Invalid Default Notices

[emandcole]

I'm in that exact position right now. I'll be sending my acceptance of their intention to terminate the agreement tomorrow.

[emandcole]

Yep, default is defective due to lack of time allowed. Have checked it and have no doubts about it. Termination notice was then sent after this date expired asking for the whole sum.

 

My only concern originally was accepting their termination before the termination date was up in case they realised and revoked it quickly.

 

I believe now however that as they have written it, signed it and posted it their intention is quite clear and irrespective of when they say the money is due I can accept at any time and they can't withdraw it?

 

Based on that I was going to get my acceptance off pretty quick!

 

Mistake?

[emandcole]

Thanks so much for the verification, always good to be certain. The termination letter gives 18 days to pay in full from the date of the letter which I can't divulge at this moment...just in case!

 

Was originally waiting but will now accept their offer with your letter, very grateful. Once this is all safelt delivered and they've acknowledged in writing I'll add more details as certain this particular creditor will have their grasp on many people so will make a great case study.

 

[emandcole]

My understanding is that the dates given must be specifc and cannot leave you leafing through a calendar trying to determine exactly what date they need you to comply by. It should be completely clear.

 

Secondly, if 1st class post was used then perhaps they have allowed the clear 14 days but if they cannot prove first class was used then it is presumed that 2nd class was used meaning 4 days carriage, the envelope would have been useful obviously.

 

However, as the letter was dated on a Thursday there is no way it could have 'lawfully' arrived on Saturday as 2 days are anticipated first class and Sunday there is no postal service so Monday is likely to be the date of service, again if first class post was used. Appears to have not left enough time irrespective of the vagueness they have used.

 

In addition the dispute status of the account means they've been pretty off registering a default against you. Injury to credit and unlawful rescission all come to mind.

 

Let's see what others make of it all.

[emandcole]

Thanks for the input Cab, have you accepted your termination yet?

[emandcole]

Termination year is 2010. However I was responding to Griffin with my last big post. Have we got wires crossed

[emandcole]

.

 

So much information eh! Thanks for the advice anyway

[emandcole]

Unilateral agreement?

 

Seems pretty odd. Surely if a payment was made for the sum they list as arrears after no service of default and an eventual unlawful termination they have no such right. Have they simply buried their hnads in the sand and used their tax payer funded banking 'might' to steamroll you into paying?

 

Unfair relationship I'd say, irrespective of the history leading to it.

[emandcole]

The title of this thread seemed to be a good place, so hope it's okay?

 

We have a TESCO credit card and I have a feeling we may left DN faults too late... let me explain.

 

The agreement doesn't seem to comply... no prescribed terms and so - on... we got a copy by s77 in the autumn of 2008. Of course, there's been a lot of too-ing and fro-ing and right now, I think we've shaken off the DCA's.

 

Only recently we have realised that there is mileage to be made out of faulty Default Notices...

 

The Default Notice for arrears of £125 was dated end October 2008 in which they gave 17 days starting from the day after the letter date. It stated, "... we will terminate the agreement......" (if you don't cough up) There was NO Termination letter. (can it be taken that the agreement was terminated?)

 

Then, we had a second Default Notice dated end of December in which they requested £550 payable just as above, in 17 days.

We then received a Termination Notice dated January 2009...

 

We'd appreciate any comments, I expect the only one will be about the 17 days grace rather than a given date, as it should be. Can we do anything as they did not enter a specific remedy date?

 

Thanks anyone

 

charlie

 

 

Hi Charlie,

2 default notices you say? Do you have them both still? Also, have you checked your credit file to check only one has been added to it?

 

The remedy date is important and should be clear, it is the job of the creditor to issue a correct notice without fail.

 

If they've terminated I'd write and accept that termination and ask for details of any arrears they want. Good idea to read back through this thread as much of it covers this exact scenario

[emandcole]

Ah, January 2009, I'm still a year behind .

 

Out of interest Cab, in your opinion why would this be potentially dangerous to the debtor?

 

Still feeling my way through some of this.

[emandcole]

Buzzard that might be a problem. It is only the invalid default notice that they subsequently terminate on with another letter that allows you to accept with the letter you've just sent off.

 

I hate to write this given our earlier posts but I believe if that direct debit wasn't cancelled and money was paid to them after the termination notice was sent you are effectively seeking to keep the agreement live.

 

Other minds are going to be needed here for sure in order to establish exactly what this will mean.

 

I am hoping that the fact they issued an invalid default notice and then terminated is enough as after the payment went out you sent your letter accepting their termination.

 

Perhaps up until they receive that termination acceptance from you this payment is unimportant. Perhaps if you make a payment after you've accepted their termination that would be viewed as you seeking to keep the agreement live and would be more critical?

 

I very much hope that's the case, get that DD cancelled immediately if it's too late to stop the payment being processed and let's see what others think.

[emandcole]

Ok, you might have something there. First class mail is deemed to have been served after two working days, second class four working days. Given that fact even using first class you wouldn't have had it and even then they'd have to proce categorically that they used a first class service, if they can't it is assumed automatically that second class was used.

 

This is a bit of variation and I don't know the implications of your exact scenario but I hope you have a good argument.

 

To throw a few initial thoughts around until such time as the termination notice has been received you were merely providing a payment, which should have no bearing on the simple fact that they issued an invalid default notice.

 

Them choosing to terminate on the back of that is their choice and that was an offer you then chose to accept with your letter. Make sense? Hope so, let's stay positive.

[emandcole]

Just thinking, an unlawful rescission claim is entirely seperate to accepting their termination on the back of the invalid DN. You made a payment which effectively kept the contract live but then accepted their termination. We must remember to keep these two issues seperate.

[emandcole]

important

 

all you are saying in effect is "fine" if you're talking your ball back-, i'm taking my jumpers that were used for the goal posts

 

 

What a great way to think about it. Awesome anology I think

[emandcole]

 

I have more than one termination letter dating back 12 - 18 months. As in fact these were terminated on the backs of DN's I consider invalid, would the advice be even at this late stage to write now and accept?

 

David

 

Hi, having read similar questions the general consensus seemed to be that you could accept but the arrears (you're still liable for) would have possibly got very high. Also, I believe that if you carried on making payments to the account you effectively chose to ignore the termination preferring it to endure.

 

I think the key aspect is that if you get a termination letter on the back of an invalid default you should quickly accept their repudiation of that contract and cease all payment.

 

To counter any payments made after termination however 'by mistake' or otherwise there has been discussion that you could state these continued payments were actually towards the arrears and you did send a letter of acceptance that 'somehow they didn't get'.

 

As the banks et al can send notices and it doesn't appear to matter if you even get them the same argument is fair to anything you send.

 

Of course, underlining all of the above musings and theory is the eye of the judge who can and will interpret your actions in a different light.

 

Ideal scenario is therefore an invalid default which you keep safe, they then terminate and you bite their arm off quickly with an acceptance of that repudiation.

[emandcole]

 

I believe that a DN is served after a final demand on O/Ds. Overdrafts are "repayable on demand" anyway.

 

Bill

 

Thanks for that insight Bill. What happens if a bank has not registered a default on your credit file for the overdraft, or sent one (that you are aware of) but then gets a DCA, in-house or otherwise, to chase for the full balance?

 

I have this going on for an old student account that was destroyed by charges and now the Supreme Court have done their 'thing' I think the bank are trying to maximise the window of opportunity before the new arguments come out.

 

I don't believe the bank has gone about this in the right way. Thoughts greatly appreciated

[emandcole]

Thanks Bill, haven't done anything yet with this account as it's only just kicked off but will follow the usual SAR route and find out when this default was applied.

 

Didn't know they had up to 6 months to register it with the CRA's so thanks for the new info. Have tipped your scales accordingly

[emandcole]

 

P.S Where are the scales that can be tipped?

 

You'll find them on the left between the Triangle amd the Online indicator

[emandcole]

Will prob find out soon enough.

 

Im sure I read somewhere that if a creditor screws up the DN they're only able to recover any arrears due and nto the full balance.

 

Where can this be found (OFT guidance? Legislation? etc)

 

You're quite right and you can read up on it on these threads:

 

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

 

Also, if you go back to page 44 onwards of the thread you're already on (Invalid Default Notices) you can pick up on the technicalities of accepting termination if it's offered after a faulty default notice has first been sent.

 

Post #941 by DiddyDicky is particularly helpful.

[emandcole]

If the account was sold in it's entirety as an absolute assignment then I believe this would represent an unlawful rescission as they sold all rights to the third party, thus effectually demanding the full balance before you had exhausted the time to remedy the law says you must have.

 

On the other hand, if the assignment was just equitable and the DCA was merely being 'prepped' in the background for the expectation of you not providing remedy I suspect it would be overlooked as technically the creditor still has control over the account and hasn't demanded the full balance.

 

However, with the above scenario if you had actually received a letter demanding the full balance from a DCA before the time had expired on the default sent by the original creditor then I believe that would be an unlawful rescission as again, you have not been given the full time the law says you must have.

 

There is a difference between an unlawful repudiation and an unlawful rescission as well, something I am also getting my head round.

 

In order to be able to accept the creditors unlawful rescission/repudiation you either need to have an invalid default notice which they subsequently terminate on with a letter demanding the full balance or..

 

A correct/invalid default notice that they then don't allow you to act on by prematurely demanding the full balance before the remedy date on the default notice, either themselves, or via a DCA.

 

Think that's about the jist of it all. What's critical primarily is the validity of the default notice and secondary the termination letter sent on the back of that default notice.

 

If a creditor therefore merely sends an invalid default notice it is of little value in itself unless the termination follows. The creditor can merely re-issue the default, this time corrected.

 

The termination and how/when it's done is the actual 'icing on the cake'.

[emandcole]

 

Rescission.

Is a common law term which makes a contract void (ab initio) It is as if the contract never took place. The terms coming closest to rescission are termination and cancellation,

The Latin term "Ab initio " means, in a UK legal context: "from the beginning".)

 

The difference between the two terms;

 

Cancellation,

Still gives one a remedy,

 

Termination,

Does not (except for earlier breaches in the same contract).

 

Rejection.

differs from these other terms in that tender must first take place in order for it to be possible to reject. Rejection then triggers remedies

 

Repudiation.

Occurs before time for performance is due.

An overt communication of intention or an action which renders performance impossible or demonstrates a clear determination not to continue with performance.

cab

 

 

This'll help explain a few things

[emandcole]

The letter says that the debt has been sold to Lowell and all enquiries should be made to them.

 

Im unsure if this is an equitable or absolute assignment. How would I find out?

 

If the debt truly has been sold to them it's an absolute assignment.

 

An equitable assignment relates to the original creditor asking a third party (DCA) to collect the debt. The DCA merely has a right to get involved and can't for example issue litigation in their own name. Any litigation they start would have to name both the original creditor and the DCA as co-claimants to the action.

 

This is something many DCA's/creditors forget when they start litigation and gives you the opportunity to question the right of the DCA to actually start action in their own name if they merely have the right to collect.

 

In such eventuality I suspect this would be a complete defence in itself under their 'right to action'.

[emandcole]

The Notice of Assignment comes from the the creditor. It is supposed to be delivered by Recorded delivery but it never is. All the DCA has to send you is a letter telling you they have bee assigned the debt.

 

Thanks Pinky, is this a credible defence or just another issue the courts choose to overlook?

 

On the off-chance does anyone know if this information can be found in the Consumer Credit Act under assignments or similar? Would have a look myself but can't get round to that until later on .

[emandcole]

Ah, makes sense! Have read in sample defences about putting the claimant to strict proof it was sent under L of P Act.

 

Must be pretty important then and surely another arrow to fire off?

[emandcole]

Would I be right in thinking that if an agreement is still "alive" the borrower needs to agree to the assignment?

If that is the case, then could it be extrapolated from that, that if the borrower is not "invited" to agree to the assignment, that the agreement is terminated?

 

Interesting one Bill. Would we have to rely completely on this supposed right to tranfer being in the terms and condions applicable at the time of opening?

 

Good question as many people, including me, have discovered banks (as one example) are unable to provide T&C's applicable to older accounts. As they can't provide them that would surely put into question any contractual 'right' to assign or transfer anything?

 

Easier one to answer perhaps if the T&C's are unavailable but not much help for newer agreements :-|