Invalid Default Notices

[pt2537]

Dear DD

 

Is it possible to provide where it is stipulated that a NOA must be served by recorded mail, will be good to keep for reference...

Holwell Securities Ltd v Hughes - [1973] 2 All ER 476

[lord_tiger_putin]

thanks pt!

[pt2537]

It seems to me from s 196, and also as a matter of construction, that the intending vendor must get

the notice, and subject only to the exemptions provided by s 196, namely that you take every possible reasonable

precaution by giving it by registered post, and the notice is not returned undelivered. But it will be noticed that, when

you use the registered post procedure, it is not the time when you hand it over to the Post Office which counts but

the time when, in the normal course of events, it ought to reach, and nearly always does reach, the addressee.

Accordingly, I do not think the cases which counsel for the plaintiffs cited are relevant here and in my judgment the

notice had to be received by the defendant, and it clearly was not received.

[mystery1]

Case Law Update - Rosling King Blog Archive August 2009: Lender Update

 

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/1973/5.html&query=holwell&method=boolean

 

M1

[middenmess]

I don't see 'First class with a certificate of posting' or even 'Recorded Delivery' as being the modern day equivalent of 'Registered Post'

 

It would have to be 'Special Delivery' as this is the only guaranteed service of the three surely.

[lord_tiger_putin]

This bothers me a bit:

The postal service “registered post” no longer exists. Instead, a notice should now be sent either as first class post with a certificate of posting (available through Royal Mail) or by recorded delivery;

 

A letter with a certificate of posting do not guarantee delivery, or even proof of delivery. When received you also would not know whether the sender do have such a certificate, off course you can claim you haven't receive it

[Halibutt]

I don't see 'First class with a certificate of posting' or even 'Recorded Delivery' as being the modern day equivalent of 'Registered Post'

 

It would have to be 'Special Delivery' as this is the only guaranteed service of the three surely.

 

Certificate of posting only proves that you've sent something, the date, the value it's insured for, etc.

 

With recorded delivery though, you can prove date and time of sending an item and track & trace the item, including the date and time it was delivered and the signature of the person who signed for it. You can check this online via the Royal Mail track & Trace site as well as requesting hard-copy proof.

[Duffers Mum]

Charlie...trust me...I have

 

I love this site and all the helpful people on it, I might not understand everything first time - but I am geting better..honest )

[pumpytums]

I popped a thread up about this links to documents too.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/244843-registered-mail-definition.html

 

This link is very useful

 

Viewing Page 4514 of Issue 55826

 

 

Nice explanation of UR Elsa.

 

Pumpytums

[middenmess]

Certificate of posting only proves that you've sent something, the date, the value it's insured for, etc.

 

With recorded delivery though, you can prove date and time of sending an item and track & trace the item, including the date and time it was delivered and the signature of the person who signed for it. You can check this online via the Royal Mail track & Trace site as well as requesting hard-copy proof.

 

A certificate of posting only proves that the item was received at a Post Office counter and entered the postal system,nothing else.

 

Recorded delivery is a little better but can take several days to arrive as it is delivered in the general course of all mail but Special delivery is a dedicated service with the items being kept separate from the ordinary mail and with guaranteed next day delivery by 9am or 1pm.

 

In my opinion it should be mandatory that all and any documents sent out by the original creditor or DCA's relating to D/N's or any other matter that might end up with legal proceedings being taken should be sent by Special Delivery.

 

Spending over £5 per letter on postage would hopefully focus their minds on the facts and put an end to the production of later 'recreations' of what they said they sent on a particular day and would save a good deal of court time in the long run.

[means2anend]

In reality the recorded delivery track n trace is sometimes 'down' in the sense that they ''do not yet have an 'epod' and I know from experience that when sent first class...it does not arrive ''in the ordinary course of post'' but sometimes WEEKS LATER..how can this be when it was also sent 1st Class....one possible answer for this could be that the particular person to sign for it was not found,absent or sick and it could mean that while we are ''thinking'' that the post had arrived at the destination it in all probability has been and is returned to DEPOT just sitting there for weeks as we carry on our normal day activities trying to progress the situation to the next stage....only to be met weeks down the road with an ''sorry but we did not receive any mail to that effect:rolleyes:

 

m2ae

[mystery1]

I've had replies to recorded delivery letters when the track and trace shows non delivery.

 

M1

[means2anend]

I am glad that this is the case M1...but I am concerned about the ''duration of uncetainty'' when your next move needs to be done promptly and you cannot because one does not know with absolute confidence that there is indeed a signature for it.

 

One can move to the next stage as soon as a 'epod' has been shown...instead of having to wait for a reply that might or might not come.

 

m2ae

[lord_tiger_putin]

If the creditor unlawfully terminates the agreement, it is not terminated. If you accept the termination, then it terminates. I think this is the way it is but why does it terminates when you accept their termination, any references to it...

[Undercover-Elsa]

Because the creditor's termination is unlawful if not preceeded by a valid default notice. He can only lawfully terminate if he has got the DN right. Once he terminates without a valid DN (or demands full balance) then he has committed repudiatory breach of the contract. At this point the injured party (the debtor) can choose to either accept the termination (thus rescinding the agreement) or insist that the creditor correct their breach by issuing a correct DN.

But we wouldn't want to do that would we?

[Dotty50]

Does anyone know anybody on here that has accepted UR and been given the amount of the true arrears, paid in full and walked away?

 

I understand the concept but would be interested to hear of any successes.

[mystery1]

Does anyone know anybody on here that has accepted UR and been given the amount of the true arrears, paid in full and walked away?

 

I understand the concept but would be interested to hear of any successes.

 

I doubt it. Maybe a judge might understand the law and apply it though.

 

M1

[pumpytums]

I have received a letter in response to a UR letter, stating the contents were noted and the arrears are X.

 

The Creditor sent me a letter from their in-house DCA undated clearly stating "immediate settlement of the above debt" I stopped making token payments and sent a UR letter. They had previously sent 4 dodgy DN's. I sent the UR letter while the DN was active. The day I sent the letter they even phoned me up, I asked if they wanted the full debt they said yes I said well in that case please refer to letter I have posted today. They then accused me of being sarcastic.

 

Stupidly they then did it on another account sent a well dodgy DN with the phrase "14 days after service" then proceeded to send a termination letter. The DN was 4+ days short I accepted that one too. No response to that letter yet however.

 

Pumpytums

Edited July 8, 2010 by pumpytums

[diddydicky]

a certificate of posting would be as much use as a chocolate fireguard!

 

the whole point of the act is to show that the notice was served- not sent!

 

thus an assignee or assignor who merely presented a certificate of posting to show proof of service would- i suspect- fail at the first hurdle

[lord_tiger_putin]

Should a DCA issue a NOA before they can take you to court?

[diddydicky]

not if they acting on behalf of the creditor, no!

[lexis200]

I know it's not default stuff chaps but this member could do with some help. A DCA has started court action against them after sending only an illegible agreement and whilst the member was dealing with a different DCA.

 

I'm not up on court procedures but he/she could do with advice, so if anyone can pop in I'm sure they'd appreciate it.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/266902-legal-help-needed-what.html

 

Thanks x

[means2anend]

mmmm....

 

I seem to remember that I was hijacking this thread...

[frettful38]

I sent Vanquis an Unlawful Recission letter on 30 March 2010 after discovering my DN was faulty. Yesterday I received a letter from Vanquis stating that they had sold the debt to Lowell.

 

http://i450.photobucket.com/albums/qq223/sophiak_bucket/Picture005-1.jpg

 

This is the DN Vanquis sent

 

http://i450.photobucket.com/albums/qq223/sophiak_bucket/Picture001-8.jpg

 

as you can see no date on DN on page 2

 

http://i450.photobucket.com/albums/qq223/sophiak_bucket/Picture002-4.jpg

 

Letter received from Vanquis yesterday

 

http://i450.photobucket.com/albums/qq223/sophiak_bucket/Picture003-4.jpg

 

Vanquis sold debt to Lowell

 

http://i450.photobucket.com/albums/qq223/sophiak_bucket/Picture004-2.jpg

 

Any ideas what I should respond to this recent letter please? First this account was with 1st Credit Ltd and had been passed on to three different DCA's. I did make a complaint to the FOS, but after writing the unlawful recession letter I withdrew my complaint.

[lord_tiger_putin]

I received the same DN letter from them. I subsequently made a SAR which I received and the time for receiving any subsequently information is Monday, when the 40 days ran out.

 

Unless I receive anything before then I made the conclusion from the info received that they have only computer records, they DO NOT KEEP paper copies, meaning there is no record of any signed credit agreement. They received a CCA request from me together with a number of letters to provide the signed credit agreement, in which they also failed to provide it.

 

I think that good be useful information for anyone dealing with them.

 

I do have a question though; what to do next? Should I write to them requesting the “missing” information as well as a request that they tell me they do not have the “missing” information?

 

My take on the fact that they failed to provide the signed agreement after a SAR is (please correct me if I am wrong):

 

Should they actually have the signed agreement (and should it be enforceable) they can still take me to court and could be able to succeed and I can only prosecute them for failure to comply with the DPA.

 

BUT

 

By taking me to court they then ADMIT they breached the DPA.

 

The question is then? Say they argue they did send it when I requested the SAR, how can I proof them wrong?