Invalid Default Notices

[frettful38]

Couldn't agree more. Both have helped me HUGEly .

 

M

 

you, me and 100 others

[colin21958]

But what about "within 14 days of receipt of this notice" I think the point colin is making is that this would be a tougher argument.

 

M

 

Thanks MandM that is exactly the point I was making. I also have a Capital One DN that states "28 days from receipt of this notice", which, as it exceeds the 14 days required could be argued to be compliant unless it could be argued (in a cast iron way from some section of the Act) that it HAD to specify an actual date. Reading the Act it does say that the notice must "specify a date, not less than 14 days...", so this really does, but it could obviously be twisted by saying that "14 days from receipt..." complies with this! :?

 

The one I had that says "14 days from receipt..." fortunately (I hope), they then demanded the full balance (hopefully this would be regarded as termination) in a letter dated several days before the 14 days would have expired! So I think it could be argued that they terminated before the time given, whether or not they complied with specifying the date correctly!

 

Colin

Edited May 28, 2010 by colin21958

[means2anend]

I would argue that specifying a date is just that A DATE or a UNITARY DAY...however the method the creditor is using is suggesting A PERIOD ...there IS a distinction and then that would NOT be complying with the Section's requirements.

 

m2ae

[Jameson78]

As M&M says, thats rubish. They cannot make the law up as they go along.

 

I am afraid, this is where you need all of the ammo to challenge these comments and learn it off by heart.

 

 

I agree with M.

But let's face it - if it wasn't for this forum, the invaluable advice we receive and the homework we do thereafter, many of us would believe what the DCA tell us. It is unfortunate Cosalt lost the case, however, I have learned many things thanks to him sharing his thread.

[frettful38]

Read through this and understand it, before sending to HSBC, copy to DG.

 

Dear Sirs,

 

Ref Acc noxxxxxxxxxxxxxxxxx Unlawfully Rescinded.

 

I was somewhat bemused to receive your letter dated xxxxxxxxxxxxx, explaining that you did not consider your Default Notice, issued xxxxxxxxxxxxx to be improperly executed.

 

To explain simply, why your conclusion is incorrect, I would refer you to the consumer credit act 1974, in particular to sections 87 & 88 below.

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88.

 

(1) The default notice must be in the prescribed form

and specify—

 

(a) the nature of the alleged breach;

 

(b) if the breach is capable of remedy, what action is required to remedy it

and the date before which that action is to be taken;

 

© if the breach is not capable of remedy, the sum (if any) required to be

paid as compensation for the breach, and the date before which it is to be paid.

 

(2) A date specified under subsection (1) must not be less than fourteen 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 fourteen days have elapsed.

 

(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes Operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (I) is not duly paid, or (where no requirement is made under subsection ~1)) if the fourteen days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

 

(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply with it.

 

(5) A default notice making a requirement under subsection (1) may include a

provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

 

You will note from section 87 above, that for HSBC to enjoy the benefits of that section, you are required to issue a Default Notice, compliant with section 88 of the act. Part 2 of section 88 above, demands that the debtor be given 14 clear days from service, to rectify any breach. I have highlighted that point, to enable you to easily find it.

 

For the avoidance of doubt, Service, in this instance by post, is laid down in the Interpretation Act 1978, further updated 1116th April 1985. The relevant section is copied below for your convenience.

 

1. Interpretation Act 1978, Section 7

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

2. Practice Direction

Service of Documents - First and Second Class Mail.

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4. This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

The default Notice issued by HSBC failed to allow for service as clearly required by the act, and as such was defective. The failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but gives rise to a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

I hope that you can see from the above, why your letter dated xxxxxxxxxxxxxxxx, is misguided in its contents and how the Default Notice issued to me on xxxxxxxxxxxxxxx, is fatally flawed. Your subsequent actions, seeking the benefit of s 87 of the consumer credit act 1974, following the issue of a defective Default Notice, led to an unlawful rescission of contract, which I have previously accepted in writing.

 

I await your response, detailing the true arrears at the time of rescission, against which I will make a claim against HSBC for that unlawful rescission.

 

Yours xxxx,

 

 

Hi vint, I sent the above letter to HSBC and here is the response that I received today.

 

http://i450.photobucket.com/albums/qq223/sophiak_bucket/HSBCresponsetoDN2.jpg

 

 

Looks like the banks are monitoring these threads and finding more ways than one to fight these faulty DN's they issue as cosalt is finding out. Any response or should I just wait? thanks in advance.

[nks22]

Reading the Act it does say that the notice must "specify a date, not less than 14 days...", so this really does, but it could obviously be twisted by saying that "14 days from receipt..." complies with this!

 

Any reasonable interpretation would say it required a specific date. Of course that relies on having a reasonable judge!

[colin21958]

I would argue that specifying a date is just that A DATE or a UNITARY DAY...however the method the creditor is using is suggesting A PERIOD ...there IS a distinction and then that would NOT be complying with the Section's requirements.

 

m2ae

 

The Act doesn't say that remedy has to take place on a certain date, it says that it must take place within a certain period; i.e., it effectively states "before a date which is 14 days (a certain PERIOD) after receipt of the notice!"

 

Their DN states [a date] "Within 14 days (the period) of receipt of this notice"; so it would be easy to argue that this is compliant! Even though we all "know" it is wrong, how can we prove that what the Act intended is for the Creditor to specify an ACTUAL date. In reality, if the Creditor wanted to take action as soon as he legally could then it would be difficult to specify an actual date... therefore the court could I am sure be pursaded that saying "within 14 days of receipt" would be the correct way to do this (assuming they then sent it using a method which recorded delivery) they could then take the action legally and within the terms of the Act once they have confirmed the date it was received on and allowed the required number of days past that date. I know none of them have EVER sent them by recorded delivery, but I suppose they could say that they had intended to do it this way; it would be a difficult argument to counter I believe!

 

Colin

Edited May 28, 2010 by colin21958

[colin21958]

The reality is that most of them who do this then seem to terminate the agreement on the 15th day after the date on their notice (hence terminating it too early by not allowing for the time in the post! )

 

But at least they saved themselves a few pennies by not sending them all by recorded delivery!

 

Colin

Edited May 28, 2010 by colin21958

[cosalt]

 

Looks like the banks are monitoring these threads and finding more ways than one to fight these faulty DN's they issue as cosalt is finding out. Any response or should I just wait? thanks in advance.

 

 

I am convinced this is the case, whenever I post on my thread a 'guest' seems to arrive shortly afterwards.

 

If you are reading this 'guest' my advice to you is give in now as you won't win and its going to cost you !

[colin21958]

Any reasonable interpretation would say it required a specific date. Of course that relies on having a reasonable judge!

 

You would think so, but have a look at the other argument I just put forward above; we have to pre-empt things like this, so we don't get caught out by them... It has been proved that we can't expect a "reasonable" judge so, we need to plan to get the worst one possible; if you could win against him/her (against? Aren't they supposed to be impartial!?) you could win more easily with a reasonable one and if you were lucky enough to get one of these then it should be plain sailing!

 

Colin

Edited May 28, 2010 by colin21958
political correctness! :-)

[frettful38]

I am convinced this is the case, whenever I post on my thread a 'guest' seems to arrive shortly afterwards.

 

If you are reading this 'guest' my advice to you is give in now as you won't win and its going to cost you !

 

cosalt just because you have guests looking in does not change what the law states. We are only stating them what the law is as I think nowadays the average jo knows more about it than these Fxxxxxxg financial industries and maybe they need reminding what that is:D

[colin21958]

cosalt just because you have guests looking in does not change what the law states. We are only stating them what the law is as I think nowadays the average jo knows more about it than these Fxxxxxxg financial industries and maybe they need reminding what that is:D

 

And, even some registered CAGgers could easily be "guests"

[cosalt]

I dont care about them anyway, let them read as much as they want !

[colin21958]

I dont care about them anyway, let them read as much as they want !

 

Absolutely...

[diddydicky]

But what about >>> I think the point colin is making is that this would be a tougher argument.

 

M

 

the receipt of a document can only be confirmed by the recipient- not by the sender

 

the sender would have to state that the debtor had 14 days from the date of SERVICE of the DN- and then have proof of when it was served by hand on the debtor- or by post to his last known address ( 1st class 2 working days after posting or 4 working days after posting 2nd class)

 

one would be entitled to question, if the sender was intelligent enough to work out, from the method of posting, what day the DN would be considered served- why he could then not work out the actual compliance date and endorse the DN with that "specific" date as required

 

if the recipient was for instance on holiday or working away from home and arrived home to find the letter on his doormat-and given that letters no longer bear a date of posting - how would he know how long it had lain on his doormat or when it was "served" and by what date he must comply??

 

If the court applied the "Acid Test" as to whether in the eyes of a "right thinking person" or the "chap on the clapham omnibus" they would consider that the creditors Default Notice had left the debtor in "no doubt as to what action he must take, and by a speficied date", i venture to suggest that the answer would be NO

 

hence the requirement within the act for the creditor to "specify" a date by which the debtor must comply, and the overriding requirement that the creditor must ensure that the debtor is left in "no doubt" as to what he did wrong, what he must do to remedy the situation, and by what date he must do so

Edited May 28, 2010 by diddydicky

[Bigdebtor]

DD

 

Impeccible logic as always!

 

BD

[nks22]

It has been proved that we can't expect a "reasonable" judge so, we need to plan to get the worst one possible; if you could win against him/her (against? Aren't they supposed to be impartial!?) you could win more easily with a reasonable one and if you were lucky enough to get one of these then it should be plain sailing!

 

Very true. Prepare for the worst but hope for the best.

[means2anend]

The Act doesn't say that remedy has to take place on a certain date, it says that it must take place within a certain period; i.e., it effectively states "before a date which is 14 days (a certain PERIOD) after receipt of the notice!"

 

Their DN states [a date] "Within 14 days (the period) of receipt of this notice"; so it would be easy to argue that this is compliant! Even though we all "know" it is wrong, how can we prove that what the Act intended is for the Creditor to specify an ACTUAL date. In reality, if the Creditor wanted to take action as soon as he legally could then it would be difficult to specify an actual date... therefore the court could I am sure be pursaded that saying "within 14 days of receipt" would be the correct way to do this (assuming they then sent it using a method which recorded delivery) they could then take the action legally and within the terms of the Act once they have confirmed the date it was received on and allowed the required number of days past that date. I know none of them have EVER sent them by recorded delivery, but I suppose they could say that they had intended to do it this way; it would be a difficult argument to counter I believe!

 

Colin

 

Nice analysis...however

 

I was not focusing on the issue of whether the remedy should be discharged within a period...BUT WHEN EXACTLY that Period began to 'countdown'...a subtle distinction but CENTRAL to the whole issue

 

But the focus for 'counting down' is the date of service not within receipt of or from receipt

 

The section it is quite clear uses EXPLICITLY ONLY the words after date of service

 

Diddydicky has touched on this above and I do also wonder that if these guests are 'learning' how is it they are still getting it wrong.

 

Are their systems so inflexible that it should cost them more to correct this and so afford to lose 'the odd contest'

 

In order to avoid all this ambiguity the Section must be interpreted LITERALLY and brought to the Judge's attention

Edited May 28, 2010 by means2anend

[means2anend]

Taxi driver wins Late Payment Charges with help of CAG

 

 

here's the thread I do not want to hijack this thread

 

http://www.consumeractiongroup.co.uk/forum/general/246352-finance-company-claim-charges.html

 

POST 40 and 41

Edited May 28, 2010 by means2anend
to link to specific thread only and not digress from DN discussions

[colin21958]

Nice analysis...however

 

I was not focusing on the issue of whether the remedy should be discharged within a period...BUT WHEN EXACTLY that Period began to 'countdown'...a subtle distinction but CENTRAL to the whole issue

 

But the focus for 'counting down' is the date of service not within receipt of or from receipt

 

The section it is quite clear uses EXPLICITLY ONLY the words after date of service

 

Diddydicky has touched on this above and I do also wonder that if these guests are 'learning' how is it they are still getting it wrong.

 

Are their systems so inflexible that it should cost them more to correct this and so afford to lose 'the odd contest'

 

In order to avoid all this ambiguity the Section must be interpreted LITERALLY and brought to the Judge's attention

 

Excellent, I think we are slowly getting a better argument together with what you have said and what DD has said above. We all know it makes perfect sense that a date MUST be specified, but we also KNOW they are all going to argue that it doesn't, otherwise they have to accept defeat, so we need a strong enough argument to make them cave in before it goes before an unreasonable Judge!

 

Even though a judgement against this may be overturned on appeal, we really need to get the job done at the first hearing and avoid the extra stress of more hearings (unless you enjoy them, I suppose! )

[means2anend]

Let them accept defeat..The wording is Parliaments Will

[colin21958]

I have a couple of questions which maybe someone can help with as far as s87 and 88 are concerned:

 

87. (1) Service of a notice on the debtor or hirer in accordance with section 88 (a " default notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,-

(a) terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e) to enforce any security.

(2) Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective.

(3) The doing of an act by which a floating charge becomes fixed is not enforcement of a security.

What does this sentence mean?

(4) Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.

Does anyone know of any regulations which do provide this, and if so to what type of agreement do they relate?

 

Thanks,

 

Colin

Edited May 28, 2010 by colin21958

[colin21958]

Let them accept defeat..The wording is Parliaments Will

 

Yes, but tell the Judges that! They don't care! It is clear from many threads on here that the Judges make it up as they go along, and in most cases accept whatever the "legal" representatives say when up against an LIP, even if its a load of twaddle (which usually it is!).

 

The arguments we use HAVE to be convincing and also put across as convincingly, if not even more so, that the other side's, otherwise the losing streaks and appeals will continue!

[colin21958]

the receipt of a document can only be confirmed by the recipient- not by the sender

Agreed, but there are as you put below strict guidelines on how long service "takes" by post, and as long as they can prove posting, they don't need to prove delivery. The date of service is therefore only determined by the date of posting (unless it can be proved otherwise)

 

the sender would have to state that the debtor had 14 days from the date of SERVICE of the DN- and then have proof of when it was served by hand on the debtor

What possible proof can there be other than perhaps a photograph of them taking the letter from someone's hand? I think that is the only way that can be achieved?

- or by post to his last known address ( 1st class 2 working days after posting or 4 working days after posting 2nd class)

By way of proof of posting (e.g., certificate of posting)

 

one would be entitled to question, if the sender was intelligent enough to work out, from the method of posting, what day the DN would be considered served- why he could then not work out the actual compliance date and endorse the DN with that "specific" date as required

Absolutely agree.

 

if the recipient was for instance on holiday or working away from home and arrived home to find the letter on his doormat-and given that letters no longer bear a date of posting - how would he know how long it had lain on his doormat or when it was "served" and by what date he must comply??

Excellent point and one which would swing it I think...

 

If the court applied the "Acid Test" as to whether in the eyes of a "right thinking person" or the "chap on the clapham omnibus" they would consider that the creditors Default Notice had left the debtor in "no doubt as to what action he must take, and by a speficied date", i venture to suggest that the answer would be NO

Have you quoted this from somewhere? I seem to remember reading it somewhere before, was it the OFT guidelines or from a case law judgement?

 

hence the requirement within the act for the creditor to "specify" a date by which the debtor must comply, and the overriding requirement that the creditor must ensure that the debtor is left in "no doubt" as to what he did wrong, what he must do to remedy the situation, and by what date he must do so

Also is this from the same place?

 

Thanks,

 

Colin

[means2anend]

It is quite interesting when one thinks of a specified date.The specified date is never normally communicated to the recipient.

 

The only date that is ever 'specified' is on the DN itself.But this is not THE SPECIFIED DATE..an oxymoron

 

THE SPECIFIED DATE in truth and in practice is The Date Of Service and this is not communicated in any way verbally or written.

 

This is where the practicalities of life, law and logic do not see eye to eye.

Edited May 28, 2010 by means2anend