Invalid Default Notices

[nks22]

Does this sound right?

 

Sounds like Egg. I think they defaulted me after one missed payment. It's contrary to someone's guidelines (OFT?). Not that that has any force.

[nks22]

I was sent a totally inadequate DN by Cahoot in March ( 14 days from date of letter etc ) I have now got an intended litigation for the full amount from Moorcroft so presumably this acts as a termination ?

I'm in exactly the same situation with Halifax/Wescot. DN from Halifax (also remedy date 14 days later) and, today, a letter from Wescot demanding full repayment. AFAIK they're acting for Halifax ("We have been instructed by our client to collect the above outstanding balance on their behalf...") but I would think it still counts as termination because of the demand for the full amount.

[nks22]

So it's a) effectively terminated on the back of a faulty DN or b) not terminated so the CCA still applies. Either way they're not entitled to full repayment.

 

There has been some suggestion elsewhere that you need to accept a termination. Also that any demand for the full amount qualifies as termination. The question is, though, whether to write to them or to ignore them.

[nks22]

Consumer Credit Act, 1974, Section 88:

"(2) A date specified under subsection (1) must not be less than seven days* after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection ( 1)) before those seven days have elapsed."

*Amended to 14 days

 

 

CC (EDTN) Regulations 1983, Schedule 2:

 

3© 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;

Edited December 2, 2009 by nks22

[nks22]

It will most likely depend on the terms of your DMPs. Faulty DNs by themselves don't invalidate a CCA. It's only when an agreement has been terminated on the back of a faulty DN that it will be of any benefit to you.

[nks22]

If you're complying with an agreement made with them surely there can, by definition, be no default?

[nks22]

i'm not sure i understand what you mean?

 

Just that a default results from breaking an agreement. If you've negotiated a variation of an agreement then you haven't broken anything.

[nks22]

Is mine invalid?

http://i390.photobucket.com/albums/o...r31Aug2008.jpg

 

Yes.

 

Dated Sunday 31st therefore (assuming First Class) service date is Wed. 2nd Sept. 14 days takes you to 16th (or is it 17th?) but their remedy date is 'before 14th Sept.'

[nks22]

I received a DN from MBNA dated 11 January requiring remedy by 28 January, so only in time if First Class. (I'm already in dispute over the validity of their CCA.) Today, though, I received a letter (dated 19 January) telling me the account had been sold to Direct Legal. I assume that qualifies as unlawful recission.

 

What should be my next step? Should I write to MBNA or Direct Legal?

 

(I have an MBNA thread at http://www.consumeractiongroup.co.uk/forum/mbna/224927-mbna-cca-legal.html and will upload the letters and provide links there shortly.)

[nks22]

I've uploaded my MBNA letters at http://www.consumeractiongroup.co.uk/forum/mbna/224927-mbna-cca-legal-2.html#post2718155 and would be grateful for any comments/advice.

 

On a more general note, how do you calculate the arrears for a DN? What can and can't be included?

 

Thanks.

[nks22]

DCA don’t send out DN apparently, but the original creditor did?

 

If it's been passed to a DCA then the original CCA has, by definition, been terminated. You can't be in default with a DCA since you don't have any agreement with them on which to have defaulted.

 

There is some dispute (elsewhere on here) over whether or not it's necessary to accept an unlawful recission - after all, it's not as if you have the option to refuse a termination.

[nks22]

of COURSE you have the option to refuse an unlawful termination that is the WHOLE point

 

I only know that this has been discussed at length and there is a difference of opinion. I wouldn't claim to know who is right, though. (I'll try to find a link but it'll take some time.)

[nks22]

NKS - are you sure? Can you point to case law or anything to confirm this? I can see there may be a difference if the DCA has BOUGHT the debt - but what if they are only chasing up on behalf of OC?

 

My understanding (and it's only an opinion) is that only the original creditor can default you, not a DCA, as that's who your agreement is with. Even if a DCA is acting on behalf of a creditor the DN will be in the name of the creditor, not the DCA.

[nks22]

tale of a dodgy DN is the main thread

 

As I said, though, it's only that I recall having seen it disputed. I'm happy to accept your view on the matter.

 

And this post is probably a good guide: http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html#post1843811 "In Golden Strait Corporation v Nippon Yusen Kubishka Kaisha [2007], Lord Bingham said: 'The repudiation of a contract by one party ("the repudiator"), if accepted by the other ("the injured party"), brings the contract to an end and releases both parties from their primary obligations under the contract...'"

 

Regarding accepting unlawful recission, how soon after termination is it necessary to accept? I've had one or two where termination is implied (by a demand for the full sum, for instance) but no formal termination letter has been sent. I wouldn't want to alert a creditor to a dodgy DN but nor would I want to leave the acceptance of unlawful recission too long in the hope of receiving a formal termination letter.

Edited January 22, 2010 by nks22

[nks22]

Au contraire -

 

Maybe I'll shut up now. Or just stick to asking questions and not trying to give answers!

 

;-)

[nks22]

I received a faulty DN from Halifax (insufficient time to remedy) with the debt since handled on their behalf by Wescot. One of Wescot's letters is headed 'Final Notice' and says that unless I contact them and "agree repayment of £xxx [the full amount] within the next 14 days the following action may be taken": door step collector or court action... I've also had a letter from their solicitors, Nelson Guest, saying that the balance of £xxx [the full amount] remains outstanding.

 

Should I regard that as termination and write to accept unlawful recission or just sit tight and wait for a formal letter of termination?

 

(The problem, it seems to me, is that they say we 'may' do this rather than we 'will' do it.)

[nks22]

If anyone could advise on my Halifax query I'd be very grateful.

 

#1010: http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/196312-invalid-default-notices-51.html#post2718493

[nks22]

Oops - cross posts!

 

Thanks.

[nks22]

yes

 

(You do mean 'yes' to "write to accept unlawful recission", don't you?)

[nks22]

yes

 

Thanks.

[nks22]

Upon receiving an invalid Default Notice, we should immediately accept the creditor's unlawful recission?

 

No, absolutely not. You should only accept after termination. Unless terminated the creditor can simply issue a fresh DN.

[nks22]

"You have unlawfully repudiated the agreement and i accept your unlawful repudiation"

 

diddydick, I notice you used 'repudiation' rather than 'recission' here. Does it matter or are the words interchangeable?

[nks22]

That news story is dated July, 2005.

[nks22]

In my case (and I believe that of a few others) MBNA sold the account before the DN's remedy date. (See letter here: http://www.consumeractiongroup.co.uk/forum/mbna/224927-mbna-cca-legal-2.html#post2718166 ). Does this count as termination? Or could the new owner issue their own fresh DN and terminate on the back of that?

 

Would Pinky69's advice here be applicable: http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/218582-mbna-default-notice-termination.html#post2412891

"You do not have to worry about the DN. Apex bought the account on 18 February, only 12 days after the Default Notice had been issued,so 18 February is the date of termination - the account is terminated at the point of sale. Thus MBNA terminated the account before the time required in law - 14 days after receipt of the Notice - to remedy the alleged breach on the account. That is unlawful rescission and all that can be claimed from you is the arrears..."

[nks22]

Or can I expect to receive a Notice of Assignment and hope that its date is equally premature?