Invalid Default Notices

[redsue]

Would you mind popping over to my thread for advice on a DN that's not a DN

 

http://www.consumeractiongroup.co.uk/forum/mbna/81907-mbna-ding-ding-round-10.html#post2743043

 

I would like opinions on a 'Defaulted Acc' (no prescribed terms on CCA) but no DN actually sent or received.

 

Thanks so much

[Pinky69]

Ignore them - they are bluffing. They have had a shot across the bows and will now sell the account on.

[frettful38]

Ignore them - they are bluffing. They have had a shot across the bows and will now sell the account on.

 

 

Hi pinky69, was your response to my question or the other persons above please?

[diddydicky]

1/ what part of what you posted leads you to that conclusion

 

this part

 

His Lordship said that it is a question of fact whether a party has elected to

terminate or affirm a contract in a situation where it is in the position that it

has to decide whether or not to exercise the right to terminate. The party has

elected either to affirm the contract or it has not done so. If it has not affirmed the

contract then the right to terminate will remain

 

2/ why, when it is so easy to write and accept it- would you want to

"take the risk"?

 

For some people they find out that they had this option month's or Even years after the fact this point shows that time is not a factor

 

i see your point- but in that case there was a clause in the contract (which both parties signed presumably) which allowed the performer the right to defer his election

 

in a CCA regulated agreement - There is no such clause

 

i can only refer to a case already decided in which a cagger had not been making monthly payments

 

The creditor then unlawfully repudiated and the cagger- instead of writing to accept it, simply continued not to pay monthly instalments

 

in court he argued that he had done "some thing" to demonstrate that he had accepted the unlawful rescission (not made monthly payments)

 

The judge however said that because he had not been making monthly payments prior to the unlawful repudiation, the cagger could not show that after the repudiation that his reasons for not paying had changed from whatever they were - to that of signifying his acceptance of the repudiation

 

the court found against him.

 

therefore if a court is going to find against the cagger in that situation - imagine the difficulty one would have if one had continued to make payments for months after the repudiation

 

yes , i agree better late than never and hopefully the cagger could argue that he was only just made aware of its significance - but it leaves doubt

[cab1ne]

and we all know that judge got his case law / precedent fron his "BEANO" manual.

 

cab

[frettful38]

Hi DD, I have just received a response to my Unlawful Rescission letter and faulty DN to HSBC, Blimey that was quick. This is what they wrote, any ideas on where I go from here next please. The DN they issued was faulty and this is their response,

 

http://i450.photobucket.com/albums/qq223/sophiak_bucket/HSBCResponsetoFaultyDN.jpg

 

 

Hi DD, can you suggest on what I should do next please?

[diddydicky]

yes, absolutely nothing, zilch, diddlysqaut- just file it and ignore it

 

they don't have a hard copy of the DN to look at and are simply guessing that the DN is effective (they can't even use the correct terminology

 

i take it you asked to be advised of the true amount of arrears?

 

they will not of course tell you that as they dont agree- but thats their problem - you cannot now be accused of avoiding payment of the arrears because until you know what they are- and if your counterclaim for unlawful rescission is likely to exceed it- you cant make a decision

 

"hoisted by their own petard" is the expression i think!!

[frettful38]

yes, absolutely nothing, zilch, diddlysqaut- just file it and ignore it

 

they don't have a hard copy of the DN to look at and are simply guessing that the DN is effective (they can't even use the correct terminology)

 

Thanks DD, so its best not to ask HSBC for a copy of my DN? Guess your right, HSBC believe that the debt is enforceable so I will wait to see what they do next. They have already passed the debt to 3 different DCA's.

[frettful38]

DD just missed your thread, I have sent them a letter accepting the unlawful rescission, and also asked to be advised of my arrears, but this letter above is the response to my Unlawful rescission and true arrears letter

[diddydicky]

thats ok my comments in 1358 above have assumed that is what you did

 

you say they sent a defective DN- they say they didn't- end of!!

 

just sit back and relax, put kettle on mother!

[frettful38]

thats ok my comments in 1358 above have assumed that is what you did

 

you say they sent a defective DN- they say they didn't- end of!!

 

just sit back and relax, put kettle on mother!

 

Thanks DD, will wait back and see what happens. One more thing the FOS want a response from me by the 22nd 2010 Feb, I put in a complaint against HSBC and later found out about the Unlawful Rescission and faulty DN.

FOS state that HSBC are willing to accept £1 a month as a token payment.

 

I do not know what to respond to the FOS now. Should I write back and say that I am dealing with HSBC directly now? Oh dear how do I get out of this pickle

[diddydicky]

how much do you owe them, is it interest free?

[frettful38]

how much do you owe them, is it interest free?

 

 

About £2.5K and its for a HSBC Mastercard so interest is added on

[diddydicky]

at one pound a month the debt would increase- and there is no certainty that at a later date they would not want more

 

by paying you would be accepting the debt

 

personally i would write to the fos and thank them for their efforts and point out that in the meantime they have unlawfully rescinded the agreement and you are now liable only for the arrears at the time they terminated- against which you may make a counterclaim for unlawful rescission so you will no longer require their assistance

[frettful38]

at one pound a month the debt would increase- and there is no certainty that at a later date they would not want more

 

by paying you would be accepting the debt

 

personally i would write to the fos and thank them for their efforts and point out that in the meantime they have unlawfully rescinded the agreement and you are now liable only for the arrears at the time they terminated- against which you may make a counterclaim for unlawful rescission so you will no longer require their assistance

 

 

Thanks DD I was hoping to write something along those lines too. Thank you once again for your valuable advice and time in helping. Very much appreciated.

[welshperson3]

hi diddydicky

 

On this default notice thread there are now over 1300 posts so it goes to show that there are a lot of dodgy DN about and it seems to me that a lot of people are still struggling to understand what it that makes a default notice invalid .

 

Now on to my point how do u feel about writing a list of things that make a DN dodgy

 

example

 

1 Demanding the full balance ?

answer they are only legally allowed to claim the arrears as a DN is a notice telling you that you are in arrears and giving you the chance to pay the arrears bring your account back up to date

 

2 14 days notice ?

Answer bla bla bla

 

3 Prescribed paragraphs ?

a bla bla bla

b bla bla bla

c bla bla bla

 

Then post it up get people to comment and add what they can when finished ask mods to make it a sticky

 

Then do the same with a acceptance letter

 

WP3

Edited February 12, 2010 by welshperson3

[welshperson3]

I also see this mentioned a lot unlawful rescission i cant quite get my head around this one.

I understand unlawful and i understand rescission.

what i don't understand is how they work together

 

I do understand unlawful termination

 

 

 

Noun1.rescission - (law) the act of rescinding; the cancellation of a contract and the return of the parties to the positions they would have had if the contract had not been made; "recission may be brought about by decree or by mutual consent"

Edited February 12, 2010 by welshperson3

[diddydicky]

I also see this mentioned a lot unlawful rescission i cant quite get my head around this one.

I understand unlawful and i understand rescission.

what i don't understand is how they work together

 

I do understand unlawful termination

 

 

 

Noun1.rescission - (law) the act of rescinding; the cancellation of a contract and the return of the parties to the positions they would have had if the contract had not been made; "recission may be brought about by decree or by mutual consent"

 

 

If the creditor terminates an agreement and acts in accordance and compliance with the regulations of the CCA then his termination is LAWFUL

 

If he fails to follow the steps s87/8 properly then he cannot lawfully terminate the agreement- there is nothing in the act which allows him to do so.

 

therefore what his termination (demand for full payment) letter is saying is that he is repudiating his obligations- he is no longer prepared to allow the debtor to benefit from THE major benefit of the agreement that the debtor has (to repay monthly)

 

this therefore is an (attempted) termination/ rescission by the creditor and it is UNLAWFUL

 

often referred to as unlawful repudiation, unlawful rescission, unlawful termination.

 

remember the act is there to protect ordinary folk who do not have access to the legal or financial brains that the creditor does therefore the law will forgive the debtor if he uses the technically incorrect choice of words if it is satisfied as to what was meant.

 

 

No one party to a legally binding agreement can "unilaterally" unlawfully terminate or rescind it - since this requires the agreement of the other party(s) involved

 

but he CAN unlawfully " repudiate" his obligations (refuse to perform his own obligations)

 

If the other party does not accept the creditors unlawful actions then the creditor is still bound by the agreement. indeed it has already been ruled that if the debtor does not make clear his intentions he may be deemed to have accepted this position (that the agreement endures)

 

However, if the injured party chooses (as is his right) he can accept the unlawful actions of the other party and relieve HIMSELF of HIS obligations under the agreement.

 

at THAT POINT and not before (IMO) the agreement effectively terminates/ends/finishes/dies out/becomes extinct since neither party now, by mutual agreement is performing.

 

if the creditor does not want to lose entitlement to his money then he should be careful to ensure that he does not act unlawfullyL

[diddydicky]

hi diddydicky

 

On this default notice thread there are now over 1300 posts so it goes to show that there are a lot of dodgy DN about and it seems to me that a lot of people are still struggling to understand what it that makes a default notice invalid .

 

Now on to my point how do u feel about writing a list of things that make a DN dodgy

 

example

 

1 Demanding the full balance ?

answer they are only legally allowed to claim the arrears as a DN is a notice telling you that you are in arrears and giving you the chance to pay the arrears bring your account back up to date

 

2 14 days notice ?

Answer bla bla bla

 

3 Prescribed paragraphs ?

a bla bla bla

b bla bla bla

c bla bla bla

 

Then post it up get people to comment and add what they can when finished ask mods to make it a sticky

 

Then do the same with a acceptance letter

 

WP3

 

the problem is that to be effective it would have to be posted onto thousands of different threads!!

[welshperson3]

A good post 1369 diddydicky it is this type of thing that can clarify how things work and if people put Their heads together then simple steps on how to deal with a dodgy DN could be achieved.

 

1 what is a dodgy dn ?

2 how to respond to a dodgy dn ?

3 how to defend in court on a dodgy dn ?

 

after 1300 posts there should be enough information to clear up the above points .

 

my point about unlawful rescission in post 1368 is if anyone sending letters to bank ,solicitors,etc, accepting termination and then gets the letter wrong the solicitor might by more inclined to push for it to go to court, in the assumption that the letter writer doesn't know what he is doing.

 

hence a acceptance template letter could be good, if people put Thayer heads together I'm sure something good will come out

[emandcole]

the solicitor might by more inclined to push for it to go to court, in the assumption that the letter writer doesn't know what he is doing.

 

 

Given the state of matters revealed by this thread alone I would suspect it is the solicitors who are now realising that it is not us who don't know what we are doing .

[welshperson3]

emandcole

they're cock ups are our opportunities if they got it right all the time then cag would be one quiet site

[welshperson3]

this is from post 3 of A TALE OF DODGY DN it is a responce to surfaceagentx20 original post

 

I think this is a salutary tale of how knowing your topic properly can make the difference between winning and losing the battle. I often wonder about the bush lawyers on CAG who leap in with advice which I personally feel is dubious - and which sometimes fails to achieve the desired result.

 

In your example you have convinced the claimant's solicitors that you are well on top of the legalities and that they cannot make a winnable case. An amateur (like myself I have to admit) might with some research determine all the legalities of the matter but would certainly not convince the opposition that you were in any way an expert and that you regarded your defence as automatically won.

 

 

I think that a template acceptance letter detailing the precise points of law could prevent a lot of cases getting as far as court.

 

WP3

[banker_rhymes_with]

Hello Folks!

 

I came to the conclusion a while back that the very worst thing we could do on CAG, is Post an Idiot's Guide explaining, in simple terms, what makes a Default Notice invalid/defective.

 

If we did that, then all it would serve to do is hand a Painting-by-Numbers template over to the bankers explaining how to get their Default Notices right!

 

A far better plan is to do just what we are doing here, and that's to discuss to death what is wrong with them, and take thousands of Posts doing it...the bankers can't be bothered to read so much, so lose interest and wander off to flick some more rubber bands at their mates across the polished Mahogany/Walnut desk.

 

By comparison, people who need to know all about what makes a Default Notice tick, because their home depends upon that knowledge, will read this Thread, and others, from front to back, and will gladly stay up all night to achieve it.

 

So, in summary, keep talking, keep discussing it, but avoid the temptation to draft an idiots guide to Default Notices...I thought of doing that once, then stopped myself, for the same reasons.

 

If an enemy keeps shooting at you with their gun pointing at their own chubby feet, then don't write a clear guide explaining how they should point their gun at you instead.

 

It is far more entertaining discussing the self-inflicted damage Default Notices do to our mutual enemy.

 

Cheers,

BRW

[pedross]

I absolutely agree BRW

 

The lenders are already changing DN's to make them better, so to give them a template showing them how to produce one we would not dare challenge, because it is based on our theories would be suicide.

 

Pedross