Invalid Default Notices

[welshperson3]

Hi

No there is two arguments going on here I just want to get my head around yours.

You are saying that the act of asking for full repayment is a repuioatory breach because no default notice was issued.

Nothing to do with a DN

making demands for the full amount and withdrawing my right to pay monthly is what i consider a repuioatory breach

You say that you have accepted that under common law and terminated the agreement yourself.

Is this correct.

no i haven't terminated, i cant as i am sure you are aware

Doesn’t the problem still remain that they where not entitled to ask under section 87.

There is also the problem that presumably the agreement has already been breached by you.

I think you may have a problem getting the court to ignore your actual breach in favour of the intended breach of the creditor.

 

CCA 87/88 is there to allow a debtor a chance to put things right before a creditor becomes entitled to any action

if the creditor has not complied with CCA87/88 then how has a debtor had a chance to put things right and how has a creditor fulfilled his obligations under the CCA

Please don’t get me wrong I wish you luck with this but I think the reality of the situation will be that the court will say default defective, so no further actions permitted, account still active so issue new default and enforce. Actually I don’t think the court will really even give it that much consideration. They will just concentrate on the debt.

 

i think the court could well allow them to issue a new DN

As the main thing i have in my case is the unfair relationship the dodgy DN is secondary but also quite a important case for others

county court not a precedence but it is an example

 

 

But I have been wrong before lets hope I am again

Peter

 

wp3

[welshperson3]

I agree personally. Surely any claim of this nature should actually focus on ascertaining the rights of the parties involved. If the court agrees the account is still live (as you might maintain if they reject your defence of repudiatory breach) then they'd need to have issued a fresh DN.

 

yes they need a new DN

 

Problem for them here is that they have to maintain the account is terminated all the way to the hearing (if it is not they were not allowed to litigate for the full balance) and as it is indeed terminated they are also prevented from issuing another 'correct' DN on the terminated account.

 

If the court declares the account to be live then surely the claim in its present format needs to be ended and re-started, this time after the creditor has issued a correct DN, terminated, LBA and then re-claimed. If you've submitted a defence however to the same claim before then surely they'd need the permission of the court to litigate for the same account?

 

In effect if a creditor litigates and subsequently the account is declared live are they not shooting themselves in the foot having taken it to court already for the same alleged consumer breach? It is after all they who have messed the CCA process up and not you.

 

Ii they get to the court and it is not terminated then they SHOULD lose as they had no right to bring the claim on the back of a dodgy DN.

but now you will have to argue why they cant issue a new default notice and start again.

 

If they get to the Hearing and in fact it is terminated then they SHOULD lose as they haven't complied with the CCA on the DN issue.

 

First line of defence then perhaps would be to claim repudiatory breach as the main benefit of the contract (you paying by monthly installments) has been revoked. This also evidences an element of prejudice as the action of the creditor in demanding the full balance placed undue stresses and burden on the consumer.

 

In the Amex v Brandon case a significant contributory factor leading to the final conclusion of the judge was that the consumer has suffered no prejudice. Therefore, make sure prejudice is key to your defence. An invalid DN on your credit file also adds to the prejudice suffered.

 

Parliament has made the rules that must be folowed in respect of the DN, this judge has decided that he doesn't have to follow them

 

If this first line of defence fails and the court rejects the repudiatory breach angle then the account is declared as still being live. The creditor (under the belief the account is terminated or they had no place litigating in the first place for the full balance) has to run with the original DN as they are prevented from issuing a second or third correct DN once the account is terminated.

 

if the account is declared live it doesn't matter that he thought it was terminated,

if its live then he Can go away and issue a new DN

 

 

This surely prevents them from conjuring up a replacement DN to excuse the original they used to litigate on. I don't see how the creditor, once a DN is examined in court, can be allowed to 'go and get another one' if their original is impaired.

 

If the account is still live they can

 

Bit like being the first to hit the answer button in a quiz show and then getting the answer wrong. You'd expect the quiz host to turn to the other contestant for the answer, not ignore the other contestant and allow the original another chance to go on the internet, research the question and then give the correct answer to win the show. Allowing the creditor to 'go and find another DN that is valid' seems comparable to this and is wholly unfair to the consumer.

 

If therefore the account is live and the original DN is found to be invalid the claim surely cannot succeed? This then forces the creditor to discontinue or for the court to find in favour of the consumer. As the claim has already been brought and the claimant lost they are surely prevented from litigating again and the consumer wins. a good point

 

Key to this then for the creditor is to be absolutely certain the DN is valid before terminating. That way they should have little reason not to beat the consumer, assuming all of the other issues they normally mess up have been correctly worked.

 

How does this all sound and where do we disagree here?

 

 

judges lately are going against technical challenges and interpreting the rules to suit

just my opinion.

 

wp3

Edited October 12, 2010 by welshperson3

[welshperson3]

HI

 

If you are talking about using this as a means of getting out of repying your loan in would go further i would say it is a none starter.

 

peter i would agree with this for the simple fact that judges are not sticking to the word of the law.

they are saying that a invalid DN means nothing as the debtor suffered no detriment.

they are looking at it as (you borrowed the money so you should pay it back) then they interpret the law to fit.

 

However if you use sectuion 87 as it is meant to be used, it provides a degree of consumer protection, in that the debtor is given the correct clear information and time in order to remedy.

 

Peter

 

 

on a point of law then there is a good argument, but the hardest point is convincing a judge that he has to stick to the law as laid down by Parliament.

 

if he does then may be it is unfair on the creditor as the debtor gets out of paying on a technical breach.

and this is what is happening he is not allowing debtors to get out of paying on a technical breach.

 

anyone that takes this on is going to have there hands full.

 

 

wp3

[welshperson3]

The courts and the government are looking at fairness rather than technical breaches.

this can be seen in the amendments to the CCA in 2006 they removed s127 of the CCA which says

 

 

The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

 

and this was added to the CCA

 

 

140AUnfair relationships between creditors and debtors

 

(1)The court may make an order under section 140B in connection with a credit agreement if it determines that the relationship between the creditor and the debtor arising out of the agreement (or the agreement taken with any related agreement) is unfair to the debtor because of one or more of the following

 

 

my point is that government and courts don't like technical challenges of the agreements which can also be seen in the OFT guidance all to do with fairness

 

s127 CCA was all about tecnical breaches its gone now but why ?

 

there are good points of law to show that a dodgy DN is fatal to the creditors agreement but how the judge views it is a different matter.

[welshperson3]

COPY OF AMEX V BRANDON FOR FREETHEMICE

 

SCAN FORUM Amex V BRANDON CASE[1].pdf

 

 

 

quote from Francis Bennion in regards of S127 OF THE CCA

 

Consumer Credit Act 1974 s 127(3)

As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson

 

for his interesting and well-argued article (30 August 2003) on

Wilson v First County Trust

Ltd

[2003] UKHL 40, [2003] 4 All ER 97.

Dr Lawson may be interested to know that I included the provision in question (section

127(3)) entirely on my own initiative. It seemed right to me that if the creditor company

couldn’t be bothered to ensure that all the prescribed particulars were accurately included in

the credit agreement it deserved to find it unenforceable, and that the court should not have

power to relieve it from this penalty. Nobody queried this, and it went through Parliament

without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed

that nobody’s human rights were infringed.

167 Justice of the Peace (2003) 773.

[welshperson3]

THIS IS THE REALTY OF WHAT HAPPENS

 

a post of worsteve thread

 

Just briefly. RBS took me to court to obtain a charging order against my property and lost (they demanded the full amount at court on the back of a Faulty DN.) I have accepted unlawful termination 3 times now, and they tried to send me letters with ridiculous arrears. Now they have re-issued a new DN and Termination Notice and are now going for the full balance again. After sending so many letters my inclination is to just ignore these silly and very ignorant people now. I know they cannot now go for the full amount of the loan as they have lost in court once........but here they are trying it on again. This now feels like Harassment. I don't think I should but if I need to, how should I respond?

Many Thanks

 

a perfect example of what is happening,

 

the question is how to deal with the above problem

[welshperson3]

any thoughts on this

 

173 Contracting-out forbidden

(1) A term contained in a regulated agreement or linked transaction, or in any other agreement relating to an actual or prospective regulated agreement or linked transaction, is void if, and to the extent that, it is inconsistent with a provision for the protection of the debtor or hirer or his relative or any surety contained in this Act or in any regulation made under this Act.

(2) Where a provision specifies the duty or liability of the debtor or hirer or his relative or any surety in certain circumstances, a term is inconsistent with that provision if it purports to impose, directly or indirectly, an additional duty or liability on him in those circumstances.

(3) Notwithstanding subsection (1), a provision of this Act under which a thing may be done in relation to any person on an order of the court or the Director only shall not be taken to prevent its being done at any time with that person’s consent given at that time, but the refusal of such consent shall not give rise to any liability.

[welshperson3]

cheers peter

 

its what i thought then, in my case the creditor is trying to contract out by using the terms to distance him self from the broker

[welshperson3]

I have been speaking to a number of people, Qc down, and only one supports the view on repudiation but the problem is conceded that there is a statutory prohibition on termination unless a default notice is served , setting aside an de minimis points.

 

The Act also clearly states NO SANCTION CRIMINAL OR CIVIL but for that provided by the act, so i think you may struggle there, as the act does not allow acceptance of termination

 

We will know more when we get the Brandon appeal heard

 

 

Ok if there is no right in the CCA why is this in the act?

 

 

 

(b) Termination of an agreement under section 99 or 101, or by the exercise of a right or power in that behalf expressly conferred by the agreement.

 

 

This seems to show that it is to do with acts of rescission out side of the rules of the CCA, and also out side of contract rules.

 

 

102 Agency for receiving notice of rescission

 

(1) Where the debtor or hirer under a regulated agreement claims to have a right to rescind the agreement, each of the following shall be deemed to be the agent of the creditor or owner for the purpose of receiving any notice rescinding the agreement which is served by the debtor or hirer—

 

(a) a credit-broker or supplier who was the negotiator in antecedent negotiations, and

 

(b) any person who, in the course of a business carried on by him, acted on behalf of the debtor or hirer in any negotiations for the agreement.

 

 

(2) In subsection (1) “rescind” does not include—

 

(a) service of a notice of cancellation, or

 

(b) termination of an agreement under section 99 or 101, or by the exercise of a right or power in that behalf expressly conferred by the agreement.

 

 

wp3

Edited October 15, 2010 by welshperson3

[welshperson3]

102 Agency for receiving notice of rescission

when they put this in the act they clearly stated that it is not in respect of,

(2) In subsection (1) “rescind” does not include—

(a) service of a notice of cancellation, or

(b) termination of an agreement under section 99 or 101, or by the exercise of a right or power in that behalf expressly conferred by the agreement.

If it is not in respect of 99 Right to terminate hire-purchase etc agreements

If it is not in respect of 101 Right to terminate hire agreement

If it is not in respect of a right or power in that behalf expressly conferred by the

agreement.

Now the question is what is it in respect of ?

We don’t know what or how.

but we do know who to send it to .

[welshperson3]

The Act also clearly states NO SANCTION CRIMINAL OR CIVIL but for that provided by the act, so i think you may struggle there, as the act does not allow acceptance of termination

 

 

IMHO the above shows that rescission isn't out side of the act.

[welshperson3]

As the draftsman of the Consumer Credit Act 1974

http://www.francisbennion.com/pdfs/fb/2009/2009-043-cca-aborted-foreword.pdf

[welshperson3]

I have until Wednesday when I am back in court, (set aside)

I have raised the issue of invalid DN and used the unlawful rescission/termination argument, during the last hearing the judge indicated that he was of a different opinion to me on this.

 

 

Now on the DN issue what I also have available to me is s140 unfair relationship as I have made a request to determine whether the relationship is unfair, and this covers everything that the creditor has done.

 

 

The judge is in agreement that the original court order is wrong, but he also thinks they can issue a new DN and start the process again.

 

Now I have the option of carrying on with the termination argument on the same lines as what was believed on this thread. ( faulty DN +termination =creditor loses right to claim).

 

After a lot of research I have come to the conclusion that a faulty DN isn’t as terminal as we first believed, but it is far from fair.

 

So we all know that a faulty DN is unfair, it has removed all the protection that S87 CCA was supposed to offer.

 

 

The courts powers under s140B CCA

Where a court determines that a relationship is unfair, it can make a wide range of orders.

Among them are:

• requiring repayment of all or part of any sum paid by the debtor or any guarantor by virtue of the agreement or any related agreement2;

• requiring the creditor to do or not do anything specified in the order in connection with the agreement;

• setting aside all or part of any obligation of the debtor or any guarantor as a result of the agreement or related agreement;

• altering the terms of the credit agreement;

• directing the return of property given as security for the agreement.

 

Now my question is if a faulty DN is unfair under s140 what remedy’s can one ask for from the court?

 

 

How would this be put right?

 

wp3

Edited October 16, 2010 by welshperson3

[welshperson3]

Thanks lord alcohol

Hi have done a considerable amount of research and I think I have a better than average chance with the unfair relationship part, but the DN = termination part is what I think I will struggle on, and I don’t want to set a precedence with a losing argument.

My claim has always been about the unfairness,

As I know for a fact that the claimant in my case reads what I am Writing on this site so I have to keep my opinions (arguments) on certain things quiet.

[welshperson3]

Thanks frettful38

Don’t know about the brave bit though, it just a case of them pushing all the time and sooner or later I was bound to push back, as I said I am in court Wednesday but I don’t think it will end there as they cant afford to lose this and set a precedence, and I know that the unfair relationship was introduced into the CCA to deal with the way sub prime lenders behave so an appeal no matter who wins I think.

[welshperson3]

This is one case that I have in my skeleton, I think if anyone is going to court and they think that what the creditor is doing is unfair, then they should have a read of this case and think about including it in their argument.

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62008J0243:EN:HTML

 

 

Pannon GSM Zrt. v Erzsébet Sustikné Győrfi,

Summary of the Judgment

1. Article 6(1) of Council Directive 93/13 on unfair terms in consumer contracts must be interpreted as meaning that an unfair contract term is not binding on the consumer, and it is not necessary, in that regard, for that consumer to have successfully contested the validity of such a term beforehand.

The aim of Article 6 of that directive, which is to strengthen consumer protection, would not be achieved if the consumer were himself obliged to raise the unfairness of contractual terms. In addition, effective protection of the consumer may be attained only if the national court acknowledges that it has power to evaluate terms of this kind of its own motion.

(see paras 23, 28, operative part 1)

2. The national court is required to examine, of its own motion, the unfairness of a contractual term where it has available to it the legal and factual elements necessary for that task. Where it considers such a term to be unfair, it must not apply it, except if the consumer opposes that non‑application. That duty is also incumbent on the national court when it is ascertaining its own territorial jurisdiction.

The court seised of the action is required to ensure the effectiveness of the protection intended to be given by the provisions of Directive 93/13 on unfair terms in consumer contracts. Consequently, the role thus attributed to the national court by Community law in this area is not limited to a mere power to rule on the possible unfairness of a contractual term, but also consists of the obligation to examine that issue of its own motion, where it has available to it the legal and factual elements necessary for that task, including when it is assessing whether it has territorial jurisdiction. In carrying out that obligation, the national court is not, however, required under that directive to exclude the possibility that the term in question may be applicable, if the consumer, after having been informed of it by that court, does not intend to assert its unfair or non-binding status.

(see paras 32-33, 35, operative part 2)

3. It is for the national court to determine whether a contractual term, such as a term conferring jurisdiction, satisfies the criteria to be categorised as unfair within the meaning of Article 3(1) of Directive 93/13 on unfair terms in consumer contracts. In so doing, the national court must take account of the fact that a term, contained in a contract concluded between a consumer and a seller or supplier, which has been included without being individually negotiated and which confers exclusive jurisdiction on the court in the territorial jurisdiction of which the seller or supplier has his principal place of business, may be considered to be unfair.

wp3

[welshperson3]

We all know that the creditor terminates the agreement.

But IF the CCA doesn’t allow this TERMANATION to happen then the Brandon case is irrelevant

WP3

[welshperson3]

Try looking at this there might be an answer to the problem in here

Consumer Credit (Enforcement, Default and Termination Notices) Regulations

1983

[welshperson3]

It doesn’t say before he is entitled

But what it does say

(2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section

87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section

88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain--

[welshperson3]

92. Recovery of possession of goods or land

(1) Except under an order of the court, the creditor or owner shall not be entitled to enter any premises to take possession of goods subject to a regulated hire-purchase agreement, regulated conditional sale agreement or regulated consumer hire agreement.

(2) At any time when the debtor is in breach of a regulated conditional sale agreement relating to land, the creditor is entitled to recover possession of the land from the debtor, or any person claiming under him, on an order of the court only.

(3) An entry in contravention of subsection (1) or (2) is actionable as a breach of statutory duty.

 

 

hp agrements when they take the car = is actionable as a breach of statutory duty.