Invalid Default Notices

[lookinforinfo]

I have a friend who has had over 10 default Notices sent to him over the period of the loan-3 years to date. Still has a year to go.

Some of them are ok date wise others are not if sent 2nd class and one is hopeless date wise even on 1st class. Problem is the DN is dated way back in 2006 [yes I know it was just 7 days then]. He didn't pay back all the arrears within the stipulated time and nor has he accepted their unlawful rescission.

 

He is now being taken to Court for arrears incurred more recently. What defence , if any, does that defective DN give.

 

They only two times they have admitted how their DNs were served they confirmed they were served by 2nd class post so not unreasonable to suppose that they all were.

[lookinforinfo]

Continuing from the above they are taking him to Court on his last DN which, I believe does not give enough time. They admit it was sent by 2nd class post.

Posted on the last Tuesday in the month [June] with payment required BEFORE the 13th July.

If I am right on my workings out on 2nd class delivery, service should have been on the following Monday [1st July] assuming it was posted on the Tuesday and not the following day which is the more likely.

 

So should I tell him to accept their unlawful rescission?

[vint1954]

Right have scanned my default notice and the final payment one can someone have a look and tell me if they are indeed invalid and what my next steps are much appreciated!!! (or should i just let cccs handle my case and get all the sh*t that will follow....)

 

 

 

http://i980.photobucket.com/albums/ae289/tuvelpit69/dn.jpg

 

http://i980.photobucket.com/albums/ae289/tuvelpit69/tn.jpg

 

 

 

 

Thanks in advance..

Hi Bilious,

 

DB is spot on. The DN could never be complient with the dates quoted and the form is not brilliant either. I don't understand why they never learn.

 

The act is very specific:

 

PART VII

DEFAULT AND TERMINATION

Default Notices

87.—(1) Service of a notice on the debtor or hirer in accordance with section 88 (a "

default notice ") is necessary before the creditor or owner can become entitled, by

reason of any breach by the debtor or hirer of a regulated agreement,—

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as

terminated, restricted or deferred, or

(e) to enforce any security.

 

In particular s88 explains the form of the notice.

 

88.—(1) The default notice must be in the prescribed form

and specify—

(a) the nature of the alleged breach;

52

(b) if the breach is capable of remedy, what action is required to remedy it

and the date before which that action is to be taken;

© if the breach is not capable of remedy, the sum (if any) required to be

paid as compensation for the breach, and the date before which it is to be paid.

(2) A date specified under subsection (1) must not be less than fourteen days after the date of service of the default notice, and the creditor or owner shall not take action

such as is mentioned in section 87(1) before the date so specified or (if no requirement

is made under subsection ( 1)) before those fourteen days have elapsed.

 

The text in red is quite clear that the debtor must be given 14 days from the date of service, which in accordance with the Interpretation Act is 2 working days for first class post and 4 working days for second class post or companies such as UK mail. Weekends and bank holidays are excluded from the posting period.

 

What you need to look out for now is a letter either terminating the agreement or demanding tha ballance in full. If this arrives then they have unlawfully rescinded the agreement.

 

I would start your own thread on this and put a link back to here.

 

You will need to accept the UR at the appropriate time.

[vint1954]

Continuing from the above they are taking him to Court on his last DN which, I believe does not give enough time. They admit it was sent by 2nd class post.

Posted on the last Tuesday in the month [June] with payment required BEFORE the 13th July.

If I am right on my workings out on 2nd class delivery, service should have been on the following Monday [1st July] assuming it was posted on the Tuesday and not the following day which is the more likely.

 

So should I tell him to accept their unlawful rescission?

Depends how long ago it was. If this was 2009, then the last tuesday in june was 30th.

 

If you can be specific with the year and dates, it will help.

[vint1954]

I have a friend who has had over 10 default Notices sent to him over the period of the loan-3 years to date. Still has a year to go.

Some of them are ok date wise others are not if sent 2nd class and one is hopeless date wise even on 1st class. Problem is the DN is dated way back in 2006 [yes I know it was just 7 days then]. He didn't pay back all the arrears within the stipulated time and nor has he accepted their unlawful rescission.

 

He is now being taken to Court for arrears incurred more recently. What defence , if any, does that defective DN give.

 

They only two times they have admitted how their DNs were served they confirmed they were served by 2nd class post so not unreasonable to suppose that they all were.

Sorry, just seen this post. If it was 2006, then it is far too late to accept UR.

[Lord_Alcohol]

I would hope that a few days short would never be classed as "de minimis" an act of parliment states :-

 

(2) A date specified under subsection (1) must not be less than [F114] days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those [F114] days have elapsed.

 

The devil is in the detail remember the ACT states "MUST NOT" not "SHOULD NOT" there is no variation. If any judge said that 13 days was acceptable I would ask them to clearly state why when an act of parliment clearly states 14. Somebody said here once if it was 13 days the act would have said 13 days.

 

Have Halifax since terminated on the back of the defective DN? or have they asked for the full amount?

 

I hope this helps.

 

Pumpytums

 

Thanks Pumpy

 

The DN I have (a) allows only 13 days and (b) forgets about service, as I think the 1983 Regs specify 14 days after the date of service. I think there should have been a total of 18 days including 2nd class service.

 

Yes, Halifax terminated the agreement 2 weeks after the deadline on the DN, and have demanded the full amount from that date.

 

LA

[lookinforinfo]

Sorry, just seen this post. If it was 2006, then it is far too late to accept UR.

 

Sorry Vint, that was the first of 10 DNs that was definitely wrong on dates. The one they are using for the Court the DN is dated is Nov 25 2008 [don't know where he got June].

[emandcole]

Sorry, just seen this post. If it was 2006, then it is far too late to accept UR.

 

Just to throw the cat among the pigeons and be wholly contentious the acceptance of the recission as most of us know can be by letter (ideally) but also by conduct (less favourable if payment was not made anyway before the invalid default and termination as there is no distinction between debtor performance before and after recission).

 

However, going back to the actual letter given the fact that there is no legal requirement for the debtor to provide proof of posting why not just produce one you wrote earlier? Contentious of course but at the same time you'll merely be playing the same games as many of the creditors and DCA's themselves.

 

Question is then - are we prepared to stoop to their level? :-|

[vint1954]

Thanks Pumpy

 

The DN I have (a) allows only 13 days and (b) forgets about service, as I think the 1983 Regs specify 14 days after the date of service. I think there should have been a total of 18 days including 2nd class service.

 

Yes, Halifax terminated the agreement 2 weeks after the deadline on the DN, and have demanded the full amount from that date.

 

LA

It was changed to 14 days in the 2006 upgrade:)

[vint1954]

Just to throw the cat among the pigeons and be wholly contentious the acceptance of the recission as most of us know can be by letter (ideally) but also by conduct (less favourable if payment was not made anyway before the invalid default and termination as there is no distinction between debtor performance before and after recission).

 

However, going back to the actual letter given the fact that there is no legal requirement for the debtor to provide proof of posting why not just produce one you wrote earlier? Contentious of course but at the same time you'll merely be playing the same games as many of the creditors and DCA's themselves.

 

Question is then - are we prepared to stoop to their level? :-|

You may well indeed come accross one that you did not remember, maybe in early 2009 at the point when they demanded the ballance in full, but don't send one now.

 

Other than in writing, you would need to cease payments or act in a way that accepted the UR, at the point of recsission. So if you stopped payments in June, it would not be accepted for a recsission in November.

[DonkeyB]

Stoop to their level? I can go lower than a chihuahua's scrotum.

 

Just make sure the one you definitely wrote earlier was addressed to the OC, not the agent, and dated appropriately.

[mkb]

Of course, any letter of acceptance of their unlawful rescission having been posted and not returned to you by Royal Mail, will have been deemed served within 2 - 4 working days from posting

 

One would hope that companies would save incoming mail in an appropriate manner although who could possibly say

[lookinforinfo]

Just to throw the cat among the pigeons and be wholly contentious the acceptance of the recission as most of us know can be by letter (ideally) but also by conduct (less favourable if payment was not made anyway before the invalid default and termination as there is no distinction between debtor performance before and after recission).

 

However, going back to the actual letter given the fact that there is no legal requirement for the debtor to provide proof of posting why not just produce one you wrote earlier? Contentious of course but at the same time you'll merely be playing the same games as many of the creditors and DCA's themselves.

 

Question is then - are we prepared to stoop to their level? :-|

 

It is more than contentious Emandcole. It is attempting to pervert the course of Justice if averred in a Witness Statement and perjury ii uttered in Court. The penalties for both can be high.

[brooooooooooce]

It is more than contentious Emandcole. It is attempting to pervert the course of Justice if averred in a Witness Statement and perjury ii uttered in Court. The penalties for both can be high.

 

If it can be proven. I have numerous instances of CCC's losing letters that were sent recorded and signed for - in fact Crap one only admitted receiving 1 of 4 letters sent - the other 3 (2 were recorded and signed for) apparently were never received by them.

[DonkeyB]

Many DCAs recreate documents and claim in a WS that they were definitely sent. UK26 had an exhibit that was sworn in court but was dated at a time before he even lived at the address!

 

On reflection, no, you can't get as low as these lowlifes.

[Lord_Alcohol]

It was changed to 14 days in the 2006 upgrade:)

 

Ta Vint that's helpful.

 

Do you know if any CCC claim made it to court where there was a defective DN in the loop? I'd love to know what a judge really thought of it.

 

But am assuming that a defective DN means that CCC lawyers will not take the claim to court - the trick is in identifying the error in the first place?

 

And I guess that as long as the ag is terminated by the CCC after a defective DN, there's sod all they can do apart from claim the arrears?

 

Have I got that right? I hope so! It would really make my day. But would really appreciate a real live court example (if there is one :grin:).

 

LA

[brooooooooooce]

Ta Vint that's helpful.

 

Do you know if any CCC claim made it to court where there was a defective DN in the loop? I'd love to know what a judge really thought of it.

 

But am assuming that a defective DN means that CCC lawyers will not take the claim to court - the trick is in identifying the error in the first place?

 

And I guess that as long as the ag is terminated by the CCC after a defective DN, there's sod all they can do apart from claim the arrears?

 

Have I got that right? I hope so! It would really make my day. But would really appreciate a real live court example (if there is one :grin:).

 

LA

http://www.consumeractiongroup.co.uk/forum/legal-issues/224300-mandm-egg-loan-mandm-22.html

[lookinforinfo]

I'll try again on the DN dated 25/11/08 so that it is all on the one page and thus easier to understand.

 

DN issued Tuesday 25/11/08 and they admitted sent 2nd class. [Haven't got them to admit when it was posted yet.] The wording is to repay the arrears by 14th December 2008 and goes on to say if the action required is taken before the 14th [ie 13th dec] no further action.....

On my calculation they are therefore one day short. Am I right?

[Desperate Daniella]

Unfortunately some card companies will take people to court even if they know the DN is faulty - especially Amex - and their lawyers will use every trick in the book to get the judge to agree with them.

 

Judges need to know that the CCA 1974 is the law and not open to their own interpretation or discretion, but sadly some don't and allow creditors to win the case even with a faulty DN.

 

Something really needs to be done about these judges to make them follow the law.

[Dotty50]

Do you ever get a choice on the Judge?

After all, if you needed heart surgery, you wouldn't let a brain surgeon do the job instead, would you?

[Desperate Daniella]

I don't think so.

[BeauBrummie]

It is more than contentious Emandcole. It is attempting to pervert the course of Justice if averred in a Witness Statement and perjury ii uttered in Court. The penalties for both can be high.

 

And the Finance/Credit Card Industry is whiter than white? Hmmmmmmm

 

Just look in on VJjohns thread

 

Sometimes whats good for the goose and all that......

 

I do not condone this type of action but when your back is against the wall and faced with an obvious onslaught of unfairness in your particular case, it may be an avenue if you can get away with it......if you get caught then you took the risk.

 

Beau

[emandcole]

Contentious wins then .

 

However, if the creditor/DCA is using all manner of tricks as has been the case on many occasions in threads I've read who can blame someone for doing this? Claimants appear to enjoy an element of immunity from penalty even if they get caught - we all know it's a joke.

 

If the defendant gets caught out what'll happen? They'll just lose the case anyway. Wouldn't advocate bare faced lying at any point but as the playing field is not always level a move like this would at least address the balance.

 

Damn this gets tricky doesn't it? :-|

[straftat]

its only tricky because the regulators dont do their job

 

and its not even an election topic by the 2 main parties

 

look at the news today about goldman sachs (who are an adviser to the government on debt issuance , as well as other issues such as the return of Northern Rock to the private sector)

our regualtor reluctantly agrees to investigate a week after the americans announce it

 

you think the tories might make hay with this but not a peep

 

1) Goldman Sachs alleged fraud commited out of their London branch by Fabrice Tourre,who is in line for a massive bonus.Bank bosses let Tourre go on working in London despite a lawsuit against him by U.S. regulators.

 

2) Lehman Brothers Repo 105 (Ernst & Young, Linklaters and Lehman Brothers' London operations played key roles in the investment bank's attempts to mask $50bn (£33bn) of assets on its balance sheet in the run-up to its eventual implosion in September 2008. "The report also finds that the bank had to use its European arm, based in London, to undertake the questionable accounting practices as they were not considered legal in the US The extensive report also reveals that Repo 105 was approved by Linklaters in London, which in 2006 wrote an opinion letter stating that the required transactions were allowed under English law. "

 

3) Arthur Andersen's role in auditing fraudulent energy giant Enron

 

is this country i.e LONDON under this government bent or what ?

[DonkeyB]

I assume that's rhetorical!