Invalid Default Notices

[Bigdebtor]

Peter

 

This is going to be my last response on this tonight. I am indeed sorry. I do now believe you ARE playing with words, being pedantic, trying to score points... whatever - unfortunately to the possible prejudice of any new CAGGER seeking advice on this thread.

 

The bottom line is exactly what you say - a court will not enforce after a dodgy DN. I agree the debt "remains" - but if it does not need to be repaid then for most "normal" debtors it can "remain" for as long as it likes as long aa it likes so long as they no longer need to worry about repaying it. The only practical effect of it "remaining" is in terms of a bad credit rating (and even this disappears after 6 years in any case?).

 

I am not interested in arguing on the legal niceities - just interested in how it practically affects a debtor in trouble who is lucky enough to get a "dodgy" - rather than a compliant DN - and has the good sense to wait on the creditor screwing up further at termination time - and can then sort out the wheat of what to do next from the chaff of point scoring semantics etc. in some of these posts.

 

No offence - but I shall not reply any further tonight.

 

I think the point I was wanting to reinforce has been further reinforced by more experienced and knowledgeable caggers tonight - job done - going to bed now - goodnight.

 

BD

[Bigdebtor]

Peter

 

Not sure if that's an admission that the majority of us are right and you are admitting you are wrong?

 

Why do your posts have to be so confusing?

 

I think all the evidence shows it's very simple:

 

Dodgy DN followed by TN followed by debtor's acceptance of this (whatever label you put on it) = debtor off hook. Court would support debtor's position on this. Debt "remains due" but doesn't need to be paid - the same thing as "disappearing" for all practical purposes. Credit file still trashed but who cares?

 

Compliant DN followed by TN = Debtor has to pay all outstanding balance straight away - and Court would so order - but probably give "time to pay" if debtor had income but no capital - effectively back to square 1, so creditor no better off in real terms.

 

BD

[Bigdebtor]

HI

Sorry dont mean to be confusing,no the debt does not dissapear , no the creditor does not loose the right to enforce the agreement an incorrect default can bte remedied by the creditor issuing a corrected one an then after the required period restarting the process.

 

IF the creditor issues a TN after a dodgy DN then he CAN'T issue another compliant DN. If the debtor accepts the TN (unlawful, illegal, not allowed, not valid - don't care what label) then the Agreement is TERMINSATED - no further DN's compliant or not - ca be issued. The debtor is then NOT OBLIGED to pay a penny more othe rthan the lawful arrears less an amount deducted for damages. The debtor is in control at this point. The MOST he will have to pay is lawful arrears but he can try to deduct damages and it would be a brave creditor who took him to court to debate the validity of such damages - case law exists to support debtor. The balance is not enforceable - although I agree it does not "disappear" - but such technicalities are irelevant to the fortiunate debtor.

 

There is no penalty for issuing a faulty default notice, other than that the creditor cannot temrminate and ask for accelerated payments. If there was it would have to be mentioned in the act and it isnt.

Agreed - but if the dodgy DN IS incorrectly/illegally/unlawfully/without legal authority (whatever label you want) followed by a TN - then the penalty is losing the right to enforcement if TN is accepted by debtor.

 

If you want to try and sue the creditor for damages in tryin to collect his money when not entitled to then in theory i suppose you could, but the predudice would be difficult to prove wouldnt it ? after all it is him that is out of pocket.

No need to sue - debtor is in control and can just deduct it from arrears and offer the balance of such arrears only in F&F. If accepted game over. If not, debtor doesn't even pay arrears unless sued for them. SIMPLES.

Peter

 

Peter my responses are in bold above.

 

You have missed out vital parts of my point (about TN's) in your response which completely change the situation - and could confuse the casual reader into thinking the creditor could continue to issue new DN's NO MATTER WHAT.

 

THAT IS NOT TRUE - as I have responded above.

 

To answer your previous point - I believe the focus of this thread has ALWAYS been to help debtors understand how to get back on an even keel as quickly and in as stress-free a manner as possible - using the mistakes of the creditor wherever possible to best advantage.

 

IMHO fancy legal arguments, labels, partial and confusing answers do not contribute to this key and overriding aim.

 

BD

Edited September 20, 2010 by Bigdebtor

[Bigdebtor]

HI Sorry BD just noticed this quote in your last post

“Court would support debtor's position on this. Debt "remains due" but doesn't need to be paid - the same thing as "disappearing" for all practical purposes“.

Do you seriously believe this. That a court would support the none payment of a debt?

I do not think the court would have any option. If the TN was issied without a vaid DN first then only the arrears would be due. The CCA 1974 and subsequent laws are very clear on this.

It wasn’t long ago that the supreme court revoked section 127(3-5) because it did this.

Something about contravening the creditors human rights under article 6.

The court may support the position that the correct documentation has to be produced before the agreement can be enforced, the court may be impatient with the creditor and make him re file the complaint in extreme circumstances but that is all.

ONLY IF NO TN ISSUED BY CREDITOR AND ACCEPTED BY DEBTOR. THEY CAN'T RE-ISSUE A COMPLIANT DN AFTER A TN as there is then NO agreement in force on which to issue a further notice of default. Simples.

Peter

 

Peter

 

You still seem to be ignoring the importance of any TN issued after a dodgy DN - see bold above.

 

BD

[Bigdebtor]

Peter

 

Forget S 87. I believe the ordinary law of contract takes over when the creditor "offers" to terminate and the debtor "accepts".

 

In layman's terms the situation could unfold as follows:

 

Creditor: I realise I can't (legally) really issue this TN as the DN was dodgy - but how about us just calling it quits?

Debtor: Fair enough. I accept. We are now quits. No more agreement.

Creditor: Eh - but can you pay me all that you owe me now?

Debtor: Sure. I owe you arrears to date (possibly minus an amount of damages for your early termination). Can you confirm how much the arrears are up to date of termination?

Creditor: That's not what I meant. Let's forget about the termination - didn't mean it. I'll just issue another DN now.

Debtor: No - yo can't. We both agreed to terminate. A deal's a deal. Tll me the arrears and I'll work out what I need to pay after you tell me.

Creditor: I've made a mistake. That's not what I want. I'll screw up your credit rating if you don't play ball with me.

Debtor: Tough. Report me to the CRA's as much as you like.

 

I hope that clears up the matter once and for all?

 

BD

[Bigdebtor]

that is why i allways state you do not tip off the creditor of a dodgy default notice untill an n1 claim has been issued by the fact if a claim has been issued, the agreement must have been terminated

 

I don't disagree - but I do think the debtor can accept (or reject if he's silly) the TN on the back of the dodgy DN as I have outlined above. His acceptance confirms the agreement is terminated - by mutual consent. If he doesn't accept the TN then perhaps the OC can continue to issue as many DN's - dodgy or otherwise - as he wants.

[Bigdebtor]

no

 

Zoned out on the first sentance when you said forget about section 87,

realised then what the value of the rest would be

 

Peter

 

I am now convinced you have a (not so) hidden agenda!

 

I was simply attempting to portray a situation in layman's language to illustrate how the CCA is not relevant in the situation I was describing - law of contract takes over - but you clearly prefer a confusing rambling part-true style.

 

I no longer respect your views (and now doubt your motives). You clearly don't respect my views.

 

Contrary to your perception I do not think you have been proven right, and apart from one dodgy verdict, all the evidence suggests you are WRONG.

 

Let's just agree not to respond to each others posts any more?

 

BD

[Bigdebtor]

I wish these "legalese" arguments - which are probably all perfectly valid - could also be translated into terms the lay person can understand.

 

I am now totally lost - and a few weeks ago I thought I had a good handle on this topic with what I thought had been distilled from the many excellent posts on this most valuable thread - namely:

 

Dodgy DN + followed by TN + followed by debtor's acceptance

= debtor only needs to pay lawful arrears to date

- but debtor can offset "damages" against such arrears

= arguably nothing is now "owed" (or at least enforceable)

- creditor unlikely to take debtor to court on this

= debtor of the hook - but debt stays on file for 6 years.

 

I understand most older case law (and many instances of creditors throwing in the towel before court) backs up this scenario but a recent case (being appealed?) went the other way. Have I got this bit right?

 

I think I can see a bit of "logic" in arguing that if terminating the agreement wasn't "allowed" or would be illegal/unlawful/not lawful/incompetent/invalid etc. (due to being done after issuing a dodgy DN) then the termination "didn't happen" - so the agreement "endures" - even if the debtor was willing to accept the termination (i.e. BOTH parties seem to have said they want to terminate - but they are not allowed to do so?).

 

On the other hand the law is realistic enough in other circumstances to realise it can be broken - theft, murder, fraud, drunken driving etc. are "not allowed" - but they still happen - and the wrongdoer gets punished (if caught) according to sanctions already determined (on assumption/recognoition that what is "not allowed" or "illegal" will still happen).

 

Equally if a contract of employment is wrongly broken by the employer not jumping through all the "right hoops" then the employee can claim compensation. The employer is not allowed to just keep "firing" the employee until he gets it right.

 

So why give the creditor umpteen chances? Why not also punish the creditor who either breaks or attempts to break an agreement on the back of a dodgy DN - instead of allowing him to issue DN after DN until he gets it right?

 

Surely that was not what the CCA 1974 set out to acheive? How does that "protect" the debtor - which we are told was the overriding aim of it?

 

Have I still got a grasp of the basics? Or has the recent (perverse?) judgement made this distillation too simplistic?

 

I studied nuclear physics for a while at University - it seemed simpler and made a lot more sense than this!

 

Can someone please let us have a simpler (but still valid) view of this issue - so we can either retain hope or give it up right now?

 

BD

[Bigdebtor]

Pumpytums

 

Thanks for that - excellent stuff and totally comprehensible too.

 

I think we all agree on your final sentence - but the big prize would be knowing that only arrears (less damages) would be recoverable if a dodgy DN were issed and the creditor went to court demanding the rest.

 

From what you say he would be unlikely to be told by court he could claim the total balance still outstanding right away - the court could "write off" the balance - but onth eother hand he could possibly claim it be repaid in the same instalments as set out in the agreement - if the agreement is deemed to endure. He could then issue a complaint DN and start all over again if the debtor can't keep up such payments - back to square 1, but this time with a fully compliant DN etc.

 

It's these last two bits I don't like at all - and that is at variance with what I thought until recently.

 

So still pretty confused on huge bits of this topic!

 

Surely the CCA didn't intend to allow such a cat and mouse game to endure?

 

BD

[Bigdebtor]

I've been helping Bobogosing on her various threads. Can some of you please have a look at this link and see if you feel this is an unlawful termination?

 

I'm not sure if the DN actually gave enough time - 17 days - also no specific date quoted.

 

Thanks for any input you can give her. As I said before I am now totally confused as to what the real story now is with TN's (or no TN' s- just a demand from 1st credit for full balance to be repaid now) on the back of what I think is a marginally a dodgy DN(?).

 

BD

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?276506-Help-needed-for-f-amp-f-settlement-with-northern-rock-please!&p=3141538&viewfull=1#post3141538

[Bigdebtor]

Charlie

 

I think I saw a sample letter in this thread a few months ago - but can't narrow it down any further than that.

 

BD

[Bigdebtor]

Can you start a new thread and put a link on here - so you can get specific advice?

 

At first sight it would seem that this case can be killed at birth - but a lot more info needed to get the ammo prepared for you.

 

BD

[Bigdebtor]

Put a link in here ASAP - and alert the site team with details of the case. You need specific help on your own case - not just cutting and pasting from others. It's not too late!

 

BD

[Bigdebtor]

Frettful

 

I had very similar letters from various firms in the past - but they never followed up by the threatened action.

 

The most recent series of such threats lasted for over 2 years elapsed time - from a firm of solicitors called Spratt Endicott acting for RBS/Direct Line. They never took any further action - would not negotiate any F&F or affordable monthly payment.

 

Your letter does not say they WILL take the action threatened - it's probably just an empty threat if this is the first one you have had.

 

It's still with the in-house tame salaried "solictors" - so they are not yet at the stage of throwing real money at it and getting a "proper" firm of real solicitors to deal with it - may never get to that stage either if they think their chances of winning or getting paid quickly afterwards (in full) are not high.

 

Eventually my RBS case was handed over to another DCA and a 40% F&F agreed within a week of the new DCA taking over.

 

Hope this helps

 

BD

[Bigdebtor]

They've made the classic mistake of demanding the payment within 14 days of the date of the DN - ignoring any time delay required for postage.

 

Also does "BY" 2 June not mean the same as "before" 2 June and "on or before" 1 June?

 

BD

Edited October 7, 2010 by Bigdebtor

[Bigdebtor]

Have you kept any other envelopes from them? If not, ensure you KEEP any further ones - to see if they ALWAYS use 1st class or not (unlikely - as most of these are now sent by UKMail or TNT - both of which count as 2nd class).

 

BD

[Bigdebtor]

Dizzy

 

Excellent point! Also - am I correect in thinking the Brandon case is being appealed?

 

BD

[Bigdebtor]

DD

 

Good to hear from you again. I see the "logic" that the TN can't be valid if the DN was dodgy - but what I don't understand is why such a TN on the back of a dodgy DN can't be treated like an "offer to terminate" by the creditor - which the debtor accepts - and then agrees to pay what is lawfully due at that point - i.e. arrears less damages.

 

What about all the case law stuff about being bound by what you have signed? If the creditor said he wanted to terminate - and the debtor agrees - then surely neither should still be bound by the agreement?

 

Finally - do you know if the Brandon case is being appealed?

 

BD

[Bigdebtor]

Pumpy

 

I think your logic is impeccable - but sadly I realised a long timeago that common sense and The Law are rarely good bedfellows!

 

As DD surmises it seems that the "powers that be" are now ranged against the hapless consumer and in support of the establishment, with every new verdict seeming to chip away further at our rights.

 

I do hope the Glasgow Sheriff Court will soon redress the balance to some extent regarding unfair/illegal bank charges.

 

BD

[Bigdebtor]

There are many W's employed by the Banks - I think it's because they sounded like bankers even before they were recruited!

 

BD

[Bigdebtor]

Recent posts seem to be agreeing with the point I made a long time ago when I was in "discussion mode" with peterbard.

 

I reproduce my post below:

 

I believe the ordinary law of contract takes over when the creditor "offers" to terminate and the debtor "accepts".

 

In layman's terms the situation could unfold as follows:

 

Creditor: I realise I can't (legally) really issue this TN as the DN was dodgy - but how about us just calling it quits?

Debtor: Fair enough. I accept. We are now quits. No more agreement.

Creditor: Eh - but can you pay me all that you owe me now?

Debtor: Sure. I owe you arrears to date (possibly minus an amount of damages for your early termination). Can you confirm how much the arrears are up to date of termination?

Creditor: That's not what I meant. I want very penny o fthe balance now outstanding. If I'm not entitled to that then let's forget about the termination - didn't mean it on the terms you've accepted. The big judge is on my side cos I'm establishment and you're just a consumer. I'll just issue another DN now cos the big judge says I can issue as many as I like and you can do diddly squat about it.

Debtor: No - yo can't. We both agreed to terminate. A deal's a deal. Tell me the arrears and I'll work out what I need to pay after you tell me.

Creditor: I've made a mistake. That's not what I want. I'll screw up your credit rating if you don't play ball with me.

Debtor: Tough. Report me to the CRA's as much as you like!

 

SURELY IT IS JUST COMMON SENSE that both sides can agree to terminate as outlined above? If both sides agreed to such a termination - but the OC hadn't understood just what that meant to him/her - and then wanted to call the termination off when it didn't suit him/her - then surely the OC can't as a deal's still a deal - and the OC is screwed?

 

THE BIG QUESTION IS "IS THE ABOVE SCENARIO STILL LEGALLY CORRECT?" If not - and both sides are still bound by an agreement both have said in writing they want terminated - then the CCA is PROTECTING THE CREDITOR and screwing the debtor! Before Brandon no one (- well no one in their right mind - I was forgetting about some CAGGERs) would have disagreed with this - either logically or legally.

 

But now ? I'm totally confused:???: - and frustrated - and upset - and ANGRY!

 

Can someone please restore my faith in justice and common sense going hand in hand with THE LAW?

 

BD

[Bigdebtor]

WP3

 

Thanks - we seem to be getting somewhere (again) close to where I thought we were before!

 

It would seem to me to be vital that the debtor's "acceptance" to "call it quits" is sent promptly and is correctly worded - in order for the above to hold water.

 

I also think any time lapse between the debtor's acceptance of the creditor's "offer to terminate" and demonstration (e.g. by not providing further rolling credit, reducing the credit limit to £0, telling the debtor to rip up the card etc. )that the contract had finished and the creditor taking any further action is key.

 

I think the OC's case would be much stronger if he went to court ASAP after getting the debtor's agreement to his "offer to terminate" than if the OC waited a few months or longer before trying to enforce the "agreement" which both sides had already agreed to "terminate".

 

BD

[Bigdebtor]

WP3, if you're going through this argument right now we should all get involved and see what we can do to formulate a logical argument. I realise the CCA states that termination isn't 'technically' available to the creditor, however it doesn't lawfully condemn the creditor from drafting it, signing it (electronically or otherwsie), printing it, sticking it in an envelope and sending it to you. It doesn't accidentally happen.

 

I don't see how the actual act of the creditor essentially ignoring the CCA with a dodgy DN stops them from physically issuing a termination notice that you can thrn accept or ignore. The law says I can't go out into the street and hit someone with an offensive weapon, it doesn't actively prevent me from choosing (important word there) to ignore those guidelines and assault somebody.

 

The fact that the law says I must not do that doesn't change the fact that I actually may have done that for some reason. If I were stupid enough to do that then any resultant penalty is on my head alone.

 

Transfer that to the CCA and the creditor can first off ignore the CCA, issue a formal notice of termination and then (once they realise the DN is wrong) go crawling back to the CCA and ask for it to give them a hug. Despite the CCA being drafted to protect the consumer from such errors the consumer gets pushed aside in order to let the creditor have another pop?

 

We need to get together on this - the creditor cannot have their cake and eat it surely?

 

Emandcole

 

I totally agree.

 

My reading is that the CCA gives the debtor the option (but not an obligation) to cry "foul - he can't issue that TN on the back of a dodgy DN".

 

On the other hand what is to stop the debtor saying "fine - we are now both agreed - the deal is dead - the OC has confirmed he/she wanted that - I want that - so that's what we now have. I'll happily pay arrears less damages - just tell me what the arrears actually are!"

 

I really hope this can all be tested PDQ so we can (once again?) understand just what our rights really are in such circumstances.

 

BD

[Bigdebtor]

Wolfy's post 5068 seems to suggest a High Court Judge thinks an agreement can be cancelled - even if DN dodgy - and I really cannot why this is not a correct assumption.

 

I think this now gets to the whole crux of the current discussion:

 

Does the fact the CCA says an agreement CAN'T be cancelled/terminated/ended/finished after a dodgy DN actually mean it can't be cancelled etc. - even if cancellation is freely offered by the OC and freely accepted by the Debtor?

 

To me - common sense says NO the OC can't be allowed to simply wriggle out of the consequences of getting things wrong - for two simple reasons:

 

1. A desire to cancel has been intimated by the creditor (who is bound by his signed word) issuing a TN (whether technically a legal TN or not) and this has been accepted by the debtor (similarly bound). Surely no Act should force two parties to be bound by an agreement which both have agreed to terminate/cancel/finish/deem as void/over/dead/all off - or any other words with the same or similar meanings?

 

I realise this gives plenty of words here for anyone to have "fun" playing with if they are so inclined - but I would prefer a serious response to such a serious topic. There is enough confusion in this topic recently without trying to work out if a poster is serious or trying to be "funny" - although the odd demonstrably humorous post and ripost makes a welcome diversion from time to time - but such humour or attempts at humour should not be at the risk of clarity of the poster's meaning or motives.

 

2. Lots of Acts say you CAN'T - kill, steal, drive while drunk, commit perjury etc. However these things do happen and in most cases can't simply be undone - so the consequences need dealt with.

 

A dodgy DN does do harm - to our credit ratings, to our ability to put things right if we don't get enough time or feel the whole balance is now due which we can't afford to pay etc.

 

Creditors DO say the agreement is terminated/cancelled etc. - even if they CAN'T.

 

Why should they get the right to "undo" this when other wrong doers don't get the same protection? Not every drunk driver has an accident or kills someone - so by the same logic "if no harm done" the police should simply let the drunk leave his/her car where they stopped it and let him/her come back for it when sober.

 

What's the difference between this and allowing a Bank to re-issue a DN and carry on regardless? After all, the Banks have had 36 YEARS (from 1974) to work how how to get a DN right.

 

I am not condoning any Law breaking - in fact the opposite - the Banks should suffer if they wrongly "terminate" or "attempt to terminate" an agreement - just as a drunk driver should suffer even if "no harm done". The risk of the lllegal action (i.e. an action which is not allowed by law - so the driver can't do it - legally) causing harm is sufficient to justify the punishment - and the same should apply to the Banks when they deliberately ignore or flout a law they have had 36 years to get to grips with.

 

I realise what I am saying is Common Sense and this rarely fits in well with THE LAW - but surely even the most expenses-sodden MP didn't mean to give the creditors such a (literally) "get out of jail free" card?

 

Surely there is enough common sense in this argument to have even the most entrenched Bank-friendly Judge think about it again?

 

BD

Edited October 14, 2010 by Bigdebtor

[Bigdebtor]

Peter

 

Your penultimate sentence in post 5081 is most revealing "with amounts owed written off".

 

Was the HP company being charitable or just recognising a legal inevitability?

 

That is the crux of what many of us really want to know.

 

I suspect most of us DON'T REALLY CARE if the contract/agreement "terminates" or "endures" - or if the "debt" does or does not "disappear" in certain circumstances as discussed at length here recently .

 

I suspect most of us really only care about how much of the remaining balance we can be forced to pay if the Creditor issues a dodgy DN and then a TN - whether the TN is effective/compliant/legal or not.

 

BD