Invalid Default Notices

[frettful38]

A creditor can still enforce an agreement with an invalid DN. The fact that he cannot recover all of his funds does not make the agreement unenforceable. A CCJ can still be entered against the debtor.

 

Alan

 

I think that would be my main worry. All I have is a faulty DN and I am receiving letters from DG Sols that they want to apply for a charging order.

[hunni2006]

heated

[Peterbard]

Blimey, were having our Court of Appeal here. Great information from all sides and it is good to take the bad with the good.

 

Is there any particular order which a Default should be registered on ones credit file. Is the creditor suppose to send a DN then register on your file or visa-versa?

 

Prob not important but just needed to know please.

 

 

 

HI

Yes Galahad is correct. The default notice Section 87 is only used to give time to remedy the breach of the act.

A notice of default that has to be issued 28 days( Banking code section 17,35) before the inclusion of a default record on your CRA record is a different entity.

The definition of default as far as the creditor and the CRA is concerned is based on the “breakdown of the relationship” between the debtor and the creditor, the ICO /CRA guidance says that this should be after between 3 and 6 months of arrears.

In practice the notice of default from the creditor can be sent along with the section 87 notice the CRA will “always” wait the full 28 days before entering the default in practice this is usually after the DN is actioned.

Incidentally this is why the remedy of the breach in section 89 of the act has no effect on the CRA file as it would not restore the breakdown in the relationship or rectify the missed payments.

Peter

[Peterbard]

I think that would be my main worry. All I have is a faulty DN and I am receiving letters from DG Sols that they want to apply for a charging order.

 

Have you tried using the faulty DN to get the judgement set asside

 

Peter

[alangee]

A creditor cannot enforce an agrement with an invalid DN on a breach of an agreement you are incorrect.

 

PB, are you telling me that if a creditor has an enforcible agreement, but the DN is invalid - for whatever reason - he will fail with his claim?

 

Alan

[Peterbard]

where you miss the point (time and again) is that the act refers to what the creditor may and may not LAWFULLY do- just as for instance the law says you must not steal

 

the (civil) law does indeed tolerate "law breaking" ( law breaking in this respect means the "unlawful" breaking of the terms of a "lawful" agreement

 

the creditor, as we know is legally bound by written statements made to the debtor and these are upheld in appeal courts and the house of lords- therefore the argument that just because this is the consumer credit act- it releives the creditor of well established legal principles is just barmy

 

if the creditor does some act which is "unlawful" (in terms of the opposite of what the act requires him to do)- then OF COURSE the injured party has the opportunity to elect

 

not to do so would suggest (just as barmy) that the consumer protection act, far from being an act to PROTECT the consumer- was an act different from all other legislation- in a league of its own- and in which the consumer had no rights at all when the creditor mis behaved

 

given that the act is an extention of the old moneylenders act with the same overriding principles - the only people who would understand the act to be in the sole interests of the creditors to the detriment of the consumer- would be the creditors and peter bard (one in the same- i suspect)

 

If the default is inafective the court will not enforce the creditor wil have to re issue and re file.

 

That is really all that we need to know.

 

THe rest is frankly irrelavant. A judge will not entertain these arguments interesting though they are. At the end of the day the debtor has defaulted on his loan the ccrediotr is entitled to his money back, that is all the court wil see. You may be able to delay the process by making the crediotr issue another default and if you are lucky you may be able to make a deal whilst he is in the process of doing so, but that is the best you can hope for.

 

Peter

[Peterbard]

PB, are you telling me that if a creditor has an enforcible agreement, but the DN is invalid - for whatever reason - he will fail with his claim?

 

Alan

 

I am saying that i have had many a casse set asside for a faulty or missing DN

 

I am sayng that a faulty DN stops the credior from demanding earlyrepayment of money.

 

I am saying thaat the court will not enforce unless there is an effective DN issued on a breach of an agreement.

[alangee]

I am saying thaat the court will not enforce unless there is an effective DN issued on a breach of an agreement.

 

Perhaps you should inform the county court judges about that, including it would appear, the Brandon judge.

 

Alan

[Desperate Daniella]

Amex have been told countless times by their cardholders that the DN is invalid but as long as they can persuade a judge that this is a de minimis issue they will get away with it. I do not know if they have changed the DNs in recent months but for many months they did not do this. I would imagine that they considered that by doing so it could amount to an admission that the earlier DNs were in fact invalid.

 

Judges are not following the law and just dismissing invalid DNs as a technicality.

 

DD

[Peterbard]

Perhaps you should inform the county court judges about that, including it would appear, the Brandon judge.

 

Alan

The whole point is that the court cannot enforce on a faulty DN have you been asleep.

County courts know all about it.

 

Brandon tried to prove the point by saying hes DN was inafective and preventing enforceent, he failed because the judge said hes DN was effective in that there was no predudice cause by the incorrect remedy period.

 

Peter

[Peterbard]

Amex have been told countless times by their cardholders that the DN is invalid but as long as they can persuade a judge that this is a de minimis issue they will get away with it. I do not know if they have changed the DNs in recent months but for many months they did not do this. I would imagine that they considered that by doing so it could amount to an admission that the earlier DNs were in fact invalid.

 

Judges are not following the law and just dismissing invalid DNs as a technicality.

 

DD

Yes unfortunately i think that you have to show genuine prejudice, for instance if the default sum is grossley overstated. i do not think that technicalities are going to do the trick anymore.

 

Personally i think 14 days should mean14 days irrespective of when the creditor deides to act on the default otherwise what is the point of staing a time period in the regs.

Peter

[frettful38]

PB, are you telling me that if a creditor has an enforcible agreement, but the DN is invalid - for whatever reason - he will fail with his claim?

 

Alan

 

Not yet peter as my lender has written stating that it is up to me to start proceedings.

 

Here is the letter I received and since then I have received about 3 letters from DG Solicitors

 

http://i450.photobucket.com/albums/qq223/sophiak_bucket/hsbc/HSBCDNcourtproceedings.jpg

Edited October 27, 2010 by frettful38

[frettful38]

What a great website I found,

 

http://www.courtsni.gov.uk/en-GB/Judicial+Decisions/SummaryJudgments/j_sj_RvMcCaughertyandGregory011010.htm

[Peterbard]

Not yet peter as my lender has written stating that it is up to me to start proceedings.

 

Here is the letter I received and since then I have received about 3 letters from DG Solicitors

 

http://i450.photobucket.com/albums/qq223/sophiak_bucket/hsbc/HSBCDNcourtproceedings.jpg

 

Hi F

 

Affraid the image has been deleted. Have you recieved a judgment.

 

Peter

[frettful38]

Hi F

 

Affraid the image has been deleted. Have you recieved a judgment.

 

Peter

 

No peter, there have been no court proceedings yet, I am at a stand still..........just receiving the occasional letter from DG.

 

Posted again,

 

http://i450.photobucket.com/albums/qq223/sophiak_bucket/hsbc/HSBCDNcourtproceedings.jpg

[alangee]

PB, so now you are saying it does not have to be an effective DN if the court doesn't think you have been prejudiced, which is not what you said before.

I am saying thaat the court will not enforce unless there is an effective DN issued on a breach of an agreement

So, when is a defective DN, a defective DN?

 

Alan

[Basil Fawlty]

I'm confused now.

 

BF

[frettful38]

PB, so now you are saying it does not have to be an effective DN if the court doesn't think you have been prejudiced, which is not what you said before. So, when is a defective DN, a defective DN?

 

Alan

 

I guess never as the creditor it seems has the right to rectify the faulty DN by issuing a new.

 

Great, just when you think your getting somewhere and learning about the law something new pops up.

[alanfromderby]

This thread seems to be going round in circles, and at 272 pages does not really help anyone to understand the issues. This thread is now closed to new posts.