Invalid Default Notices

[diddydicky]

Great links

 

From reading the brandon one, am i right in thinking the judge doesnt even touch on the issue of whether an agreement can be terminated on the back of a dodgy dn

 

He seems to be concentrating on not enough days to remedy, but amex didnt take action till well after then so hes allowing it to stand based on the days from dn to termination.

ie in theory hes now got enough time as amex didnt do any other action(terminate) until well after 14 clear days

 

The judge seems to be saying that although Amex issued the dodgy dn on the 19th June they never terminated the account until 11th July,the judge seems to be accepting they did terminated the account on the 11th July,

so does termination remain and the only issue here really is the statutory 14 days on the actual DN notice that is being argued?

 

Im intrigued, as i have 2 halifax loans, dodgy dn"s in that they only gave me 9 days to remedy the breach, and then terminated on the 10th day, so in my case the halifax have clearly taken futher action before allowing the statutory time limit, so wondering how this leaves me, surely i was prejudiced ?

 

I guess my case will end up in court too at some point, im fortunate in that i qualify for legal aid, (if anyone wil take it on)

 

Any thoughts on agreements being termintated within the statutory 14 days?

 

 

the DN did not state

 

you must remedy the default by 19 June- failing which we will terminate it on 11 July

 

nor did it say you must remedy the defaulbefore we terminate it

 

it said ( i believe) you must remedy it within 14 days of the date of this notice

 

the notice is a statutory document and the creditor is BOUND to make it clear to the debtor WITH PRECISION what the alleged default is and what he must do to remedy it

 

it must leave NO DOUBT

 

 

the court summons is also a statutory document

 

presumably when the debtor gets notified that the case will be heard on 15th November- he has no guarantee that the judge or the creditor will turn up on that day- since the judge may decide that it will be okay if he or the creditor turns up 2 days earlier...........or 3 days later!!

 

personally i would (and will) make these comparrisons to the judge to bring the point home

[diddydicky]

Where an OC chooses to terminate the agreement following service of a defective DN, I'm now wondering whether his demands for the full balance constitute a penalty and so would be unenforceable under UTCCR 1999.

 

I cannot get around the fact that s87(1)(b) absolutely requires a fully-compliant DN to be issued first. For the OC to excuse himself from this subsection and claim the full balance as it was prior to the DN, it is a penalty placed on the debtor and which is outside of CCA.

 

The balance due is not owed. That is ruled out by non-compliance with s88 and is clearly stated at s87(1)(b). Monies are, however, owed, and these are whatever should have been paid up to termination (less the debtor's own costs).

 

If the full balance cannot be owed due to s87(1)(b), then the OC must be seeking the difference between the outstanding balance prior to the DN and the arrears as a penalty.

 

Any thoughts anyone...?

 

LA

 

well it seems to me that if the creditors action is claiming the full outstanding balance, including sums not yet due- and the court rules that the agreement was not terminated by virtue of a faulty DN and thus remains alive and is saying that the creditor can re issue a new DN - then by the same token "sums not yet due" - are indeed not yet due until a valid DN is served therefore the grounds for the action (in respect of sums not yet due) are not present and the action should be dissmissed

 

I cannot see either how the creditor can ask the court to amend the POC's to recover just the arrears- since until he issues a valid DN the arrears are not due either

[diddydicky]

Great links

 

From reading the brandon one, am i right in thinking the judge doesnt even touch on the issue of whether an agreement can be terminated on the back of a dodgy dn

 

He seems to be concentrating on not enough days to remedy, but amex didnt take action till well after then so hes allowing it to stand based on the days from dn to termination.

ie in theory hes now got enough time as amex didnt do any other action(terminate) until well after 14 clear days

 

The judge seems to be saying that although Amex issued the dodgy dn on the 19th June they never terminated the account until 11th July,the judge seems to be accepting they did terminated the account on the 11th July,

so does termination remain and the only issue here really is the statutory 14 days on the actual DN notice that is being argued?

 

Im intrigued, as i have 2 halifax loans, dodgy dn"s in that they only gave me 9 days to remedy the breach, and then terminated on the 10th day, so in my case the halifax have clearly taken futher action before allowing the statutory time limit, so wondering how this leaves me, surely i was prejudiced ?

 

I guess my case will end up in court too at some point, im fortunate in that i qualify for legal aid, (if anyone wil take it on)

 

Any thoughts on agreements being termintated within the statutory 14 days?

 

if they have terminated before their own stated remedy date- then thats a whole different ballgame

[diddydicky]

Hi

The creditor can terminate any time he wants as per the contract and Brandon.

Section 89 refers to remedying the breach in section 87 thus cancelling the notice, not the breech of the agreement. That is why it is contained in part Vii of the act entitled Default and termination

A termination via contract can be followed by a termination under section 87. Obviously, if it wasn’t the debtor could terminate at any time, thus preventing enforcement, the liabilities under the contract do not disappear. Neither does the creditors right to recover

Peter

 

most credit agreements i have seen (cards) have TWO parts to the cancellation clause- therefore the scenario that you paint of a debtor simply terminating the agreement to avoid liability is a flawed one (IMO)

 

the one referring to the debtors right to cancel- usually clearly states "UPON PAYMENTS OF ALL SUMS OUTSTANDING "-

[diddydicky]

HI

I think I have just twigged the misconception that you have on here about entries on the credit file of a CRA.

There is talk of damages due because of ineffective DN I couldn’t really see what was meant.

I get it know, I think lot of you are under the false impression that the issuance of a default notice is something to do with a notice of default being put on your credit record

So you think that section 89 refers to remedying that as well as the breach of contract, it does not.

A creditor is entitled to enter information about your repayment record on your CRA, it is they who decide in line with ICO guidelines what constitutes a default nothing to do with the CCA,

They try to use the same criteria to all agreements even those that are not covered by the CA (Utilities phones etc)

They may send a notice of intent to issue a default on your file at the same time as a section87 notice

but they don’t have to, the two things a completely unrelated. If the breach under section 87 is cured it does not mean that the creditor has to remove anything from anywhere the payment history would not have changed, the ICO would say that it was the lenders obligation to give an accurate report of that fact that is all.

I know of many occasions where it was the case that the lender defaulted the credit file long before issuing a section 87 why shouldn’t they as long as they give notice before entering the record there is nothing to stop them.

Peter

 

you have not quite "twigged" enough

 

of course the creditor can and does monthly record the activity and conduct of the account

 

what most folk are talking about is not a notice of default issued in the course of the account- they are talking about a creditor who notifies and places on the credit file that the debtor has defaulted the agreement

 

the creditor often does this before, during or after a DN is served -

 

the "purpose and intent" of a Default Notice is to enable the creditor to formally set out any default/breach of the agreement and the steps the debtor must take to remedy the default/breach)

 

the act requires the creditor to do so with precision

 

firstly, it is often forgotten that the DN sets out an "ALLEGED" breach- the purpose of the 14 days is not simply for the debtor to "cough up the spondoolies" but to enable him to seek legal advice as to whether the alleged breach is in fact correct- before he embarks on any action to remedy

 

this i suspect was the main reason in changing the act from 7-14 days- to allow a reasonable time to take advice and/or raise funds

 

secondly

 

where the creditor has placed on public record that the debtor has defaulted on the agreement- BEFORE the STATUTORY time (not the creditors own defective time limit) for remedying the DN- then the debtor cannot achieve the benefit of s89 (which is to return to the status quo (as if the breach had never occurred) by paying the arrears demanded- since his reputation is already damaged .

 

furthermore- if for example the creditor has given only 10 days (common)- and allowing for the fact that 10 days would not all be working days.......it would not be unreasonable to suppose that the debtor may not even get to see a solicitor for a good many of those days- let alone raise finance

 

if the creditor has already "killed off" any hope of finance by recording that the debtor has defaulted on a £10,000 credit card debt- just how many lenders are likely to lend to the debtor?

 

no prejudice?...don't make me laugh your honour- what world are you living in

[diddydicky]

But Peter, this is what some people have tried to do on here and in some cases, been paying via a DMP and they STILL trash their credit files and get taken to court and end up with a CCJ!

 

If the CCC's dealt fairly with people struggling and accepted genuine offers of reduced payments or settlement, then they would not have the problems they are now experiencing with people not paying.

 

They also played dirty and greedily by increasing many peoples interest rates, even when in a lot of cases, their credit files were A1 and never missed any payments at all in years!

 

 

the difference between a notice of a defaulted agreement and a CCJ is zero- both have the same effect- also make sure if you do follow peter bards advice- that you do so without prejudice and without admitting liability

[diddydicky]

THis is all irrelavant the point is that this argument will not work if you use it you will be worse off than if you just tried to contact the creditor and make an arrangement.

 

As for my arguments being vapour i think the judiciary have a differnt opinion, perhaps they dont know what they are talking about either.

Peter

 

the credit agreement contains a statment which says

 

sign this agreement only if you agree to be bound by its terms

 

are you saying that this only applies to the debtor?

 

you are the first to state the PRECISE technicalities of the terms favourable to the creditor- but then dismiss the same attention to detail from the debtor byu suggesting that the court can "decide" which of these terms can and cannot be taken literally

 

You have stated that you have no (or little) support- on a large forum- does that not tell you something

 

Your arguments are always welcome ( to me at least) since we can all learn from debate- yet somehow you always seem to end up in dispute with other posters

 

can it REALLY be that the whole regiment is out of step- instead of just the sergeant major?

 

keep posting your arguments but please, please stop winding people up with comments that you know full well will cause a reaction and the subsequent intervention of the moderators

 

personally i think that you are simply "running with the hounds" at the moment by reading and reproducing comments from the other sites you visit -

 

as for the spelling arguments- i agree they are petty and should not detract from the debate........although your alleged dyslexia does seem to "come and go"

 

keep up the good ? work

[diddydicky]

Anyone?

 

the DN can be issued by the owner of the debt (the original creditor or anyone who has lawfully bought the debt)

 

it can also be issued by someone acting on behalf of the owner providing it contains the prescribed information and both the creditors and debtors name and address are clearly shown

[diddydicky]

The information shown on your credit file reflects the breackcown of your relationship with the lender. Tnis is nothing to do with the breach of the agreement.

 

The deffinition of a default is given in the guidlines issued to the CRAs by the ICO and has nothing to do with the CCA it cannot because the CRA must provide equivalent information for agrements that are of all differnt types both regulated and unregulated.

 

A contray report on yuor credit file is normally precede by a history of missed payments thes do not go away because a default notice under section 87 of the act is incorrectly prepared.

 

again this is not conjecture it is fact the information is all there if you wnat to find it.

 

have a read at this .

 

http://www.experian.co.uk/assets/res...version_v3.pdf

 

Peter

 

some lenders (especially ones own bank- if the circumstances are explained) will lend against a history of missed payments

 

NONE (main stream) will lend against a defaulted agreement or CCJ (apart from some small amount public utility CCJ-s which many times the debtor was unaware of due to be served to old addresses) - the more so in the current climate where they could have the further lending ruled unenforceable if they are seen to have lent innapropriately

[diddydicky]

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

 

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

 

No?, then why did parliament insist (backed up by the house of lords rulings) that the creditor must state "with precision" and that there was !"no room for error"

 

again i ask

 

why is is that you point out the PRECISE details of the terms and conditions that assist the creditor- but then attempt to de bunk those that favour the debtor as insignificant?

 

answers please on a postage stamp

[diddydicky]

Hi DD

 

Good to see you getting your teeth into this8-)

 

fresh back from hols- up for the fight

[Gallahad]

Go DD Go DD Go DD Go DD:whoo:

[diddydicky]

quoted from another thread today:-

 

 

just had a letter today,

it says, we write further to recent communications regarding the above account.

after reviewing the account we are prepared to take a cmmercial view in relation to this matter and as a gesture of goodwill and strictly without admission of liability, we are prepared to close the account and write-off any outstanding balance.

 

 

so, what price now, the argument that a creditor and debtor cannot agree to terminate an agreement by mutual consent between them which is regulated by the act

[frettful38]

DD I think you have scared him off!!!!!!!!!!!!!!!!!!!!

 

so you can calm down for a while LOL!!!!!!!!!!!!!!!!!

[diddydicky]

heres another interesting letter from a creditor from another post today- so don't believe all you are told by the doomsday merchants

 

Due to the age of the account the original executed agreement is no longer available; however the enclosed true copy is sufficient to satisfy the cca 1974 regulations.

 

Your account will remain with our collections department for collection activity to continue. The demanding oof payment is not considered enforcement and purely a step taken prior to the commencements of proceedings as in the ruling in the case of McGufflick v RBS.

 

Whilst we may not be able to enforce the agreement, the monies remain outstanding. The agreement or any monies paid has not been made illegal or void because of our current failure to supply a copy of original agreement. We are prevented from taking steps to enforce the credit agreement but the underlying obligation to repay remains in tact.

 

The reporting of data to the credit reference agencies and related activities do not constitute enforcement for the purposes of the cca 1974. Our agreement with the credit reference agencies, as well as the rules which govern the use and sharing of such information require Hillesden to report account level data this way. Under the data protection act 1998, Hillesden must report accurate and up to date information at all times. As this account has been used a debt has been incurred this will be recorded to the credit reference agenies. Similarly any paymentd made towards this account will also be reported

[gh2008]

lots & lots & lots ....

 

 

and breathe ................ and relax ................

 

in all seriousness - good work DD

[Basil Fawlty]

In the last week I have been extremely confused by some of the posts on this thread, even going as far as thinking of giving up completely and setting up some kind of payment plans to the ccc's. After reading DD's posts today, I am a lot clearer now, and up for the fight again! Many thanks DD for some very informative posts¬

 

BF

[frettful38]

My mother received a DN from Studio. It was OK as they gave her 28 days to pay. They want a total of £115.96. All of that is made up of default charges...mainly £20 x 5 arrears reminders. Her arrears were 0.93.

 

She asked Studio to refund the charges & stop adding £20 a mth, but they refused her several times. I know it was a bit naughty but what is one suppose to do. I then sent Studio a CCA request on her behalf and yesterday she received this letter. They have sent a Blank Copy of their Credit Agreement as my mum never filled one out but they have written that she should have the original in her possession.

 

http://i450.photobucket.com/albums/qq223/sophiak_bucket/MumsStudioCCA.jpg

 

Studio will have to write this debt off as it is completely made up of charges and if they want to put a mark against my mums credit file well why not, she is 63 yrs old, never been in any debt in her life [lucky cow], and her mortgage was fully paid off 3 months ago.

 

( Now why couldn't I have been more like my mum?) LOL!!!!!!!!!!!

[diddydicky]

some of the arguments put forward by the doomsday merchants have a lot of merit- but i do not believe that the war is over - just some lost battles

 

certainly with sub £5k claims there is really (IMO) no mileage in not defending since the costs are minimal and a ccj is no more detrimental that a defaulted account status

 

indeed on balance - i would say a ccj is preferable- at least there is no further debt collection activity and there are "ways and means" with CCJ's and further opportunities to make full and final settlements- especially if the court has ordered low repayments.

[gh2008]

In the last week I have been extremely confused by some of the posts on this thread, even going as far as thinking of giving up completely and setting up some kind of payment plans to the ccc's. After reading DD's posts today, I am a lot clearer now, and up for the fight again! Many thanks DD for some very informative posts¬

 

BF

 

You have to remember that everyone on here (no matter who they are or who they work for) only posts their opinion, they may use case law and 'facts' to back up their opinion, but it is still an opinion.

 

You must look at all opinions, research the info given and then make your mind up what to do in your situation.

 

It also very much depends on how you would perform in front of of a DJ with a hostile opposition. DD's been there done that, wears the badge with pride (as he should) but that is not to say that his approach is suitable for all, far from it. For others Peter's approach may be the better one.

 

As to which one is 'right' well, we can't make that judgement on here, that is up us to argue and the Courts to decide

[Basil Fawlty]

some of the arguments put forward by the doomsday merchants have a lot of merit- but i do not believe that the war is over - just some lost battles

 

certainly with sub £5k claims there is really (IMO) no mileage in not defending since the costs are minimal and a ccj is no more detrimental that a defaulted account status

 

indeed on balance - i would say a ccj is preferable- at least there is no further debt collection activity and there are "ways and means" with CCJ's and further opportunities to make full and final settlements- especially if the court has ordered low repayments.

 

 

dd, I have 3 cards with the same company that are all sub 5K, but together come to more than 5K.

How would these be treated?

 

BF

[Gallahad]

You have to remember that everyone on here (no matter who they are or who they work for) only posts their opinion, they may use case law and 'facts' to back up their opinion, but it is still an opinion.

 

You must look at all opinions, research the info given and then make your mind up what to do in your situation.

 

It also very much depends on how you would perform in front of of a DJ with a hostile opposition. DD's been there done that, wears the badge with pride (as he should) but that is not to say that his approach is suitable for all, far from it. For others Peter's approach may be the better one.

 

As to which one is 'right' well, we can't make that judgement on here, that is up us to argue and the Courts to decide

 

This is true :madgrin:Gh but i personally believe that DDs motives are clearer and more apparent than some others

[Basil Fawlty]

You have to remember that everyone on here (no matter who they are or who they work for) only posts their opinion, they may use case law and 'facts' to back up their opinion, but it is still an opinion.

 

You must look at all opinions, research the info given and then make your mind up what to do in your situation.

 

It also very much depends on how you would perform in front of of a DJ with a hostile opposition. DD's been there done that, wears the badge with pride (as he should) but that is not to say that his approach is suitable for all, far from it. For others Peter's approach may be the better one.

 

As to which one is 'right' well, we can't make that judgement on here, that is up us to argue and the Courts to decide

 

 

Thats what worries me. I've never been in a courtroom in my life, and havent the slightest clue what to expect or say.

 

BF

[diddydicky]

dd, I have 3 cards with the same company that are all sub 5K, but together come to more than 5K.

How would these be treated?

 

BF

 

separately

[diddydicky]

Thats what worries me. I've never been in a courtroom in my life, and havent the slightest clue what to expect or say.

 

BF

 

then you should not go there (alone) since it is VITAL that if and when you do go- you UNDERSTAND all the arguments and counter arguments that you would be advancing- and not simply reciting them parrot fashion- from something that you have read/been told by others - and that takes lots and lots of hours of internet research and reading of threads like these which slowly but surely will reveal the thinking behind the rhetoric

 

you cant always guarantee that your arguments will win the day (even barristers cant get that right all the time) - but you must fully understand what you and they are saying

 

that said, a civil court room is a civil(??) place and should not be feared- its all down to the individual and what he/she perceives to be a hostile or threatening place i suppose