge didn't grant what they wanted,

so effectively the court ordered that the agreement went on.

carry on making monthly payments same terms and conditions.

[welshperson3]

possession of my house, secured loan, sub prime lender.

thats what brought me to this site spent last 3 months researching getting closer now then its my turn to issue court proceedings

[welshperson3]

yes i have had a meeting with solicitor,have another meeting on 04/02/10.

 

on the acceptance point, i cant do anything yet as i am paying on a order of the court so i have no option,i cant accept termination but if i can get it set aside then it goes back to pre court stage then i can accept.

 

reason for set aside cca 140a unfair relationship (new evidence ) and the point of the dodgy dn.

[welshperson3]

the answer to dizzydlonde1966 charges question

 

charges don't make the DN invalid (just one of the Rankine contributions) were the judge interpreted the law to fit the situation

[welshperson3]

First things first how long were you given to make the default payment :idea:

 

Best to give the date of the default notice and then give the date they wanted you to pay by. If it doesn't specify a date but just says something like 'pay within X days of this notice' it's dodgy.

 

 

Could you possibly point me to any case law,or anyone on cag that has won on this point.

[welshperson3]

The DN format was checked out on CAG when I received it - nowt found wrong with it.

 

DN issued for £1,850 & which also contains unlawful charges of about £250

 

Not even 10% then, maybe 7% or so. Still, the amount is not a small one so I'd push home the fact that an innacurate default notice is a complete defense.

 

If they cannot get such amounts right you are being unfairly treated by the creditor. As for this tracing fee if that was applied to the original balance before the default was served and then subsequently withdrawn as they admitted the letters from you had been lost that should be enough to question the validity of the default.

 

Incorrect is invalid, guess it comes down to the judge on the day but I would definitely fight it on the grounds that their mistakes made it very difficult for you to provide remedy and the resultant litigation is vexatious.

 

Worth a shot anyway

 

In my opinion not worth a shot ,but it could be a expensive lesson for the same reason as below.

 

the Judges summery in the Rankine case.

 

57. The default notice is dated 2O December 2005. In my judgment, it cannot

invalidate a default notice if elements of the sums claimed in that notice are

subsequently found to be irrecoverable by virtue of other legislation, such as the

Unfair Terms in Consumer Contracts Regulations 1999. The obligation imposed

on the lender is to state the sums due on the face of the agreement. To impose any

other requirement would remove any certainty from the process, since it would

require lenders to anticipate and calculate, in advance, a Court’s likely view as to a

fair sum to levy in respect of default charges. This is a virtually impossible task

which Parliament cannot have intended that lenders would have to carry out when

issuing default notices.

58. In myjudgment, Mrs Rankine was deliberately seeking to be perverse and

untruthful in seeking to avoid a substantial debt despite having all the benefits of

equipment she expects the credit company to pay for on her behalf. Her behaviour

in Court was perverse, argumentative and obstructive.

59. ConclusIon

60. In myjudgment, the Claims by the Rankines do stand dismissed and theClaim by

TescoandcounterclaimbyllFCbeallo ed.

[welshperson3]

hi heftyhippo

 

If i pushed the point of a DN with the only problem on it being the wrong amount to rectify (few pounds out) then i would have to way up the risk to reward factor,

 

1 how much will it cost if i lose ? (a couple of grand)

2 what is my chance % of winning ? ( i think very low )

 

I'm not saying it is not possible to get a win out of this situation now and then but i think most times it will lose, so personally i would not try as the risk out ways the reward factor.

 

On any amount over the true arreas that can't be classed as a de minimus and is not made up of penalty charges then this is good.

Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 199:cool:

 

But if what they claim over the true arreas is made up of penalty charges then what the judge said in the Rankine case ended the argument on that point. (see post 1191)

 

Nothing is guaranteed when going to court. way up your chances of a win against the consequences of loosing and always remember that you can loose.

 

Two top barristers arguing in court one is going to be wrong

Edited February 2, 2010 by welshperson3