Invalid Default Notices

[vint1954]

you might find claiming unlawful rescission rather difficult if it occurred theree months ago

 

 

unless of course you have already done so around that time and kept a copy of the letter!!

I know AA is maticulous and will have sent that letter and kept a copy.

 

And just in case you have forgotten what one looks like, here is one you prepared earlier:

 

Dear Sir/Madam

 

Re account no xxxxxxxxxxxxxxxxxxxxxx Unlawful Rescission.

 

With reference to the alleged debt to your company, I refer to your Default Notice dated xxxxxxxxxxxx, posted second class and received by me on xxxxxxxxxxxxxxx, and your subsequent actions confirming your previous written intentions to terminate the agreement.

Notwithstanding that the default notice failed to give me the required statutory time in which to seek legal advice and/or remedy any alleged defect, as laid out in s87 of the CCA 1974. Your actions have resulted in insufficient time for me to even obtain an appointment with a solicitor let alone remedy the alleged default. Your actions have lead to you unlawfully rescinding the agreement.

 

I accept your unlawful rescission of the agreement I note that you are now entitled to claim those arrears genuinely due at the time of the termination (not including any unlawful charges ) and i would be obliged if you would advise me of the exact amount of those arrears, against which will be a claim for unlawful rescission

 

I look forward to hearing from you.

 

Yours faithfully

[vint1954]

Anyone heard how pompeyfaith got on today.

[summerbreeze]

Anyone heard how pompeyfaith got on today.

 

 

No ...he is logged on but hasnt posted..Really hope hes OK

[vint1954]

Looks like he has only just logged on and posting from 23.00. Sure we will hear soon.

[foxyflugel]

Could anyone advise me on these dates please for a DN. Dated 13th Jan (weds) arrived frid 15th and says will be terminated on or after the 30th Jan (must've come 2nd class) - can't tell from envelope as it is a prepaid one. Also, the amount that is over the overdraft limit (leading to this )is charges from Jan 09 (that I didn't even know about!).

 

Thanks in advance

[Pinky69]

Arrived 15th then 14 clear days is the 29th - they have given you sufficient time to remedy the breach. It would be for you to argue that it was sent 2nd class post and you didn't receive it until the 19th ie 4days after posting and the weekend doesn't count -but they may have gauranteed deliveries if they use a mail system separate from Royal Mail. It is not something I would argue in court and I don't advocate perjury in any circumstance. As for the amount required to remedy the breach, it would be for you to argue with them that the figure is incorrect if the charges levied are not specified in the agreement.

[cab1ne]

what would your advice be on this scenario

also would i be right in assuming that acceptance of unlawful reccission is self evident.

 

default

 

termination

 

part of t&c

 

 

cab

[cosalt]

Arrived 15th then 14 clear days is the 29th - they have given you sufficient time to remedy the breach. It would be for you to argue that it was sent 2nd class post and you didn't receive it until the 19th ie 4days after posting and the weekend doesn't count -but they may have gauranteed deliveries if they use a mail system separate from Royal Mail. It is not something I would argue in court and I don't advocate perjury in any circumstance. As for the amount required to remedy the breach, it would be for you to argue with them that the figure is incorrect if the charges levied are not specified in the agreement.

 

Good advice, but remember if the creditor can not prove it was sent first class it is deemed to have been sent second.

 

It is up to the creditor to provide proof it was sent first class, not the debtor to prove it was sent second.

[cosalt]

what would your advice be on this scenario

also would i be right in assuming that acceptance of unlawful reccission is self evident.

 

default

 

termination

 

part of t&c

 

 

cab

 

Im my opinion that is clearly unlawfull termination, no time allowed for service and clear termination on the back of this.

 

Sorry if this has been said before but does the arrears amount contain anything other than contractual payments ?

[cab1ne]

Im my opinion that is clearly unlawfull termination, no time allowed for service and clear termination on the back of this.

 

Sorry if this has been said before but does the arrears amount contain anything other than contractual payments ?

 

"no" the figures are bang on. the other thing i have a slight concern about is the unlawful reccission "ACCEPTANCE".

 

cab

[cosalt]

Did they give you a choice whether to accept it or not ?

[cab1ne]

Did they give you a choice whether to accept it or not ?

 

in my oponion "NO" they did not

 

1. default notice says further action "MAY" be taken against you

2. default notice then states " on or after the date shown in (3) above we "WILL" without further notice (i) TERMINATE blah blah blah

3. the termination notice says "WE HAVE TODAY" terminated your agreement.

4. the terms and conditions also say they "MAY" if i breach any of the terms set out in the agreement. (so i have already agreed that they may terminate my agreement after default)

 

cab

[cab1ne]

just reflecting back on a comment "cosalt" made.

Sorry if this has been said before but does the arrears amount contain anything other than contractual payments ?

 

the actual arrears at the date of termination (comfirmed by the creditors own statements of account) the agreement was only in arrears by £433.08. would that make any difference :?

 

cab

[dad]

@Cab1ne:

 

In my opinion there is another defect with the default notice. The regulations require that the default notice SPECIFYS the term of the agreement that has been breached.

 

IE, something like:

 

You have breached term 1.2 of the agreement

 

or

 

You have breached the following term of the agreement:

 

"The actual words of the agreement"

 

Even with the second example it is arguable that they have to refer to the actual paragraph number, if it is numbered.

 

HTH

 

Dad

Edited January 18, 2010 by dad

[Pinky69]

I know it is up to the creditor to probe it was sent 1st class. The point I was making was I wouldn't argue it was sent second class without proof. A 2 day delivery on an unmarked envelope seems to be to be another mail service with the Royal Mail delivering the last stage.

[cab1ne]

@Cab1ne:

 

In my opinion there is another defect with the default notice. The regulations require that the default notice SPECIFYS the term of the agreement that has been breached.

 

IE, something like:

 

You have breached term 1.2 of the agreement

 

or

 

You have breached the following term of the agreement:

 

"The actual words of the agreement"

 

Even with the second example it is arguable that the have to refer to the actual paragraph number, if it is numbered.

 

HTH

 

Dad

thanks dad

very interesting point. more ammo to fire back with.

 

cab

[craigers]

i don't have a copy of the default notice having long destroyed it, and i don't have the results of my sar to hand, but can people comment on this? egg defaulted my account for x amount. they sold the debt to lowell for x+£20. lowell also registered a default for x amount. yet when i log on to egg my account balance shows as x-£34. my sar shows that once they charged-off the account, egg refunded interest to the account.

 

anyone have a clue what might be going on??

 

EDIT: I know Lowell didn't actually pay x+£20, but thats the account balance they are claiming.

Edited January 18, 2010 by craigers

[humbleman]

@Cab1ne:

 

In my opinion there is another defect with the default notice. The regulations require that the default notice SPECIFYS the term of the agreement that has been breached.

Dad

 

So what would you say to this

 

default picture by 123GGGG_2008 - Photobucket

 

default-back picture by 123GGGG_2008 - Photobucket

[cashins]

Not clear and unambigous on the breach.............and they've gorn and demanded the full ammount.....oh dear.

 

David

[diddydicky]

"no" the figures are bang on. the other thing i have a slight concern about is the unlawful reccission "ACCEPTANCE".

 

cab

 

it should also state in the DN what the full balance of the account is.

 

as for unlawful rescission i strongly advise you to write and accept it.

[cab1ne]

it should also state in the DN what the full balance of the account is.

 

as for unlawful rescission i strongly advise you to write and accept it.

 

iam under the impression i already had accepted it due to the wording on the default saying "we will"

 

the wording on the termination saying "we have"

 

the t's&c's saying they could. thus leaving me withe no options as to termination meaning termination.

 

cab

[vint1954]

iam under the impression i already had accepted it due to the wording on the default saying "we will"

 

the wording on the termination saying "we have"

 

the t's&c's saying they could. thus leaving me withe no options as to termination meaning termination.

 

cab

Yes, but you have to accept that unlawful termination ( rescission )

[Fluffystuff]

Hi DD & Vint,

 

Apologies for hi-jacking but wonder if you would care to comment on this

 

-http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/242747-fluffystuffs-oh-tesco-credit.html

 

Thanks as usual. x

[cab1ne]

hi vint

 

bit confused now because "yes" and "but" in the same sentence spells contradiction to me. is it "yes" i have accepted the termination or is it "but" i havent accepted termination because it is an unlawful termination:eek:

 

cab

[diddydicky]

iam under the impression i already had accepted it due to the wording on the default saying "we will"

 

the wording on the termination saying "we have"

 

the t's&c's saying they could. thus leaving me withe no options as to termination meaning termination.

 

cab

 

 

There are two parties to the credit agreement.

 

No where in the t & C's does it give permission for one of the parties to UNLAWFULLY terminate or withdraw from the agreement.

 

Thus if the creditor tells you that he is no longer prepared to perform (his part of the agreement) and this represents a serious loss of a benefit of the agreement to you (and i would argue that the ability to make monthly repayments is the ONLY real benefit to you) then you , as the party still willing to perform the agreement have TWO choices

 

you can do nothing- which indicates that you expect the other side to honour the agreement (and you could sue for breach of contract if in fact he does not perform as he should)

 

OR

 

you can take the position that in fact the creditor is clearly demonstrating to you that he regards the agreement as over in which case the law permits you (under general contract law- not the CCA) to accept his unlawful repudiation of his obligations and thus relieve yourself of YOUR obligations

 

clearly it cannot be right that one side can withdraw whilst the other has to perform.

 

The unlawful act by the creditor does NOT terminate the agreement (because it cant)

 

Thus the termination only occurs when YOU accept the unlawful act of the other party which in effect is a declaration that you are no longer bound by its terms therefore with neither party performing the agreement is effectively terminated.

 

 

 

in the event you have both agreed to end the agreement

 

until you make that clear, the door is open for the creditor to realise the mistake he has made with the DN and correct it by issuing another, compliant DN

 

strictly speaking, even if the creditor has used such words as "may" terminate the agreement in the DN youi can take him at his word but it is usually better to wait until he terminates or he or his minions makes a demand of you to pay the whole balance

 

of course once he terminates the agreement on the back of the faulty DN it is much more difficult for him but still advisable to accept the unlawful rescission.

 

if the creditors says in the DN that he WILL at the expiry of the time for remedy terminate he can safely be taken at his word