Default notices and charges included in them

[Von Greenbach]

From what you've posted the DN are invalid.

 

As for them terminating your agreement prior to issuing a DN, they can do what they like (they normally do ) however they've breached the correct process so now it's for them to prove they sent you a DN.

[lexis200]

Thanks for that - I'll get the scans up so you can actually see if I've got any mileage with this:)

 

Also though, I thought I'd have a quick look at my credit report, and it seems that egg too have defaulted before allowing me to remedy (I really can't see how they can do this, as the notice states nothing will be done until after x date), and Cabot, the cheeky feckers, defaulted me not only without issuing any DN, but a full TWO MONTHS before goldfish apparently sold the account (going on their sod off letter and Cabot's hello one!)

 

I have also noticed though that the default from Lloyds doesn't appear on the report. I'm a teeny bit bummed about this, as they are my biggest debt by a long shot, and recently as a 'gogw' (thanks for that btw lloyds - doesn't quite cut it when you lost us our home though!) cleared the arrears as I am on a payment plan. I was hoping this termination on the back of a dodgy DN would give me the possibility of an out.

 

Thanks again

 

Lexis:)

[lexis200]

Hi all

 

Just wondering about the above...

 

When it's said that if charges are included on a DN, what exactly is meant by that?

 

Is it that if you have had a charge at all on the account, at any point during the life of it, that the DN will technically be ineffective as it will not be a true balance?

 

or

 

Does it need to specifically include a charge in the arrears? What I mean by that is, for example, that you have missed one payment of £10, but when you get the DN it states the arrears as £22, as they've added a late charge etc?

 

If it's the former, surely pretty much everyone would have ineffective defaults as if you've got to that stage you are likely to have missed/been late with payments?

 

If it's the latter and you've missed a few payments, is it simply a case of totting up what the statements say you'd have needed to pay, and then seeing if the arrears match up more or less correctly?

 

If anyone can explain it to me I'd be a very happy bunny:D

 

Thanks

 

Lexis:)

[42man]

You could put that in an argument....but a lot of this comes down in the end to how a judge sees it....you could apply the below to the default notice too potentially...

 

The Defendant denies that he is liable to the Claimant as alleged in the Particulars of Claim. It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, which is likely to include penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

This possibly for the default note...

• Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)
  

• Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119
  

 

 

[landy_alert]

Hi Lexis:)

 

Thank you for asking this question as it's one that I am also dying to know the answer to!

 

In fact I'm certain I did ask it myself on more than one occasion, but never got a satisfactory answer.

 

Trouble is, if (as in the case of my OH with MBNA) you have been paying an irregular or reduced amount each month, even if you have all your statements (which OH doesn't) it becomes very hard to determine how much should be on the DN as actual arrears.

 

Anyway, hopefully someone will have a definitive answer and we'll both be happy bunnies:D

 

Regards,

 

Landy x

[landy_alert]

Whoops, 42man posted his response whilst I was still thinking about mine:D

[lexis200]

Hi all

 

I have the possibility of some money that may enable me to offer f+f's to our creditors.

 

Some have enforceable CCA's, most do not, and a good proportion of both the haves and have nots have issued rubbish DN's.

 

Some I have been having ding dongs with for a long time, others I've not really done anything other than requesting CCA's.

 

I'm wondering what the best way to go about making offers is. I know the bits about making sure it's offered in someone else's name, see if you can get any bad markers included in a deal (this is important for us), and start low and see if they bite. What I really need to know is how to approach them.

 

One for instance has an ok agreement, but have cocked up on the DN/termination. All I have done is ask for the SAR, and I've not mentioned the DN (which happened a couple of years ago) at all yet. So, with them would I just ask politely and see what happens, or would I be a little stronger, tell them they've made a big mistake by terminating after their faulty DN, and this is what I am prepared to offer?

 

With another they've got nothing in the way of an agreement and have cocked up on the DN/Termination. I've been battling with them for a year with neither of us budging, and my last correspondence was telling them to sod off (or words to that effect). How do I then come out of that to make them an offer?

 

I have others in various states, so really I'd just like an idea of how to proceed. Ideally if anyone has made offers that have been accepted I'd love to know how you went about it.

 

I do know that without agreements and with DN's that have been issued/terminated incorrectly I really don't need to be paying them anything. The thing is that we've had a very rough couple of years and would really like this all put to bed with the least trouble possible. I also do not wish to set foot in a court if at all possible, so really don't want to have to go that route to have them declared unenforceable (where applicable!). If this means paying them a little even though they are not entitled to it, then for us it is worth it if we do get this bit of cash.

 

Any thoughts/tips/tales-of-how-you-got-on would be very appreciated!

 

Lexis:)

[Bazooka Boo]

National Debtline England & Wales | Debt Advice | Factsheet 24 Full And Final Settlement Offers

[Stressed150]

In a similar position as you lexis, u may want to keep tabs on my thread titled Is it good news...?

 

I want to make an F&F offer to a creditor who has failed to provide a CCA at all in three months....

 

I'm afaraid I can't offer any advice though, as we are both in a similar predicament..

[Bazooka Boo]

The Law – ‘Full and final settlement’ - Voltimum UK - Electrical Installation Products and Contracting

 

If that might help at all;)

[Stressed150]

Thank you Bazooka Boo, very interesting article....x

[lexis200]

interesting reading BB, thanks:)

[joemay]

Hi Lexis,

Won't give you any advice on this as I have been scr**ed over by Natwest/Triton. Did partial settlement on an account which was never on CRF's they have now entered details and put a default which shows as being after the account has been settled & closed:mad:

 

I'm sure you know this already, but what every you agree with them make sure that you have it all in writing, preferably with their blood:p, lock it in a safe (but not a banks) and be certain that you have everything covered so that you know it's finished and over with.

 

All the best:)

[lexis200]

Hi joemay

 

Sorry to hear about Natwest - doesn't surprise me but still annoys me every time I see anything like it:mad:

 

I'll give the blood signature a go, but failing that I'll try and knock up a letter that's as watertight as possible. I'm half wondering about getting a solicitor to knock something up for me. Of course seeing as most of the banks have never seen a proper contract it might give them a bit of a shock if I send one in to them to sign:D

[lexis200]

I've just checked my Equifax report and in looking at my defaults I've seen that the 'default date' on 2 or 3 of them is a month after the big ol' 'D' was placed on my record.

 

Is this normal?

[joemay]

Hi joemay

 

Sorry to hear about Natwest - doesn't surprise me but still annoys me every time I see anything like it:mad:

 

I'll give the blood signature a go, but failing that I'll try and knock up a letter that's as watertight as possible. I'm half wondering about getting a solicitor to knock something up for me. Of course seeing as most of the banks have never seen a proper contract it might give them a bit of a shock if I send one in to them to sign:D

 

 

[babybear39]

Hi joemay

 

Sorry to hear about Natwest - doesn't surprise me but still annoys me every time I see anything like it:mad:

 

I'll give the blood signature a go, but failing that I'll try and knock up a letter that's as watertight as possible. I'm half wondering about getting a solicitor to knock something up for me. Of course seeing as most of the banks have never seen a proper contract it might give them a bit of a shock if I send one in to them to sign

 

:lol: