Invalid Default Notices

[Undercover-Elsa]

Reminds me of when I was going to the Solicitors about my Mums estate, and tripped on their wobbly step. I was only saved by grabbing the door handle. The door with the sign saying "HAD AN ACCIDENT?..."

 

[colin21958]

Reminds me of when I was going to the Solicitors about my Mums estate, and tripped on their wobbly step. I was only saved by grabbing the door handle. The door with the sign saying "HAD AN ACCIDENT?..."

 

 

That's priceless! Where are they? I think I'll pay them a visit!!!

[DontPushMe]

Hi Colin, two things that concern me about your Amex DN:

 

If the DN was invalid and you are using it as termination because they demanded or said they would demand the full balance (rather than receiving a separate termination notice after the invalid DN) so that you can claim UR, what is to stop them re-issuing it? They could argue that the DN wasn't meant as a termination notice.

 

If you carried on paying - even small amounts - after the termination by whatever method, then surely you are saying to Amex that you don't accept the UR and want the agreement to continue or endure. This means that you are back to square one and you should be wary of going on the attack as they could learn from CAG and send out a proper DN then a proper termination notice.

 

The above are, of course, just my opinion and I have probably missed something vital - I usually do!

 

DPM

[means2anend]

Your concerns are genuine because while this site keeps a step ahead of those dumkopfs they try to play catch up...reminds me of those forensic documentaries on tv where the criminals ''learn'' how to avoid making mistakes..

 

but some dumkopfs never learn:rolleyes:

 

m2ae

Edited July 20, 2010 by means2anend
this dumkopf changes make to making

[cab1ne]

this is what i find confusing,

what has unlawful rescission got to do with termination, looking at woodchester/swaine, unlawful rescission was committed at the default stage, due to the default being incorrect. the contract between woodchester/swaine was terminated automatically at trial by the judge. so imho, when a creditor terminates an agreement after a dodgy default and you wish to accept that termination, then just accept the termination, take the creditor for his word.

 

just an opinion

 

cab

[cupcake68]

You're welcome. Ask them to state the exact term with reference to your agreement by number. Hopefully they will reply with something which will give you some more ammunition! Let us know what happens...

 

Hi Folks!

 

Just had a reply from Mint.

 

They cannot reply to my letter until I sign it!!!!!!!!!!!

 

Cupcake

[cupcake68]

Also

 

I posted this on my Mint thread a couple of months ago but never got an answer.

 

Can anyone enlighten me?

 

Just seen this post by Diddydicky on another thread...

 

i also have noted that the creditor is required to issue a default notice under s87 (d) when he seeks to restrict use of the account or withdraw benefits such as for instance reducing the limit or putting a stop on further use of the card

 

and how many times do they actually use s87(d) to do that??

 

Should Mint have issued me with a DN because they have decided to close my account?

 

Cupcake

[means2anend]

Mint=RBS;)

[nks22]

If the DN was invalid and you are using it as termination because they demanded or said they would demand the full balance (rather than receiving a separate termination notice after the invalid DN) so that you can claim UR, what is to stop them re-issuing it? They could argue that the DN wasn't meant as a termination notice.

 

Termination doesn't require a formal notification. It can be assumed from their action in making a demand that is outside the terms of the credit agreement - in this case by demanding the full balance rather than a regular payment or arrears.

[Lord_Alcohol]

Termination doesn't require a formal notification. It can be assumed from their action in making a demand that is outside the terms of the credit agreement - in this case by demanding the full balance rather than a regular payment or arrears.

 

Until last night I thought this was perfectly correct, but am having some doubts this morning.

 

If you look at the wording of the Act, it states that a DN ( compliant with s88 ) is needed before the agreement can be terminated OR demands made for payment of any sum;

 

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) to terminate the agreement, or (ie, it doesn't say and!)

(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.

 

So the implication appears to be that the OC can demand the balance without terminating the agreement. This doesn't make much sense - what sort of agreement would be left where all credit has been withdrawn, goods repossessed, balance sought in court, etc? But the wording of s87(1) seems to say that the OC can seek the balance without terminating the agreement.

 

Until I had a closer look at s87 I did think that a demand for payment of the balance was effectively termination but now I'm not so sure.

 

I'm beginning to think that without the OC's explicit termination, we enter into a grey area where repudiation may or may not have occured. It might be an idea to encourage the OC to terminate, or to actively look for an indication of termination, such as writing to ask for an increase in a credit limit to try to obtain a letter from the OC that states that the agreement is terminated.

 

A TN, of course, is the perfect scenario. But not all OCs are as obliging.

 

Any ideas anyone? Sorry this is a bit negative.

 

LA

[means2anend]

LA

 

A section 103!!! lender is then bound by s172...

[Lord_Alcohol]

LA

 

A section 103!!! lender is then bound by s172...

 

Sorry to be a pain m2ae, but any chance of a brief explanation? I can't get my head around this at all...looking at s103 it seems to be about customers serving notices on the OC !! That can't be right...can it ?

 

LA

[means2anend]

deleted duplication

[means2anend]

103. Termination statements.

— (1) If an individual (the “customer ”) serves on any person (the “trader”) a notice— (a)stating that—

(i) the customer was the debtor or hirer under a regulated agreement described in the notice, and the trader was the creditor or owner under the agreement, and

(ii) the customer has discharged his indebtedness to the trader under the agreement, and

(iii) the agreement has ceased to have any operation; and

 

(b)requiring the trader to give the customer a notice, signed by or on behalf of the trader, confirming that those statements are correct,

the trader shall, within the prescribed period after receiving the notice, either comply with it or serve on the customer a counter-notice stating that, as the case may be, he disputes the correctness of the notice or asserts that the customer is not indebted to him under the agreement.

 

........I should have thought that where as you state above there is the existence of a grey area...without the debtor committing him/herself to the agreement once again where there is the issue of invalid DN and the Lender has remained silent NOT actually expressing termination either by notice or conduct the debtor may be able to take the initiatitive to have this clarified without continuing to make token or payments of any amount....that would have the effect of ''reviving'' what in effect should be an agreement that was terminated and that an UL had taken place...

 

m2ae

[means2anend]

Where the termination is obvious and we have seen that debtors simply state ''I accept your termination on the back of an invalid DN and UL this is effectively whether the debtor realises or not amounts to a s103 and s172 binds the trader to his own reply..in harmony with the latter part of s103 above where a reply MUST be given within the required period..I may be wrong but that is how i sense the application of those sections to those scenarios.

 

...The sections when applied this way kills off all the uncertainty of ''has it or has it not terminated'' AND the ''trader'' MUST reply within a time period.

Edited July 21, 2010 by means2anend

[Lord_Alcohol]

Where the termination is obvious and we have seen that debtors simply state ''I accept your termination on the back of an invalid DN and UL this is effectively whether the debtor realises or not amounts to a s103 and s172 binds the trader to his own reply..in harmony with the latter part of s103 above where a reply MUST be given within the required period..I may be wrong but that is how i sense the application of those sections to those scenarios.

 

Isn't 103(ii) the problem? The debtor needs to have no indebtedness to the OC. At a minimum he will owe the arrears.

 

Still a bit confused....:-?

 

LA

[pumpytums]

I think that once the creditor has served a valid default notice they can then do the things set out in s87 i.e demand sums not yet due, terminate the account etc. If they don't serve a valid DN they cannot do the things laid out under s87 with out breaching the agreement.

 

Basically the DN is the debtors last chance to sort things out as they are about to break the agreement. Unfortunately/fortunately the creditors usually get greedy and blow their right to s87 by not abiding by s88 and the relevant SI's. Thats my take on it anyway.

 

As we all know now a DN is a very important piece of Statutory Law and has to be correct more so in fact than the CCA. They still seem to make a pigs ear of it though. Blow s88 and your rights under s87 go bye bye.

 

Pumpytums

[means2anend]

Isn't 103(ii) the problem? The debtor needs to have no indebtedness to the OC. At a minimum he will owe the arrears.

 

Still a bit confused....:-?

 

LA

 

I see your point ...I guess it would depend on how wide or narrow that word would be interpreted in such a situation..case law is required..as I said it would only be useful where there is uncertainty in clarifying the matters as they were presently..

[pumpytums]

This may help:

 

Repudiatory breach: Repudiation of contracts - London lawyers & solicitors, UK

 

Term: repudiatory breach

1.

A repudiatory breach of contract is a breach of contract that goes to the very root of the contract, evidences intention on the part of the party in breach that they no longer intend to be bound by an essential term of the contract.

Breach of a fundamental term in this way entitles the innocent party to accept the breach of contract (that is the repudiation of the contract) and bring the contract to end, or alternately affirm the contract.

If the innocent party wishes to accept the breach and terminate the contract, they must do so unequivocally and without undue delay. Delay in its own right is not fatal, provided the innocent party does not do anything to affirm the contract in the interim, and it is prudent to put it on the record that the innocent party objects to the conduct.

 

 

So there is no time limit to accept, you simply have to accept it and not affirm the contract.

 

Sorry if this is off on a tangent guys. S

 

Pumpytums

[means2anend]

If the innocent party wishes to accept the breach and terminate the contract, they must do so unequivocally and without undue delay. Delay in its own right is not fatal, provided the innocent party does not do anything to affirm the contract in the interim, and it is prudent to put it on the record that the innocent party objects to the conduct.

 

 

Yes Pumpytums that is helpful but when does the debtor ''know'' that that is the situation much has been discussed on this thread about the point at which the debtor is aware or not as the case may be to accept or reject it is that specific issue that must be made clear to debtor..and I believe that ''putting it on record'' is the point of a s103 at the very least

[means2anend]

After all a central doctrine in contract is the maxim ''consensus ad idem'' a meeting of minds...surely then when UL/Terminations on back of Invalid DN's ...the lender should convey that fact to the debtor consistent with that maxim... or if not it is right that the debtor merely communicate to accept or to ''put it on record'' at least [the termination] consistent with s103...

[colin21958]

Hi Folks!

 

Just had a reply from Mint.

 

They cannot reply to my letter until I sign it!!!!!!!!!!!

 

Cupcake

 

I would suggest you use SignGuard. I've been using it all along.

 

Wait a minute!!! They replied to your letter to tell you they couldn't reply to it!!! ????

[colin21958]

Hi Colin, two things that concern me about your Amex DN:

 

If the DN was invalid and you are using it as termination because they demanded or said they would demand the full balance (rather than receiving a separate termination notice after the invalid DN) so that you can claim UR, what is to stop them re-issuing it? They could argue that the DN wasn't meant as a termination notice.

They sent a termination letter about a month after the DN.

If you carried on paying - even small amounts - after the termination by whatever method, then surely you are saying to Amex that you don't accept the UR and want the agreement to continue or endure. This means that you are back to square one and you should be wary of going on the attack as they could learn from CAG and send out a proper DN then a proper termination notice.

I've made it clear in my letter that they hid the fact of their defective DN and I therefore, expecting them to be acting legally continued to make payments. However, now that I have found them out, I have demanded the refund of every penny over the arrears amount shown on the DN>

 

The above are, of course, just my opinion and I have probably missed something vital - I usually do!

A second/third/Nth set of eyes over it can never hurt!

DPM

 

Thanks for you comments....

[means2anend]

Colin your letter may have ''amounted'' to a s103 or at least you ''put it on record''

[bustthematrix]

...and of course the £25K limit has now been scrapped, as from April 2008.

 

I think the only unreg contracts now are for high net worth individuals and those that are secured on land (and for businesses).

 

LA

Please clarify what you mean by 'secured on land'? Most consumer secured loans, especially those under £25,000 pre 2008 are definitely covered by the CCA.