Invalid Default Notices

[Bill Shidding]

Hi Peterbard

 

Hi

There is no reason why after the correct notice is issued the agreement cannot be enforced.

 

Why should there be.

 

Because a knowledgeable cagger would have "accepted" the original renounciation. Upon what agreement could a creditor issue a further DN?

 

Presumably there was a default, presumably the default was not remedied, the creditor is intitled to reclaim hes money, at least the court will think so.

 

The creditor is only entitled to reclaim "his money" upon serving the appropriate notices. Open ended agreements are/will be subject to Sec 98A, when that section is enacted. I 'm not sure if that section will be retrospective anyway.

The clause to non-default terminate an agreement is usually included when a creditor wishes to terminate when a fraud is suspected.

Nobody can predict what a judge will think.

 

Try using unlawful resision as a defence in court and you will see how rediculous it is.

 

I did, the judge didn't think it was "rediculous" and neither did the QC wannabe from a large chambers in London (3 Paper Buildings), who turned up for the creditor in a small claims case in Sussex. A big gun to kill off a LIP!. I failed on the "technicality" that my continuing non-performance was not deemed as "acceptance". The creditor didn't win either, because the DN they relied upon was deemed (by the judge) to be "not sent" ie faked.

 

I won't lose if there is a next time.

 

Apologies for using red, not trying to antagonise just differentiating between comments.

Bill.

 

Peter

 

It wasn’t long ago that the supreme court revoked section 127(3-5)

 

Revocation was not retrospective. It wasn't the supreme court, it was CCA2006.

 

Brandon is an illustration of this if the time element of the default is misquoted the court will ignore the technical error and ask was the remedy paid within the 14 days irrespective of what it says on the notice. If not why not.

 

A very bad "decision" on the judges part. Under what statute or precedent is a person compelled to comply with an unlawful/illegal notice? None that I can think of. Hopefully Brandon(?) will appeal or a different judge will over-rule it.

However, I realise the courts will be/are reluctant to upset their favourite customers.

 

Bill

Edited September 20, 2010 by Bill Shidding

[Bill Shidding]

Hi Ida,

 

There is a thread where apart of the caggers defense was that the DN did not allow enough time for remedy - Judge dismissed this as the claimant quoted parts of the cca and stated that service of DN's did not apply from posting but from the date on the DN. But the cagger did not know how to respond.

 

I also had this at my trial about U/R and a dodgy DN.

 

The counsel for the claimant relied upon "Norton v Ellam". That case was about a promissory note, and the date of signing a promissory note is the date on which the note becomes effective. When that case came before the court (1887) I expect that it was customary for both parties to be present (in person) at the signing of the agreement.

 

Postage would not have been a factor in that instance.

 

The cca74 clearly states "14 days after service" not "14 days after signing". However, this didn't stop my judge from agreeing with him!

 

Also, a reference to the CPR service requirements was not deemed as relevant either.

 

As this "relied upon DN" was reconstructed and later deemed "not sent" by the judge, the service point wasn't a top priority for me, so I let them run with it.

 

Although a reference to the interpretation act should have been enough to see that submission off alone.

 

Bill

[Bill Shidding]

Hi PT,

 

On thing i think people miss, is the application for a time order, i do not know of one on here where a debtor has asked the court to allow more time to pay

 

Yes, I agree with this. A time order is an underused option when the debtor has no real chance of defending the claim.

 

However, a time order (on a loan) can only be granted when the agreement is still "live" or if the initial period agreed for the repayment of the loan (eg 36 months) has not expired. That is also from my judge.

 

Could you confirm/deny that a debtor is not required to comply with an illegal/unlawful/non-compliant notice? (In reference to brandon.)

 

When you look at this logically, the statute puts in place a number of things which must be done before a regulated agreement can be terminated. If it is not "done" in the manner set out then the termination cannot occur and if it does not become terminated, then what happens to it? well the opinion of many barristers whom i speak to, is the court will simply say, that the agreement remains live, as the right to terminate cannot be available if the breach isnt dealt with in accordance with the statute.

 

In that instance, what happens about the POC? If the creditor has claimed that the agreement was terminated correctly on the POC, and the court decides that it hasn't, surely the original cause of action has gone?

Which should lead to re-issue under a different POC (as peterbard stated), and leaving the defendant to chose to defend or admit? (I know this doesn't happen, but it should !).

 

Bill

[Bill Shidding]

Hi,

 

A claimant who discontinues a claim needs the permission of the court to make another claim

 

Trouble is a claimant doesn't have to discontinue. They can cease complying (with court orders/etc) to ensure the existing case is struck out. Then re-issue, as the new claim is not restricted by res judicata (because the old case did not proceed to a full trial).

 

I had this scenario during a claim. As the first case was struck out and I had received my costs, the court allowed the claimant to proceed with the new case. The court decided that I had been sufficiently compensated by getting my costs.

[Bill Shidding]

Hi MandM,

 

Bill, had you filed a defence?

 

Yes, the claim had gone through allocation (to the fast track) and the judge had ordered the claimant to file and serve his "relied upon" default notice. The DN the claimant had previously filed had a different date to the one the claimant had stated on the POC.

 

I thought that was the 'point of no return'

 

I understand why you think that. My presumption (at the time) was that if the claimant discontinued or the claim was struck out, he would need permission to re-issue.

I made an application to "strike out" the new claim, but the judge said that the original claim did not proceed to trial (no res judicata) and that the original claim was not discontinued. The claimant stated that "as they were unable to comply with the request to f+s the correct DN in the time specified, they "allowed" the claim to be struck out!".

 

As we know the CPR states -

 

A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if –

(a) he discontinued the claim after the defendant filed a defence

and

(b) the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.

 

That is no comfort when the claimant allows the claim to be struck out. At least not in my case.

It was strange that the original claim was fast track, but the second claim was sct, at the request of the claimant!

Still, we live and learn.

Discontinuance is infinitely better than a strike out.

Bill.

[Bill Shidding]

Hi MandM,

 

So in your case are you saying that the court stuck the claim out purely because of their failure to adhere to time limits?

 

Yes.

 

Was this done at a hearing or did you go on to apply for SO?

 

The original order stated "if the claimant fails to comply with this order, the claim be struck out without further order" this was included at my request, at the preliminary hearing.

 

There was a future hearing already listed, and that hearing dealt with my costs instead of the original purpose. I asked for SJ, but the judge wouldn't have it.

 

On the new claim did they submit a new DN or stay with the original one?

 

They relied upon the DN that they were ordered to produce in the first claim. I eventually convinced the judge (by cross-examining the C's witness) that it was reconstructed to enhance the claimants claim, and that it was never actually sent/posted at all.

 

Bill.

[Bill Shidding]

Hi MandM,

 

maybe there's a marked difference if a hearing has gone ahead AND THEN their DN gets shot down and the case gets struck out because of it.

 

I agree, maybe there is. My experience is where a claim is struck out because of non-compliance with an order.

 

Although I would assume that if the DN has been shot down at a hearing, then could it be argued that the hearing was a trial? And then a judgement would be given instead of a strike out?. Then res judicata steps in.

 

Although the OCs only option then would be to issue a new DN before starting again as the original was proven as flawed.

 

I expect the claimant would have trouble denying the original TN though! Or another notice demanding the full balance that pre-dates the new DN.

 

could the OC start again and pretend that the first round never happened or would the courts permission be needed?

 

IMHO,

If the first claim was discontinued after a defence is filed, and the new claim is substantially the same, then he would need permission.

 

If the first claim was struck out, then he doesn't need permission.

I made an application to strike out the second claim, and it failed for the reasons I have given.

 

I can only write from my experience, so don't take anything here as gospel:-).

HMCS (corp.) work in mysterious ways. Usually in favour of the banks.

 

Bill.

[Bill Shidding]

Hi Pumpytums,

 

I don't actually think their is an unlawful termination as it appears that such an act is impossible under CCA 1974 so I'm told.

 

Thats correct.

 

There is no sanction whatsover (in cca74) when a creditor fails to issue a compliant DN and then terminates/demands sums not yet due.

 

The termination is ineffective.

 

Subsequently, the claimant is not entitled to claim for sums not yet due.

 

Just imagine all the claims (for sums not yet due) the creditor has *won* on the presumption of a compliant DN, that was not actually compliant.

 

How many people with CCJs will be hooking out their DN to check it was compliant?

 

How many people have been duped into repaying sums (not yet due) by the creditors and courts?.

 

How many appeals/set asides' will be in the pipeline now?

 

If the agreements were in fact "alive" the debtor could've applied for a time order, or the creditor would have to re-issue the claim with a compliant DN. More revenue for the courts, less profit for the banks, less tax for HMRC.

 

Wishful thinking!

 

Fortunately, an acceptance (word or deed) falls under contract law, and is well established.

AFAIK, there is no precedent (yet) that disqualifies an acceptance of U/T from the cca74.

 

My judge (and counsel for the claimant) were well versed in U/T or U/R, and the accepting of same.

But again, thats my experience, it may not be the same for anybody else.

Edited September 28, 2010 by Bill Shidding

[Bill Shidding]

I may be mistaken, but I believe that X20s case was settled at the door of the court.

Had it been presented to a judge, it would've been subject to the judge lottery.

Who knows where it would've ended.

 

On a different point, is anybody else looking forward to the thread where X20 and peterbard "discuss" this issue?

[Bill Shidding]

Hi Frett

 

I do not think that DG are in fact a firm of solicitors. They are not listed by the Law Society and are not members of SRA.

 

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.

[Bill Shidding]

Hi Frettful, sorry, its not the DN. Its the sols letter.

 

Alan M.B. + Paul K.

 

The letter states that the "firm" is a "practicing name"

 

Bill

[Bill Shidding]

Hi LA,

 

 

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

 

I agree with your summary.

My post was to direct frettful to the information.

I was in no way legitimising this "firms" credentials or their legal position.

 

Bill

[Bill Shidding]

Hi Pt, You have written-

 

 

The act is clear that there is no sanction civil or criminal but for that provided by the act itself. So, if the default is not valid there can be no termination.

 

This seems to be the view of the judiciary at large also, im aware of a number of reported cases where the judge has taken the view there can be no termination,

 

And-

 

Contract law does not defeat statute, if statute is in conflict with common law then statute prevails. This is our constitution.

 

If this is true, then it will be very embarrassing for the courts, and very expensive for the banks.

 

Why? Because if the debtor is/was in default, and the DN issued by the bank was non-compliant,

 

1) The banks cannot terminate without issuing a compliant DN.

2) The courts cannot enforce the agreement if there is no valid DN/legal termination.

 

You have implied that, the courts are prevented from using the "balance of probabilities" and must comply with the statute, because a statute over-rules any precedent set by a court.

 

Therefore, any claim that has been previously enforced by a court (under the balance of probabilities) where the DN was non-compliant, and the defendant has been issued with a CCJ, is now open for challenge.

 

In the light of your statements, the courts were acting outside of their powers in ordering the defendant to pay/enforcing the agreement, and the banks had no rights under the statute, to claim for sums not yet due.

 

I look forward to the influx of set aside applications dropping through county court buildings up and down the country.

 

Bill

[Bill Shidding]

Hi PT, thanks for replying.

 

I hope these issues are cleared up also.

Unfortunately, I have zero faith in the judiciary (at this time).

[Bill Shidding]

There are remedies for breach of s78, 61,90 &91 etc, but nothing set out for 87-89 save for the fact that the lender cannot terminate until compliance is achieved or the breach is remedied.

 

Maybe Mr Bennion should have taken more care when he drafted the act!.

Its possible he didn't think an upstanding financial institution could make such foolish errors.

It should be the courts responsibility to ensure the lenders know how to issue compliant notices.

The best way to ensure they do so, is by hitting them in their pockets.

Courts won't do that, the banks contribute too much to the courts turnover.

 

On a different point, X20 posted "tale of a dodgy DN" nearly 2 years ago. Its notable that there has been no challenge to that thread (that I have seen).

X20 is far more eloquent than I.

 

I would still be interested in any case law that supports the judges opinion in Brandon, namely, a borrowers legal requirement to comply with an ineffective notice.

 

Bill

Edited October 10, 2010 by Bill Shidding
Unsexing X20!

[Bill Shidding]

Hi Welshperson,

 

172 Statements by creditor or owner to be binding

 

(1) A statement by a creditor or owner is binding on him if given under—

 

section 77(1),

 

section 78(1),

 

section 79(1),

 

section 97(1),

 

section 107(1)©,

 

section 108(1)©, or

 

section 109(1)©.

 

Now the statement he has given (DN) is binding on him so how can he just issue a new DN if the first one is binding ?

 

A second DN is invalid as he is bound by the first.

 

I understand your train of thought, however, the section mentioned above does not refer to DN's (sec 87/88).

If DN's were binding on creditors, then the first DN would be the only one a creditor could send (per breach).

It is widely agreed here that a creditor can send numerous DN's, but if the final DN is non-compliant and he then terminates the agreement, his goose is/was cooked.

 

Bill

[Bill Shidding]

Above are examples but how can a creditor making a statement in legal written document and not be bound by it? They have stated their intentions so I am at a loss to see how the law would allow them to take no responsibility for their actions

 

Sorry welshperson3, took me a while to find this -

 

"... a person who signs a document, and parts with it so that it may come into other hands, has a responsibility, that of the normal man of prudence, to take care what he signs, which if neglected, prevents him from denying his liability under the document according to its tenor".

[per Lord Wilberforce in Gallie v Lee (1971)]

 

Bill

[Bill Shidding]

Hi frettful, I agree with your post 100%, there are no precedents (yet) that support or shoot-down the dodgy DN/unlawful termination argument. My feelings are that the courts are all too cosy with the banks to upset them.

Taking into account consumer law precedents/decisions since Rankines, how many have fallen on the side of the borrower? Is it by chance that the banks are insolvent?

I sincerely hope the recent cases are not "set ups".

 

Welshperson, IMHO, once an agreement is "believed" to be terminated by the creditor, and that termination is accepted by the borrower, the agreement is no longer regulated by the CCA74. It is a contract, like any other business contract and subject solely to case law governing contracts.

 

We really need a (fair) test case.

[Bill Shidding]

Maybe "estoppel by representation" could be pleaded, where the creditor suddenly realises the error during proceedings.

As up to that point, the creditor had intended/believed the agreement to be terminated, and had even claimed the full amount on the POC. An official/legal letter from a creditor would generally be taken at face value by a debtor.

 

The debtor, being a person of limited legal knowledge, may have acted to his detriment by interpreting the CCA74 as an absolute authority, and had understood the DN to be ineffective (by its non-compliance with the terms of sec88).

Any subsequent termination by the creditor being voided, according to the statute.

 

Thereby, the debtor ignored the DN/TN/FD as a non-compliant/illegal demand.

 

The only good point (I can see) where a court deems the agreement live, is that the debtor could immediately request a time order, in certain circumstances.