Invalid Default Notices

[diddydicky]

of course de minimus errors are just that

 

the mis spelling of a name or even the failure to underline where underlining is required could be argued to be de minimus

 

but the basic requirement prescribed by parliament that the debtor must be given at least 14 days after the date of service to remedy is not one that can be overruled by the judge- the more so since it was only recently increased from 7-14 days

 

of course this judge made a serious error of judgement and there is no doubt than on appeal it would be overturned

 

the judge applied "hindsight" to his judgement- something that the CCA and paliament did not include in the act

 

the intent and purpose of the DN as prescribed by parliament is for the creditor to leave the debtor IN NO DOUBT as to what he has done wrong- what he must do to put it right- and the consequences if he fails to do so

 

no where has parliament decreed that the debtor should toss a coin and make a guess as to whether the creditor DOES or DOES NOT intend the DN to be taken seriously or that the debtor should guess if the creditor has really given him 14 days to remedy- or whether in reality he has given much more

 

thus the debtor will be led by the tone and tenor of the DN to taking decisions he may not otherwise have taken

 

for instance if the debtor (who was previously unable to make the normal monthly payments- so is hardly likely to be able to stump up the several months worth of arrears demanded in the DN) takes the view that in the 10/12 or whatever days have been demanded in the DN he cannot raise the money to comply- he is likely to take a decision to "throw in the towel" and let nature take its course

 

however- if the DN had said- we are going to give you several months to remedy - before we claim the benefits of s87- then the debtor may well take a different decision and make efforts to raise the money to comply!

 

furthermore, once the time for remedy had expired- the debtor may well have sent a cheque a week later to the creditor in full payment of the arrears claimed in the DN- only for the creditor to say- thanks for the money on account- but your time was up a week ago so we are still terminating/claiming the full balance of the account

 

the creditor cannot "have his cake and eat it" neither can the judge- he just needs to be shown the arguments

 

what we NEED is indeed for a cagger to appeal such a judgement- in order to set a precedent

 

the bad news is that the creditor would not dare allow the appeal to be heard and would withdraw - to avoid setting the precedent

 

the good news is that IMO an appeal against such a decision will win the cagger the day personally- for the reasons stated above- although i believe there is in the CPR a mechanism for a party in a case to apply to the court not to allow the other side to withdraw- when it would be in the public interest for the court to rule on the matter

 

about time someone used it

[Bill Shidding]

You then get an erosion of accuracy - if its ok to be only 95% accurate, then it must be ok to be only 94.5% accurate

 

In the same vein, I have it directly from the mouth of a Judge that his decision is based on the "balance of probabilities" (as we already knew) and "the ratio only needs to be 51/49".

 

 

Hi Shadow,

 

Nope afraid not... in the first paragraphs of the judgement the judge states he was surprised to find American Express offer a card that DOESNT have to be paid off each month in full, thus a credit card.

 

S.

 

My mootings were in an attempt to reason why the Judge allowed Amex to win the case with a notice served under section 98(1) of the CCA74. I was trying to find way(s) in which Amex could argue that the Brandon account (being a credit card) was eligible under section 98? (When does a credit card account specify an end date?) As such, this pleading should have failed under sec98, 2 (a).

There can only be 2 possibilities that I can think of;

1) The judge favoured Amex, and was going to award judgement whatever the outcome of the pleadings.

2) There is something not mentioned in the judgment, that the agreement did specify an "end date" in some way.

If the answer lies within No2, then where/how could an end date be conjured up from a credit card account?

My possibilities;

1) Membership fee renewal date.

2) Card expiry date (I know!).

 

This was in an attempt to enter the mind of the Amex counsel because in order to beat them, we have to think like them. Once we can think like them, they've lost.

Bill

[Guest HeftyHippo]

of course de minimus errors are just that

of course they are. But what are they. Tell me exactly.

 

the mis spelling of a name or even the failure to underline where underlining is required could be argued to be de minimus

I regard the spelling of my surname name VERY seriously. It is not an uncommon name, but there are several varaitions of it, and if my name is spell in one of those other (incorrect ways) I don't consider it my name, its someone elses. If your name is Garry, and you have a son called Gary, that misspelling isn't minor, as it can lead to the wrong person getting the mail. If a letter comes for my son Gary, I don't open it. If he is away for a week, then that misspelling has directly impacted on my ability to react to the DN.

 

As you say, you shouldn't need hindsight to see what the bank actually intended to do, and I shouldn't lose a week out of the allowed time because my son is on holiday. Of course, the bank don't know my son has a similar name to me, or that he is away on holiday, that's why they should get my name right.

 

As far as underlining, Parlaiament decided that certain sentences should be more prominent than others, and that others should be even more prominent. It thought so strongly about it that it specified those facts. Presumably, it wanted those sentences to be prominent to draw the reader's attention to them. If they are not made prominent, the reader will treat them the same as the rest of the document, and hence the desired effect that Parliament explicitly wanted, is lost. Parliament didnt think that the document should look the same throughout, as they stated otherwise in their specification. Hence, it is hard to argue that something explicitly required by the Regulations is minor. If you can argue that one thing specified in the Regs is minor, you can argue the same about all of them! Guess what, the Regulations don't then specify the content and appearance of a Default Notice, they only make suggestions.

 

By arguing that something specified in the Regs is only minor, you're proving my point that different people will have different ideas on what degree of compliance with the Regs is acceptable, and then you get DNs that look very different being allowed in court simply because different judges are willing to accept different deviations - "I'll trade you a lack of punctuation for an incorrect default sum", "I'll raise you the wrong address for the missing part of the CCA"

 

Of course, the court doesn't know how I'll interpret a DN when it looks very different from what the Regs specify, that I might ignore it because it doesn't comply, or that I will think it isn't intended to be a DN, just a threatogram, that's why they should reject any deviation from the DN.

 

The CCA was drawn up to protect consumers and regulate lenders. As part of that, Regulations were issued specifying (not recommending, or suggesting) exactly how a DN should be composed and how it should look. Parliament did not consider deviations as being tolerable. Indeed, you don't make a specification with allowable deviations - that's contradictory. If you don't require control of something, you leave it out of the specification, you don't include it and then say "(but you don't need to do it like this if you don't want)"

 

Any deviation from something specified in a Regulation should be treated as not complying with those Regs. It either complies or it doesn't. It is for the protection of the consumer, the Regs are easily understood, and the lenders have enough 'professional' (lmao) people to be able to comply with the Res if they wish. Funny that they can calculate the interest you owe down to the penny, and down to the day, but can't follow a fairly simply specification for a legally required document.

[Bill Shidding]

Hi DD

 

although i believe there is in the CPR a mechanism for a party in a case to apply to the court not to allow the other side to withdraw

 

CPR 38.4(1) Though that is in regards to discontinuance.

[Guest HeftyHippo]

I disagree that you can anticpate a repudiation and reliabley get away with it. You can be lucky.More often that not, if teh bank realises the error they have made, they will reverse the situation and accuse you of repudiating because they have not actually done so.

 

As I said, your course of action could be considered an anticipatory repudation, and a court would have to decide who actually did repudiate. Why take that risk? They are going to end it anyway eventually. Let THEM do it and be safe. That's especially important when you look at the language they tend to use: "on or after that date" doesn't say how long after "we may" but there again, may not "we will close the account" hmmm, what about the agreement?

If youre impatient and don't mind the gamble, yes, accept the repudiation before they confirm it. But consider that its hard enough to get the lying cheats to agree on a situation even when it is in black and white, so give them any room for an argument and they will simply confuse the issue, and obscure the facts, and all the time they will be hassling you and threatening you, and marking you in default.

 

It can many months and umpteen letters to get them to accept the facts when they are clear cut, give them a hint of ambiguity and see that extend to years. Whilst they can afford to wait that long, can yu put up with the hassle?

[diddydicky]

of course they are. But what are they. Tell me exactly.

 

I regard the spelling of my surname name VERY seriously. It is not an uncommon name, but there are several varaitions of it, and if my name is spell in one of those other (incorrect ways) I don't consider it my name, its someone elses. If your name is Garry, and you have a son called Gary, that misspelling isn't minor, as it can lead to the wrong person getting the mail. If a letter comes for my son Gary, I don't open it. If he is away for a week, then that misspelling has directly impacted on my ability to react to the DN.

 

As you say, you shouldn't need hindsight to see what the bank actually intended to do, and I shouldn't lose a week out of the allowed time because my son is on holiday. Of course, the bank don't know my son has a similar name to me, or that he is away on holiday, that's why they should get my name right.

 

As far as underlining, Parlaiament decided that certain sentences should be more prominent than others, and that others should be even more prominent. It thought so strongly about it that it specified those facts. Presumably, it wanted those sentences to be prominent to draw the reader's attention to them. If they are not made prominent, the reader will treat them the same as the rest of the document, and hence the desired effect that Parliament explicitly wanted, is lost. Parliament didnt think that the document should look the same throughout, as they stated otherwise in their specification. Hence, it is hard to argue that something explicitly required by the Regulations is minor. If you can argue that one thing specified in the Regs is minor, you can argue the same about all of them! Guess what, the Regulations don't then specify the content and appearance of a Default Notice, they only make suggestions.

 

By arguing that something specified in the Regs is only minor, you're proving my point that different people will have different ideas on what degree of compliance with the Regs is acceptable, and then you get DNs that look very different being allowed in court simply because different judges are willing to accept different deviations - "I'll trade you a lack of punctuation for an incorrect default sum", "I'll raise you the wrong address for the missing part of the CCA"

 

Of course, the court doesn't know how I'll interpret a DN when it looks very different from what the Regs specify, that I might ignore it because it doesn't comply, or that I will think it isn't intended to be a DN, just a threatogram, that's why they should reject any deviation from the DN.

 

The CCA was drawn up to protect consumers and regulate lenders. As part of that, Regulations were issued specifying (not recommending, or suggesting) exactly how a DN should be composed and how it should look. Parliament did not consider deviations as being tolerable. Indeed, you don't make a specification with allowable deviations - that's contradictory. If you don't require control of something, you leave it out of the specification, you don't include it and then say "(but you don't need to do it like this if you don't want)"

 

Any deviation from something specified in a Regulation should be treated as not complying with those Regs. It either complies or it doesn't. It is for the protection of the consumer, the Regs are easily understood, and the lenders have enough 'professional' (lmao) people to be able to comply with the Res if they wish. Funny that they can calculate the interest you owe down to the penny, and down to the day, but can't follow a fairly simply specification for a legally required document.

 

in deciding whether a matter was de minimus- the judge may have regard to the extent of any prejudice that was caused by the error

 

with regard to the spelling of names and underlining it is my opinion that the judge could well find that no serious prejudice was caused to the debtor by the fact of having his name spelt wrongly

 

similarly- a LIP who is savvy enough to defend himself in court- is hardly likely to convince the judge that he was confused or failed to understand the importance of text- simply because it was not underlined

 

we agree to disagree i think that these examples would or would not be de minimus

[diddydicky]

Hi DD

 

 

 

CPR 38.4(1) Though that is in regards to discontinuance.

 

 

sorry i meant to refer to an application to prevent the other party from discontinuance

[Guest HeftyHippo]

in deciding whether a matter was de minimus- the judge may have regard to the extent of any prejudice that was caused by the error

 

with regard to the spelling of names and underlining it is my opinion that the judge could well find that no serious prejudice was caused to the debtor by the fact of having his name spelt wrongly

 

similarly- a LIP who is savvy enough to defend himself in court- is hardly likely to convince the judge that he was confused or failed to understand the importance of text- simply because it was not underlined

 

we agree to disagree i think that these examples would or would not be de minimus

a judge could find what ever he wanted - its his job, and some of it depends on his opinion. ie is subjective.

 

Whether a person was or was not confused about something does not mean its ok for a statutory notice to be nonconforming. I'm not confused that some of my DNs only gave me 10 days to rectify, but the fact that I wasn't confused should not be an excuse or justification for not complying with the regulations. I shouldn't be denied my rights because I am not confused. Banks and courts don't have the results of my IQ tests, so they can't know in advance what kind or errors I will be able to cope with.

 

We possible can agree on what are minor errors, but that isn't the point. My point is that errors of any kind should not be tolerated. The form and content of a DN is stipulated, not suggested, and for good reason.

 

If I pay money into my account to meet my obligations, and get the account number wrong so it isn't credited to me, the bank will charge me for not making the payment on time. Why should they benefit by arguing that the statutory notice was only slightly wrong in its form or content?

 

In terms of prejudice caused by errors, that was teh argument used by the judge in the case I quote above - the customer couldn't pay the default sums anyway, so it mattered not how much time he was allowed. That's a very dangerous argument to be accepting. On that basis, a bank could argue that they shouldn't need to be made to issue a DN because in the majority of cases the recipient is not able to comply with it anyway.

[diddydicky]

i accept what you argue- which is in "black and white terms"

 

regretabbly life is not always "black and white" and mistakes occur

 

It is a legitimate function of the judge- as i said before- in real life situations- to evaluate just what prejudice is caused by "de minimus" errors. such as spelling mistakes and underlining

 

notwithstanding what the CCA says about the layout of the DN- i would be surprised if anyone has EVER (or will ever) have a DN ruled as invalid on the sole grounds that the underlining was missing- or that text was not emboldened when it should have been.

 

thats (real) life

 

the last para i agree with as i have already stated- the lack of time to remedy cannot ever be de minimus since it most definately can be shown to cause substantial prejudice to the debtor as in the scenario i outlinec

[Guest HeftyHippo]

As I said earlier, most people receiving DNs cannot comply with them anyway - if they could, they wouldn't be behind in their payments! So, they cannot be prejudiced if the time allowed for rectification is less than that stipulated. In which case, its ok for a bank to give less rectification time, and a judge should allow that DN as the customer has not experienced any prejudice.

 

You seem hung up on whether text is underlined or bold. My argument has always been that a DN should comply in full without exception. Already, we can see that statements that don't comply with the Regs in terms of PROMINENCE (which is what the Regs stipulate) is very commonplace in DNs. If we accept the breaking of that specification is not important, and we can see that if a customer cannot rectify his breach (ie pay the arrears) regardless of whether he is given 7 days or 14, then we can dispense with the time limit as well. What do we have left then?

 

Yes, a judge might very well agree with the point I make above and might very say "you knew you were in arrears, how long did you expect it to be before the bank took action? You should've expected action, and the fact that the DN is totally different from what it should be is irrelevant" He is after all, entitled to judge us all as feckless irresponsible cheats trying to wriggle out of our responsibility and cheat the banks and their shareholders (like him) out of their money. it doesn't mean we voluntarily surrender at the outset the very limited protection we have.

 

In my opinion, the lack of rectification time is arguably less serious than formatting the DN correctly, as most recipients of DNs cannot rectify anyway so it makes no difference if they are given 10 or 12 days and whether that time includes service time or not.

 

Anyway, I have made my point that I believe DNs should be contested on every item and the slightest breach of the regs should be challenged. I don't propose to write any more as I would simply be repeating what I regard as the most important point: Parliament intended a DN to be formatted in a particular manner and to have particular contents. They specified what they required and formed Regulations to govern it. If they had wanted a different format or content, they would have included acceptable variations as they have done by using different schedules for different forms of credit. As they went so far as to include a specification of an obvious fact that the writing ".. shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the colour of the paper" they probably intended the formatting and contents to be exactly as they specified. No where do they say that deviations regardless of severity are acceptable

[BarclaysSAR]

Hi

 

Sorry to jump in on this, need some advice on whether to inform DCA about an invalid DN, or let them issue a Statutory demand and then have it set aside.

 

My thread is on about page 3 in this section called: To Set Aside Or Not To Set Aside Statutory Demand

Thanks

BarclaysSAR

[diddydicky]

As I said earlier, most people receiving DNs cannot comply with them anyway - if they could, they wouldn't be behind in their payments! So, they cannot be prejudiced if the time allowed for rectification is less than that stipulated. In which case, its ok for a bank to give less rectification time, and a judge should allow that DN as the customer has not experienced any prejudice.

 

You seem hung up on whether text is underlined or bold. My argument has always been that a DN should comply in full without exception. Already, we can see that statements that don't comply with the Regs in terms of PROMINENCE (which is what the Regs stipulate) is very commonplace in DNs. If we accept the breaking of that specification is not important, and we can see that if a customer cannot rectify his breach (ie pay the arrears) regardless of whether he is given 7 days or 14, then we can dispense with the time limit as well. What do we have left then?

 

Yes, a judge might very well agree with the point I make above and might very say "you knew you were in arrears, how long did you expect it to be before the bank took action? You should've expected action, and the fact that the DN is totally different from what it should be is irrelevant" He is after all, entitled to judge us all as feckless irresponsible cheats trying to wriggle out of our responsibility and cheat the banks and their shareholders (like him) out of their money. it doesn't mean we voluntarily surrender at the outset the very limited protection we have.

 

In my opinion, the lack of rectification time is arguably less serious than formatting the DN correctly, as most recipients of DNs cannot rectify anyway so it makes no difference if they are given 10 or 12 days and whether that time includes service time or not.

 

Anyway, I have made my point that I believe DNs should be contested on every item and the slightest breach of the regs should be challenged. I don't propose to write any more as I would simply be repeating what I regard as the most important point: Parliament intended a DN to be formatted in a particular manner and to have particular contents. They specified what they required and formed Regulations to govern it. If they had wanted a different format or content, they would have included acceptable variations as they have done by using different schedules for different forms of credit. As they went so far as to include a specification of an obvious fact that the writing ".. shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the colour of the paper" they probably intended the formatting and contents to be exactly as they specified. No where do they say that deviations regardless of severity are acceptable

 

by all means challenge every item and the slightest breach if you wish- just be aware of the fact of very heavy costs that can be racked up if one loses.before you encourage others to do so!

[bobbielee]

Hello,

 

Can incorrect arrears be considered de minimus?

 

B

[Bill Shidding]

Hi Bobbielee,

 

LJ Kennedy, Woodchester v Swayne.

 

"Here we are dealing with a statute which, for good and obvious reasons, requires a lender or owner to set out precisely what needs to be done to put right the alleged breach of contract. If a sum of money has to be paid it needs to be "specified". And if the figure given is more than the sum which the giver of the notice is entitled to demand, the notice, in my judgment, must be invalid."

 

Woodchesters actual arrears were £643.30. The sum demanded on the DN was £879.90, which I calculate at 37% too much. But from the statement above, it would appear that 1 penny over would be enough to invalidate the DN. Convincing a judge that 1p over invalidates a DN is the hard part.

 

 

Hi DD, just wanted to pick this up-

 

there is NO relief in the CCA s88/87 for the creditor to terminate on the back of an invalid DN

 

In my experience, the court will rule that the termination did not occur (unless the termination has been accepted).

There is no sanction (in the CCA74) if the creditor terminates on the back of an invalid DN.

[bobbielee]

Hello Bill

 

Thanks for your reply.

 

The arrears on my DN represented a 25% overcharge. The Creditor terminated the agreement. The obtained a default Judgment which contained a 45.5% overvalued Judgment debt.

 

The arrears on the DN were £548.80 and should have been £411.60 = 25% error. The Judgment debt was £301.33 which should have been £164.23 = 45.5% error.

 

Notice the errors in real terms were £137.20

 

What would you do?

 

I am trying to contact the CAB

 

 

B.

[Bill Shidding]

Hi bobbielee,

 

Did you file any acknowlegement of service or admittance/defence?

 

If not, I would consider applying for the judgment to be "set aside".

You should begin your own thread to get the most appropriate help.

 

The thrust of your argument being that,

You have recently received legal assistance and, discovered the DN was invalid.

 

Out of interest, was your "judgment" made at Northampton?

 

Bill

[diddydicky]

absolutely, hence my preference to ensure that one has made the election clear

[bobbielee]

Hi Bill

 

Not Northampton - Nottingham County Court.

 

I have just got off the phone to the CAB - I have an appointment next Tuesday.

 

 

B.

[Bill Shidding]

Good luck with the CAB bobbielee.

 

Try opening a thread here if they cant help.

 

Bill

[dadofholly]

Hi All

 

Sorry to jump in - Can anyone have a quick look at a DN that i have uploaded to see if it is valid - and if not valid what makes it invalid.

 

This is part of a pending court case so all help will be greatly appreciated.

 

http://i638.photobucket.com/albums/uu110/dadofholly/DefaultPage1.jpg

 

http://i638.photobucket.com/albums/uu110/dadofholly/DefaultPage2.jpg

[lexis200]

OH asked me a default question last night that foxed me...

 

What happens after the 6 years when a default has been placed on your file?

 

If you have an unenforceable agreement (so if all is correct they should not be able to take you to court), and your D has dropped off your file, what is left for a creditor to do?

 

They can't default you again on the same account, they can't take you to court; what happens to your credit file? Does it just go back to showing as x amount of missed payments??

[middenmess]

Hi All

 

Sorry to jump in - Can anyone have a quick look at a DN that i have uploaded to see if it is valid - and if not valid what makes it invalid.

 

This is part of a pending court case so all help will be greatly appreciated.

 

http://i638.photobucket.com/albums/uu110/dadofholly/DefaultPage1.jpg

 

http://i638.photobucket.com/albums/uu110/dadofholly/DefaultPage2.jpg

 

IMO

 

That has no relation with a default notice served under 87 [1] of the CCA!

 

It's rubbish IMO.

 

You will learn a lot about HFO and Welcome on the numerous threads about their 'dubious' documents and operating methods if you look in the relevant areas of CAG.

[lexis200]

Hi All

 

Sorry to jump in - Can anyone have a quick look at a DN that i have uploaded to see if it is valid - and if not valid what makes it invalid.

 

This is part of a pending court case so all help will be greatly appreciated.

 

http://i638.photobucket.com/albums/uu110/dadofholly/DefaultPage1.jpg

 

http://i638.photobucket.com/albums/uu110/dadofholly/DefaultPage2.jpg

 

I'm pretty sure they can't state you need to pay '40%' of the balance????

 

It has to be an amount, and that amount has to be the arrears, not just some percentage that they've decided they'd like to have.

[dadofholly]

OH asked me a default question last night that foxed me...

 

What happens after the 6 years when a default has been placed on your file?

 

If you have an unenforceable agreement (so if all is correct they should not be able to take you to court), and your D has dropped off your file, what is left for a creditor to do?

 

They can't default you again on the same account, they can't take you to court; what happens to your credit file? Does it just go back to showing as x amount of missed payments??

 

After 6 years all information regarding this alleged debt should be removed from your credit file. Sometimes you have to point this out to the CRA's if they have not already removed it.

[Bill Shidding]

absolutely, hence my preference to ensure that one has made the election clear

 

Hi DD, more than an preference I think. A necessity to ensure an unequivocal notice is brought to the creditors attention, words or deeds and such, but we don't need to go over all that again!