Invalid Default Notices

[Peterbard]

whereas repudiate doesn't mean the same thing

 

if the logic of that argument is followed- then parliament would not have bothered in laying out precisely the form and content of a DN- since following your argument the creditor could just write absolutely anything- for as many attempts as he likes- until he gets it right

 

so following a defective DN he can go to court- be told that he did not have a cause of action- and then start all over again- ad infinitem

 

i dont think so myself

 

Hi

well with respect yes it would.

The purpose of the default is to give the debtor time to remedy not to provide a trap so debtors can evade paying their agrements.

Peter

Edited September 18, 2010 by Dodgeball
ho hum

[Peterbard]

that the law does not allow (lawful) termination - surely has never been in dispute

 

counsel are now suggesting that a creditor may repudiate their obligations and withdraw the most important benefits of the contract unlawfully from the debtor- (usually the ability to continue to make monthly repayments of their own choosing-- subject to a minimum and that the injured party cannot elect to accept the wrongdoers unlawful act and relieve himself of his continuing obligations under the agreement?- so what part of civil law takes away this right to elect from a participant in a consumer credit agreement- what legislation gives the CCA priority over general contract law? i fail to understand

 

Hi

I must admit I fail to see the source of your obvious anger here.

When you sign an open ended agreement it has no term length obviously

.

Sooner or later it has to end, logically how would that ever happen if the facility for one or either of the parties to terminate was not part of the conditions of the agreement.

Are you suggesting that when you sign a credit card agreement you would be eternally entitled to draw on it because if you are then you must acknowledge that you will be through retropisity be bound to keep the card eternally.

Mutual consent no not really you would be able to hold the creditor for ransom for ever or he you.

Peter

[cab1ne]

whereas repudiate doesn't mean the same thing

 

if the logic of that argument is followed- then parliament would not have bothered in laying out precisely the form and content of a DN- since following your argument the creditor could just write absolutely anything- for as many attempts as he likes- until he gets it right

 

so following a defective DN he can go to court- be told that he did not have a cause of action- and then start all over again- ad infinitem

 

i dont think so myself

 

me niether, but "hay-ho" we are the LiP and we need to be kept in our place.

 

cab

[Peterbard]

me niether, but "hay-ho" we are the LiP and we need to be kept in our place.

 

cab

 

Hi

I must repeat I don’t see why this presents a problem, yes the default notice needs to be correct , if it isn’t then it must be corrected so you get twice as long to remedy.

It is not some kind of test that the creditor must pass in order to get his money back and if he fails you get to keep it.

The cases sited where sums of money where awarded to litigants who had suffered repudiation were claiming damages cause by that action what damages could the debtor claim, the creditor is the one out of pocket isn’t he i am sure the judge will say he is.

Its fine saying oh your on the side of the creditor but really I am not just common sense.

Peter

[cab1ne]

Hi

I must repeat I don’t see why this presents a problem, yes the default notice needs to be correct , if it isn’t then it must be corrected so you get twice as long to remedy.

It is not some kind of test that the creditor must pass in order to get his money back and if he fails you get to keep it.

The cases sited where sums of money where awarded to litigants who had suffered repudiation were claiming damages cause by that action what damages could the debtor claim, the creditor is the one out of pocket isn’t he i am sure the judge will say he is.

Its fine saying oh your on the side of the creditor but really I am not just common sense.

Peter

 

ah "sorry"

i was refering to there attitude towards the CCA, i was'nt having a dig at you, or infering you are on there side. it is just looking like the act is swinging towards the protection of the financeiers.

 

cab

[sequest]

If an a/c is in dispute because the Creditor fails to provide a copy of the CCA , it would appear from the legislation below that the Creditor cannot enforce the Agreement. If they attempt to do so, does this constitute illegal recission?

 

Where a creditor fails – on request and upon payment of the appropriate

fee by the debtor - to provide the information required by sections 77-79

and 97 of the 1974 Act, the creditor is not entitled to enforce the

agreement whilst the default continues. If the creditor fails to provide

information relating to any security, pursuant to sections 107-110, he is

not entitled to enforce the security instrument.

 

In addition, the OFT and Local Authority Trading Standards Services

have powers under Part 8 of the Enterprise Act 2002 to take

enforcement action where there is a breach of legislation which harms the collective interests of consumers.72 Enforcement action may also be

taken where appropriate under the Consumer Protection from Unfair

Trading Regulations 2008.73

 

AND

In a recent judgment,

25 the Commercial Court held, in a case under

section 77 of the Act, that passing details of a debt to a credit reference

agency and related activities do not constitute enforcement. It also held

that steps taken with a view to enforcement, including demanding

payment from a claimant, issuing a default notice, threatening legal

action and the actual bringing of proceedings, are not themselves

'enforcement'. On the other hand it confirmed that obtaining judgment

against the debtor was enforcement, as were the actions listed under

sections 76(1) and 87(1),

26 notwithstanding that some of the actions

'less obviously' amounted to enforcement. These actions are demanding

earlier payment, recovering possession of goods or land, treating any

right conferred on the debtor by the agreement as terminated, restricted

or deferred, enforcing any security and terminating the agreement.

5.3 In drawing a distinction between actions which were and were not

enforcement, no definition of enforcement was given the court, but it

would appear that it was distinguishing between actions based on the

exercise of contractual rights (which would be enforcement) and other

actions intended to obtain payment which did not involve the exercise of

a contractual right.

24

Sections 77(4), 78(6) and 79(3). A declaration under section 142(1) of the Act (with the

consequent application of section 106 (rendering securities ineffective) is not available, as

section 142(1) does not apply to unenforceability consequent upon sections 77(1), 78(1) and

79(1).

25

McGuffick –v- The Royal Bank of Scotland plc [2009] EWHC 2386 (Comm)

26

Paragraph 74 of the judgment.

OFT1175con | 24

[Peterbard]

ah "sorry"

i was refering to there attitude towards the CCA, i was'nt having a dig at you, or infering you are on there side. it is just looking like the act is swinging towards the protection of the financeiers.

 

cab

 

Hi Cab

Don’t apologise, my fault getting a bit prickly of late used to people jumping on me as soon as I open my mouth.

Your right of course the courts no longer it seems will give judgement purely on technicalities they have decided to look for the prejudice caused by the breach

I think we probably have the likes of the Rankin’s and others to thank for that.

Regards

Peter

[Peterbard]

If an a/c is in dispute because the Creditor fails to provide a copy of the CCA , it would appear from the legislation below that the Creditor cannot enforce the Agreement. If they attempt to do so, does this constitute illegal recission?

 

Where a creditor fails – on request and upon payment of the appropriate

fee by the debtor - to provide the information required by sections 77-79

and 97 of the 1974 Act, the creditor is not entitled to enforce the

agreement whilst the default continues. If the creditor fails to provide

information relating to any security, pursuant to sections 107-110, he is

not entitled to enforce the security instrument.

 

In addition, the OFT and Local Authority Trading Standards Services

have powers under Part 8 of the Enterprise Act 2002 to take

enforcement action where there is a breach of legislation which harms the collective interests of consumers.72 Enforcement action may also be

taken where appropriate under the Consumer Protection from Unfair

Trading Regulations 2008.73

 

AND

In a recent judgment,

25 the Commercial Court held, in a case under

section 77 of the Act, that passing details of a debt to a credit reference

agency and related activities do not constitute enforcement. It also held

that steps taken with a view to enforcement, including demanding

payment from a claimant, issuing a default notice, threatening legal

action and the actual bringing of proceedings, are not themselves

'enforcement'. On the other hand it confirmed that obtaining judgment

against the debtor was enforcement, as were the actions listed under

sections 76(1) and 87(1),

26 notwithstanding that some of the actions

'less obviously' amounted to enforcement. These actions are demanding

earlier payment, recovering possession of goods or land, treating any

right conferred on the debtor by the agreement as terminated, restricted

or deferred, enforcing any security and terminating the agreement.

5.3 In drawing a distinction between actions which were and were not

enforcement, no definition of enforcement was given the court, but it

would appear that it was distinguishing between actions based on the

exercise of contractual rights (which would be enforcement) and other

actions intended to obtain payment which did not involve the exercise of

a contractual right.

24

Sections 77(4), 78(6) and 79(3). A declaration under section 142(1) of the Act (with the

consequent application of section 106 (rendering securities ineffective) is not available, as

section 142(1) does not apply to unenforceability consequent upon sections 77(1), 78(1) and

79(1).

25

McGuffick –v- The Royal Bank of Scotland plc [2009] EWHC 2386 (Comm)

26

Paragraph 74 of the judgment.

OFT1175con | 24

 

Hi

 

Bit off topic this but.

 

Unfortunately the passage you quoted confirms that the creditor can continue to press for payment, the term “enforce”, means the action taken by the court, anything prior to that is merely commencement of proceedings.

Also failure to provide a copy under 78 is in itself insufficient to warrant a claim that the account is in dispute, you would need to claim that no agreement exists and put them to proof, unfortunately none compliance of a copy request is not the same thing.

 

No there is no such thing as unlawful recission on a credit card agreement.

 

Peter

[sequest]

Thanks Peter.

However, doesn't this section imply that enforcement also includes:

 

obtaining judgment

against the debtor was enforcement, as were the actions listed under

sections 76(1) and 87(1),

26 notwithstanding that some of the actions

'less obviously' amounted to enforcement. These actions are demanding

earlier payment, recovering possession of goods or land, treating any

right conferred on the debtor by the agreement as terminated, restricted

or deferred, enforcing any security and terminating the agreement.

[Peterbard]

Thanks Peter.

However, doesn't this section imply that enforcement also includes:

 

obtaining judgment

against the debtor was enforcement, as were the actions listed under

sections 76(1) and 87(1),

26 notwithstanding that some of the actions

'less obviously' amounted to enforcement. These actions are demanding

earlier payment, recovering possession of goods or land, treating any

right conferred on the debtor by the agreement as terminated, restricted

or deferred, enforcing any security and terminating the agreement.

 

Hi

Yes it is confusing the key is in the word s “action” and “actions intended to”

Apparently the issuance of a default notice for instance would not be enforcement because it was the later, any action taken on the notice would be the former and would constitute enforcement.

So yes i would agree that on this definition the issuance of a default termination an account by a creditor who was in breach of section 78 would not be allowed under 78(6).

Interesting

Peter

[cab1ne]

Hi Cab

Don’t apologise, my fault getting a bit prickly of late used to people jumping on me as soon as I open my mouth.

Your right of course the courts no longer it seems will give judgement purely on technicalities they have decided to look for the prejudice caused by the breach

I think we probably have the likes of the Rankin’s and others to thank for that.

Regards

Peter

 

No probs m8.

 

so just another question regarding dodgy defaults.

the creditor sends a dodgy default notice then terminates the agreement. (the usual). but within the terms and conditions of the agreement, it has a nice little clause that says:

 

11.13. Notices under this agreement must be in writing.

They must be sent by Fax or Post or delivered by Hand, to the addresses shown in this agreement or any other address provided.

Notices will be considered as delivered at the time they are sent if sent by Fax.

Two days after posting if sent by Post, and at the time of delivery if delivered by hand.

that clause in my opinion is in total agreement with section 87/88.

what possible argument could be derrived from that one ??????

cab

[alangee]

What if - after issuing a defective DN, and then "terminating" the agreement - the OC then sells to a DCA. What is the status of the agreement then?

 

Alan

[Peterbard]

No probs m8.

 

so just another question regarding dodgy defaults.

the creditor sends a dodgy default notice then terminates the agreement. (the usual). but within the terms and conditions of the agreement, it has a nice little clause that says:

 

11.13. Notices under this agreement must be in writing.

 

They must be sent by Fax or Post or delivered by Hand, to the addresses shown in this agreement or any other address provided.

Notices will be considered as delivered at the time they are sent if sent by Fax.

Two days after posting if sent by Post, and at the time of delivery if delivered by hand.

 

that clause in my opinion is in total agreement with section 87/88.

 

what possible argument could be derrived from that one ??????

 

cab

 

Hi

 

NOt sure what you mean, i know defauts are supposed to be sent by post and not by electronic means.is that what you mean, that and the termination will be inafective if the default is incorrect.

 

Peter

[Peterbard]

What if - after issuing a defective DN, and then "terminating" the agreement - the OC then sells to a DCA. What is the status of the agreement then?

 

Alan

 

Hi

 

I would say that the creditor had no right to either terminate the agreement or transfer /assign the debt if the notice is not served in the correct manner and the correct information and amount of time is given in order for the debtor to remedy. The creditor couold say the agreement was terminated under the conditions in the contract but that would not be suffiiant as there is no facility to demand early payment if they took that route

 

I f the default was assigned as a terminated account the assignment would IMO be void.

 

Peter

[cab1ne]

Hi

 

NOt sure what you mean, i know defauts are supposed to be sent by post and not by electronic means.is that what you mean, that and the termination will be inafective if the default is incorrect.

 

Peter

 

not quite peter,

 

what i am saying is. in my case they are not only in breach of section 87/88 they have are also in breach of the terms and conditions due to the default notice being non compliant. clause 11.13.

cab

[Peterbard]

HI

HI actually thinking about this in conjunction with Sequest earlier point that if the agreement was in breach of a section 78 request it could not be terminated, wouldn’t that mean that a creditor who didn’t comply with 78 couldn’t assign the terminated debt.

I am not really up on assignments but doesn’t an account have to be terminated before it is assigned.

Peter

[basa48]

HI

HI actually thinking about this in conjunction with Sequest earlier point that if the agreement was in breach of a section 78 request it could not be terminated, wouldn’t that mean that a creditor who didn’t comply with 78 couldn’t assign the terminated debt.

I am not really up on assignments but doesn’t an account have to be terminated before it is assigned.

Peter

 

Why can only an account that has been terminated be assigned? Most T&Cs contain a term saying that the account can be assigned at any time. So long as the rights and duties of both parties are adhered to there is no prejudice to the consumer.

 

I'm not sure what happens to an account that has been improperly defaulted and terminated when assigned.

[cab1ne]

when you have got a spare moment peter could you advise on post *475

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?181761-Cab1ne-Lombard-Shoosmiths-**Claim-Recieved**&p=3132978#post3132978

 

cab

[Peterbard]

Why can only an account that has been terminated be assigned? Most T&Cs contain a term saying that the account can be assigned at any time. So long as the rights and duties of both parties are adhered to there is no prejudice to the consumer.

 

I'm not sure what happens to an account that has been improperly defaulted and terminated when assigned.

 

Hi yes i meant an account in a default situation where the creditor is seeking premature repayment

 

Like is say i am not up on assignments so i could be wrong.

 

Peter

[basa48]

Hi yes i meant an account in a default situation where the creditor is seeking premature repayment

 

Like is say i am not up on assignments so i could be wrong.

 

Peter

 

I could be wrong too, but I don't see assignment as being affected by anything to do with defaults or termination or the CCA at all. I would have thought the DCA would take over the rights and duties under the assignment whatever stage they are at. Of course it may well be the assignor has sold an account that has been improperly terminated, in which case 'let the buyer beware'. But a lot of your arguments point to a creditor being able to default and terminate as many times as they like until they get it right. So a DCA with assigned rights should be able to do the same.

[Dotty50]

Hi

 

No there is no such thing as unlawful recission on a credit card agreement.

 

Peter

 

Hi Peter,

 

That is the first time I have seen this mentioned, others on here advise different.

 

Can you please clarify why?

[Peterbard]

I could be wrong too, but I don't see assignment as being affected by anything to do with defaults or termination or the CCA at all. I would have thought the DCA would take over the rights and duties under the assignment whatever stage they are at. Of course it may well be the assignor has sold an account that has been improperly terminated, in which case 'let the buyer beware'. But a lot of your arguments point to a creditor being able to default and terminate as many times as they like until they get it right. So a DCA with assigned rights should be able to do the same.

 

HI

Well no the DCA wouldn’t have terminated the agreement in the first instance would they?

They cant take over the agreement and provide credit. Section 87 says some thing like if the default is remedied then it didn’t exist so there would have to be a viable account to be defaulted.

The default would have had to have been issued by the creditor, it would be up to them to provide the time to remedy.

Yes the active account can be transferred but that would make no difference the new owners would then have to default if a breach occurred by debtors

Peter

Edited September 19, 2010 by Dodgeball
trying to translate to english

[Peterbard]

Hi Peter,

 

That is the first time I have seen this mentioned, others on here advise different.

 

Can you please clarify why?

 

Hi Dotty

 

 

 

Hi

I take it what is meant is the withdrawal of the creditors right to draw credit , this is not unlawful, the agreement can be terminated at any time.

Illegal rescission would result in the illegal termination of the contract as said no such thing is possible on a credit card agreement.

Peter

[Bigdebtor]

Peter

 

That's not a clarification - just a re-statement of what you had already said.

 

Surely asking for the entire debt to be paid back NOW on the back of a dodgy DN would be illegal rescission?

 

Why? - since if the DN was invalid and never corrected before "termination" - i.e demanding all the debt back and not giving the agreed time to repay at the agreed monthly repayment amount - the OC had NO RIGHT to do so in these circumstances - hence illegal?

 

BD

[Peterbard]

Peter

 

That's not a clarification - just a re-statement of what you had already said.

 

Surely asking for the entire debt to be paid back NOW on the back of a dodgy DN would be illegal rescission?

 

Why? - since if the DN was invalid and never corrected before "termination" - i.e demanding all the debt back and not giving the agreed time to repay at the agreed monthly repayment amount - the OC had NO RIGHT to do so in these circumstances - hence illegal?

 

BD

 

Hi

 

Sorry dont understand your point the company cannot make you do anything, the court enforces the agreement are you saying the judiciary are acting illegaly.

If the default is incorrect then the court will not enforce.

 

Peter