Invalid Default Notices

[Scrapper]

Lets be honest the creditor making a mistake on a default notice is not a terrible crime is it .

 

I'm not jumping on the band wagon here and I can see the point being made by both sides. (I'm not expert that's for sure. Hence me being on here)

 

I would just like to point out that making a mistake on a DN is a crime. Because of a certain organisations actions (remain nameless as being investiagted) I was refused a remortgage when I have done nothing wrong whatsoever except ask for the creditors help while I was unemployed. This in turn has cost me in the region of £1500pm as I am unable to sell my house and downsize.

 

I even offered to repay all the interest etc when I returned to work which they were happy to take knowing they had defaulted me but overlooked telling me.

 

They would not listen to reason and they only wanted to discuss the matter once I got the authorities involved and are now willing to admit they made a mistake.

 

That's no good to me now is it. I had my house on the market for 2 years before I got an offer. Given what's about to happen I won't sell my house in the near future and I'm having to pay for their mistake.

 

Now tell me that's not a crime.

 

Thanks

Scrapper Coco 8-)

Edited October 20, 2010 by Scrapper

[Peterbard]

Why has it taken 5255 posts to reach the point that a DN issued s87(1) is a useless piece of paper? Why is such defiance of the statute acceptable please? On the basis of the logic now applied here can a murderer or a rapist use these priniciples about DNA evidence? Surely a coloured chart only interpretable by self styled experts is also open to abuse?

 

We have always been told professionally to ignore the DN/TN issues raised here and not "accept" in writing. When this was stated by me I was berated by many of the experts, yet here we are the defective DN is a useless argument in a court despite Statute Law. Most of us just want a clear guideline to formulate our thinking, not several contradictions along the way depending on which way the wind is blowing for some of the prolific posters here and elsewhere!!!!

 

regards

oilyrag.

 

HI

A default notice is a feature of the Consumer Credit Act and is used to supply n added degree of protection over an unregulated agreement in that it :

A ensures that the correct information is supplied to the lender for him to remedy the breach and

B gives time for him to pay

This is what it was designed to do and this is all it does.

Rally that is all there is to it

Accepting a termination is a pointless exercise and has no effect on the enforceability of the agreement or anything else, termination is not repudiation of the agreement, and if an agreement is terminated it is terminated acceptance or denial of the fact is hardly relevant.

Your written acceptance of a termination notice will I assure you go straight in the lenders solicitors bin s being irrelevant nonsense.

Peter

[gh2008]

I agree with everything you say here. BUt this is not the way to redress the ballance, sure you can delay the inevitable by offering these micky mouse defences but at the end of the day you just end up worse off. If you are going to fight in court you need a credible deffence if not you are better just making a deal.

 

Lets be honest the creditor making a mistake on a default notice is not a terrible crime is it . I have spent a major part of the last 10 years fighting money lenders and loan sharks who lend £50 to single mothers who are still pahying £10 a week years later with compund interest topping 2000% thes are the cases that the CCA protect and protect it does.

 

Petr

 

It is quite scary to think that someone such as yourself - who works as an advisor in an official role - makes up his own mind as who is in need of protection and who is not.

 

That job is for Parliament - not you Peter.

 

You can put forward your opinion, but, it is only that your opinion. You may be right and you have been in the past, however you have also been very wrong.

 

It is all well and good shouting from the heights when you are right, but you also need to accept when you are wrong and show a bit of humility.

 

Unfortunately as many of us have found the creditors don't act in the way you wish they did. If you admit a debt, they don't all just accept affordable payments, they will send in High Court Enforcement Officers to collect on a debt of £650. The 'Advice Bureau' said there was little I could do. Well after advice from on here off I went to the High Court had a nice chat with a Master and following another visit to him I now pay my affordable payments.

 

The Law is there to protect *everyone* not just who you think are the worthy.

 

jmho

[Gallahad]

Well said Gh "humility" is the key word here.

G

[pumpytums]

I agree with everything you say here. BUt this is not the way to redress the ballance, sure you can delay the inevitable by offering these micky mouse defences but at the end of the day you just end up worse off. If you are going to fight in court you need a credible deffence if not you are better just making a deal.

 

Lets be honest the creditor making a mistake on a default notice is not a terrible crime is it . I have spent a major part of the last 10 years fighting money lenders and loan sharks who lend £50 to single mothers who are still pahying £10 a week years later with compund interest topping 2000% thes are the cases that the CCA protect and protect it does.

 

Petr

 

I agree Peter,

our defences may well be Mickey Mouse but at least people tried. If the Creditor/DCA is unwilling to accept or even enter negotiations about a deal looks like we are left in Disney Land.

 

I had a case the DCA on their AQ very clearly under the section do you want to settle ticked yes. Their offer to settle was word for word given below :

 

"It is our intention to proceed to Judgment in this matter and hereby enclose a letter for your

consideration. By signing and returning this to us you will be admitting the debt in full and

consenting to Judgment being entered. Upon Judgment being obtained we will look to make an

application to the Court for a Charging Order as a means of securing the outstanding balance

against your property. We will then revert back to you so that an amicable payment

arrangement can be reached."

 

I'm sorry but in the face of such what would you do? No mention of a Tomlin order just straight for the jugular, may I add I even attempted to make a payment plan before proceedings.

 

 

 

Pumpytums

[Peterbard]

It is quite scary to think that someone such as yourself - who works as an advisor in an official role - makes up his own mind as who is in need of protection and who is not.

 

That job is for Parliament - not you Peter.

 

You can put forward your opinion, but, it is only that your opinion. You may be right and you have been in the past, however you have also been very wrong.

 

It is all well and good shouting from the heights when you are right, but you also need to accept when you are wrong and show a bit of humility.

 

Unfortunately as many of us have found the creditors don't act in the way you wish they did. If you admit a debt, they don't all just accept affordable payments, they will send in High Court Enforcement Officers to collect on a debt of £650. The 'Advice Bureau' said there was little I could do. Well after advice from on here off I went to the High Court had a nice chat with a Master and following another visit to him I now pay my affordable payments.

 

The Law is there to protect *everyone* not just who you think are the worthy.

 

jmho

 

why should i say i am wrong when i am not?

 

The issue here is not whether i am right or wrong it is whether this is a credible deffence and it most certainly is not.

 

peter

[rebel11]

Thats your opinion, it's not fact, the fact is that this forum has helped thousands and thousands of people in the past and will continue to do in the future.

It's amazing for you to state 'but giving incorrect information is not help', all I see in these threads are laws quoted, statutes quoted etc, you sure your not reading the

Beano or Dandy between posting?

 

'No one is saying this is right and a strength of forums like this is that it gives these vulnerable people support, but giving incorrect information is not help.'

[emandcole]

If the DN issues are essentially unimportant what other areas of the CCA can we expect the creditor to ignore with the approval of the court? It's just that if I refer to the law I expect to be able to stand by it, and it by me. I would never expect it to stab me in the back with the consent of the authority supposedly applying it in the interests of fairness and clarity.

 

We don't drive along at 27mph in a 30mph zone only to be photographed and fined and then told when we protest that actually 'we can do what we want so deal with it'. Yet, this is what happens with the CCA.

 

Shouldn't the judiciary be pushing for serious amendment of the CCA if they are aware that people are wasting their time with defences based on sections of the CCA that actually the courts are happy to ignore?

 

The revised CCA 2010 could be a pamphlet, just think of the environmental benefit of having just 5 pages of regulation instead of 100+

[middenmess]

peterbard

A default notice is a feature of the Consumer Credit Act and is used to supply n added degree of protection over an unregulated agreement in that it :

A ensures that the correct information is supplied to the lender for him to remedy the breach and

B gives time for him to pay

This is what it was designed to do and this is all it does.

Rally that is all there is to it

 

 

I thought that if the 1974 CCA covered an agreement it is a regulated agreement not an unregulated one?

 

Yes agree that a DN is a simple and basic document but you say ...

 

A ensures that the correct information is supplied to the lender for him to remedy the breach and

B gives time for him to pay

 

but the information is supplied to the borrower to enable the borrower to remedy the breach within a specific time.

 

The problem, as your post illustrates, is that after 36 years of practice [and in your case thousands of posts] the lenders still often fail to supply the correct information and this is the cause of so many of the ensuing problems.

[colin21958]

...As it's a credit card it also has an inbuilt condition for the creditor to terminate at any time under Section 98, by giving 7 days notice. However if the creditor wishes to excercise this right (which applies to non breach circumstances) then they must write to you stating this and quoting the relevant clause.

 

...

 

Hi Elsa,

 

I don't read that in this way at all. I don't believe this section even applies to credit cards, but rather to fixed term loans? It states in subsection (2):

(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),

 

Credit cards don't usually include a "...period for the duration..." as they are "open ended" as far as time is concerned.

 

I've examined the Act carefully and I have also contacted the OFT to find out if there is anyway a credit card account can be terminated by the Creditor when there is no breach, and it seems that there is none. They CAN withdraw the facility, but NOT the payment terms. i.e., they can "cancel" the facilty at any time they wish, but the debtor continues to repay the balance owed in accordance with the payment terms of the agreement; the creditor CANNOT demand the full balance EXCEPT following breach and the issue of a Valid Default Notice.

 

Regards,

 

Colin

[Desperate Daniella]

You are absolutely right, Emandcole.

 

The statute is there and should be abided with. It is laid down and cannot be considered subjective. It isn't family law or criminal law which depend on evidence. There should be only one interpretation. Unfortunately the lower court judges just ignore it, and depend on our not being able to afford to go to appeal.

 

Carey was such a wasted opportunity too.

 

DD

[colin21958]

Duplicated post..

Edited October 20, 2010 by colin21958

[emandcole]

You are absolutely right, Emandcole.

 

The statute is there and should be abided with. It is laid down and cannot be considered subjective. It isn't family law or criminal law which depend on evidence. There should be only one interpretation. Unfortunately the lower court judges just ignore it, and depend on our not being able to afford to go to appeal.

 

Carey was such a wasted opportunity too.

 

DD

 

I'd be pretty furious with a court that just ignored statute, let's face it if we can't rely upon the written word of the law with the reasonable expectation to 'take it as it is' then we are prejudiced from the outset. I fail to understand why the CCA, and the clear guidelines within, appears to be so open to poor interpretation and dismissal when the same approach applied to other statute would quickly result in all manner of difficulty for the judge involved.

 

If there was ever any reason for suspician as to the collusion from the very top to the everyday workings we face this would surely be it? We know the bankers grease the palms of the politicians who protect the interests of the bankers, hence the absurd hand out of taxpayer cash a while back. Were we ever asked if we wished to have our money 'invested' in preference to keeping the services we all need in society?

 

It gets worse, it appears the banks will need a whole lot more money in the early part of next year and guess what. You're paying for it.

[colin21958]

Quick question on DN's - can a DN only be issued by the original creditor?

 

The DN must be issued by the Creditor. Obviously as it has to be issued before the agreement can be terminated, it must be issued before the debt can be sold on to a debt collection Agency.

 

Of course an account can be sold on to another credit company (whilst still live) in which case if they subsequently wish to terminate the account following a default it would be the new creditor who would issue the DN not the original creditor.

[gh2008]

I've examined the Act carefully and I have also contacted the OFT to find out if there is anyway a credit card account can be terminated by the Creditor when there is no breach, and it seems that there is none. They CAN withdraw the facility, but NOT the payment terms. i.e., they can "cancel" the facilty at any time they wish, but the debtor continues to repay the balance owed in accordance with the payment terms of the agreement; the creditor CANNOT demand the full balance EXCEPT following breach and the issue of a Valid Default Notice.

 

 

I must disagree on the point in red. Totally agree with the rest.

IMHO a creditor can, at any time, cancel the agreement. They can do this under Common Law and there is no override in the CCA to prevent this. You *could* say that S87 prevents them doing this, well it only prevents them from doing it lawfully, the Law cannot prevent anyone from doing something, it can only punish those who break it (and cause harm to other in civil law).

 

This would be a breach of contract which the debtor would be able to sue for damages for.

 

However the creditor would have to write off the balance (less any arrears) because at no point does the creditor become entitled to any sums not yet due. (this is a part of Common Law overridden by the CCA)

 

Re suing for damages - the debtor would have to show the damage/loss incurred. Now if there was a balance written off then that would be pretty hard ....

 

again jmho

[Desperate Daniella]

I'd be pretty furious with a court that just ignored statute, let's face it if we can't rely upon the written word of the law with the reasonable expectation to 'take it as it is' then we are prejudiced from the outset. I fail to understand why the CCA, and the clear guidelines within, appears to be so open to poor interpretation and dismissal when the same approach applied to other statute would quickly result in all manner of difficulty for the judge involved.

 

If there was ever any reason for suspician as to the collusion from the very top to the everyday workings we face this would surely be it? We know the bankers grease the palms of the politicians who protect the interests of the bankers, hence the absurd hand out of taxpayer cash a while back. Were we ever asked if we wished to have our money 'invested' in preference to keeping the services we all need in society?

 

It gets worse, it appears the banks will need a whole lot more money in the early part of next year and guess what. You're paying for it.

 

Of course they'll need more money - they have to have their bonuses.

[dadofholly]

The DN must be issued by the Creditor. Obviously as it has to be issued before the agreement can be terminated, it must be issued before the debt can be sold on to a debt collection Agency.

 

Of course an account can be sold on to another credit company (whilst still live) in which case if they subsequently wish to terminate the account following a default it would be the new creditor who would issue the DN not the original creditor.

 

Thanks Colin

 

So a default notice - issued by a dca - as evidence that a default has been issued for the purposes of a court claim, is invalid?

 

As the original creditor is the only one who can do this.

 

Is that correct. even though the dca purchased the debt after the original default.

Edited October 20, 2010 by dadofholly
more info

[emandcole]

If you search oogle and put the words 'trust me Im a banker' in there you'll see a BBC Scotland news article with a video link to the bankers square mile ball. One banker admits 'he's only had 1 Maserati bonus this year, 6 figures and hopes for an 8 figure bonus next year'.

 

He'll get it too, Osbourne and Cameron are raiding the public purse as we speak and we can do nothing about it. Vasoline anyone? Might make it a touch less painful.

[colin21958]

I must disagree on the point in red. Totally agree with the rest.

IMHO a creditor can, at any time, cancel the agreement. They can do this under Common Law and there is no override in the CCA to prevent this. You *could* say that S87 prevents them doing this, well it only prevents them from doing it lawfully, the Law cannot prevent anyone from doing something, it can only punish those who break it (and cause harm to other in civil law).

 

This would be a breach of contract which the debtor would be able to sue for damages for.

 

However the creditor would have to write off the balance (less any arrears) because at no point does the creditor become entitled to any sums not yet due. (this is a part of Common Law overridden by the CCA)

 

Re suing for damages - the debtor would have to show the damage/loss incurred. Now if there was a balance written off then that would be pretty hard ....

 

again jmho

 

Yes, I agree with you gh, I meant that there was no PROVISION in the Act to ALLOW the creditor to terminate the agreement without a default situation and a DN being issued. Of course, as you say they CAN terminate the agreement but this would then be a breach of contract as you very clearly explained...

 

Colin

Edited October 20, 2010 by colin21958

[colin21958]

Thanks Colin

 

So a default notice - issued by a dca - as evidence that a default has been issued for the purposes of a court claim, is invalid?

 

As the original creditor is the only one who can do this.

 

Is that correct. even though the dca purchased the debt after the original default.

 

 

Yes, that is my understanding of the situation.

 

If the full balance has been demanded by either the original creditor or the DCA before a DN is issued then it is invalid as the account was already terminated in contravention of s87. A DN issued after this termination would not be valid as there would be no agreement in force to threaten to terminate!

[dadofholly]

Yes, that is my understanding of the situation.

 

If the full balance has been demanded by either the original creditor or the DCA before a DN is issued then it is invalid as the account was already terminated in contravention of s87. A DN issued after this termination would not be valid as there would be no agreement in force to threaten to terminate!

 

Thank you Colin

 

others have sort of said as much - but it always helps to gauge others opinions.

 

You have been great help

[ltc1607]

I have a DN giving me 14 days to rectify I also have a letter of termination dated the same day as the DN was issued, is this no good to me now? I also have from another card company another DN asking for the full amount but it seems the account was sold to DCA befor the expiry of the DN same question is this no good? I have been told on here that I have a good case with both DNs but from what I am reading is that now wrong?

[gh2008]

I have a DN giving me 14 days to rectify I also have a letter of termination dated the same day as the DN was issued, is this no good to me now? I also have from another card company another DN asking for the full amount but it seems the account was sold to DCA befor the expiry of the DN same question is this no good? I have been told on here that I have a good case with both DNs but from what I am reading is that now wrong?

 

well, I would keep those documents *very* safe

 

If either co try and reinstate the agreement you should object to it most clearly.

 

jmho

[Basil Fawlty]

Peterbard, can I ask you, what is your advice when you have offered a ccc a payment plan, and its the maximum you can afford, but they refuse to accept it?

 

BF

[ltc1607]

Thx for the reply so would the Docs I have be any good in a court case then as what I am reading on here makes me think they are not worth anything now ?