Invalid Default Notices

[frettful38]

I make it 2 days short if posted 1st class but 5 days short if sent second class-did you keep the envelope?

 

 

No MM, as many others did not too LOL!!!!!!!!!

[Bigdebtor]

Have you kept any other envelopes from them? If not, ensure you KEEP any further ones - to see if they ALWAYS use 1st class or not (unlikely - as most of these are now sent by UKMail or TNT - both of which count as 2nd class).

 

BD

[dizzyblonde1966]

Can someone please advise

In the Brandon case did the judge say something along the lines of as the creditor didnt take action or terminate within the dodgy dn dates he was going to allow the invalid DN to stand?

 

Did he mention anything about when a creditor actually terminates within the dodgy dn period too,

 

Ie if a creditor only gave 9 days to rectify the breach,(under the new 14 day regs) and then terminated on the 10th day

is that a different matter altogether?

 

DB x

[Bigdebtor]

Dizzy

 

Excellent point! Also - am I correect in thinking the Brandon case is being appealed?

 

BD

[diddydicky]

the judge ruled that if the DN was invalid then the creditor had NOT terminated the agreement ....on the basis that the CCa clearly states that he may not do so until he has first served a valid DN

 

I am unsure as to whether the effect of an unlawful repudiation was argued properly in this case (it seems not)- in any event it now stands ruled that the Creditor can have as many goes as he likes to get the DN right..........or simply use another clause in the agreement to terminate

 

stinks to high heaven- but it has made it so that no barristers are now prepared to accept a no win win fee case on the dodgy DN or the carey /Mcguffick issues

 

It also seems that the creditor can in fact wait to deliver an easily legiible copy of the agreement until the day of the hearing and get away with not previously providing it to the defendant

 

in which case it seems to me that at the moment the only answer would be to wait until you get to court and then argue that if the creditor is claiming he never terminated the agreement because the DN was wrong..........then his claim is not correct since he is claiming payment of sums not yet due therefore the proceedings must be adjourned until such time as the creditor complies with s87/8

 

a battle won rather than the war- but at the moment it looks to me like the judiciary have been in cohorts with the creditors to close the loopholes- and in so doing unofficially re writing the CCA

 

i have a feeling the govt might also be "implicit" in this cosy relationship

[Bigdebtor]

DD

 

Good to hear from you again. I see the "logic" that the TN can't be valid if the DN was dodgy - but what I don't understand is why such a TN on the back of a dodgy DN can't be treated like an "offer to terminate" by the creditor - which the debtor accepts - and then agrees to pay what is lawfully due at that point - i.e. arrears less damages.

 

What about all the case law stuff about being bound by what you have signed? If the creditor said he wanted to terminate - and the debtor agrees - then surely neither should still be bound by the agreement?

 

Finally - do you know if the Brandon case is being appealed?

 

BD

[pumpytums]

I suppose you could always sway the creditor after they have issued a dodgy DN then ATTEMPTED Termination. Their actions after ATTEMPTED Termination are actually on a live account it seems so every letter asking for the full amount, call demanding the full amount or claim for the full amount is clearly against their T&C in most cases and an act of parliament. So I would consider you have a right to damages at the very least.

 

The CCA was to protect the consumer against nasty money lenders and loan sharks if the creditor wants to behave in that manner that's their look out.

 

My T&C clearly states that they will only demand the full amount after taking steps for my protection under law. In addition it also states that any transfer of rights and duties will not affect any of my rights under the agreement. I'm sorry but if they break their own T&C they have broken the contract/agreement we both signed. Under common law I have a right to damages, does this negate the full balance who knows.

 

Just my take on the whole subject.

 

Pumpytums

Edited October 8, 2010 by pumpytums

[Bigdebtor]

Pumpy

 

I think your logic is impeccable - but sadly I realised a long timeago that common sense and The Law are rarely good bedfellows!

 

As DD surmises it seems that the "powers that be" are now ranged against the hapless consumer and in support of the establishment, with every new verdict seeming to chip away further at our rights.

 

I do hope the Glasgow Sheriff Court will soon redress the balance to some extent regarding unfair/illegal bank charges.

 

BD

[welshperson3]

Dicky i was in court yesterday it got adjourned but the judge did say on the point of a invalid default notice that he was of the opinion that they can issue another DN as it was adjourned before any arguments he also says that i would have to show him why they cant . he took this view on the skeleton argument.

 

i know the standard argument on this something solid to show the judge would help.

 

going out now back in 2 hours

[charlie*]

With respect to everyone, anyone who knows anything about the creation of money and the dirty, murderous history behind it over the years since 1694 will know that....

 

CENTRAL BANKS CONTROL GOVERNMENT

 

What we need is a rebellion to change the law.

 

Please, look at this video taken in the House of Commons 3 weeks ago....

 

http://www.positivemoney.org.uk/2010/09/douglas-carswell-

[diddydicky]

yes charlie- but with respect- as useful to the person above in court as a chocolate fireguard

[diddydicky]

Dicky i was in court yesterday it got adjourned but the judge did say on the point of a invalid default notice that he was of the opinion that they can issue another DN as it was adjourned before any arguments he also says that i would have to show him why they cant . he took this view on the skeleton argument.

 

i know the standard argument on this something solid to show the judge would help.

 

going out now back in 2 hours

 

you can only revert to wilson and others and develop the arguments yourself and hope for the best i am afraid-

[frettful38]

I can't remember but it will come to me there was a cagger on here that won his court case for quite a large sum on the back of a faulty DN. I will try and see where I read this thread. It had some very good info in there.

 

I think the name began with W but how many W's are there?

[Bigdebtor]

There are many W's employed by the Banks - I think it's because they sounded like bankers even before they were recruited!

 

BD

[Wolfy]

Just to add a wrinkle for peoples consideration. Most of the DCA’s purchase books of debt under Fast Flow Agreements. These agreements will normally stipulate that an account must fall within a certain category in order to be assigned to the DCA such as in default and immediate payment can be requested. Most Deeds of Assignemnt make reference to the Fast Flow Agreement and the terms in it. If, for example, the original claimant had served a faulty default notice and consequently sums were not immediately payable then I would suggest that it could be argued that the account fell outside the terms of the agreement and no assignment, whether equitable or legal, could have taken place. Anyone have any thoughts?

[diddydicky]

but surely that would be a matter between the parties- ie the buyer could sue on the grounds that he had been sold defective goods

 

if the buyer was prepared to accept a few bad apples in the bunch what grounds would the debtor have to get the assignment annulled?

 

what would be the point?

 

the matter would have to be defended against one or the other presumably

[Wolfy]

Yes but if the DCA is taking you to court in their own name claming to have absolute asignment this could assist in proving that they only have, at most, equitable assignment and therefore cannot sue in their own name even if they have fully complied with the requirements of the Law of Property Act

[frettful38]

Ahhhhhhh found it, the cagger was worsteve

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?265513-Faulty-Default-Notice&highlight=

 

I knew I was not just a pretty face LOL!!!!!!

 

I think that worsteves case is still on going

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?247688-Default-Notices-and-Court-dates...Please-Help/page17

[charlie*]

Yes, DD - I do know, but, come what may, the message must get out if it does not, then nothing will change... that's why I have put up several 'rants' that have mostly been ignored.... an awful lot of good people are spending energy and money on bringing the extent of the [problem] to the attention of the people.... one must have hope for the future or what is the point.... I have a 27 year old son still at home (my zip broke one night when I was not so old - can't keep a good man down ) who has recently been conned out of £30,000 by a large franchise and I have 5 grandchildren, the last one is at 6th form now - second year. Not only that, but the bank which helped finance my son as a post grad admitted after he lost his company after just 10 months.. that they could have told him it would not work - BUT WERE NOT ALLOWED TO.

 

What d'you think about that??? - a very well known bank too.

 

I'm ranting again , all well intentioned - apologies everyone.

 

charlie

Edited October 8, 2010 by charlie*

[charlie*]

Yes but if the DCA is taking you to court in their own name claming to have absolute asignment this could assist in proving that they only have, at most, equitable assignment and therefore cannot sue in their own name even if they have fully complied with the requirements of the Law of Property Act

 

Equitable Assignment, could there be an argument that a DCA can only claim arrears due as anything else is NOT YET DUE for payment?

After all, a FAULTY terminated agreement could only claim arrears or am I having one of my senior moments???

Edited October 8, 2010 by charlie*

[Lord_Alcohol]

Hi Frettful, the description of the solicitors M.O. is printed at the bottom of your DN. Also, there are two named individuals printed there too.

 

Bill.

 

Well let's take their word for it then.

 

Not regulated by the SRA, not listed by the Law Society. One name is a BSc, the other is an LL.B. That doesn't make them solicitors. The guy might have a BSc in home economics.

 

I would suggest that at best they are paralegals and nothing more.

 

Frettful has received threats from this "practice"; why not confirm that they are lawfully empowered to make them?

 

LA

Edited October 8, 2010 by Lord_Alcohol

[Wolfy]

Equitable Assignment, could there be an argument that a DCA can only claim arrears due as anything else is NOT YET DUE for payment?

After all, a FAULTY terminated agreement could only claim arrears or am I having one of my senior moments???

 

Under Equitable Assignment a DCA can claim nothing in their own name. Any court action would have to be taken at the very least by the original creditor and the DCA.

[Peterbard]

DD

 

Good to hear from you again. I see the "logic" that the TN can't be valid if the DN was dodgy - but what I don't understand is why such a TN on the back of a dodgy DN can't be treated like an "offer to terminate" by the creditor - which the debtor accepts - and then agrees to pay what is lawfully due at that point - i.e. arrears less damages.

 

What about all the case law stuff about being bound by what you have signed? If the creditor said he wanted to terminate - and the debtor agrees - then surely neither should still be bound by the agreement?

 

Finally - do you know if the Brandon case is being appealed?

 

BD

 

Hi

Don’t think this has been properly answered

The Brandon case found that the exact timing of the period to remedy (14)days did not have to be observed. The judge said that since no enforcement action had been taken within the period ,that there was no prejudice to the debtor.

In answer to the earlier question I think that a termination that was served only 10 days after the default would still be considered enforcement and this ruling would not effect it the fauly DN would still prevent enforcement.

The issue of unlawful rescission was not addressed basically because there is no issue never was.

The case was an appeal against a summary judgment, the claimant has to now apply for the right to appeal again this he has and we should here the result in December.

The issue of this case is whether the default period has to be exactly adhered to as stated on the notice before action can continue in court nothing else

During the case common ground comments where made regarding the termination of agreements and the fact that this can be done at any time in the life of the agreement as long as the creditor mentions it in the agreement.

Worth a read.

Peter

[Peterbard]

Hi

IMO there is a fundamental flaw in the argument as I see it. Section 87 says “before the creditor CAN” not the creditor must before he terminates.

It seems to me that if he does not issue a compliant DN he cannot terminate, no matter what letter he sends the agreement will remain active .

He then is free to just issue a corrected notice.

This experience is I must say borne out by personal experience, where a debtor successfully sued a creditor when goods were retrieved following a dodgy default /termination.

The action was for conversion as the default was not compliant so the termination was not valid

Peter

 

Hi

Thought i had ben here before , rememger this? posted it a while ago on here, it was just before i recieved all the abuse for being correct again.

I know not supposed to mention it

What do you want a medal Peter

Nope an appology would be nice but i am not going to get one again

 

Peter

 

Peter

[welshperson3]

just had a thought.

 

lets see what you think ?

 

 

76 Duty to give notice before taking certain action

(1) The creditor or owner is not entitled to enforce a term of a regulated agreement by—

(a) demanding earlier payment of any sum, or

(b) recovering possession of any goods or land, or

© treating any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred,

except by or after giving the debtor or hirer not less than seven days’ notice of intention to do so.

(2) Subsection (1) applies only where—

(a) a period for the duration of the agreement is specified in the agreement, and

(b) that period has not ended when the creditor or owner does an act mentioned in subsection (1),

except by or after giving the debtor or hirer not less than seven days’ notice of intention to do so.

on the above paragraph it says notice of intention,

so if the creditor says i will terminate in 6 months time on the DN it is irrelevant as the notice that is required is a notice of intention

so effectively you have not received a compliant notice of intention just because they didn't carry out any enforcement until much later is irrelevant.

point i am trying to get at is a DN is a notice of intention not a enforcement notice