Invalid Default Notices

[Bigdebtor]

breaking open a bottle of bubbly

 

if they terminated on the back of a faulty DN you legally only owe then the arrears on the account at the time of the termination

 

LESS your counter claim for unfair reccission of contract

 

happy days!!

 

Diddy

 

Sorry to pick up on your post from as long ago as 7 months or so back - but I have been reading these "faulty DN" threads with great interest and just need something clarified.

 

I got a DN followed by a Termination the very next day. I had stopped making monthly payments at that time and did nothing when I got these - and then heard nothing for about a further year - when I was told the debt (full balance shown on letter - but different card number quoted!) had been assigned to 1st Credit - and then I was chased by a DCA on its behalf. I agreed an affordable monthly payments towards this - along with a number of other card and personal loan debts via CCCS.

 

My query is this - by starting to make further payments to 1st Credit - and continuing to m,ake payments way beyond the amount of the arrears - did I let the OC off the hook regarding the termination which would otherwise be an unlawful rescission?

 

In other words have I screwed up and can I still be held liable for the balance assigned to 1st Credit (less subsequent payments) - or can I actually reclaim the excess repaid beyond the stated arrears at time of DN?

 

I note from some postings that it is recommended to "accept" the termination. I neither accepted it nor tried to get the agreement re-instated.

 

Any advice help from anyone who has knowledge or experience of this would be most appreciated.

 

BD

 

PS - if I am elegible what kind of counter claim could I make against unlawful rescission? I can prove that I had a big overdraft at that time on which I was paying 19.5% apr and which would have been smaller if I had not made these payments in error or under a false imnpresion created by misleading demands from 1st Credit.

[Bigdebtor]

Does anyone have a good template for a letter to send regarding an incorrect DN.

 

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 would like to inform them of their errors before it goes any further.

 

I am trudging my way through this thread - spell bound by Pinky!

 

This is the question I want answered - as well as knowing how Pinky got on. Can anyone point me to a template re dodgy DN?

 

BD

[Bigdebtor]

Ok, with the charges thing on DN's - how does that work exactly??

 

Is it that if you have ever received a penalty charge then in turn that will mean your DN will state the wrong amount and so will be cack, or is it specifically that the arrears shown must include charges (ie it should only show your min payment plus interest, but instead shows min payment plus interest plus a number of £'s of charges)?

 

I've never quite got my head around this and also not seen a straight answer to similar questions.

 

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?

 

BD

 

(If you like this idea and want to use it then tip my scales).

[Bigdebtor]

There is no template for unlawful rescission. You simply tell them they have breached they CCA 1974 S87 (1) by demanding the full balance after issuing an unlawful DN (tell them why it is unlawful) and in doing so have unlawfully rescinded the alleged agreement. In doing so they have forfeited payment of any sums deemed payable under the alleged agreement. Don't tell them they can claim arrears. Let them come up with that if they know and most of them don't.

 

Pinky

 

Thanks - and congrats on an excellent thread. I have now finished reading it and have got all I need for the unlawful rescission letter. In my case I have more than paid the arrears to 1st Credit who got it assigned around a year after the dodgy DN and TN (issued the very next day after the dodgy DN!).

 

I have now stopped paying 1st Credit. Should I send them an unlawful rescission letter in the next few days - or refer to my acceptance of the original TN sent to Goldfish just a few days after their TN?

[Bigdebtor]

What if the DN didn't give enough time to rectify things - is the subsequent TN also ineffective if issued too early (i.e. the day after the DN)?

 

I am getting VERY confused with the apparently contradictory stuff in this thread.

 

BD

[Bigdebtor]

Welshperson3

 

An excellent response leaving no doubt - it was a nice thought while it lasted! Thesr Rankines have a lot to answer for!

 

I have tipped your scales in thanks.

 

BD

[Bigdebtor]

Pinky

 

As the venerable founder of this thread - which took up several (fascinating) hours of my life yesterday - can I ask if you (or any other well-informed cagger) would be good enough to confirm or correct my summary of understanding as below?

 

1. If you get a dodgy DN it can be corrected by the creditor any time UP TO TERMINATION.

2. If THEY send a termination notice based on you not complying with the requirements of a dodgy DN then the termination IS NOT VALID UNLESS YOU accept it in writing. They can still issue a further correct DN.

3. If you continue to make ANY further payments (even if lower than stated minimum) then you can be deemed to accept the agreement did not terminate despite the TN being issued.

4. To ensure termination is valid the debtor MUST accept it - and any arrears accruing up until this acceptance are still due - so the earlier it is accepted the better.

 

Is the above correct?

 

What about the case where you did not get the original DN and therefore don't know if it was dodgy?

 

I have one account where I note I have been charged for a default notice being issued - but did not get it - but got a TN and then I was told about a year letter the debt had been assigned. I was threatened with court action for the entire balance (but no further interest or charges had been added in the interim) which they demanded be paid in one go and then agreed further small monthly payments via CCCS together with freezing of interest.

 

If I do an SAR and the DN is supplied and proves to be faulty - can I NOW accept termination - based on only now getting the DN and discovering it was dodgy?

 

If so then can I now claim unlawful rescission and a refund of anything paid in excess of the arrears at time of DN?

 

Also what is deemed to be "arrears" if a new lower payment arrangement is agreed (like via CCCS)?

 

I am not too bothered about reclaiming any overpayment beyond the arrears as they stood - just getting the remaining current balance written off and the account marked as satisfied in full.

 

BD

Edited January 20, 2010 by Bigdebtor

[Bigdebtor]

If you make the token payments, as previously advised, you will be acting as though the agreement endures. You cannot then claim unlawful rescission.

 

Vint

 

What about the situation where token payments had been agreed with a 3rd party DCA some time after the notice of termination was sent out by the OC and payments to the OC had been suspended for quite some time - BUT - I was only made aware of the faulty DN and the TN coming too soon after it when I did the SAR on the OC and got the copy via SAR?

 

I genuinely did not get the original DN - although I see the £20 DN charge on my statement. In other words I have only now been made aware that the DN was issued the very day before the TN and was faulty as it did not give enough time to rectify.

 

Surely since I have only become aware of it I can now claim unlawful rescission - provided I immediately cease making any further token payments to the DCA?

 

BD

[Bigdebtor]

If you make the token payments, as previously advised, you will be acting as though the agreement endures. You cannot then claim unlawful rescission.

 

Sorry to be hijacking Pinky's thread a bit - but I have just checked my paperwork and note the amount I was in arrears when the DN and TN were issued was around £500 - on a balance which then stood at around £9500.

 

The amount "assigned" to a DCA a year or so later was just over £10k - presumably other charges applied by the OC but never notified to me? How can they do this after terminating the account?

 

I have since made token payments of around £200 to the DCA - leaving a current balance of £9800. I therefore have not even paid off the arrears at the time of the dodgy DN and TN - so surely my subsequent ongoing token payments to a 3rd party can't prevent me from now claiming unlawful rescission and offerring the balance of the arrears in F&F?

 

Please someone - do a Clint Eastwood and make my day in this?

 

BD

[Bigdebtor]

Hi welsh

 

I had forgotten I had sent that letter off within a few days of the dodgy DN! I am pretty sure I will be able to find it in my "relevant filing system" (or "reconstitute a true copy" to use the creditor's parlance and practice).

 

Also I have just noticed the card no on the letters from the DCA differ from the OC's card no. - so I may well have been paying off someone else's balance over the last 2 years! I don't know how it grew from £9.5k to £10 k anyway after it was supposed to be terminated - so that could well be an explanation!

 

Either way I think there is a get out of jail card available to me in this.

 

If so - this thread has been a godsend - worth losing most of yesterday reading it from cover to cover - and I am going to tip your scales for your help as I have already done to several others yesterday and today.

 

BD

[Bigdebtor]

you are almost there

 

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

 

DD

 

I don't think I follow what you have said about accepting an unlawful DN.

 

What I think I am doing is accepting a TN which is an unlawful rescission - because the DN (sent only the day before the TN) didn't give me enough time to sort things out - so I only need to paying off the arrears as quoted - but I shall then be claiming comp0ensation for unlawful rescission.

 

Am i getting nearer to the right end of the stick?

 

BD

[Bigdebtor]

Vint

 

Thanks again - and your points above are well noted.

 

I have already tipped Pinky's scales - along with yours, Diddydicky, Welshman3 and others.

 

BD

[Bigdebtor]

Vicky

 

As I understand it from wading through this entire thread earlier this week the key point is that the creditor's subsequent termination on the back of a dodgy DN is unlawful rescission. If YOU then ACCEPT their termination then the agreement is ended by mutual consent - and ALL you have to pay are the lawful arrears at the time you accepted the unlawful rescission. You MUST accept it and the sooner you do so the lower the amount (accrued arrears only) you still need to pay.

You may well find you did exactly that just a week or so after the crditors notice of termination but had forgotten you had sent that letter (similar to ones earlier in this thread)!!!!

You could also claim compensation from them if you have some spare salt to rub into their wounds.

 

Diddydicky and Pinky69 (among others) have some excellent posts throughout this thread if you want to check back. i

Hope this helps - if so tip my scales!

 

BD

Edited January 22, 2010 by Bigdebtor
typos

[Bigdebtor]

BigDebtor

 

Thanks for that.

 

I have (well I believe I have) a dodgy DN from Egg then they terminated.

 

I havent sent them anything back to accept the termination.

 

Is it too late to do that now?

 

Its been months and its been passed to ARC/Trevor Munn to collect on their behalf (not sold to them)

 

Vicky

xxxx

 

Vicky

 

I am sure you may find the letter you had forgotten you sent to Egg accepting it if you check your files!

 

Anything have paid since then will have been to repay the arrears as they stood at that time. If you have paid nothing since then that's presumably simply becasue you indeed regarded the agreement as terminated - as both parties had said so in writing.

 

Check back through this thread for a follow up letter to the DCA copying your "unlawful rescission" letter sent off to Egg by you within a week or so of receipt of the Egg termination letter.

 

The chances also are that the Egg agreement is not enforceable - check the Egg thread by PT2357 as well about this.

 

BD

[Bigdebtor]

Just one more question if any can help. After being Defaulted can the creditors still carry on charging interest on the account for several months. and sorry another question, if creditor says account is closed does that constitute Termination?

Cheers

Jim

 

Jim I asked that very question earlier this week on another thread - but haven't got an answer yet. In my case I am witholding payment as they haven't provided a true copy cca - but they are threatening to continue to add interest and I don't think that's fair as the delay in my paying more is down to them.

 

On your accepting their actual termination - if it was unlawful rescission - then all T&C's are void as there is no longer any agreement by you to pay anything further - and your only obligation is to pay lawful arrears - but you can deduct unfair charges and contractual interest and (I think?) compensation too.

 

It seems to be ESSENTIAL to agree to the unlawful termination otherwise it is not actually termination by virtue of being unlawful.

 

Hope this helps - if so, tip my scales.

 

BD

[Bigdebtor]

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.

 

.

 

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?

 

I hope you are right - but I just can't see it being that easy - otherwise no DCA could survive.

 

BD

[Bigdebtor]

BigDebtor

 

Thanks for that.

 

I have (well I believe I have) a dodgy DN from Egg then they terminated.

 

I havent sent them anything back to accept the termination.

 

Is it too late to do that now?

 

 

Vicky

xxxx

Vicky

 

Diddydicky has just posted a copy letter pretty similar to the one you sent to Egg just after their termination notice following their dodgy DN!

 

Remember it now:idea:

 

BD

[Bigdebtor]

Thanks Bill

 

Sorry to be asking dumb questions !

 

I will send a letter of tonight accepting termination.

 

What do you mean by arrears are accruing up to the date of the acceptance deed/letter?

 

I thought once the account has been defaulted and terminated that was it.

 

(I've noticed the figures that the DCA is claiming I owe is the same as when Egg terminated 5 months ago)

 

Vicky

xxxx

 

Vicky

 

I'll pm you when I get time over the weekend. Don't send any termination letter before reading my pm.

 

BD

[Bigdebtor]

there may be odd occasions when pm's might be prudent, however as a general rule advice by pm has three main drawbacks:-

 

the one party may be a troll or have another agenda

 

his/her advice may be incorrect and cannot be challenged

 

his/her advice may be bonza and others are denied of it

 

just my thoughts

 

Based on this I am NOT going to PM anyone - in case they are not who they say they are - or believe I am not genuine. I think the contents of my intended PM can be deduced by anyone looking back through my previous posts (and diddydicky's) in this thread.

 

I would just repeat - it is amazing how often seeing a similar letter (posted in here) to one that you had forgotten you had sent some time ago can jog your memory to the fact you had sent it just after you had received the Termination letter following the dodgy DN.

 

It is a fact - although a great pity - that sometimes not only do creditors' letters to us go astray - our responses to them - even very important ones - can go astray too - but legally these are still deemed to be delivered by 2nd class 4 days (I think?) after date of posting - no proof of posting or of delivery is required legally but of course it is important for us to keep dated copies of all letter s we send to creditors etc.

 

While it might not be too late to send the acceptance of unlawful termination at any time after receiving it (not sure?) the earlier it is sent the better (definitely) as arrears cannnot continue to grow once the contract has been terminate by your accepting the unlawful rescission. However it does seem essentila to send the letter at some time - as an unlawful termination cannot be imposed by just one party - it needs to be accepted by the 2nd party to actually take effect - hence the need for that "forgotten" letter -and the earlierthe better.

 

I think this info is all kosher - I gained most of this much earlier in this thread which I read right through earlier this week - so it can be checked by anyone doing likewise.

 

I hope this clarifies things for those confused or alarmed by my PM suggestion.

 

BD

[Bigdebtor]

I've just googled and got the whole L of P Act 1925 using its title. This section 136 is on Page 10 and just talks about "express notice in writing" - nothing about recorded delivery that I can see. However if the notice of assignment didn't come with the SAR (and the OC confirms nothing else on file) then surely we can infer it wasn't sent - so is not in force?

[Bigdebtor]

I would say the dodgy DN followed by TN kills the debt outright once you accept the unlawful rescission (other than arrears - balanced by compensation) - whereas the unsatisfied s77-78 only delays it being enforced.

 

BD

[Bigdebtor]

I think being claimant is very dangerous. Once you accept the unlawful rescission then the debt is dead and I would just let them take the initiative if they dare - threaten harassment if they keep hassling you.

 

BD

[Bigdebtor]

Cosalt

 

I thought the same. Other more knowledgeable CAGGERS please clarify?

 

BD

[Bigdebtor]

No probs lexis200, but Littlewoods have refused to refund me £100 worth of charges which I was hoping they would so could bring my debt down to a minimal. Can I still reclaim these £12's charges as a bargaining tool against them?

 

I can't see why you can't claim these £12's plus any aditional interest charged on them. IMHO they have PROVE it cost them £12 to justify charging you £12 a time - otherwise unfair and unenforceable penalty.

 

I have done a letter in a Capital One thread that you may find useful to take bits out of.

 

Good luck.

 

BD

[Bigdebtor]

How about working out the charges AND associated contractual interest (if they applied this) and then getting a THIRD PARTY to send a cheque annotated as FULL & FINAL SETTLEMENT OF BALANCE NOW DUE OF £xxx.xx on account no XXXX in name of M Frettful. Cheque only to be banke din acceptance as F&F.

 

Put in a covering letter (I think I saw one on another thread a few weeks ago) - quote cheque no, amount etc. - specify this cheque MUST be returned UNLESS accepted as F&F and account marked as settled in full with all CRA's - send recorded delivery - I bet they will bank it and then thgey will not take you to court - if they do they will LOSE - see Case Law in other threads focussing on F&F and especially on 3rd party F&F payments.

 

Good luck!

 

BD