quick default notice question

[waroo]

Hoping someone can advise me please.

 

I'm in the middle of court action & the claimant has sent me a letter & some info I requested but have said they don't have a copy of a defult notice but since it shows a default on their records then this is as good as one having being served on me.

 

Where do they stand when it comes to the trial if they have admitted they don't have a copy. Does this make a difference. My thoughts being if they had a copy & it were invalid then I'd have a case around it being unenforcable so if they don't actually have one how can I/they prove it's valid/invalid.

 

Are they in default of any rules/regulations?

 

Thanks in advance

[pompeyfaith]

merely saying there is one on there records is not good enough it has to be served on you and without that u cannot be taken to court

[42man]

If they state that a DN has been 'served' then i'd challenge them on providing proof of postage !!!

 

Did you see this -

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it 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.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also 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).

 

6. The 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 an 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.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(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.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

[Dipply75]

Hi 42 man, this is gold dust and exactly what I need right now. Did this come from a caggers thread that I can read up on?

 

Many Thanks!

[r&b]

not sure the thread u are referring to is in here but nevertheless some light reading regarding DNs if it helps:

 

1.http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

2. http://www.consumeractiongroup.co.uk/forum/legal-issues/191784-shakespeare62-nastybank.html

3. http://www.consumeractiongroup.co.uk/forum/legal-issues/144119-hfo-court-claim.html

4. http://www.consumeractiongroup.co.uk/forum/cooperative-bank/125389-what-exactly-default-notice.html

[Dipply75]

not sure the thread u are referring to is in here but nevertheless some light reading regarding DNs if it helps:

 

1.http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

2. http://www.consumeractiongroup.co.uk/forum/legal-issues/191784-shakespeare62-nastybank.html

3. http://www.consumeractiongroup.co.uk/forum/legal-issues/144119-hfo-court-claim.html

4. http://www.consumeractiongroup.co.uk/forum/cooperative-bank/125389-what-exactly-default-notice.html

 

That will keep me amused tonight lol, thankyou for that

 

RBS have issued me with a Dn that was part my a/c and part someone elses. They then issued another - aparently correct one - which I still think is wrong. All this without a CCA.

 

I have a recorded phone call with me telling them it is still wrong and their exact words were - it'll just be a typo, we will still proceed....so need to learn all about this now!

 

Thanks again

 

Dipply

[Deb T]

Just as an addition to this, I am currently exploring my options with a default notice that I consider 'dodgy' to say the least. It was undated but from info I have now managed to source I can see when it was supposedley issued..undated is a problem for them....not only that but they then edited my credit file 10 days from the date of issue of the undated defrault notice...that again is incorrect...I have of coursr taken these details down etc....and finally the debt was later assigned to a DCA that in their notice of assignment it mentions who the debt was owned by and who had assigned it to them....alas, the company they stated owned the debt had actually sold the credit card company some 7 months prior to that in a cash deal....so, incorrect assignment.

 

I'm currently awaiting a CCA from the dca which my gut reaction tells me they wont be apply to supply it.

 

If the default notice is proven to be worthless and the original lender has terminated my account on the back of a default notice then I think I'm right in saying that they can only claim the arrears at the time of the termination notice but not the rest.....which then and after further totting up is much less that what I have paid back over the last 5 years...and if the assignment was incorrect either due to the claims made by the DCA as to the original owner...or indeed the incorrect default notice...then I'll be taking the same line of the money I have paid back (which is in error) with the DCA in question and given them notice of my intention to seek recompense...and if that means issuing court action then thats what I'll do....some of the DCA's are proving to be as disreputable as they come...

[Deb T]

That will keep me amused tonight lol, thankyou for that

 

RBS have issued me with a Dn that was part my a/c and part someone elses. They then issued another - aparently correct one - which I still think is wrong. All this without a CCA.

 

I have a recorded phone call with me telling them it is still wrong and their exact words were - it'll just be a typo, we will still proceed....so need to learn all about this now!

 

Thanks again

 

Dipply

 

Just to step in, did you advise the people you were recording the call with that you were recording it? If not then I don't think it's of any use to you other than for your own records, you won't be allowed to present it anywhere as evidence.

[Dipply75]

Just to step in, did you advise the people you were recording the call with that you were recording it? If not then I don't think it's of any use to you other than for your own records, you won't be allowed to present it anywhere as evidence.

 

Yes I did

 

As far as the agreement being terminated unlawfully etc and how to approach...there has been a LOT of high level discussion on the legalities etc and what to do lately and I was given sound advice - and stopped from making a huge error!

 

Check my thread, page 2 and you will see the difference from the letter I intended to send the cracker a cagger gave me (post 36)

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/207374-rbs-defaulting-me-no-2.html

 

Hope it helps and best of luck to you