Invalid Default Notices

[vint1954]

Another aspect of termination is on CRA files. I recently noticed in my Experian records that a disputed account, not paid for 12 months is now marked as "8" which in the explanatory notes states "8 - terminated"

Now this a/c has the dodgiest DN ever dodged by Dodgy McDodge, and they demanded full balance months ago but have never sent a termination letter. I'm pretty sure the demanding full balance is enough evidence of termination, but wonder how the Experian report would stand up in Court...

Hi Elsa,

 

I think that is what shadow is saying and he is spot on in his first post on the matter.

 

The creditor issues a DN. If you can recify the default, then the agreement quite simply endures, as if the breach had never occured.

 

If they want to sell on the agreement, then it must be to someone who has the facilities to cary that agreement on.

 

If they want to sell the debt without an enduring agreement, then they need to default and terminate that agreement. They seem to think that they do not need to terminate an agreement officialy, often quoting s98, poor lambs. s 98 being for non default situations.

 

Demanding a ballance in full does end the agreement. s87-88.

 

It is worth a try with the CRA's regarding faulty DN's, but I think that the only sure way of removal is as part of the eventual court outcome, when you win.

[vint1954]

I sent a letter (kindly supplied by Vint) last week to see if the solicitors would fold but the only thing they have sent is another (have one already) copy of their costs if I lose. They have also sent a copy of the bundle they sent to court. It is just all of the stuff they have sent before but two copies of it all. I have so many copies of their DN & TN its not true. Can anyone say if they think I should use the envelope that I have. I cannot say for sure it was the one my DN was sent in but I cannot say it wasnt either, not sure how to present it to the judge. It is definately their envelope because it has their address on the back but it also says second class posting on the front, which all of their letters come by after you are signed up with them.

As DD has said, use it.

 

Maintain that the DN was sent second class, here is the envelope, you prove different.

[vint1954]

Magda picks up on a point here that makes me pretty livid. If a judge has insufficient knowledge on a type of law why and how are they entitled to be considered as a competent person for the job? Can you imagine if some bloke who wasted too many hours on flight simulator software in his bedroom was employed by BA to captain an aircraft based on the fact 'he probably knows pretty much what he's doing'? No PPL, no flight time at all.

 

Extreme example sure but when you're considering facts, which have the potential to cause huge harm to an individual just where is the level of capability drawn? A barrister is not able to accept work he/she is incapable of dealing with but the judge...it's just fine? Since when should a barrister be controlling the direction of a hearing? Seems to me too many judges are essentially out of their depth and are too pompous to admit as much, instead getting by on a wing and a prayer at the expense of the LIP who may well have a perfectly valid defence.

 

I'll get my dad, you get your dad seems a bit useless and entirely inappropriate for a court system. Barrister one side, LIP the other, what's the point of even starting the trial? I get two barristers and I'll win, unless you get three then I'll let you win? Madness.

Maybe, the right School tie or club membership is enough.

 

I have to add, that I thought Judges had Clerks for points of law?

[vint1954]

Litigant in Person

 

S.

[vint1954]

Unregulated agreements come outside of the act, so I would imagine that ordinary contract law would prevail.

[vint1954]

Are there any 'regulation's' relevent to DN's on unregulated agreements, i.e. days to remedy etc.

 

ta muchly

Actually beachcomber, when was the agreement taken out and how much for?

[vint1954]

Thanks Vint,

 

March 08 (a couple of weeks before they up'd the limit )

 

Car finance £25,155 after deposit paid (was £24,500 but added negative equity from px into agreement)

 

Worth checking that out. Don't think that they can add a ghost in, to make it unregulated. Could be an unfair relationship.

 

First DN gave me 2 days to remedy, after complaining they issued another giving 7 days from date of letter.

 

If it is unregulated, then the terms of the contract that were signed should cover defaults and terminations. I would check credit situation out though. They may have pulled a fast one and it should be a regulated agreement. Might be worth a word with your trading standards.

 

Also, have a read here.

http://www.consumeractiongroup.co.uk/forum/legal-issues/178390-credit-agreements-over-25k-2.html

[vint1954]

hiya all

 

i thought id seen it before on this thread that the 7 days to remedy default had been changed to 14 days i thought was amended a couple of years ago?

 

anyone if has the info and dates only quickly to hand would appreciate it, if not pls dont worry i will continue searching

 

wishing you all a fun eve angel x

That was for regulated agreements under CCA 1974.

[vint1954]

Thanks Vint,

 

March 08 (a couple of weeks before they up'd the limit )

 

Car finance £25,155 after deposit paid (was £24,500 but added negative equity from px into agreement)

 

First DN gave me 2 days to remedy, after complaining they issued another giving 7 days from date of letter.

Beachcomber,

 

Was there any PPI involved. If so it should have been basically 2 agreements ( multiple s18 CCA 1974). This would have brought the level below 25K. I still think that there may be some milage in the PX additions to the agreement.

[vint1954]

Sadly, my links for the above are out of date, so I can't link to the Statute, but you should be able to find that on CAG or via Google.

 

Cheers,

BRW

http://www.johnpughschambers.co.uk/Consumer%20Credit%20(Enforcement,%20Default%20and%20Termination%20Notices)%20Regulations%201983.pdf

[vint1954]

Thanks Vint!

 

 

 

Cheers,

BRW

No problem BRW.

 

Did someone mention London Pride.

[vint1954]

Correct, so the DN is faulty. The problem is that you need to accept an unlawful rescission at the time, or the judge may say that the agreement endured.

[vint1954]

The postman's just called with a DN from Mercers obo Barclaycard. Dated the 3rd March 2010 gives me until 20 March 2010 to rectify. Any comments greatly appreciated.

Obviously sent 2nd class, so defective for dates. Keep the envelope and wait for termination.

[vint1954]

Hi DD. Would you mind looking at my post 1667 - this a DN and agreement for Barclaycard. Thanks.

DD has repplied Br.....ce.

 

The Dn could never be complient, only allowing 14 days from the date of the letter. Surpriced that they have not altered this by now.

 

Agreement does not contain the prescribed terms, unless these were reconstructed and sent separately, in which case they have probably complied with s78

[vint1954]

Hi Vint. When you replied were you talking about Barclaycard or HSBC?

 

I posted up 2 DN's and 2 agreements (1 Barclaycard & 1 HSBC). I thought the BCard DN gave sufficient time (17 days I think and was sent 1st Class). The HSBC DN gave no allowance for service so I thought that one was defective. Today is the last day for remedy and they say they will terminate without further notice. Can I take them at their word and accept termination?

 

Neither HSBC or BCard attempted to reconstruct the agreement. Do you think they are enforceable?

Both Barclaycard and HSBC would need current t&c's, historic t&c's from inception and statement of account to be acceptable for s78.

 

HSBC DN is non complient due to dates etc, as DD has previously said.

 

Barclaycard DN depends on day and method of posting as DD has advised.

[vint1954]

Is what they have provided acceptable for s.61?

No, not for a court case.

[vint1954]

Everything I have read states that even tho its a secured loan, if its covered by CCA1974 then it still requires them to send you a default notice prior to enforcement actions.

 

S.

 

 

edit: Ok, CCA1974 s87(1)(e)

I think that is right shadow. The only difference being a mortgage.

 

The CCA refers to surities, so something that the loan is securred on. I beleive that refers to any loan up to £25k to 2008 and after 2008 any limit.

 

Vint

[vint1954]

[/b]

Everything I have read states that even tho its a secured loan, if its covered by CCA1974 then it still requires them to send you a default notice prior to enforcement actions

 

i have a document in front of me from A BANK that states in several places compliant with cca 1974 the document is security on my property as my company was a ltd co...i also have from a solicitors ten years later a letter asking for monies unpaid balance with me named as well as my then ltd company..i did not reply so i think the twelve year rules stands in my case saying that whichever way 12 year rule stands even though they think they still have security over my property i am not so sure,so i am relying on the 12 year rules..plus a libel suit against the bank

If it was a loan CCA 1974, rather than a mortgage, then the SB period is 6 years not 12.

[vint1954]

The best delivery that ukmail offer is 3 days, I beleive, unless it is express. There is an extra day for it to get into the RM system.

 

The orange bar codes are PO codes, normally giving the address.

 

If not RM 1st class, then it must be deemed 2nd class.

[vint1954]

If you google ukmail, you can see for yourself.

 

Mail

UK Mail is the UK’s leading alternative mail services provider, handling more than 12 million items every day.

 

We offer a range of service options suitable for any company sending bulk mail of more than 250 items. Mail is collected, sorted, consolidated and tracked as it moves through our network until the point of handover to the local postman for last mile delivery. We offer a Business Class, two day definite delivery service, or you can choose our Economy three day definite option..

 

Our brand new imail service has revolutionalised the mail industry. We are the first company in the UK to enable letters to be sent direct from your pc to our mail Sort Centres ready for print, distribution and nationwide delivery the very next working day.

 

What’s in it for you?

 

• Significant cost savings
  
• Easy despatch preparation
  
• Late flexible collections times
  
• No need to frank mail or take a trip to the post office
  
• Day definite delivery
  
• Mail tracking to the point of delivery
  
• Dedicated account management
  
• Detailed invoicing
  
• Easy payment by direct debit or credit card
  

Ukmail is generally received 3-4 days after post date, or longer.

 

You will note that they collect mail batches over 250 items. If they don't have 250 items that day, maybe that is why they arrive so late, as they are not collected until there is 250 items?

 

For the potage times, you need to look at the Interpretation act. It mentions first and second class mail. If not first class, it must be second!

 

Quote:

1. Interpretation Act 1978, Section 7

This states:-

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

2. Practice Direction

Service of Documents - First and Second Class Mail.

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4. This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

[vint1954]

Sadly not Charlie, their only statement was that we should ignore it for now and they would use it later when it mattered i.e. in a court in defence. We were also assured that we should not worry about extra charges and interest etc, it would all be recovered (and more) at a later date. Sorry I have no more and would not like to push it if you know what I mean.

 

regards

oilyrag.

Hi OR,

 

There is a great weight of oppinion that suggests the breach must be accepted, preferably in writing, as close to the time of the breach as possible. I also agree with that point. Having dealt with contracts in my working life, I can never see an advantageous situation where not notifying a breach of the contract could help you.

 

Not sure how your sols can use it later, if they have done nothing about it before trial. Obviously best to ask them why.

[vint1954]

Understood OR.

 

What leads them to think their case is watertight?

[vint1954]

Err this is a DCA issuing a default notice... if its been sold to them you should have had a default notice from the original creditor as I understand it... then a termination by selling.

 

If I ever received a default notice from a debt collector I'd be inclined for writing to them requesting they confirm in writing that if the default is cleared they will provide me with credit facilities the same as the original creditor

 

S.

 

professor

 

Are they actually that daft.

 

As shadow points out, the original creditor needs to issue the default notice, before he can enjoy the rights of s87.

 

It is possible that they can issue on behalf of the OC as their agrents, if the OC still owns the debt.

 

Have you had a DN from the OC ?

 

They have only given you a week to rectify, if posted first class, if second class then only a few days. Keep the envelope.

 

In the body of the DN they have specified the full ballance as being required by 2nd April. This again invalidates the DN.

 

Hold on until they terminate.

 

Do you actually know who owns the debt?

[vint1954]

How about this received after an arrears notice on this thread...

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/251420-arrears-notice-then-demand.html

 

Clearly they need to issue a DN, before they can do the above.

 

I would write and ask for a copy of the DN for the personal loan, as long as it is regulated.

[vint1954]

Not sure that a DCA can send a default notice.

 

If it was sent first class, then the dates are just ok, if second class then they are not.

 

cannot see anywhere in the second letter, where they demand the ballance in full. If they have then clear UR.