Invalid Default Notices

[beyondhope]

Subbing to read with great interest

[emandcole]

 

I have more than one termination letter dating back 12 - 18 months. As in fact these were terminated on the backs of DN's I consider invalid, would the advice be even at this late stage to write now and accept?

 

David

 

Hi, having read similar questions the general consensus seemed to be that you could accept but the arrears (you're still liable for) would have possibly got very high. Also, I believe that if you carried on making payments to the account you effectively chose to ignore the termination preferring it to endure.

 

I think the key aspect is that if you get a termination letter on the back of an invalid default you should quickly accept their repudiation of that contract and cease all payment.

 

To counter any payments made after termination however 'by mistake' or otherwise there has been discussion that you could state these continued payments were actually towards the arrears and you did send a letter of acceptance that 'somehow they didn't get'.

 

As the banks et al can send notices and it doesn't appear to matter if you even get them the same argument is fair to anything you send.

 

Of course, underlining all of the above musings and theory is the eye of the judge who can and will interpret your actions in a different light.

 

Ideal scenario is therefore an invalid default which you keep safe, they then terminate and you bite their arm off quickly with an acceptance of that repudiation.

[diddydicky]

woa, stop! what if a DN happens to be valid in its format, but the creditor has omitted to supply a credit agreement on a CCA request. what does one do in this scenario ? BAB

 

the creditor may not enforce the agreement whilst he is in default of his s78 obligations so the dn will be unlawful

 

but be careful as to whether to creditor is in fact in breach of s78 or you just think he is

 

 

what i mean by that is if there is a dispute as to what he has sent does or does not comply

 

obviously if nothing at all then that is clear cut

[diddydicky]

I must admit to not having followed this thread to closely and although competent on DN's, unlawful rescission is still rather a mystery.

 

What is coming accross loud and clear is that for termination, (after the demands of a DN being unsatisfied), is not valid unless accepted in writing by you. Clear so far!

 

I have more than one termination letter dating back 12 - 18 months. As in fact these were terminated on the backs of DN's I consider invalid, would the advice be even at this late stage to write now and accept?

 

David

 

dont know about anyone else but im not sure on that one

 

i think if they brought the fact up that you did nothing for 12 months or more you might be on a sticky wicket (bugger now ive mixed football up with cricket)

[welshperson3]

The point i am trying to get across (not very well )

 

There are some people of the opinion that as the creditor has sent a faulty DN and then sends out a termination notice think that the agreement is over.

 

What i am trying to get across to people is that it is not over,the agreement is still live.

 

We must POINT OUT that it is not the creditor that ends the agreement in this situation, but the debtor by sending a letter of acceptance

 

so a dodgy DN and a definite notice of TERMINATION means nothing unless you can show in court that you accepted the kind offer of termination

 

it is up to the individual debtor to end the agreement and if they don't they could be in trouble trying to argue in court that the creditor ended the agreement

[diddydicky]

The point i am trying to get across (not very well )

 

There are some people of the opinion that as the creditor has sent a faulty DN and then sends out a termination notice think that the agreement is over.

 

What i am trying to get across to people is that it is not over,the agreement is still live.

 

We must POINT OUT that it is not the creditor that ends the agreement in this situation, but the (acceptance by the debtor of the creditors unlawful repudiation) thereby both parties no longer performing which results in the effective termination of the agreement)debtor by sending a letter of acceptance

 

so a dodgy DN and a definite notice of TERMINATION means nothing unless you can show in court that you accepted the (unlawful repudiation)kind offer of termination -

 

it is up to the individual debtor to accept the unlawful repudiation) and consider himself no longer bound by its terms)end the agreement and if they don't they could be in trouble trying to argue in court that the creditor ended the agreement

 

 

you have to get it into your head that NEITHER of the parties can unlawfully terminate the agreement against the wishes of the other

 

you both agree not to perform (you because they "started it") and thus the agreement is effectively terminated since no one is performing their obligations

[MandM]

And here it is in practice - as stated by DD on many occasions

 

See Post 41 and 43 and see how a day in court can go tits up on this very point. This guy escaped to fight another day - but nearly lost!

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/210199-northern-rock-me-help.html

 

M

[Pinky69]

Legal precedent about what an unlawful DN means has been set:

[welshperson3]

Hi diddydicky

 

I think we are reading from the same page although i may be having trouble repeating the story.

 

the acceptance letter is a must do that is my point in a nut shell

[Pinky69]

Legal precedent has been set:

 

 

Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but gives rise to a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

 

In my view the debtor's acceptance of the termination can be by deed as well as written acceptance. In my opinion if you didn't accept the termination, you wouldn't be in court arguing about the consequences of that termination. I have 2 court cases for damages as a result of unlawful rescission in the course of this year so we will see what happens.

 

 

Yesterday's case above involved a discussion about about DN dates and I don't see that it was almost lost. The poster got confused when the judge asked him questions about it. The dates to remedy the breach is in my view one of the key factors in a DN being unlawful, the other being wrong amounts but both are important.

[MandM]

 

 

Yesterday's case above involved a discussion about about DN dates and I don't see that it was almost lost. The poster got confused when the judge asked him questions about it. The dates to remedy the breach is in my view one of the key factors in a DN being unlawful, the other being wrong amounts but both are important.

 

The main bit I was pointing at is in Post 43>>>>>

Now I had read the discussions on the "A Tale of a Dodgy DN" sticky thread about the question of whether if the DN is defective this then means the termination is invalid. I tried to persuade the judge that if they send a letter terminating then it is plain a clear, and that in my mind as a consumer it left me in no doubt that the contract was terminated. He said he understood where I was coming from but as far as he was concerned they could not terminate on the back of defective DNs and therefore the contract remained. So I think this is an issue that needs careful thought for others planning a similar defence, about how to persuade a judge who comes up with this argument that once they terminate they cannot then just repair things by issuing a valid DN.

 

The OP got out because he realised (late) that here were other issues. The point I was making was that the judge was quite clear that he wasn't happy about the 'termination' point.

 

M

Edited January 20, 2010 by MandM
bold bit

[cab1ne]

but you could also argue that they sent you an invalid default notice, then they terminatared the agreement (unlawful recission), in my opinion once they have committed the illegal act they can not go back and re issue a new default. at the end of the day recission is

re·scind (r-snd)tr.v. re·scind·ed, re·scind·ing, re·scinds To make void; repeal or annul.

 

(tr) to annul or repeal[from Latin rēscindere to cut off, from re- (intensive) + scindere to cut]

 

 

 

 

Verb1.rescind - cancel officially; "He revoked the ban on smoking"; "lift an embargo"; "vacate a death sentence"

 

 

so even thou it is unlawful it is finished, kaput, done, at an end.

 

the dodgy default notice clearly denies them the right to claim there rights under s87/88. (leaving you with the arrears up to that termination) and if you can prove your agreement aint worth the paper it is written on they wont even be able to claim the arrears either.

 

the fact that it is an unlawful recission in my opinion does not mean a court or a creditor has a right to treat it as thou it never happened or say now it has happened the consumer credit act is now void and it is contract law. but even if that was right, in my opinion the unlawful recission would become unlawful repudiation. it is still the creditor that committed the unlawful repudiation and it is still the debtor who is entitled to compensation.

 

in my opinion for a creditor to unlawfully rescind your agreement with them and then you write back and accept there unlawful recission you could be saying you no longer wish to be protected by the consumer credit act and inviting them to sue you under contract law.

 

at the end of the day it is what you feel comfortable with.

iam not defermating anybody iam just giving an opinion.

 

cab

[diddydicky]

Hi diddydicky

 

I think we are reading from the same page although i may be having trouble repeating the story.

 

the acceptance letter is a must do that is my point in a nut shell

 

deffo (IMO)

 

you dont have to explain why

 

even a simple

 

"You have unlawfully repudiated the agreement and i accept your unlawful repudiation"

 

will do

 

you are a layman and that is sufficient

[diddydicky]

but you could also argue that they sent you an invalid default notice, then they terminatared the agreement (unlawful recission), in my opinion once they have committed the illegal act they can not go back and re issue a new default. at the end of the day recission is

re·scind (r-snd)tr.v. re·scind·ed, re·scind·ing, re·scinds To make void; repeal or annul.

 

(tr) to annul or repeal[from Latin rēscindere to cut off, from re- (intensive) + scindere to cut]

 

 

 

 

Verb1.rescind - cancel officially; "He revoked the ban on smoking"; "lift an embargo"; "vacate a death sentence"

 

 

so even thou it is unlawful it is finished, kaput, done, at an end.

 

the dodgy default notice clearly denies them the right to claim there rights under s87/88. (leaving you with the arrears up to that termination) and if you can prove your agreement aint worth the paper it is written on they wont even be able to claim the arrears either.

 

the fact that it is an unlawful recission in my opinion does not mean a court or a creditor has a right to treat it as thou it never happened or say now it has happened the consumer credit act is now void and it is contract law. but even if that was right, in my opinion the unlawful recission would become unlawful repudiation. it is still the creditor that committed the unlawful repudiation and it is still the debtor who is entitled to compensation.

 

in my opinion for a creditor to unlawfully rescind your agreement with them and then you write back and accept there unlawful recission you could be saying you no longer wish to be protected by the consumer credit act and inviting them to sue you under contract law.

 

at the end of the day it is what you feel comfortable with.

iam not defermating anybody iam just giving an opinion.

 

cab

 

the point you are missing here is this:-

 

just because the creditor says " i unlawfully terminate this agreement" doe s not "make it so"

 

anymore that you can say to the creditor "i'm fed up with this agreement - i think ill just walk away from it"

 

you are both LAWFULLY bound to it, therefore NEITHER party can simply unlawfully breach its terms and say whoops, sorry about that but there you go- agreement terminated!!

 

(if only!!)

 

The CCA does NOT allow the creditor to terminate the agreement LAWFULLY if the DN is not right

 

therefore the agreement (as the judge says) endures

 

However, an UNLAWFUL act then puts the parties OUTSIDE of the consumer credit act (which has no facility to accomodate an unlawful termination) and into general contract law

 

now i am no expert on general contract law - it is a large and complicated subject but.......

 

there are a few basics, one of which is that IF one party unlawfully breaches a contract the injured party (or party still performing) is in effect given TWO choices

 

he can insist that the other side keeps to the contract- in which case he need do NOTHING (but he might have to sue for breach of contract if the other party carries out his intention not to perform) OR

 

he can say

 

fair enough chum- suits me sir- you've been naughty - its clear to me that the business relationship has broken down so if you're not playing neither am i so as of now i accept your unlawful act so now NONE of us is performing (witness the end of a beautiful friendship).,

 

In the cases we are talking about it can be very convenient for the debtor to take this second choice

 

in some contracts the former option is best

 

for instance, you pay amazon $1000 for a load of books

 

after you have paid amazons says P**s off - ive decided not to deliver them!

 

now in this case you would be MAD to accept their breach and you would INSIST that they kept to the contract.

 

and if you did-nothing and they delivered the books 6 months later- they would have remedied their own breach

 

therefore if when the creditor removes from you the right to pay monthly payments- if you do nothing to challenge his unlawfull behavious he is going to say ooops- ill go back three paces and re issue the DN and put right my earlier failure- if you havent paid what was demanded in the rrignal DN then he can still "persuade" the judge that if you pay the new improved DN he will let you carry on paying monthly (yeah right!!)

 

trouble for you by this time is of course- that you wont be able to prove that he wouldnt,

 

whereas, if , after the first unlawful attempt by the creditor following his dodgy DN you had written those 5 little words

 

"i accept your unlawful repudiation"

 

then he could then NOT issue a revised DN because there would be no agreement to issue it against!!

 

 

two things a man needs to know to make sure his lot is a happy one, his belly is full, his washing and ironing is done and his back account remains healthy

 

"I Love You"

 

and

 

"I accept your unlawful repudiation"

Edited January 21, 2010 by diddydicky

[Pumpkinhead]

Hi All

 

Been reading this thread with great interest. I have a question regarding Default Notices and Defaults being registered with CRAs. I would be grateful if you could have a look at my link http://www.consumeractiongroup.co.uk/forum/general-debt-issues/243381-default-notices-defaults-being.html

[Pumpkinhead]

Hi

 

Apologies for hi-jacking this excellent thread but could those of you in the know please look at my thread relating to RBS Mint and give me your thoughts.

 

Many thanks

http://www.consumeractiongroup.co.uk/forum/royal-bank-scotland/243410-rbs-mint-invalid-dns.html

[Its WAR]

Hi Vint, Is it important if the DN relates to a current account, if a current account is not subject to the Consumer Credit Act? Are the rules the same?

[Bill Shidding]

if a current account is not subject to the Consumer Credit Act?

 

Current accounts are regulated by the consumer credit act. Save for signing of agreements. Of course, a creditor still needs to prove that they have given O/D facility letters for authorised overdrafts. And/or provided prescribed information within 3 months and 5 days, where the O/D is unauthorised.

 

I believe that a DN is served after a final demand on O/Ds. Overdrafts are "repayable on demand" anyway.

 

I'm sure Vint will add to this.

 

Bill

[jackst01]

subbing

[jackst01]

So what happens if a contract is not terminated in writing, as I am going through the same thing with Welcome and I doubt they will be organised enough to terminate in writing!

[emandcole]

 

I believe that a DN is served after a final demand on O/Ds. Overdrafts are "repayable on demand" anyway.

 

Bill

 

Thanks for that insight Bill. What happens if a bank has not registered a default on your credit file for the overdraft, or sent one (that you are aware of) but then gets a DCA, in-house or otherwise, to chase for the full balance?

 

I have this going on for an old student account that was destroyed by charges and now the Supreme Court have done their 'thing' I think the bank are trying to maximise the window of opportunity before the new arguments come out.

 

I don't believe the bank has gone about this in the right way. Thoughts greatly appreciated

[cab1ne]

just a quick one "slightly off topic"

 

when you have an agreement for a vehicle would you determine a 3rd of the agreement being paid with or without the interest:?

 

cab

[cosalt]

Its one third of the total amount payable, which includes any deposit / px / interest / admin charges.

 

If you put a deposit down or px it is possible that you have paid over one third without having ever made a payment.

[Bill Shidding]

Hi Emandcole,

 

What happens if a bank has not registered a default on your credit file for the overdraft, or sent one (that you are aware of) but then gets a DCA, in-house or otherwise, to chase for the full balance?

 

A creditor is under an obligation to file accurate information on a borrowers credit file. The creditor is required to file that information "within" 6 months of the default, unless there are extenuating circumstances. You should check the ICO guidance on filing defaults to ensure they have complied. IMHO, if they have not filed a default on your file, they can't be that confident of justifying one. I take it that a possible default has not "dropped off" already?

 

If you claim (in court) that you did not receive a DN in the post, the creditor will almost certainly state (in my experience) that "we didn't get it back". The judge, will probably swallow that whole.

I take it that you have done a SAR, and have now received a copy?

 

As far as the DCA chasing a disputed debt, thats what they do. They don't get paid if you don't pay, and they don't know (or care) how the debt accrued. All they know is your name, address/phone number and the sum. What they don't know, they invent;).

 

Cheers,

Bill

[cab1ne]

Its one third of the total amount payable, which includes any deposit / px / interest / admin charges.

 

If you put a deposit down or px it is possible that you have paid over one third without having ever made a payment.

 

thanx bill

 

just covering ones assss

 

cab