Invalid Default Notices

[lexis200]

if you are relying on the "21 days" instead of a specific date i am afraid you will be dissapointed as it is more the likely that this would be accepted by a judge

 

Absolutely in agreement with you DD.

 

I'd personally also assume that if the only thing wrong with a DN is that the underlining isn't right or it isn't bold where it should be (or something similarly minor), then that will also in all probability not cause the creditor a problem. It should if the letter of the law is to be followed, but I wouldn't be basing a case on it.

 

If there isn't an issue of not enough remedy time (whether set by a date or a 'pay in x days' format) or incorrect balance/arrears, imho the rest of it won't be considered by anyone but the most old school of judges.

[johno23]

Hi all

 

I have a quick question.

 

I have written to all creditors for the default notice & termination notice and they have written back to state they do not have to legally provide these documents as they are not legally obliged to retain copies of Default notices.

 

Can someone advise as to what my response should be

 

Many Thanks

 

Johno

[Guest unicorn4321]

hi received dn on the 20/03/2008 with a remedy date of 06/04/2008

 

just checked my credit report and it says default date 20/03/2008

 

is this right?

[lexis200]

I think they're right. They have to keep details of when they were sent (not sure if they have to also note what service was used to post them?), but unless you SAR them for the info they don't have to give it to you.

 

It's because the DN's are generic templates and they'll just stick your details onto it, so there won't in all likelihood be another copy other than the one they say they've sent.

 

I'd SAR them for it and hope it's been included in your file notes, but I suspect the best you'll get if you do that is a date that it was sent.

[nks22]

hi received dn on the 20/03/2008 with a remedy date of 06/04/2008

 

just checked my credit report and it says default date 20/03/2008

 

is this right?

 

You wouldn't think so since if you remedy the breach in the permitted time then things should be as if the breach never happened. However creditors routinely place defaults (as opposed to notification of a DN) on your file even before a DN is sent. Might be worth a complaint to the ICO.

[basa48]

So sometime ago I received one of MBNA's classic Default Notices demanding the full balance of the account instead of the arrears. I understand how this is contrary to s87/88 (the only breach being the failure to make repayments to schedule) and how termination following the invalid DN being repudiation of contract, but I cannot translate this into what is frequently said that this means the full balance is therefore noncollectable, only the arrears.

 

Where or what is the legal argument for this?

[nks22]

Where or what is the legal argument for this?

 

You have a credit agreement that allows you to borrow money and repay it over time subject to agreed T&Cs. If you miss payments the agreement will allow the creditor to demand those arrears. However money not yet due cannot be demanded early without breaching the terms of the credit agreement.

 

To secure early repayment the creditor must end the credit agreement. If he ends it without following the correct procedures, e.g. with an invalid DN that doesn't give you time to remedy, then that is unlawful rescission which, should you accept it, will prevent a court from enforcing repayment.

 

Any arrears will still be due, though, since they were due under the original credit agreement.

[Guest unicorn4321]

DONE defence in :grin::grin:

 

Can i just say a big thank you to all who have helped me if i had not found this site i would not have had the nerve to stand up to these bullies.

 

And after having so many sleepless nights worrying and even contemplating moving house the relief is just fantastic and looking back now it really wasn't as scary as i first imagined.

 

So if anybody is having any doubts about fighting back get stuck in, the people on here are so freindly and very helpful.Once again thank you and i will be donating.

 

Can't wait for round two BRING IT ON :p

[diddydicky]

So sometime ago I received one of MBNA's classic Default Notices demanding the full balance of the account instead of the arrears. I understand how this is contrary to s87/88 (the only breach being the failure to make repayments to schedule) and how termination following the invalid DN being repudiation of contract, but I cannot translate this into what is frequently said that this means the full balance is therefore noncollectable, only the arrears.

 

Where or what is the legal argument for this?

 

A creditor cannot claim entitlement to the benefits of s87 of the CCA unless he first serves a valid DN pointing out the alleged breach and giving the debtor the opportunity to remedy the alleged default.

 

If the DN is defective and the creditor demands entitlement to the benefits of s87 (demands immediate payment of sums not yet due under the agreement) then he is unlawfully repudiating his obligations (to allow you to pay monthly) and which is the major benefit of the agreement to the debtor.

 

the creditors unlawful actions then give the debtor the right to choose either to hold the creditor to the contract or to accept his unlwaful act and consider himself released from the contract - at which point the contract or agreement effectively ends.

 

the agreement cannot be re in stated unless both parties agree.

 

therefore the creditor is ONLY entitled to the amount of arrears on the account that were outstanding at the time it was unlawfully terminated.

 

These are the arrears of payments that were already due and should have been paid by the debtor BEFORE the creditor unlawfully repudiated and for which he still has a claim (these were not sums that were not yet due under the agreement........they were sums that were OVERDUE to be paid)

 

against which the debtor may make a claim for damages against the creditor for his unlawful repudiation (which typically may be four figures)

 

 

A DN which demands the whole amount of the account in order to remedy the DN (unless the whole amount is comprised of outstanding arrears) is however in a class of its own

 

it is in fact an absolute act insomuch as the debtor is unable to lawfully comply with it and so the intent and purpose of the DN as prescribed by parliament (to give the debtor the chance to put things right and carry on as before) .

 

if the debtor were to pay the full amount demanded- he would then have paid to the creditor those sums which were not yet due under the agreement and therefore the effect of the DN could not acheive that stated in s89 (which is to treat the breach as if it had never occurred and allow the debtor to resume making monthly payments of the sums not yet due under the agreement

 

Thus the DN cannot lawfully give the creditor the right to claim entitlement to the benefits of s87 and therefore discloses no cause of legal action for the creditor to demand immediate payment of the sums not yet due under the agreement

 

the creditor COULD in theory amend his claim and sue only for the amount of arrears that were outstanding............but would be foolish to do so since he would then be prevented from starting another action in respect of the agreement at a later date since he is not legally allowed more than "one bite of the cherry"

[diddydicky]

A creditor cannot claim entitlement to the benefits of s87 of the CCA unless he first serves a valid DN pointing out the alleged breach and giving the debtor the opportunity to remedy the alleged default.

 

If the DN is defective and the creditor demands entitlement to the benefits of s87 (demands immediate payment of sums not yet due under the agreement) then he is unlawfully repudiating his obligations (to allow you to pay monthly) and which is the major benefit of the agreement to the debtor.

 

the creditors unlawful actions then give the debtor the right to choose either to hold the creditor to the contract or to accept his unlwaful act and consider himself released from the contract - at which point the contract or agreement effectively ends.

 

the agreement cannot be re in stated unless both parties agree.

 

therefore the creditor is ONLY entitled to the amount of arrears on the account that were outstanding at the time it was unlawfully terminated.

 

These are the arrears of payments that were already due and should have been paid by the debtor BEFORE the creditor unlawfully repudiated and for which he still has a claim (these were not sums that were not yet due under the agreement........they were sums that were OVERDUE to be paid)

 

against which the debtor may make a claim for damages against the creditor for his unlawful repudiation (which typically may be four figures)

 

 

A DN which demands the whole amount of the account in order to remedy the DN (unless the whole amount is comprised of outstanding arrears) is however in a class of its own

 

it is in fact an absolute act insomuch as the debtor is unable to lawfully comply with it and so the intent and purpose of the DN as prescribed by parliament (to give the debtor the chance to put things right and carry on as before) .

 

if the debtor were to pay the full amount demanded- he would then have paid to the creditor those sums which were not yet due under the agreement and therefore the effect of the DN could not acheive that stated in s89 (which is to treat the breach as if it had never occurred and allow the debtor to resume making monthly payments of the sums not yet due under the agreement

 

Thus the DN cannot lawfully give the creditor the right to claim entitlement to the benefits of s87 and therefore discloses no cause of legal action for the creditor to demand immediate payment of the sums not yet due under the agreement

 

the creditor COULD in theory amend his claim and sue only for the amount of arrears that were outstanding............but would be foolish to do so since he would then be prevented from starting another action in respect of the agreement at a later date since he is not legally allowed more than "one bite of the cherry"

 

 

if a creditor sued me for a few hundred pounds and was thereby prevented from legal recourse to several thousand more pounds not yet paid under the agreement- i would be as happy as a pig in sh*t !

[johno23]

This thread is so long now can someone let me know the thread numbers of the letters pinky has used.

many thank

Johno

[robinredbreast]

Can I ask a question on default charges or penalty charges, being included in the arrears requested in the DN.

 

Would that make the amount requested incorrect or correct ?

 

Also if the DN asks for arrears, but has a statement saying if you don't satisfy this DN by such and such a date the agreement will be terminated .. and the noted date expires without you satisfying the DN ... does that mean the agreement has terminated ?

 

Even if they don't send you a letter actuallly confirming its termination?? Would they legally be able to send you a further DN (again citing termination if you don't satisfy the DN by the given date) and another and another .. you get the picture !!

 

This might be one for our expert DiddyDicky ?!

[threadbare]

Thanks for the gentle correction Dicky .... I've obviously previously been given duff info on this and gladly stand corrected ..... as I said I would be in my post ...

 

Luckily my DNs have all been very defective and subsequently terminated .... so lucky old me I guess .... !!

[basa48]

A creditor cannot claim entitlement to the benefits of s87 of the CCA unless he first serves a valid DN pointing out the alleged breach and giving the debtor the opportunity to remedy the alleged default.

 

................................................

 

Thanks dd (and nks).

 

Got it now!

[robinredbreast]

A reply to stagparty re his NW DN.

 

I too had a defective DN issued by NW in April (which asked for the total amount owing, insufficient service times and format) followed about 2 wks later by a letter of termination from KPR.

 

I wrote and accepted the unlawful repudiation to NW end of May - they haven't replied or acknowledged.....

 

Then beginning of July (about a week after my letter accepting unlawful repudiation) - they sent me a further DN. This time with just the arrears requested, in the correct format, and now giving (you guessed it ...) 21 DAYS for remedy. (which is still dodgy as not a specific date, but that being the only fault it may swing a Judge to accept it, if of course NW have also presented a correctly executed agreement to boot...)

 

NW have also started to send arrears notices ... as it to try and prove to themselves that the account hasn't been terminated, and the 2nd DN is the valid DN .... plonkers ... !!

 

In my case, and yours by the sound of it , any further DNs they send, can not undo what they have already done ... their unlawful repudiation and termination of the account which has, by their own admission, already taken place. (I have noticed that they haven't yet registered a DN on my credit record, and on internet banking the ccard is stilll live - but if they think that will get them out the s**t they're very much mistaken !!)

 

The issue of the second DN just shows to the corut, that NW now aware that they send a bogus DN for the account, are trying desperately to back track and fool the customer that the account was never terminated in the first place ......

 

It seems in our case that the 21 day default notice was issued after we sent our acceptance of their unlawful repudiation .... whether they have changed the actual format of ALL DNs now issued will transpire in coming weeks I suppose when peeps start posting up what they have had from NW ....

 

You could possibly start a thread asking for peeps who have received a default notice after the start of July what the format is, days for svc etc ....

 

For me,they have passed to Roxburghe, who will be sent a nice little letter ...

 

Robin ...

[diddydicky]

when they take you to court- they will find it a tad difficult to justify those amounts claimed in the second DN as being arrears outstanding- on an account that they previously demanded payment in full of all outstanding amounts!

[robinredbreast]

Hi ....

 

To avoid hi-jacking Pinkys thread with a prob of my own ...

 

Could I ask the DN experts (the lovely Pinky, Dicky ... and others of course ) when they have a few minutes spare, to have a quick look at my thread on a DN that appears ok .. except for one bit ..... my thead is ...

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/271280-dn-defective.html

 

I would be really grateful for guidance and all expertise on this .. !!

 

With many thanks ...

 

Robin x

[johno23]

Hi All

 

Interesting thread.

 

Does anyone know the contact email addresses for the three credit reference agencies of Call Credit, Equifax & Experian.

 

Also has pinky loaded up his letter before action letters during this thread.

 

many thanks

 

Johno

[Dotty50]

Hi All

 

Interesting thread.

 

Does anyone know the contact email addresses for the three credit reference agencies of Call Credit, Equifax & Experian.

 

Also has pinky loaded up his letter before action letters during this thread.

 

many thanks

 

Johno

 

I don't know them but would have thought you would be able to get them off their websites.

 

You can search within this thread for anything you are after, just use the 'search this thread' at the top

[basa48]

I'm sorta getting myself in a twist trying to figure out where a DCA stands that has bought a debt after the OC has illegally terminated following a truly defective DN??

 

The plot thickens - have they bought anything or can they still chase the arrears.

[bustthematrix]

I'm sorta getting myself in a twist trying to figure out where a DCA stands that has bought a debt after the OC has illegally terminated following a truly defective DN??

 

The plot thickens - have they bought anything or can they still chase the arrears.

Basa48, the way I would approach this is to always tackle the OC first. Settle the status of the matter with them as anything they do during or after a valid legal dispute has been established, has serious implications for everything they do going forward.

 

For example, if a s77-9 remains unmet, the OC has illegally terminated after a defective DN, and you have accepted this, whether or not they have a valid CCA, they can only ever be entitled to arrears following this, less any counterclaim for unlawful charges + compensation for unlawful repudiation of contract.

 

If they then sell the debt to a 3rd party and fully confirm this to you in writing, all that happens is that all the obligations of the OC now become those of the new creditor. However, the original OC is not necessarily exempted from any prior breaches under the CCA just because they have now sold a debt on.

 

By the way the OC is responsible for duly notifying you of any change in your relationship as far as the debt is concerned. Otherwise there is no change as far as you are concerned and they remain liable for any breaches etc.

 

If a 3rd party claims to have 'bought' the debt and is now the new 'note holder', they have to fully verify their standing to you. Once their standing in the matter is confirmed to you, if infact they are the new creditor they are now fully liable to fulfill all the duties of a creditor under the CCA.

 

Just my opinion and HTH

[means2anend]

Basa...

 

it's similar to a situation where a person that has got a defective title in the ownership of car although has possession...but when 'sells' that car to a bona fide purchaser (DCA in this case) cannot pass on good title and the new owner of that car although purchasing the car is saddled with a wothless car and if s/he sells it on it cannot make good the defect.The new owner (DCA) is in shtump!!!

 

m2ae

[means2anend]

I think that they cannnot ''pass on better than what they have''..so extending that reasoning in your case whilst on the back of a defective DN and termination they can only claim the arrears...THAT is what they can lawfully pass on to the DCA...THE ARREARS ONLY...makes sense?

 

If I am wrong on this then I am sure that someone can correct me but I am simply applying my reasoning from Property Law on the passing on of good title.

 

I dont think that someone has brought up the scenario that you have..but it is an interesting point..

 

'Can the purchaser of a debt claim the arrears if the agreement was terminated on the back of an unlawful/Invalid DN by the Original Creditor/Lender

Edited August 4, 2010 by means2anend
not to cannot

[emandcole]

I'm sorta getting myself in a twist trying to figure out where a DCA stands that has bought a debt after the OC has illegally terminated following a truly defective DN??

 

The plot thickens - have they bought anything or can they still chase the arrears.

 

Unlawful passing of account? Invalid DN? Termination? Sounds familiar.

 

Do what I'm doing if they litigate. You submit a defence, they discontinue and then you counterclaim for unlawful repudiation of contract, injury to credit and a whole load of bits. My hearing is due late October and they're wriggling I can tell you.

 

More here if you're interested

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/221243-link-financial-check-out.html

[middenmess]

BTM

 

By the way the OC is responsible for duly notifying you of any change in your relationship as far as the debt is concerned. Otherwise there is no change as far as you are concerned and they remain liable for any breaches etc.

 

I see and read different answers on this subject.

 

Many state that either the OC or the purchaser can inform you-- others say that you have to be notified of the sale by way of registered post from the OC.

 

Can someone nail this once and for all?