Invalid Default Notices

[Old Cogger]

Wondering who the Credit card Co is here? OH maintains a telecon sales call Reward card for Thomas Cook, a card arrived no agreement signed, yet late MBNA who so called bought agreements from them seem to produce a signature on one of their own CCA!s after stating they will contact originator for original copy of a cca??

[manchestman]

Absolutely right. If you want to talk morals and the morally corrupt banking institutions, we would be here for a heck of a long time while I list my 5 bank's ineptitude, unlawful behaviour again and again and again, their real and harmful unfairness, their constant harrasment, and their (especially MBNA) refusal to answer any letter in over two years of sending them, that appears a little difficult or uncomfortable ... I am afraid I could go on and on ... but I won't.

That's why I avoid morals and stick to the law. That's what's it's there for and it appears it is only by using the law that I can get the banks to listen to me at all.

[Lord_Alcohol]

why do you think its a forgery?

thats what everyone signed.

the application form.

if that will stand up in court [which pers i think it would with all the other evidence of your account activity]

then your arguement is futile.

 

i really do think that all of the members that try and pull the wool have a to seriously look at their membership of CAG.

 

CAG is about protecting and upholding consumer rights......

 

NOT about assisting people in methods of debt avoidance through paperwork technicalities.

 

dx

 

Eh?

 

I consider it a forgery because it is not, as the OC asserts, a true copy of anything that I have agreed to.

 

You suggest I should no longer be a member of CAG?

 

Sorry dx, I really do not understand your position. Isn't this thread about "avoidance of debt through paperwork technicalites".

 

LA

[dx100uk]

no

its about invalid default notices where their dates/ammounts/etc are not compliant with the regulations, so thus they are trying to stitch you up.

 

to me, anyone with a signed application form and a history with that creditor, would not succeed in court if they said 'not my debt m'lud'.

 

i said nothing about anyone leaving CAG, what i pointed to was the use such members are using CAG for - debt avoidance - thats not what cag is about.

 

dx

[Lord_Alcohol]

no

its about invalid default notices where their dates/ammounts/etc are not compliant with the regulations, so thus they are trying to stitch you up.

 

The stitch up extends to reconstructed contracts. I see no difference in hammering a debtor via a defective DN and obtaining a debtor's consent and obligation from documents drawn up out of thin air to which he never agreed.

 

to me, anyone with a signed application form and a history with that creditor, would not succeed in court if they said 'not my debt m'lud'.

 

and yet this is the basis of s127(3), successfully used by many here to "escape their debts" (and, in fact, many are advised to look at "unenforceability" by many CAG members). I very much doubt whether a basic application form that contained no prescribed terms or set out the debtor's contractual obligations would be viewed as enforceable, even with an account history.

 

i said nothing about anyone leaving CAG, what i pointed to was the use such members are using CAG for - debt avoidance - thats not what cag is about.

 

What is the unenforceability question about, if not for debt avoidance? I would have thought that a s127(3) defence is a perfect example of avoidance of debt based on "paperwork technicalities". On this thread, we learn of the unavailability to the OC of s87(1)(b) and © where s88 is not complied with and the legal fact that only the arrears are due where the DN is defective...

 

A bit less moralising and a bit more honesty about why we are here would, in my very humble opinion, make CAG even better.

 

LA

[nks22]

Most of us would be on a hiding to nothing denying the existence of any debt (although we might dispute the amount claimed). The issue will almost always be whether or not the creditor can have repayment enforced by a court.

[Guest HeftyHippo]

anyone who starts saying yu cant do this or that just because the paperwork isnt in order should stop and think.

 

it isnt about paperwork, its about the law. The paperwork should prove compliance with the law.

 

I wonder if those people who use this argument that borders on a moral one, would have the same point of view, if he or she was accused of speeding yet the police couldn't produce the speed camera photo of the offending vehicle. Standing there in court with a police technician who said he identified the registration number of your car and it was traced to you, would you say "yes it was me" or would you say "wheres your proof?"

 

If the paperwork doesn't need to be in order, then paperwork isn't needed at all. So, we dont need agreements, information about charges, statements, signatures, we just accept that the bank never makes mistakes, never gets things like similar names mixed up, and never errs on the side of safety to protect its profit margins. we don't need the DPA because a bank would never act with a lack of integrity, don't need the CCA because a bank would never treat customers unfairly

 

yes you might argue with my point of view, but is having an incorrect agreement any difference from having no agreement? Or do I misunderstand all the posts with advice that you can sit out an unenforceable agreement and wait for it to be statute barred? Or those advising that you can withhold payments if the bank doesn't answer a CCA request within 12 days? Or if the dates are wrong on a default notice, then its invalid and if they close the account they repudiate it? Are these not all paperwork technicalities?

 

Or consider the bank charges that many claimed back. You all knew in advance what the charges were and how they were incurred, you committed the offence, and you should pay the cost but I don't see any evidence of anyone saying that at the time. What was said was that suddenly, despite knowing al this info in advance, we were all 'victims' and had been treated unfairly and should be refunded. So its ok to benefit from someone's (OFT) opinions about what is fair, but not to benefit from legislation designed to ensure consumers are treated fairly. On the same note, since the OFT lost the bank charges case, I don't see anyone stating that they were going to pay back the charges, and that everyone else should as well, because after all, the legal argument that was used to justify the charge refunds was proved to be invalid.

 

It might be distasteful to use paperwork technicalities, but at the end of the day, unless you have been a victim of fraud by the bank, nearly everyone posting in this forum is seeking to use such a technicality, or a new interpretation of the law. We've probably all entered into an agreement and spent the money, yet some want to pick and choose the degree of technicality that justifies exploitation.....

 

The legal situation is that a bank has to do certain things to have a valid agreement and to conduct it. If it doesn't comply with those 'things' then as one judge said, it has made a 'gift' of the money.

 

Take a look at the thread title "Invalid Default Notices", isn't this whole thread about exploiting paperwork technicalities?

 

Or perhaps I've lost my sense of humour whilst reading this thread?

[nks22]

the legal fact that only the arrears are due where the DN is defective...

 

More correctly the legal fact is that only repayment of the arrears is enforceable. Sect. 88 of the CCA is only concerned with enforceability.

[Guest HeftyHippo]

More correctly the legal fact is that only repayment of the arrears is enforceable. Sect. 88 of the CCA is only concerned with enforceability.

 

The legal fact is that if th DN is defective and the bank closes the account and thereby ends the agreement, it is only ENTITLED to the arrears by virtue of the repudiation. Once the agreement is ended, the CCA does not apply. In this case, contract law comes into play, and breach of contract by one party releases the other party from its future obligations under that contract - if it chooses. The innocent party CAN insist the contract continue, but I don't see that argument working with a bank.

 

In the same way, the debtor, CAN continue to gift money to the bank after the bank has repudiated the agreement, but is under no obligation to as long as it is made clear that the agreement has ended and the money is a gift. Of course, all those who find paperwork technicalities distaste have done precisely that because they wouldn't want to benefit from such a technicality would they?

[Lord_Alcohol]

More correctly the legal fact is that only repayment of the arrears is enforceable. Sect. 88 of the CCA is only concerned with enforceability.

 

s88 is about the format of DNs.

[Lord_Alcohol]

Yes - completely agree HH.

 

LA

[Gallahad]

no

its about invalid default notices where their dates/ammounts/etc are not compliant with the regulations, so thus they are trying to stitch you up.

 

to me, anyone with a signed application form and a history with that creditor, would not succeed in court if they said 'not my debt m'lud'.

 

i said nothing about anyone leaving CAG, what i pointed to was the use such members are using CAG for - debt avoidance - thats not what cag is about.

 

dx

Seems to me your fire hose needs re aiming

G

[Lord_Alcohol]

Most of us would be on a hiding to nothing denying the existence of any debt (although we might dispute the amount claimed). The issue will almost always be whether or not the creditor can have repayment enforced by a court.

 

For rolling credit, maybe you could argue that there is no debt if you've paid the same (or more) in than you've taken out? The 'debt' would then be comprised of interest and charges, amounts that may be unavailable to the OC if there is no lawful agreement.

 

If you've paid more in, maybe you could claim the balance?

 

LA

[Lord_Alcohol]

Seems to me your fire hose needs re aiming

G

 

 

LA

[patrickq1]

there is not one man jack on this forum (IMO) who - having applied for a loan or credit card- that would have then declined the loan or credit- on a moral stance of not allowing their data to be shared with a CRA.

I REFUSED !

and when my contract comes back from HFC it will have to have my written statement NOT TO SHARE MY DATA WITH ANY CRA OR DCA and signed ....i have the copy here and i await HFC copy which i know will not exist...i am paying them dont have a problem i do not have any other debts and if i had any other contract in future i will write excactly the same ,it is then up to the LOan company to evaluate wether to lend ? i do not have cards not had one since the fiasco i had with Morgan stanley,, and it was written on the application form when i applied for the card,,hence no agreement from MS..this all started twenty odd years ago with those SCUMBAGS from Blenheim .i learnt my lesson then and have written into every contract i have ever had to sign...if they dont like it tuff their is always someone willing to take their place, so dont be fooled into beleiving YOU HAVE TO the agreeing to something you do not moraly beleive in such as signing over your privacy and leaving it in someones hands to do with whatever they want to do is ludicrous, and is a seperate contract it is up to us to make a stand, we have cowardly accepted everything the bank throws at us.....not me i have noticed the HFC contract i have and i am being robbed but first i need all my data ,then the poo poo will hit the fan as their actions are not a mistake as you have seen DD , ive been on here long enough to know that just too many people lay down and accept the AUTHORITY that the banks seem to think they have, they are borrowing our money not we borrowing theirs ,so pull your head out of the sand and treat banks like you would treat a crook with stripes and arrows on their suit...

patrickq1

[mystery1]

It is true that Carey allowes the reconstruction of agreements.

 

It is also true that Carey allows the reconstruction of agreements NOT directly from the EXECUTED agreement ITSELF.

 

But the reconstruction of these agreements MUST be HONEST and ACCURATE TRUE and can be constructed from 'other sources' that EXISTED AT THE TIME OF THE EXECUTED AGREEMENT.

 

The veracity of these 'other sources' I believe is what should be questioned!!!

 

m2ae

 

Carey is not all bad.

 

7."Executed agreement" is defined under si 89 (1) as being "a document, signed by or on behalf of the parties, embodying the terms of a regulated agreement, or such of them as have been reduced to writing." An "unexecuted agreement" is defined as "a document embodying the terms of a prospective regulated agreement, or such of them as it is intended to reduce to writing." By si 89(4) "A document embodies a provision if the provision is set out either in the document itself or in another document referred to in it."

 

22.The way in which credit card agreements are made and become executed agreements naturally varies but one common way is illustrated by the "Barclaycard Platinum" booklet provided to me. This consists of 11 pages and attached to the final page by perforations is a form which can be detached and folded into 4 pages, one of which is a stamped addressed envelope to Barclaycard. Pages 6 to 9 contain all the terms of the intended agreement. The Prescribed Terms are set out at page 6 which, together with page 7 contains what is described as key financial and other financial information and key information as well as a box explaining the prospective debtor's right to cancel. Pages 8 and 9 contain what are described as "Barclaycard conditions".

 

27. In this example, the unexecuted agreement does not become executed when signed by the debtor because it has to be signed by the creditor after receipt of the application form. So s62 (1) applies. Here the s62 duty will be satisfied by the provision to the applicant of the booklet from which the form was detached. All of the terms of the prospective agreement are at pages 6 to 9.

 

60.(5) On Reg. 3 (2) © specifically, it was said that this was entailed because it would usually be impossible to put a name and address in the s62 copy which would be presented to the debtor (for example as in the worked example) in a booklet available to all prospective applicants, before he had engaged in the application process. I follow that, but I do not see why that deprives the point made in subparagraph (3) above of its force. Indeed, it may suggest that there had to be a compelling reason (impossibility as Mr Mitchell put it in paragraph 16 © of his written submissions) before the omission of the name and address could be contemplated.

 

 

I had struggled to find any case law on this and it's only today after rereading Carey that i realised there is guidance there from a high court Judge. An application form if unexecuted upon the debtors signature is a prospective agreement. The agreement is/would be regulated under the cca.

 

Section 59 cca 74

 

59 Agreement to enter future agreement void

 

(1) An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.

 

(2) Regulations may exclude from the operation of subsection (1) agreements such as are described in the regulations

 

M1

[Lord_Alcohol]

Perhaps, but the application form would still have to contain all the prescribed terms of the executed agreement.

 

Mine does not. And I suspect it is the same for many others. Yet the OC feels free to create documents that it believes the debtor would have signed and further goes on to insist that it is the case.

 

LA

[welshperson3]

Can anyone offer any help with this.

 

I am in court tomorrow and one of the points i have raised is a invalid DN,

the following paragraph is a reply which i received this morning to the point of a invalid DN.

 

quote.

As to the default notice,you are wrong in assserting that our client opted to terminate the agreement by serving a default notice. The default notice was served "to enforce our security" under section 87 (1) (e) of the consumer credit act 1974 (cca 1974). Our client has not enforced their security in the proerty and as such are only required to serve the default notice prior to enforcement of the possession order (i.e., prior to an eviction taken place). Without prejudice to the default notice that was served, our cient would be entitled to serve a further default notice to remedy any defects if any existed within the previous default notice. As such an invalid default notice (no admissions being made) does not extinguish our client's entitlement to possession.

end quote

 

I have a suspended possession order that i am trying to get removed so i think that they have enforced by trying to take possession and also removing the benefits of the agreement by demanding possession.

 

i have my own view on this and i think i have it covered but all suggestions would be more more than welcome.

 

WP3

[cymruambyth]

IMHO The issuing of a DN does not terminate an account, it is the subsequent actions that do this. I think that by taking court action they will have terminated the account; once the account is terminated they cannot reissue a DN.

Did the DN comply with all the regulations?

[welshperson3]

hi cymruambyth

 

The DN is lacking on numerous points, not enough time for service, missing prescribed paragraph.

 

I am OK on the termination issue, i just wanted to post up the response i received from the solicitor representing them and see what others thought of it.

 

wp3

[cymruambyth]

'without prejudice' and 'no admissions being made' make it sound like they are worried and are trying to undermine your confidence in your case.

 

PS Good luck for tomorrow

Edited August 17, 2010 by cymruambyth
typos ........... again

[welshperson3]

I am not worried by them, and i think they are grasping at straws they are Even trying to use the supreme court ruling (OFT V ABBEY AND OTHERS) to say the charges are fair.

 

wp3

[Duffers Mum]

Have I got this correct..once an account has been terminated by either a termination notice or a request for the full outstanding balance, another DN cannot be issued?

[nks22]

That is my understanding. You can't be in default of an agreement that has been terminated.

[diddydicky]

The issue for me and possibly others is that the defective DN (after all, this is the invalid default notices thread) can state that the default will only be recorded where the breach is not remedied, but if the DN cannot be complied with due to its inherent defect then the OC records the default unfairly. The debtor may have been able to avoid the default being recorded had the OC issued a defect-free DN (for example, by providing the full period to remedy or by demanding the arrears and not additional amounts).

 

I think you're absolutely right about folk making a fuss over adverse data where they have already consented to allow that data processing, but it's really situations where the data has been very unfairly recorded that is the issue for me and especially where no consent was ever provided.

 

This is an additionally troubling problem for many as the CRAs were established to provide payment histories to other lenders but their services have been expanded over recent years to provide services to organisations that have nothing to do with provision of credit. This makes the problem of adverse data far more serious.

 

LA

 

 

i take your point about the defective DN's and the subsequent recording of the default- - that is an unfortunate by product of our good fortune in the creditor cocking up yet again- but hey £10,000 of unenforceable debt v a bad credit rating for 6 years

 

 

I suspect that 99% of caggers would rather have a "cocked up DN" which then "unlawfully repudiated" the agreement (for that is what the majority coming on the forum are hoping we will tell them their DN is) than an accurate one- since i suspect that 99% of us couldn't/wouldn't be able to remedy the DN if is was accurate anyway.

 

I also rather suspect that of all those that have "accepted" an unlawful repudiation on the back of a faulty DN- only a handful have then gone on to repay the amount of "genuine arrears" that were outstanding at the time of termination.

 

there are genuine cases coming onto the forum of real injustices- all i am saying is that for the rest of us- we must not get so far up our own backsides that we begin to believe our own "spin" and keep things in perspective as to what we are REALLY trying to achieve in most cases