Invalid Default Notices

[diddydicky]

Hmmm...

 

How about this...

 

Like AHole, I took the view with one OC that no agreement was ever signed and insisted on that point for over a year. The OC provided me with a reconstruction and insisted it was a true copy of the lawfully executed ag.

 

Last week, the OC's sols have sent me what they think is a photocopy of the actual agreement. But it isn't. It's an application form.

 

Being a bit sad, I kept the original paper docs that the credit card was sent with (it goes back to 1997). These docs match the date on the application form. I therefore signed the application form, sent it off, and a couple of weeks later received the card with the paper docs that told me how to use it ().

 

There is no agreement. Yet the OC has produced one and it can only be a forgery.

 

Should I continue to argue that there is no agreement, or accept that the OC has introduced an agreement through his forgery?

 

LA

 

did the application form itself contain the all of the prescribed terms? if it did- (in whatever form) and you signed it- it was an agreement if not- then it was a pre contractual application form

[diddydicky]

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

 

 

fair cop patrick- i know a woman who was smoking 20 a day at well over 100 years old

 

so i will amend by statement with apologies

 

there is not a man jack on this forum (with the exception of patrick) etc etc

 

(i'd put the smiley on but they seem to have dissapeared on this edit revamp of the forum

Edited August 18, 2010 by IdaInFife
edited

[diddydicky]

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

 

well i would not go THAT far,

 

at the end of the day- whilst i am always one for not accepting edited from caggers about their true motives- i AM a firm beleiver in the rule of law- including civil law

 

an agreement is signed by BOTH parties- who BOTH agree to be bound by it's terms and conditions and any overriding legislation (such as the CCA)

 

the creditor is always the FIRST to insist on the "letter of the law" in terms of their reliance on what is stated in the agreement

 

they who" live by the sword" must also therefore be prepared to "die by the sword"

 

the creditor has the upper hand when it comes to financial and legal clout- and the CCA makes it clear that it is the creditor upon whom the burden falls to make sure that they cross all the "T"'s and dot all the "i"'s

 

just as I have been saying that caggers cant expect to "have their cake and eat it"- well neither can the creditor

 

it was not the debtors that asked the creditors to send out credit cards like confetti- on the back of the application form and in the hope that they would "get in" before their rivals

 

it was not the debtors that encouraged the creditors to "cut corners" in order to pursuade debtors to transfer their balances virtually "over the phone" to their cards from their rivals

 

it was not the debtors who suggested that to save archive costs- it would be a good idea to microfiche the front of agreement then destroy or send the originals to some post cold war bunker on a dis-used airfield in Khazakstan with no filing system capable of retrieving them

 

if was not the debtors that encouraged creditors to jack up interest rates in the opposite direction as the bank base rate when they saw a debtor getting into difficulties so that they could rack up some extra costs before the debtor defaulted

 

it was not the debtors that showed the creditors how to muck up default notices

 

sorry creditors (due respect to you DX) but if the creditors cant be bothered to do the job right- then just as they are the first to wave the signed valid credit agreement in front of a judge and demand that they court give them a charge on a debtors house

 

so..... they should expect the debtor to wave the "invalid" agreement or DN in front of a judge and invite him to tell the creditor to go forth and multiply (and in the meantime learn how to get his paperwork right)

 

amen

Edited August 18, 2010 by IdaInFife
forgot yourself there dd

[Lord_Alcohol]

did the application form itself contain the all of the prescribed terms? if it did- (in whatever form) and you signed it- it was an agreement if not- then it was a pre contractual application form

 

Thanks for commenting diddy - always enjoy your posts!

 

No, the application form was extremely basic - no key financial info, no data processing/protection declaration, no charges for credit, no nothing. It was a long time ago you know! Maybe things were more relaxed then (no CAG!).

 

At the top it says "VISA CARD PRIORITY APPLICATION". The whole thing is one side of A4.

 

I have the original T&Cs too. Again, loads of stuff missing. A big issue in the app form and T&Cs is that no consent is given for data processing. In fact, the T&Cs states that BoS has to explicitly seek my consent for any sharing of information with other parties!

 

LA

[Lord_Alcohol]

well i would not go THAT far,

 

at the end of the day- whilst i am always one for not accepting edited from caggers about their true motives- i AM a firm beleiver in the rule of law- including civil law

 

an agreement is signed by BOTH parties- who BOTH agree to be bound by it's terms and conditions and any overriding legislation (such as the CCA)

 

the creditor is always the FIRST to insist on the "letter of the law" in terms of their reliance on what is stated in the agreement

 

they who" live by the sword" must also therefore be prepared to "die by the sword"

 

the creditor has the upper hand when it comes to financial and legal clout- and the CCA makes it clear that it is the creditor upon whom the burden falls to make sure that they cross all the "T"'s and dot all the "i"'s

 

just as I have been saying that caggers cant expect to "have their cake and eat it"- well neither can the creditor

 

it was not the debtors that asked the creditors to send out credit cards like confetti- on the back of the application form and in the hope that they would "get in" before their rivals

 

it was not the debtors that encouraged the creditors to "cut corners" in order to pursuade debtors to transfer their balances virtually "over the phone" to their cards from their rivals

 

it was not the debtors who suggested that to save archive costs- it would be a good idea to microfiche the front of agreement then destroy or send the originals to some post cold war bunker on a dis-used airfield in Khazakstan with no filing system capable of retrieving them

 

if was not the debtors that encouraged creditors to jack up interest rates in the opposite direction as the bank base rate when they saw a debtor getting into difficulties so that they could rack up some extra costs before the debtor defaulted

 

it was not the debtors that showed the creditors how to muck up default notices

 

sorry creditors (due respect to you DX) but if the creditors cant be bothered to do the job right- then just as they are the first to wave the signed valid credit agreement in front of a judge and demand that they court give them a charge on a debtors house

 

so..... they should expect the debtor to wave the "invalid" agreement or DN in front of a judge and invite him to tell the creditor to go forth and multiply (and in the meantime learn how to get his paperwork right)

 

amen

 

Amen indeed diddy - I wholeheartedly agree.

 

LA

[Guest]

fair points there by DD. amen

consumer rights/protection = the CCA (supposedly). if the requirements of the CCA are taken with a pinch of salt/ignored, then what's its point! it may as well be repealed! the lower cts are inconsistent, resulting in uncertainty.

(imo, there's nothing wrong with winning a case on a so called 'technicality'! it's been going on for yonks. mostly by those 'in the know'. but, thanks to CAG, et al, people are more aware of their statutory rights etc and the tables have been turned to some degree.)

Edited August 18, 2010 by Ford
typo

[steve2577]

I agree Elsa ... I posted up what I could find .... so apologise its only a snippet ... anyone with access to the law directories etc may be able to get the whole thing .. which will make things much clearer ...

 

I don;t disagree at all with NKS22, or anyone else saying they don't believe its relevant for a s87 default ... its just my thoughts were how a CC Judge may see it, if raised as a defence by any Creditor taking you to court ... so it makes good practice to have some solid retaliation ready if that happens .. which is exactly what this debate has done ..

 

As I say I didn't know anything about it until it was raised on my own DN thread ... and I just wanted to give all a heads up .. in case others too didn't know about it, until it was presented with a flourish by the Creditor in any hearing ...

 

High I have been out of the CAG for a while but I was handed this case a few weeks ago by a Barrister when I went for Summary Judgement against HFC the Judge decided the case required a hearing and I wasnt given the opportunity to declare my well prepared speech showing how the case was doomed.

 

I to am interested and will try to contribute Restons have responded to my Witness statement by saying that the DN issued did not constitute enforcement under the meaning of section 78(1) my particular case mimmicks others hear in that the DN is faulty by a number of days and also has the usual faults for charges etc. My full hearing has been set for Dec so I might be in the forefront of having to fight this particular argument.

 

 

Steve

[johnnybgood]

sorry to jump on this excellent and very informative thread, but could someone please advise me on this..

 

I have a CC debt where the OC issued an invalid DN but no Termination..then they sold the debt on to a DCA..they now 3 years later..have issued me with a Statutory demand..

do I accept the termination of agreement now? as to demand the full amount must mean they have terminated on the strength of the original defective default notice..

I know that I have to get the SD set aside and I am dealing with that thanks to everyone on here..but i'm wondering if the demand is classed as an unlawfull termination..

 

thanks..Johnny

[basa48]

sorry to jump on this excellent and very informative thread, but could someone please advise me on this..

 

I have a CC debt where the OC issued an invalid DN but no Termination..then they sold the debt on to a DCA..they now 3 years later..have issued me with a Statutory demand..

do I accept the termination of agreement now? as to demand the full amount must mean they have terminated on the strength of the original defective default notice..

I know that I have to get the SD set aside and I am dealing with that thanks to everyone on here..but i'm wondering if the demand is classed as an unlawfull termination..

 

thanks..Johnny

 

Termination occurred at the point the debt was assigned. The SD can be set aside on the strength that the account has been terminated along with the rights and obligations of both parties. Those obligations include making payments to the account.

[johnnybgood]

thanks for the reply..

so I just get the SD set aside and do nothing more?

 

thanks...Johnny

[basa48]

thanks for the reply..

so I just get the SD set aside and do nothing more?

 

thanks...Johnny

 

Yes, fight the set aside by arguing the agreement was terminated unlawfully and therefore no sums are due.

 

 

If the DN was faulty and they sold the debt on on the strength of that DN then they terminated unlawfully. A creditor only becomes entitled to terminate and claim any sums due after serving a valid DN. Without that valid DN the creditor cannot enjoy the benefits of s87.

 

I would be happy with that for now.

 

Once you bloody their nose I doubt they will be back for more.

[diddydicky]

if there is a clause in the agreement allowing the creditor to sell the account- by what authority do you say that a debt which is sold to by the creditor- is then automatically terminated? where in the original agreement does it say that upon such a sale the agreement terminates?

 

An unlawful termination would only occur in such circumstances (IMO) if the person or company to whom the asset (for it IS an asset) was not properly licenced or capable of carrying on the same obligations as the original creditor.

 

based on your statement- you are saying that once a creditor sells an agreement- it ceases to be an asset!

[johnnybgood]

thanks for the reply diddydicky,

 

I sent them a request for a copy of the agreement, but they have not complied.. I do have the original invalid DN and LOA, and I thought as they had sent me a SD, that this would mean the agreement was terminated and that I should send them a letter accepting their termination..

would you agree with that or am I on the wrong trail?

 

thanks...Johnny

[diddydicky]

yes s SD would indicate termination since they demand that which is not lawfully due- and in fact a SD should not be served on a (geunuiely) disputed account so you need to remedy that situation as suggested

 

i was merely correcting (as i saw it) the assertion that a debt becomes terminated by virtue of it being sold rather than on the back of the defective DN

 

just wanted to clear that up

 

your debt was unlawfully terminated on the back of a faulty DN as i read it

[johnnybgood]

yes i am just trying to write something for the set aside.. do you think I should include case law as most of the set asides do?

 

thanks..Johnny

[diddydicky]

im not that experienced on set asides to be honest but i would suspect as with any proposition you put to a court- you should have any appropriate case law to back up your proposition where you can

 

judges are not expert in every field and need guidance and pointing in the right direction

[Undercover-Elsa]

Hi JBG,

Presumably they have demanded the full balance on the Stat Demand? If so they have effectively terminated. Have they previously demanded the full balance, if so, when?

Did you make a formal CCA request for the agreement? If so, when? If not, you need to do so. I'd send a Subject Access Request too, if there's likely to be default charges of any significant amount on the account. This would need to go to the original company.

Regardless of repudiatory breach, without a valid DN, they *cannot* proceed further, ie demand full payment or enforce in Court. Since they have demanded full balance they have now terminated and cannot issue another DN.

*Not all judges are aware of / abide by this, however so you need to strongly state your case.

[johnnybgood]

so..would you say the Statutory Demand is good enough to say they have terminated the agreement?

and should I write to them telling them that?

 

cheers...Johnny

[Undercover-Elsa]

LOL DD you jumped back in while I was writing a reply. Shouldn't have broken off to make a coffee...

 

Elsa x

[johnnybgood]

Hi undercover-elsa, I sent them a cca request but they havent replied as yet.. how long do they have? is it 12+2 working days?

 

Johnny

[welshperson3]

johnny if your going for a set aside then i think this might help.

 

Forcelux Ltd v Binnie [2009] EWCA Civ 854

 

 

WP3

Edited August 23, 2010 by welshperson3
typo

[Undercover-Elsa]

Did you send it before or after you got the SD?

Yes it's 12 +2 working days.

[johnnybgood]

thanks for that..

 

I got the SD and then i sent them a CCA request with £1 postal order..

If they have 12+2 working days..they wont comply in time for me to apply for the set aside..

however i'm sure it is their responsiblity to have the docs before litigation

 

just trying to word the set aside now..

 

Johnny

[Undercover-Elsa]

Hi JBG,

This thread might be useful:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?162131-Statutory-Demands-and-Service-By-Post

 

also, there will be a named person on the stat demand with a phone number to ring them.

If you cannot get in touch with this person, the demand is invalid.

Try to phone this person. Often they are unavailable. If they do answer, simply ask when they will be supplying the copy of the agreement. Tell them that you will be disputing the SD with costs. DO NOT enter into ny other discussion with them, state that's all you're prepared to say on the phone, and hang up.

 

You need to stress in your set aside that they do not have a right of action as they have not issued a compliant Default Notice. Might be best to start a new thread in Legal Issues ..call it Urgent help needed to Set Aside stat demand, or similar. Put a link to it on here. You might need to hit the red triangle to get help from the site team. Don't send in your set aside till it's been checked.

Have to go now but good luck with it.

Elsa X

[johnnybgood]

thanks for your help Elsa

 

 

Johnny