Invalid Default Notices

[lexis200]

I'm very glad about that, Lexis, but seriously, how do you choose a forum for a thread?

 

Sorry DD, I didn't realise you needed a leg-up, so to speak:)

 

I do the same as Dotty - find the relevant forum, click on it then click the new thread button at the top left.

[colin21958]

From memory, doesn't the court assume post is 2nd Class if there is nothing to prove otherwise?

 

They could just produce a witness statement that it had been posted first class, but as DD has already explained the DN is faulty because the date is wrong! Once they terminate the account or demand the full balance write to them accepting their unlawful rescission of the agreement...

[lexis200]

I was only giving a thought on the keeping the envelope query rather than anything to do with the validity or otherwise of the DN, but I take your point. Of course if they did state that it was sent 1st class I'd be asking for proof showing that all their DN's/correspondence are sent in a similar manner.

 

Drederick - even if you don't have that envelope, make sure you keep any others from them. I'd guess they are sending everything 2nd class? If so, if they then did make a witness statement saying they sent it 1st class you could throw doubt on that by querying why every other item you receive is sent 2nd class. Being able to show a postage history is a useful thing:)

[diddydicky]

Thank you all for your comments.

 

Am I right in thinking they have to terminate before I post an unlawful rescission letter? Also by posting this would I be admitting the debt?

 

A question for DiddyDicky...

 

 

 

If I didn't have the envelope, would it be up to me to prove that the letter was posted second class or would it be down to Mercers to prove they sent it first class?

 

as colin has said- if they swear an affidavit that they posted first class then you would need to have an envelope showing second class or private carrier to defeat that statement (as a rule)

 

also you have admitted (on a public forum) that it was first class and it would not be the best idea in the world to now deny that fact.

 

rest assured the dn is invalid

 

technically you could take the DN itself as an unlawful termination but much better to wait for a demand for the full amount or termination- dont worry however because writing to accept is simply a "belt and braces" exercise- your conduct following the unlawful repudiation is sufficient to show you have accepted it (and for which reason you should not pay or offer to pay them anything - and better still- stay totally silent and respond to no letters until the terminate/demand the outstanding balance/issue proceedings

[lexis200]

as colin has said- if they swear an affidavit that they posted first class then you would need to have an envelope showing second class or private carrier to defeat that statement (as a rule)

 

also you have admitted (on a public forum) that it was first class and it would not be the best idea in the world to now deny that fact.

 

rest assured the dn is invalid

 

technically you could take the DN itself as an unlawful termination I'd personally only agree with that if they use the word 'will' rather than 'may' before their list of actions though...but much better to wait for a demand for the full amount or termination- dont worry however because writing to accept is simply a "belt and braces" exercise- your conduct following the unlawful repudiation is sufficient to show you have accepted it (and for which reason you should not pay or offer to pay them anything - and better still- stay totally silent and respond to no letters until the terminate/demand the outstanding balance/issue proceedings

 

btw - why did the question arise when it was invalid even when sent 1st class?

[diddydicky]

i accept you point- however the purpose and intent of the DN (which is a prescribed legal document- not a debt threatening letter) is for the creditor to leave the customer in no doubt as to what he has done wrong, what he must do to remedy it, and when, and what the consequences are, of failing to do so

 

the use of the word "may" therefore is permissory

 

(i have no english qualifications) however

 

what the creditor is saying is that failing to remedy then gives entitlement to the creditor to do those things he states - in other words if you fail to comply then the law allows him to claim the benefits of s87

 

as in

 

" when you have eaten your tea you MAY go out to play"

going out to play being a consequence of having eaten the tea- once the tea is eaten the child then has permission to go out to play

 

(once the customer fails to comply with the dn Then (and only then) the creditor "may" (can) claim his entitlements under s88)

 

whereas

 

" if i feel like it i MAY go out to play"

 

merely indicates that the writer might decide at a later time to do so

 

(hope the analogy is good)

Edited June 11, 2010 by diddydicky

[lexis200]

Yep it is - especially given that I've just been having a battle of wills with my little one about what he may or may not do. He's winning:rolleyes:

 

I'd still prefer personally to assume it's terminated only once they put it in black and white, either by the use of 'will', or by letter -or of course as you say by claiming the full balance. But then I do realise you're not saying it does definitely mean xy and z, you're only giving examples, so I'm not going to get into a big 'ol debate about it;) I've had enough of that already with my son:D

[diddydicky]

yes its no big deal- the only danger in waiting is that if it drags on for months without the waited letter arriving

[means2anend]

Schedule 2 Reg2(2)

 

2-The name of the Creditor Or Owner and it's postal address

 

3-(a) and (b)The nature of the alleged breach of the agreement has been specified BUT the provision of the agreement alleged to have been breached has not been specified

 

© It is quite possible that by requiring you to make payment BEFORE 24th June is not the same thing as requiring payment to be made ''not later than 24th June.''In the former situation you would only have 13 days and the latter the required prescribed 14 days.

 

For the full prescribed 14 days they should have said BEFORE 25th

JUNE

 

4-the prescribed words in the form ''Consequences of failure to comply with default notice''-SHALL follow the specification under paragraph 3© or (d) of any action required to be taken

 

The notice has failed to include

 

Action intended to be taken by creditor or owner

 

6-A clear and unambiguous statement by the creditor or owner indicating, if any action specified under paragraph 3© or

(d) as required to be taken is not duly taken or if no such action is required to be taken, the action which he intends to take by reason of the breach by the debtor or hirer of the agreement--

(a) to terminate the agreement;

(b) to demand earlier payment of any sum;

© to recover possession of any goods or land;

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

(e) to enforce any security;

(f) to enforce any provision of the agreement which becomes operative only on a breach of another provision of the agreement as specified in the notice, at any time on or after the date specified under paragraph 3© or (d), or, if no action is specified under that paragraph as required to be taken, indicating the date, being a date [not less than fourteen days] after the date of service of the notice, on or after which he intends to take any action indicated in this paragraph.

the notice seems to be missing the above paras

 

If I have missed anything I am sure the others will help!

 

IMPORTANT the above was based on the assumption that it was 1st Class Postal Service

 

Rgds

 

m2ae

 

here is the reference to the Schedules (again!)

 

note the point that was being made about creditor/owner of the loan and not pretending to be

[vint1954]

Okay, as far as DN's go, banks will ignore your comments and still post then onto CRA's. You can scream at the CRA's but they'll merely send your remarks to the originating entry bank and you'll simply get a 'The information is correct'. Now the DN is there (for 6 years) the issue is how to force it off without going to court. Who said justice was fair?!

 

Michael

Until you send them an N1, then they start to think

[vint1954]

 

 

They must show the creditors address on the DN, so Barclays. They have not

[Scrapper]

I still don't know how to put a new thread in a particular forum. (I've only been here for 18 months!)

 

Here you go DD http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

Hope that helps

 

Thanks

Scrapper Coco

[Hardupnotfedup]

Doesn't that mean the copy posted from Northampton is not the same copy physically signed in Liverpool - or does the signer just call on Scotty to beam him down with the transmitted letter. :???:Does this matter?

 

I still think it's worth asking all of these questions? If nothing else it will satisfyb our thirst for knowledge!

 

In any case are you saying our legal system recognises the existence of such technology?

 

BD

 

Any letter that has the insignia of one of the alternative mail companies (DHL,TNT,UK MAIL,SECURE MAIL etc. Has to be looked upon has 2nd class simply because of the time that it takes for these companies to put it into the Royal Mail system, who then deliver it the next morning after receipt.

It is 2nd class at best believe me.

[diddydicky]

if sent by first class service by one of these companies- i maintain that they could make out an argument that it was delivered as first class mail- but in three days rather than two and not four

 

i would therefore urge caution if defending on this point alone!!

 

as an example- if UK mail were to show that they collect mail everyday at say 3pm- then it could conceivably be delivered into the RM system the same day and then RM would deliver it as first class (in 2 days)

 

I am not saying that this is a general rule but remember you are dealing with some pretty imaginative lawyers and creditors

 

as a policeman- i was always told that in order to catch a theif- you had to think like a thief!!

[Hardupnotfedup]

they collect mail from the customer,

It is then sent to one of their processing centres,

It is machined etc to whatever postcode area the address is in

It is then transported to their depot nearest to one of the 67 Royal Mail centres around the country, it is then sorted again to the various mail centres in that area

it HAS to go to the mail centre that deals with that postcodes delivery offices

Eg: BN/RH is Gatwick, RG/OX/SN is Swindon, HA/NW/SL/UB is Greenford.

 

Royal Mail receive this mail between 09.00 and 13:00.

 

Once Royal Mail receive payment at their head office then the mail centres will be told to release into system.

If there are any anomalies in this process then the mail is held, and believe me there are a lot, example being that letters arrive at wrong mail centre then they get charged the full price for delivery, which delays items concerned.

 

There are so many conditions to these companies using the Royal Mail network.

 

One other thing to remember is that these companies are in no hurry after all it is RM that gets blamed for late delivery.

 

I have said too much but if someone wants more detail PM me, sorry but I will only answer questions from CAGgers I recognise.

[diddydicky]

very informative hardup- thank you

[alangee]

Quick question.

 

Prior to a default being placed on your credit file, does the original creditor have to send you a default notice?

 

Alan

[the_shadow]

Quick question.

 

Prior to a default being placed on your credit file, does the original creditor have to send you a default notice?

 

Alan

 

Alan,

 

The guidance the ICO give states they "should" but not they "must", however if they want to take action under the CCA then they have to have issued a default notice.

 

S.

[InformedSearcher]

Until you send them an N1, then they start to think

 

 

Sorry Vint ... N1??

 

Michael

p.s. I want them to think ... hard!

[the_shadow]

Sorry Vint ... N1??

 

Michael

p.s. I want them to think ... hard!

 

N1 = Court claim documents

 

S.

[vint1954]

N1 = Court claim documents

 

S.

Thats the ones!

[colin21958]

Okay, as far as DN's go, banks will ignore your comments and still post then onto CRA's. You can scream at the CRA's but they'll merely send your remarks to the originating entry bank and you'll simply get a 'The information is correct'. Now the DN is there (for 6 years) the issue is how to force it off without going to court. Who said justice was fair?!

 

Michael

 

Michael,

 

I think you are confusing a Default Notice with a record on the CRAs showing a default here?

[alangee]

Hi Shadow, thanks for that.

 

I have been looking at ICO's guidelines, and it points to the Lending Code, which all the banks and building societies subscribe to, in section 3:

36. Whether or not notice was given by the subscriber and consent was obtained from the customer at the time the account was opened, disclosure of default information can be made. But, in all cases, the customer must be given further notice of the intention to disclose the information at least 28 days before the disclosure is made (for example, when a default notice or formal demand is given). At the same time, customers must be given an explanation about how default information registered against them may affect their ability to obtain credit in the future. This notice will mean that customers have 28 days to try to repay or come to some arrangement with the subscriber before default information is passed to the CRA.

The reason I bring this up id due to Cabot saying that their is no requirement to produce a DN. However if you have been defaulted by the OC then, according to the Lending Code, a DN has to be served.

 

 

Alan

[diddydicky]

Hi Shadow, thanks for that.

 

I have been looking at ICO's guidelines, and it points to the Lending Code, which all the banks and building societies subscribe to, in section 3:

The reason I bring this up id due to Cabot saying that their is no requirement to produce a DN. However if you have been defaulted by the OC then, according to the Lending Code, a DN has to be served.

 

 

Alan

 

you are confusing a Default Notice with a Notice of Default

 

two different animals!!

[Desperate Daniella]

Thank you very much everyone for that posting info.