Invalid Default Notices

[emandcole]

A thought:

 

With the judicary seemingly confused by the CCA would a defence of unlawful recission due to invalid DN be stronger than defending on the grounds of unsatisfied s77-78 request/ improperley executed agreement?

 

Having started three potential claims yesterday for just this I believe that a court will have a greater understanding of this. In fact I'm counting on it! If the creditors don't play ball with the threat I've made I for one will be testing it out this year sometime...which I will of course document fully on here.

[emandcole]

no, a small variation can be a de minimus issue

 

for instance an error of 50 pounds on a claim for say 400 pounds owing in arrears would not be de minimus (IMO)

 

but if it were 50 pounds in a claim for arrears of say 3500 pounds the judge may well rule it so!

 

Just to clarify this issue a little in Woodchester v Swayne and Co 1998, the Default Notice overstated the Arrears by 38.71% and was declared invalid, so any Notice that is at least that inaccurate should also be invalid based on that case history.

 

The degree of error will determine if the notice is invalid, an error greater than 38.71% will exceed the Default Notice error noted in Woodchester v Swayne and Co 1998, so can be considered invalid based on that precedent. Below 38.71% margin for error, and there will be a debate if the error is significant enough to invalidate the Default Notice, or if the error is just de minimis.

 

I believe de minimis is technically unspecified and as such wide open to abuse but case law such as that above does provide some much needed precedent to build on.

 

Of course a default notice that is even 1p out should be invalid, because any large and sophisticated financial institution ought to know down to the last penny what you owe. They are expected to have and use an expansive array of technology and information to get such matters right in the first place, strange how this doesn't happen.

 

Of course the ideal is to have a dn that is wildly innaccurate and the closer to 38.71% inaccuracy you can get, the better.

[emandcole]

Very interesting thread.

 

I've been served a default notice (now court claim) whereby besudes a few 'charges' the amount also includes a 'tracing' fee of £50 which the OC charged to the account because we had not informed tgem of our change of address, they later stated that it was their error & that they confirmed receiving our letters but lost them.

 

They said that the 'fee' would be waived but its still on the account & we are charged interest on it.

 

Would this make the DN invalid?

 

First things first how long were you given to make the default payment :idea:

 

Best to give the date of the default notice and then give the date they wanted you to pay by. If it doesn't specify a date but just says something like 'pay within X days of this notice' it's dodgy.

[emandcole]

I think that date wise the DN is correct issued 29th July 2009 & given until 20th August 2009 to remedy

 

Technically then it is still incorrect on a totals basis but de minimis would come in I suspect, what are the percentages involved?

 

Assuming it's correctly entitled as a default notice too?

[emandcole]

Not even 10% then, maybe 7% or so. Still, the amount is not a small one so I'd push home the fact that an innacurate default notice is a complete defence.

 

If they cannot get such amounts right you are being unfairly treated by the creditor. As for this tracing fee if that was applied to the original balance before the default was served and then subsequently withdrawn as they admitted the letters from you had been lost that should be enough to question the validity of the default.

 

Incorrect is invalid, guess it comes down to the judge on the day but I would definitely fight it on the grounds that their mistakes made it very difficult for you to provide remedy and the resultant litigation is vexatious.

 

Worth a shot anyway

[emandcole]

No "right thinking person" would believe that a 1p error or even a 1 pound error would be anything other than of no relevance whatsoever.

 

reality check!

 

Agree in principle but given the fact that everything is computerised I can't see why these vast institutions regularly fail to get even the basics right. Using the same principle is de minimis more acceptable as a percentage or as an amount?

 

If I owed £4,000,000 in arrears on a 1 billion pound loan (I've got an airline for example ) and the default notice was 'only' 6% out that still represents £240,000, hardly loose change.

 

That to most minds should be considered as grossly inaccurate and the bank would need stringing up for such sloppy accounting but apply the same 6% error to a default value of 'only' £50 and because that's 'just' £3.00 out it doesn't matter?

 

I think given the fact that banks work to the nearest penny it's not asking too much for them to get it correct, 6% or otherwise.

[emandcole]

emandcole

 

do you have a link to where i can find the full judgement in the Woodchester case? thanks.

 

Sorry Ford I don't. Probably on the internet somewhere though!

[emandcole]

cheers, will have a look. thought you might have had one to hand!

 

Do you et al think that the following would be regarded as 'de minimis'?

 

Missing statement as required by para 10a (effective 10/2008 ), schedule 2 of the 1983 regs. + Non compliance with para 5b of the regs.

 

thanks.

 

Can you detail those? Take it you're referring to the enforcement and notice regulations?

[emandcole]

Agree, it is unreasonable for the original creditor to have split any debt into two parts and for you to have to now deal with two DCA's/owners. Where in the terms and conditions did it say this could happen?

 

I thought the original creditor had the right (where contractually reserved) to assign/pass on the rights of the debt but not to turn it into confetti with new owners all over the place?!

 

I'd write and place the accounts in dispte until such time as they can explain what's going on. Two accounts from one effectively means two lots of additional charges, two lots of additional interest etc etc. One for the authorities to intervene in unfortunately on the grounds of unfairness possibly. Technically it is a breach of the OFT debt collection guidelines as two DCA's (owners or otherwise) are now chasing what is still one debt.

 

Get the original creditor to explain what they were doing, where does it end otherwise, split it into ten pieces?

 

Have you got the original default notice? If it's invalid and the OC terminated on you the debt is finished anyway. Perhaps a better way to go?

[emandcole]

Thanks emandcole, I have posted my DN its in post 1201 on here. It has been confirmed that it is correct so no go there I'm afraid. I will however write to the OC to find out what is going on and probably write to them and invite them to take me to court.

 

What do you reckon?

 

Wouldn't do that, you still have a very valid point of argument here that can be cleared up by the creditors. As bigdebtor suggests insist they sort it out and get the FOS to intervene.

[emandcole]

I would also say its dodgy, composition is all wrong. The 'design' for such notices isn't intended to be the result of artistic flair and self expressionism .

[emandcole]

I think you want the ICO default guidance:

 

http://www.ico.gov.uk/upload/documents/library/data_protection/detailed_specialist_guides/default_tgn_version_v3%20%20doc.pdf

 

 

Didn't know they have to wait for around 6 months before going for the default! I reckon there's a few people here (me included) who have had them placed on CRA files far sooner than that . Thanks for that info, off to read the ICO guide .

[emandcole]

HSBC would respond like that even if you'd got a picture of their Chief Exec. in a compromising position with a tin of sardines and a pair of marigolds .

 

With that type of defiance accepted as 'the norm' you can either call their bluff and litigate (messy) or just sit tight and see what they do. Importantly they now know you've got them over a barrel so if anything it is their actions in the coming months that will tell you all you need to know .

 

Out of interest I'm also waiting to hear from them about a wonky default and a seperate termination notice they sent my fiance late last year. We accepted their kind offer to terminate and asked for an accurate arrears balance. So far they've chosen to bury their heads in the sand but this morning we did get a letter informing us we haven't paid them anything and we are in arrears. We'll see what they try next.

[emandcole]

the solicitor might by more inclined to push for it to go to court, in the assumption that the letter writer doesn't know what he is doing.

 

 

Given the state of matters revealed by this thread alone I would suspect it is the solicitors who are now realising that it is not us who don't know what we are doing .

[emandcole]

the act and regulations require a specific date so technically @within 17 days of the date of this letter@ even if if gives you enough time makes the DN invalid.

 

Where it gets tricky is that the DN is supposed to leave the debtor in no doubt as to what he has to do, and when

 

however if you take this to court as a LIP, then by the mere fact that you are doing so you are giving the impression that you are the type of person that would not be confused or have difficulty in working out 17 days from one date to another

 

We all need to remember that the Default Notice is a very important legal document and professional lenders are reasonably expected to have both the resource and the capacity to get one piece of paperwork correct.

 

DD is bang on about the judge lottery but my solution to supposed knowledge as a LIP would be that you had only become more informed of such technicalities and regulation as a result of being an LIP and having to research due to the actions of the claimant.

 

This to me would be a perfectly acceptable explanation for the lack of knowledge and interpretation you didn't apply at the time the default was issued compared to the knowledge you now possess as the direct result of having to defend yourself. That's what I'd do anyway.

[emandcole]

These guidelines are very interesting but reading through it I was pleased to read the following:

 

Where there has been a variation of the terms and conditions of the

agreement

2.27 Where an agreement has been varied in accordance with section 82(1)

of the Act, the OFT considers that, by virtue of Regulation 7 of the

Copies of Documents Regulations, the duty is to provide not only a copy

of the agreement as originally executed but also either

 

14 There are cases where no executed agreement is required by the Act, for example, certain bank overdrafts.

 

15 Section 127(3) continues to apply to agreements made before 6 April 2007.

 

• a copy of the latest variation given in accordance with section 82(1)

of the Act relating to each discrete term of the agreement which has

been varied, or

 

• a clear statement of the terms of the agreement as varied in

accordance with section 82(1) of the Act.

 

2.28 Although some creditors have apparently considered it is sufficient to

provide a copy of the current terms and conditions (that is, 'a statement

of the terms of the agreement as varied'), that does not comply with the

requirements of Regulation 7. In Carey v HSBC Bank plc16 there was

detailed analysis of this issue and it was confirmed that 'include' meant

that the documents showing the variations were to be supplied in

addition to a copy of the original agreement.

 

Given the fact that in all of the CCA requests I have made the creditor has only provided the original and the current T&C's on one occasion this is an important section to stay aware of and the fact we can fall on Carey v HSBC is very useful.

 

As credit card companies were effectively forced to reduce their charges to no more than £12 to avoid any OFT investigation anyone who has a credit card account that was opened before this change was made (2008 ish?) would need to have the T&C's applicable when the account was opened as well as the newer T&C's that reflect the new charging structure. If there were more differences unilaterally made since then they'd also need a current set of T&C's applicable today.

 

Basically the older the agreement/application/napkin the better, same as it's always been, but in addition we have a right to receive a full set of T&C's that document the historical changes to the account. Pretty useful.

[emandcole]

Looking for a case if anyone can help out?! Will tip some scales to anyone who comes up with it :grin:.

 

The case refers to injury to credit and was perhaps after an unlawful rescission of contract. The vital component to the case was that the injured party did not have to prove actual loss, the mere entry of what turned out to be an invalid default notice on the credit file amounted to enough injury due to the importance society places on being able to obtain credit.

 

Have done an advanced search and just can't find out but I read it pretty recently on the forum so hopefully someone else read it too

[emandcole]

Hello emandcole!

 

 

 

I think from what you say you may mean...

 

Kpohraror v Woolwich Building Society

 

I regret I don't have a link for that, but there are PDF copies knocking around if you search on Google.

 

Cheers,

BRW

 

Hi BRW, just dishing out some scale tipping as promised to those who made a contribution but yours wouldn't let me as I've already done it too recently in the past. Didn't want you to think I'd forgotten my promise to do some scale tickling so I guess I owe you one .

[emandcole]

If you can demonstrate that disadvantage, perhaps. All the better if you can route that disadvantage from a previous case that is authoritative.

 

DD is quite right, it is easy to get your feathers all ruffled and to lose sight of the overall balance of things and that loss of balance is likely to result in a fall.

 

Great research, correct and neutral interpretation, a concise and well reasoned argument along with as much evidence as you can muster to substantiate any pleading are really the essential tools of the job, LIP or otherwise.

[emandcole]

I know from my local court that most of the cases the judges deal with are family law issues - and while they may have a great deal of knowledge in this area, their knowledge of consumer law is sadly lacking, again something many people on this forum have encountered first hand.

 

 

Magda picks up on a point here that makes me pretty livid. If a judge has insufficient knowledge on a type of law why and how are they entitled to be considered as a competent person for the job? Can you imagine if some bloke who wasted too many hours on flight simulator software in his bedroom was employed by BA to captain an aircraft based on the fact 'he probably knows pretty much what he's doing'? No PPL, no flight time at all.

 

Extreme example sure but when you're considering facts, which have the potential to cause huge harm to an individual just where is the level of capability drawn? A barrister is not able to accept work he/she is incapable of dealing with but the judge...it's just fine? Since when should a barrister be controlling the direction of a hearing? Seems to me too many judges are essentially out of their depth and are too pompous to admit as much, instead getting by on a wing and a prayer at the expense of the LIP who may well have a perfectly valid defence.

 

I'll get my dad, you get your dad seems a bit useless and entirely inappropriate for a court system. Barrister one side, LIP the other, what's the point of even starting the trial? I get two barristers and I'll win, unless you get three then I'll let you win? Madness.

[emandcole]

Are there any 'regulation's' relevent to DN's on unregulated agreements, i.e. days to remedy etc.

 

ta muchly

 

Hi, unregulated agreements? Really not sure

[emandcole]

You could point it out to the judge, whether he would take any notice, is another thing entirely.

 

 

I simply can't get my head round all of this! Any other profession and you make an arse of things you'll have a professional body call you in for a chat about your conduct with the view to removing your ability to practice/do your chosen profession.

 

If I simply couldn't be bothered to stay up to date with building regulations and designed and had built a custom staircase that was too steep for example or had insufficient height above it, or any other number of things, I'd not only be in trouble with the client (if they found out...and why shouldn't they) for wasting money, the practice would kick my booty, the project manager would be on the phone asking why his schedule has gone to pot and anyone on site who found out about such an error would make you feel like a complete *** if you ever visited.

 

Refer this everyday and oh so simple scenario to a supposedly noble and learned profession and what do you get. Can't be bothered to read up on anything, prejudice and presumption against the defendant before they even hear litigation has commenced, wide spread disregard of basic legal premise and a level of plain incompetence, arrogance and contempt beyond belief for the 'little man' they presumably swore an oath to help protect at some point in their life.

 

The more I learn about the legal 'profession', and I use that word with increasing discomfort, the more I realise just what an out dated, cantankerous and corrupt 'service' we have. Question is why should we put up with it? I don't understand why we can't demand a change, we pay for it, we have to live by it, it's not a big ask for it to be correct.

 

Sorry for the rant but this back hander type prejudice and plain ignorance really fires me up. I'd like to see Judge John Deed clones delivered across the country to ensure fair is fair and all is above board, even if that means I suffer because of it.

 

I can face losing in a fair fight every time, there is honour in that despite any defeat. What I cannot stomach is the sly under handed tactician cowering in the shadows of a court room whispering everything and anything into the ears of some dullard who purports to be 'in charge'.

 

So angry

[emandcole]

The postman's just called with a DN from Mercers obo Barclaycard. Dated the 3rd March 2010 gives me until 20 March 2010 to rectify. Any comments greatly appreciated.

 

Hi, can you scan as might be more to it than just a dates issue. Also, does the envelope confirm second class post was used? 5 days to get to you suggests it was, assuming they sent it as soon as it had been printed...unlikely.

[emandcole]

Hi. Cheers for replies. Just checked envelope says 1st but only arrived today.???

 

How about postmarks on the envelope? Any of those?

[emandcole]

Hello Magda

 

am I not correct in stating that if the bank do not supply me with a SAR in time, then my defence is that the banks are frustrating my attempts at disclosure? If they give me my SAR, then I believe I have a strong case. You see I believe they did not issue me with a Termination Notice, yet they sought court proceedings for the full amount of the loan. That immediately puts the contract into recission.....right???:-?

 

The act of starting litigation is itself an intent to terminate. Bigger question might therefore be did they issue a default notice? More importantly have you checked with the CRA's to see if they have registered one?

 

If they haven't and they instead chose to terminate (litigation or otherwise) you would perhaps have argument for unlawful rescission. However, any opportunity to provide written acceptance on your part, which is normally very important in disputes not yet subject to litigation, would be minimal due to the timescales involved.

 

Either way and most importantly for you the creditor could be accused of acting prematurely and with contempt for the CCA that should govern all of their actions. Strong argument for you .