Invalid Default Notices

[Dotty50]

My understanding of Unlawful rescission - Creditor issues a DN giving a specified amount of time to pay the arrears, after which time they will terminate the agreement if payment is not paid.

 

Not many actually terminate in writing after this but if the account is sold on or the full balance demanded then this is generally accepted as termination.

 

In some cases, there will be issues with the DN, usually not being given the stipulated time to remedy the breach, or specific sentences not being highlighted or actually requesting the full balance.

 

If the account is sold or full balance demanded before the expiry of the DN, then this is UR and you are at this point only liable for the TRUE arrears.

 

Have I got this right?

 

Others can probably give a much better explanation!

 

And this applies to credit card agreements?

[basa48]

My understanding of Unlawful rescission - Creditor issues a DN giving a specified amount of time to pay the arrears, after which time they will terminate the agreement if payment is not paid.

 

Not many actually terminate in writing after this but if the account is sold on or the full balance demanded then this is generally accepted as termination.

 

In some cases, there will be issues with the DN, usually not being given the stipulated time to remedy the breach, or specific sentences not being highlighted or actually requesting the full balance.

 

If the account is sold or full balance demanded before the expiry of the DN, then this is UR and you are at this point only liable for the TRUE arrears.

 

Have I got this right?

 

Others can probably give a much better explanation!

 

And this applies to credit card agreements?

 

This is how I understand it, but Peter is saying a creditor cannot terminate following a defective DN (or at least the termination would be ineffective), therefore the agreement endures and the OC can legally issue another DN and so until on the umpteenth attempt gets the DN right and can therefore legally terminate and demand all his money back.

[Bigdebtor]

Dotty - Thanks for that. You read my mind. That's exactly what I meant - even if I didn't say it as clearly - but I thought I had said it - albeit much less succinctly.

 

Peter - I'm beginning to wonder if you're starting to play with words in this thread a bit like I've seen you do on PT2537's thread - if we get one syllable wrong then instead of saying "no - but....." you just say "no" and while you may then be 100% technically right, the answer could be misleading and not at all helpful.

We all know from reading earlier posts (by Diddydicky etc.) how important it is to ACCEPT the unlawful termination/rescission/repudiation - whatever is the correct term (but which all mean roughly the same to lay people - even if clever legal people say they have TOTALLY different meanings in law).

Your posts could indicate that we DON't have such an opportunity - which I think is very misleading.

I hope I'm mistaken - and if so I'm sorry, but you really do have to make yourself much better understood to the lay people who are looking for help on here.

If I'm not mistaken - then I'm even sorrier!

 

BD

[postggj]

That is why you never tip off the creditor on a defective default notice

 

you bring the ace out of the hole when the creditor issues a court claim as by issuing the claim, the agreement has been terminated

[Bigdebtor]

That is why you never tip off the creditor on a defective default notice

 

you bring the ace out of the hole when the creditor issues a court claim as by issuing the claim, the agreement has been terminated

 

And by doing so on the back of a dodgy DN the creditor has done so unlawfully - or illegally - o rin contravention o fthe terms of the CCA 1974 etc.

 

In any case the KEY POINT is "game over " - only lawful arrears (less damages) will now need to be repaid - and no court can order the rest of the outstanding balance to be paid either in one go or over time.

 

BD

[postggj]

Never illegally

 

allways

 

unlawfully

 

but yes

 

you are correct

[Bigdebtor]

PG - thanks - an excellent example of a helpful/clarifying: "you're wrong...but...."

- rather than an unhelpful/potentially misleading: "you're wrong!"

 

BD

[diddydicky]

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

 

i wasnt aware that i was displaying any anger!!

 

when you say "the courts" are not ruling on techinicalities- as far as i am aware it was only ONE court in brandon!

[postggj]

pg - thanks - an excellent example of a helpful/clarifying: "you're wrong...but...."

- rather than an unhelpful/potentially misleading: "you're wrong!"

 

bd

 

may i ask why its wrong

 

is the comment directed at myself or peter

 

for the record

 

i got to respect peters posts long ago

[basa48]

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

 

Lots of conflict here peter.

 

Firstly the debtor draws down credit not the creditor. It is the creditors right to 'restrict' credit (to £0 if he feels like it). But that is not a termination of the agreement. I think a termination should terminate the rights and duties of both parties, including demanding repayments (by the creditor) or making repayments (by the debtor).

 

I still don't see why an illegal termination is not possible for a credit card agreement.

[Peterbard]

Dotty - Thanks for that. You read my mind. That's exactly what I meant - even if I didn't say it as clearly - but I thought I had said it - albeit much less succinctly.

 

Peter - I'm beginning to wonder if you're starting to play with words in this thread a bit like I've seen you do on PT2537's thread - if we get one syllable wrong then instead of saying "no - but....." you just say "no" and while you may then be 100% technically right, the answer could be misleading and not at all helpful.

We all know from reading earlier posts (by Diddydicky etc.) how important it is to ACCEPT the unlawful termination/rescission/repudiation - whatever is the correct term (but which all mean roughly the same to lay people - even if clever legal people say they have TOTALLY different meanings in law).

Your posts could indicate that we DON't have such an opportunity - which I think is very misleading.

I hope I'm mistaken - and if so I'm sorry, but you really do have to make yourself much better understood to the lay people who are looking for help on here.

If I'm not mistaken - then I'm even sorrier!

 

BD

 

Ho Hum here we go

 

NO playing with words

 

YOu say they are trying to demand payment they are not entitled to or at a rate they are are not entitled to ,they would say they are fully within their rights, guess who decides who is right , the courts.

 

what you have is a dissgreement a dispute nothing illegal.

 

If it was illegal the OFT would littigate.

[Bigdebtor]

may i ask why its wrong

 

is the comment directed at myself or peter

 

for the record

 

i got to respect peters posts long ago

 

PG - I was thanking you for clarifying my earlier post - and (correctly) saying I was wrong in using "illegally" but goiung on to clarify I was correct in "unlawfully".

 

I too have seen many cases of excellent answers from peterbard - but in my previous post I had expressed concern that Peterbard was perhaps playing on words in som eof his recent responses and not trying to clarify (partially) wrong answers by answering "yes (or no) - but..." as I had seen evidence of this tendency in PT2537's Egg thread - to the great frustration of many posters to and readers of that particular thread.

 

Hope that clarifies?

 

BD

[basa48]

Ho Hum here we go

 

NO playing with words

 

YOu say they are trying to demand payment they are not entitled to or at a rate they are are not entitled to ,they would say they are fully within their rights, guess who decides who is right , the courts.

 

what you have is a dissgreement a dispute nothing illegal.

 

If it was illegal the OFT would littigate.

 

This is pedantic. What people mean here by illegal is 'not in accordance with the law of credit agreements', i.e. contrary to the Act (of Parliament) which regulates such things. Not a criminal act.

[Peterbard]

Lots of conflict here peter.

 

Firstly the debtor draws down credit not the creditor. It is the creditors right to 'restrict' credit (to £0 if he feels like it). But that is not a termination of the agreement. I think a termination should terminate the rights and duties of both parties, including demanding repayments (by the creditor) or making repayments (by the debtor).

 

I still don't see why an illegal termination is not possible for a credit card agreement.

 

Sory for the typo yes obviously a debtor draws down credit.

 

Have you not read any of my previous post.

 

Any one can terminate an agreement at any time, so how can it be illegal. See the earlier posts read the piece on the eu directive or look at the case law(Bredon) or just read the regs.

 

Peter

[postggj]

I agree peter can be quite frustrating at times as his answers are difficult to understand but take it from me

 

right or wrong

 

you allways respect his replies and do your own digging to confirm

 

my comment goes to pt as well

[Dotty50]

That is why you never tip off the creditor on a defective default notice

 

you bring the ace out of the hole when the creditor issues a court claim as by issuing the claim, the agreement has been terminated

 

Ok, but if you accept UR in writing, as advised on here, then aren't you actually putting them on notice that the DN was defective?

 

I ascertained that both of my MBNA CC's were sold before the expiry of the DN by way of SAR before accepting UR, MBNA denied UR in both cases but the SAR tells another story.

[postggj]

THANKS FOR THE PAT ON THE BACK ANYWAY BIG:roll:DEBTOR

[Bigdebtor]

Ho Hum here we go

 

NO playing with words

 

YOu say they are trying to demand payment they are not entitled to or at a rate they are are not entitled to ,they would say they are fully within their rights, guess who decides who is right , the courts.

 

OK - but I think we all agree the creditor's demands are UNLAWFUL (I accept - not illegal). I accept that only a court would decide - but if we know the action as described to be unlawful we should advise a CAGGER of this to put their mind at rest and not leave them in doubt - or at worst thinking the creditor may well (or will) win - and thus lead them to pay up when the liklihood (certainty?) is that no court would force them to pay up in such instances.

 

THAT is what I mean by playing with words.

 

Hope that now clarifies?

 

BD

 

what you have is a dissgreement a dispute nothing illegal.

 

If it was illegal the OFT would littigate.

 

Somehow my response got mixed up inside your quote - put in bold so it stands out - couldn't just cut and paste - too tired to re-type.

BD

[Peterbard]

This is pedantic. What people mean here by illegal is 'not in accordance with the law of credit agreements', i.e. contrary to the Act (of Parliament) which regulates such things. Not a criminal act.

 

So we dont mean resision now we mean not in accordance with the law.

OK Whos law your or the creditors

 

YOu cannot just stomp your feet and say this is unfair to me therfore it is illegal, the other side also have a point of view and it is the courts who decides who is right and who iwrong what is illegal and what is not.

 

At most you have a dispute

 

Peter

[postggj]

Most of the time the creditor does not know the dn is defective, its all automated

 

dont tip them off until you get a court claim

[Bigdebtor]

This is pedantic. What people mean here by illegal is 'not in accordance with the law of credit agreements', i.e. contrary to the Act (of Parliament) which regulates such things. Not a criminal act.

 

Basa

 

Thanks - agree 100%.

 

BD

[Peterbard]

Somehow my response got mixed up inside your quote - put in bold so it stands out - couldn't just cut and paste - too tired to re-type.

BD

 

Hi Look dont want sound smrt but firstly unlawful and illegal have preciisly the same legal meaning.

 

Something is either unlawful or it is not

 

Peter

[basa48]

Sory for the typo yes obviously a debtor draws down credit.

 

Have you not read any of my previous post.

 

Any one can terminate an agreement at any time, so how can it be illegal. See the earlier posts read the piece on the eu directive or look at the case law(Bredon) or just read the regs.

 

Peter

 

Of course either side can terminate at any time. If the debtor wants to terminate then he has to repay the money or else the creditor would default him and demand the money back. But I don't see how the creditor can terminate and expect the debtor to continue repayments. That is an unfair situation. Shouldn't the debtor be able to default the creditor by saying he must continue to offer his side of the agreement, i.e. a credit facility. I've read the directive, the case law and the Act/Regs. Now where does it say a creditor can terminate an agreement AND then ask for the money back.

[postggj]

In the terms and conditions of most credit agreement there will be a clause that states the creditor can terminate an agreement at any time by giving say 14 days notice and demand the repayment of all sums

 

a bank overdraft for instance

[Bigdebtor]

Hi Look dont want sound smrt but firstly unlawful and illegal have preciisly the same legal meaning.

 

Something is either unlawful or it is not

 

Peter

 

OK - let's use lay terms.

 

If a creditor sends out a "dodgy" DN and then terminates the agreement either via a TN or a letter demanding payment of the full balance - then the debtor is off the hook - only arrears less damages need to be paid.

 

Diddydicky advises accepting the "unlawful" (i.e not in accordance with the provisions of either CCA or Law of Contract - not sure which and don't care at this late hour) termination for avoidance of doubt.

 

Some others say just not paying any more to the creditor is enough to show by deed that the debtor accepts the agreement is terminated (unlawfully/illegally/not in accordance with the relevant Act of Parliament - don't care which right description right now)

 

Hope this clarifies the point I had tried to make about the danger of "playing with words" earlier tonight?

 

BD