Invalid Default Notices

[emandcole]

I'm not entirely sure the highlighted part is correct. I've always understood the correct form for them is 'before'. The prescribed terms for the content of the DN are below, so whatever way you look at it it is expected that payment reaches them before x date.

 

Not having looked at the DN in question I can't comment on that itself, but I'm pretty sure the use 'before' is ok - it does normally go in our favour though as the banks seem incapable of realising this and don't give enough time for remedy:)

 

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH

 

"IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]"

 

Hi Lexis - know what you mean. However if they rely on the word Before and not By it's possible for the debtor to question when this is, before could mean the date the notice was received, or perhaps its the date the day after...all of these being before the date shown. Technically use of the word before could mean (subject to a semi-absurd argument) that payment of default sums was actually due a year ago thus you weren't given the required 14 days!

 

Daft yes, but equally it opens the date issue up to scrutiny and questionning and this should never be the case.

 

In contrast use of the word by makes it plainly clear as this is clearly the latest payment can be made.

 

I'd rely on the bit about the debtor being presented with a clear document rather than being presented with a puzzle. Sure we understand what the default is getting at but there are many in society who do not or cannot understand a demand unless it is perfectly clear and beyond contemplation.

 

[mot22]

Greetings.

I am confused with respect to the amount of arrears due in relation to an UR?

Where one states in their letter of acceptance of UR:-

"...I note that you are only now entitled to claim those arrears genuiely due at the time of the termination..."

Are the arrears always and only those stated in the DN regardless of when termination occurs?

Because in some instances termination (via either a letter of termination or demanding full balance) is some time after an invalid DN.

Thanks for any assistance..

Would appreciate any feedback on this?

Many thx..

[diddydicky]

bank hols are not counted for service (post) but are counted in teh time given for remedy

 

i am not aware of any relief given for bak holidays in this respect

[diddydicky]

bank hols are not counted for service (post) but are counted in teh time given for remedy

 

i am not aware of any relief given for bak holidays in this respect

 

ps ive got a DN dated on a sunday

[jamtastic]

I am just after some advice on default notices and DCA's

 

I had a loan with Sainsburys which defaulted in April 2004, the default has now dropped off my credit report but Lowell Financial are chasing for the debt. I had CCA'd them and they came back with a CCA which may possibly be enforceable. (the only thing thats wrong with it is that the Right to Cancel box is missing by the signature)

 

While I'm waiting for the SAR's to come back I just wondered if there was an invalid default notice on there what does it mean? As the default has already disappeared off my credit report there's no reason to contest it is there?

 

The one thing I'm worried about is Lowell applying for a CCJ and I just wondered if there was anything to do with defaults that I can use against them?

 

Thanks for any replies, also I seem to remember reading somewhere if you have an invalid default and the debt has been passed onto a DCA and it goes to court or something that they can apply for a new default? I may have read it wrong though as it was a little while ago!

[Undercover-Elsa]

Hi Jamtastic,

By default Notice we refer to the letter they send about a month prior to putting a notice of default on your credit file stating that you have breached conditions of your agreement and stating what you can do to remedy the breach. (confusing, I know.. ).

It's only of value if you actually have your copy of the Default Notice letter, and if it's not worded correctly or given you enough time to remedy. In 2004 that would have been 7 days.

A Subject Access request would probably only throw up a record of when they issued the DN, they don't keep copies.

When was the last time you made a payment or acknowledged this account in writing? If it's more than 6 years then it would be Statute Barred.

 

Elsa x

Edited June 15, 2010 by Undercover-Elsa

[means2anend]

Jamtastic

 

Firstly we need to know if your alleged agreement was a cancellable agreemeent.And we also need the date you allegedly concluded that agreement.Without divulging personal details can you give the date agreement was allegedly made.

 

s67(b) determines whether you agreement is cancellable

which category applied to you if any?

 

 

67. Cancellable agreements.

 

A regulated agreement may be cancelled by the debtor or hirer in accordance with this Part if the antecedent negotiations included oral representations made when in the presence of the debtor or hirer by an individual acting as, or on behalf of, the negotiator, unless—

(a)the agreement is secured on land, or is a restricted-use credit agreement to finance the purchase of land or is an agreement for a bridging loan in connection with the purchase of land, or

(b)-the unexecuted agreement is signed by the debtor or hirer at premises at which any of the following is carrying on any business (whether on a permanent or temporary basis)—

(i) the creditor or owner;

(ii) any party to a linked transaction (other than the debtor or hirer or a relative of his);

(iii) the negotiator in any antecedent negotiations.

 

You must not fall into any of the conditions specified in (b) i-iii for the agreement to be cancellable

 

 

m2ae

Edited June 15, 2010 by means2anend

[pumpytums]

Greetings.

I am confused with respect to the amount of arrears due in relation to an UR?

Where one states in their letter of acceptance of UR:-

"...I note that you are only now entitled to claim those arrears genuiely due at the time of the termination..."

Are the arrears always and only those stated in the DN regardless of when termination occurs?

Because in some instances termination (via either a letter of termination or demanding full balance) is some time after an invalid DN.

Thanks for any assistance..

 

The arrears will be those due at the point of termination for example :-

 

The OC sends a DN then while the DN is active demands the full amount. Arrers would be those shown on DN.

 

The OC sends a dodgy DN insufficient time etc then sends a termination letter 1 month latter, arrears will be the amount on the DN plus the 1 month.

 

The OC sends a dodgy DN insufficient time then terminates at the date on DN arrears will be those shown on the DN

 

The OC sends a dodgy DN then terminates a year later arrears will be amount on DN + 1 year. Though you could argue that the agreement ends when they say it will 14 days latter. I think DD did a post about this.

 

As always termination is the key, If you believe that they have terminated and have a dodgy DN. You may need to prove you have accepted the UR as DD has said many times a UR letter is belt and braces. But stopping payments is another or both together. At the end of the day it's your choice.

 

I would be interested to hear peoples view on sending a UR letter receiving a reply to it then paying off the arrears?

 

Pumpytums

[pumpytums]

I am just after some advice on default notices and DCA's

 

I had a loan with Sainsburys which defaulted in April 2004, the default has now dropped off my credit report but Lowell Financial are chasing for the debt. I had CCA'd them and they came back with a CCA which may possibly be enforceable. (the only thing thats wrong with it is that the Right to Cancel box is missing by the signature)

 

While I'm waiting for the SAR's to come back I just wondered if there was an invalid default notice on there what does it mean? As the default has already disappeared off my credit report there's no reason to contest it is there?

 

The one thing I'm worried about is Lowell applying for a CCJ and I just wondered if there was anything to do with defaults that I can use against them?

 

Thanks for any replies, also I seem to remember reading somewhere if you have an invalid default and the debt has been passed onto a DCA and it goes to court or something that they can apply for a new default? I may have read it wrong though as it was a little while ago!

 

Could be statute barred, has it been more than 6 years since you made a payment or admitted to it in writing?

 

 

Pumpytums

[jamtastic]

Could be statute barred, has it been more than 6 years since you made a payment or admitted to it in writing?

 

 

Pumpytums

 

unfortunately not, the last payment was in jan 2009 but thank you!

[jamtastic]

Jamtastic

 

Firstly we need to know if your alleged agreement was a cancellable agreemeent.And we also need the date you allegedly concluded that agreement.Without divulging personal details can you give the date agreement was allegedly made.

 

s67(b) determines whether you agreement is cancellable

which category applied to you if any?

 

 

67. Cancellable agreements.

 

A regulated agreement may be cancelled by the debtor or hirer in accordance with this Part if the antecedent negotiations included oral representations made when in the presence of the debtor or hirer by an individual acting as, or on behalf of, the negotiator, unless—

(a)the agreement is secured on land, or is a restricted-use credit agreement to finance the purchase of land or is an agreement for a bridging loan in connection with the purchase of land, or

(b)-the unexecuted agreement is signed by the debtor or hirer at premises at which any of the following is carrying on any business (whether on a permanent or temporary basis)—

(i) the creditor or owner;

(ii) any party to a linked transaction (other than the debtor or hirer or a relative of his);

(iii) the negotiator in any antecedent negotiations.

 

You must not fall into any of the conditions specified in (b) i-iii for the agreement to be cancellable

 

 

m2ae

 

I'm going to have to reread this when I get home as not sure I understand fully, will be back on later! thank you!

[Dotty50]

you are confusing a Default Notice with a Notice of Default

 

two different animals!!

 

That's what I thought DD, however OH today received from Cap 1

 

Notice of Default served under s87(1) of the CCA 1974.

 

Payment required within 28 days of the date of the letter etc.

 

IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU.

 

We will terminate you account and issue you with a Statement of Default.

 

It also states that if you have a payment arrangement with us - thank you. Please ignore this letter!

 

Muppets!

[Drederick Tatum]

That's what I thought DD, however OH today received from Cap 1

 

Notice of Default served under s87(1) of the CCA 1974.

 

Payment required within 28 days of the date of the letter etc.

 

IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU.

 

We will terminate you account and issue you with a Statement of Default.

 

It also states that if you have a payment arrangement with us - thank you. Please ignore this letter!

 

Muppets!

 

They sent me the same on the weekend.

 

 

[Dotty50]

Thanks Drederick,

 

Not got access to a scanner today, yes it's the same

[mot22]

Pumpytums...many thx...

[jamtastic]

Jamtastic

 

Firstly we need to know if your alleged agreement was a cancellable agreemeent.And we also need the date you allegedly concluded that agreement.Without divulging personal details can you give the date agreement was allegedly made.

 

s67(b) determines whether you agreement is cancellable

which category applied to you if any?

 

 

67. Cancellable agreements.

 

A regulated agreement may be cancelled by the debtor or hirer in accordance with this Part if the antecedent negotiations included oral representations made when in the presence of the debtor or hirer by an individual acting as, or on behalf of, the negotiator, unless—

(a)the agreement is secured on land, or is a restricted-use credit agreement to finance the purchase of land or is an agreement for a bridging loan in connection with the purchase of land, or

(b)-the unexecuted agreement is signed by the debtor or hirer at premises at which any of the following is carrying on any business (whether on a permanent or temporary basis)—

(i) the creditor or owner;

(ii) any party to a linked transaction (other than the debtor or hirer or a relative of his);

(iii) the negotiator in any antecedent negotiations.

 

You must not fall into any of the conditions specified in (b) i-iii for the agreement to be cancellable

 

 

m2ae

 

Okay so think I get it now...

 

I signed the alleged agreement at home

(i) I dont conduct any business there and neither does the owner

(ii) there was no party linked to the transaction

(iii) Im not too sure what this means but there wasnt a negotiator there when I signed it

 

The agreement was allegedly made in January 2003

 

I'm not too sure what "the date I allegedly concluded that agreement" means *scratcheshead* but the default was registered on to my account in April 2004 and has since dropped off

 

Hope I got that all right! Thank you!

[means2anend]

Okay so think I get it now...

 

I signed the alleged agreement at home

(i) I dont conduct any business there and neither does the owner

(ii) there was no party linked to the transaction

(iii) Im not too sure what this means but there wasnt a negotiator there when I signed it

 

The agreement was allegedly made in January 2003

 

I'm not too sure what "the date I allegedly concluded that agreement" means *scratcheshead* but the default was registered on to my account in April 2004 and has since dropped off

 

Hope I got that all right! Thank you!

 

 

 

the Lynchpin is where YOU signed!

 

Examples-

 

You go into branch and discuss the general terms with the advisor and are given the unexecuted agreement to sign and a copy of that unexecuted agreement.On this 'occasion' you decide not to sign but take both sets away with you.Or on this 'occasion' you may sign but sign in the wrong place.

So on this Occasion it remains an unexecuted agreement..This situation is regulated by-

 

62. Duty to supply copy of unexecuted agreement. — (1) If the unexecuted agreement is presented personally to the debtor or hirer for his signature, but on the occasion when he signs it the document does not become an executed agreement, a copy of it, and of any other document referred to in it, must be there and then delivered to him.

 

You telephone the branch about taking out a loan or credit card but want both sets sent to you by post..I shall assume for now that 'by an appropriate method' had not amended 'by post' as your agreement was Jan 2003 and this amendment did not take effect until 31/12/2004 in answer to agreements being concluded on line.

 

In both of the above cases 'antecedent negotiations have taken place'' see s59]

 

The above scenario is regulated by-

 

62 (2) If the unexecuted agreement is sent to the debtor or hirer for his signature, a copy of it, and of any other document referred to in it, must be sent to him at the same time

 

You said you signed at home therefore you did not fall into any of the conditions in s67(b) paras i-iii

 

Therefore it is a Cancellable Agreement.

 

You now need to find where the forms can be found.Your agreement was Jan 2003..Therefore the Schedules to Consumer Credit Agreement Regulations 1983..

 

Remember just like Notice of Default is a different animal to Default Notice so it goes with Cancellation Notices and a Notice of Cancellation.

 

If my memory serves me correct you should have been given a right to cancel in a required form but cannot remember which..whether it was 'You have a short time to cancel...or You have 14 days ...

 

m2ae

[means2anend]

Once your agrement becomes executed..

 

Section 63 then comes into play...and remember both the executed agreement and a copy of the executed agreement should literally have two sets of signatures on each document 'executed agreement' is defined in s189(1) as signed by both debtor AND lender.

 

 

But I think we should not depart too far from the subject of THIS thread!

 

 

m2ae

[Bigdebtor]

I have heard a judge will allow the OC to sign the agreement in front of him/her - so preventing that from being a reason to avoid paying the debt.

 

BD

[patrickq1]

HOMER J you need to see the computor screen printouts for that day and possibly a couple of days before and after.....you will then find more than likely no letter was written accept to say a possible reconstruction .....did you actually receive the letter they say they sent ? on the 8 or 7 without going back to look...just to many threads on here and getting a bit lost as to who's who' and whats said ...come on mods clean it up...

[patrickq1]

I have heard a judge will allow the OC to sign the agreement in front of him/her - so preventing that from being a reason to avoid paying the debt.

 

BD

i dont think that could happen unless you ask on what terms then you can dictate your own terms ie not to pass data etc...and if you do not accept the oc terms what then you cannot be forced to accept something just because a smart assed judge thinks he can do what he wants ....

my opinion only but a very strong opinion they would have to jail me for life for contempt because i would never sign under durress...

patrickq1

[Bigdebtor]

P

 

NOT WHAT I SAID - the OC - ORIGINAL CREDITOR - offers to sign in front of the judge and is allowed to do so.

 

If your signature is not there - then I agree it's game over for the OC - no enforceable agreement - as clearly the debtor won't sign then - but the creditor will if given the chance.

 

BD

[jamtastic]

the Lynchpin is where YOU signed!

 

Examples-

 

You go into branch and discuss the general terms with the advisor and are given the unexecuted agreement to sign and a copy of that unexecuted agreement.On this 'occasion' you decide not to sign but take both sets away with you.Or on this 'occasion' you may sign but sign in the wrong place.

So on this Occasion it remains an unexecuted agreement..This situation is regulated by-

 

62. Duty to supply copy of unexecuted agreement. — (1) If the unexecuted agreement is presented personally to the debtor or hirer for his signature, but on the occasion when he signs it the document does not become an executed agreement, a copy of it, and of any other document referred to in it, must be there and then delivered to him.

 

You telephone the branch about taking out a loan or credit card but want both sets sent to you by post..I shall assume for now that 'by an appropriate method' had not amended 'by post' as your agreement was Jan 2003 and this amendment did not take effect until 31/12/2004 in answer to agreements being concluded on line.

 

In both of the above cases 'antecedent negotiations have taken place'' see s59]

 

The above scenario is regulated by-

 

62 (2) If the unexecuted agreement is sent to the debtor or hirer for his signature, a copy of it, and of any other document referred to in it, must be sent to him at the same time

 

You said you signed at home therefore you did not fall into any of the conditions in s67(b) paras i-iii

 

Therefore it is a Cancellable Agreement.

 

You now need to find where the forms can be found.Your agreement was Jan 2003..Therefore the Schedules to Consumer Credit Agreement Regulations 1983..

 

Remember just like Notice of Default is a different animal to Default Notice so it goes with Cancellation Notices and a Notice of Cancellation.

 

If my memory serves me correct you should have been given a right to cancel in a required form but cannot remember which..whether it was 'You have a short time to cancel...or You have 14 days ...

 

m2ae

 

They posted me the credit agreement, they had already signed it and I'm pretty sure I signed it and sent it back.

 

I've still got my original copy of the credit agreement at home so should I look for a right to cancel form?

 

I'm a little bit confused (sorry) I do have a thread titled Please help - Enforceable Agreement if its getting too off topic for this thread.

 

Unexecuted and executed I'm still not sure I understand the difference, is it just whether you've signed it or not? I'm pretty sure I spoke to someone at Sainsburys bank, they posted out the forms I signed them at home and sent back a copy...

 

Sorry, I'm probably being useless!

[Melbel]

I have written to NatWest demanding they send me a copy of my valid default notice (i never had one) & the CCA agreement or they must remove the default.

 

They still havent sent me a CCA and they are under the impression they do not have to proove the default. They said it was a computer generated letter that went out in 07 and they cannot get a copy. I will bump my relevenat thread on this later and list the contents of the letter...

 

Surely this is wrong?

[colin21958]

I have written to NatWest demanding they send me a copy of my valid default notice (i never had one) & the CCA agreement or they must remove the default.

 

They still havent sent me a CCA and they are under the impression they do not have to proove the default. They said it was a computer generated letter that went out in 07 and they cannot get a copy. I will bump my relevenat thread on this later and list the contents of the letter...

 

Surely this is wrong?

 

Have they demanded the full outstanding balance or sent a termination letter? Have you been making any payments? Have you got a thread of your own on here?