Anatomy of a Default Notice

[Craigbadger]

That is correct, however they only need to give 14 days from service. If your notice says 28 days, then that should be that. Doubtless if you had rectified the default within the 28 days, they could have been persuaded to remove the default.

Thats fair enough then so its more at there discretion they may reconsider.

Infact the notice doesnt say it can be remedied it says to prevent further action.

[vint1954]

No it's not at their discretion. They must send a DN in the prescribed format. s 88 specifies that format:

 

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.

(3) The default notice must not treat as a breach failure to comply with a provision of

the agreement which becomes Operative only on breach of some other provision, but

i£ the breach of that other provision is not duly remedied or compensation demanded

under subsection (I) is not duly paid, or (where no requirement is made under

subsection ~1)) if the fourteen days mentioned in subsection (2) have elapsed, the

creditor or owner may treat the failure as a breach and section 87(1) shall not apply to

it.

(4) The default notice must contain information in the prescribed terms about the

consequences of failure to comply with it.

(5) A default notice making a requirement under subsection (1) may include a

provision for the taking of action such as is mentioned in section 87(1) at any time

after the restriction imposed by subsection (2) will cease, together with a statement

that the provision will be ineffective if the breach is duly remedied or the

compensation duly paid.

[hammyhound]

In my recent hearing one of the issues brought up by myself and the DJ was the template DN and no screenshot. I pointed out to the DJ that how could I tell what the arrears were at the time if I never received the DN and that there was a missing prescribed term - ie the OFT information.

 

The DJ said to the Claimant's solicitor "go away and get some case law regarding the template DN".

 

Is there any case law to say Claimants can produce a template and say "this is what it would look like".

 

If they can produce case law to say this then why the bloody hell are dodgy DNs being sent out.

 

I will wait to see what they come up with.

 

HH

[vint1954]

In my recent hearing one of the issues brought up by myself and the DJ was the template DN and no screenshot. I pointed out to the DJ that how could I tell what the arrears were at the time if I never received the DN and that there was a missing prescribed term - ie the OFT information.

 

The DJ said to the Claimant's solicitor "go away and get some case law regarding the template DN".

 

Is there any case law to say Claimants can produce a template and say "this is what it would look like".

 

If they can produce case law to say this then why the bloody hell are dodgy DNs being sent out.

 

I will wait to see what they come up with.

 

HH

Keep an eye out here: http://www.consumeractiongroup.co.uk/forum/legal-issues/259291-egg-pre-05-allocation-2.html#post2934633

 

PT is going to post info on blowing that one out of the water.

[hammyhound]

Thanks again Vint, subbed to that thread.

[Its WAR]

subbing

[leedoe]

subbing

[HOWLER]

subbing

a big thank you to all for the invaluable info.

[lexis200]

Payment defaults show as a number 1,2,3(months in arrears)

I recieved a notice of default under s87 etc giving 28 days(no date, them just being lazy I think?).

They then marked by account as defaulted on the 26th day. I thought the time given was so you could avoid it.

 

 

Regardless of the fact they are only required to give you 14 days, imho if they say 28 days then that's the time you can reasonably expect them to hold off on marking your file. After all, if we weren't on CAG would we even know they had to give 14 days? You can only go by what they say really.

 

If it's not too late I might be tempted to write and argue the toss over it...

[charlie*]

Good day all...

I'm hoping one or two of our expert friends will pass this way soon as I really do need to clarify a few points before I am prepared for the next attack from Barclays which is imminent. Problem is I'm juggling 7 CCA's in the air for my immediate family and I read so much in this forum I just cannot remember everything. It's the penalty of age I guess, happens to us all and it really does pee me off. I was horrified the other day to see that one member has been keeping the DC's at bay for five years.... he sounded truly fed-up to the back teeth. My god, I doubt I shall be here by then... and that scares me, leaving the others behind to face them, they're not very brave. I think all of us are pretty darned brave, full of courage to be doing what we are doing - are we not the stuff revolutions are made of ?

 

Here we go...

*I have a DN dated on a Saturday... is this classed as the Date of Posting - or, as the post time must be working days only, would the first working day be the next Tuesday... in other words, the Date of Posting would be classed as Monday?

 

*The same DN omits the following para that came into force Oct 2008... it was was dated 2 months months later.

 

'This notice should include a copy of the current OFT information sheet on default. This contains important info about your rights and where to go for support and advice. If it is not included, you should contact us to get one'.

 

I have seen this questions asked before, but, could not find an answer.

Question is, is this relevant to the validity of the DN?

 

Last night I was reading about Credit Agreements and came across a topic about Prescribed Terms and where they should be.... I discovered that since a change in the rules not too long ago ago, they must be set out between the top of the application/agreement form, but under the heading and above the actual signature of the applicant at the bottom..

 

It does occur to me that there is a reason for this change and that reason must be because the previous way of doing it was far too ambiguous - so, does not that open up a line of argument - that the old placement of PT's, which are obviously very important, could be almost hidden so as not to seem importanrt and could be anywhere, was far too difficult for the average individual to come to terms with.... for example, I gather that sometime they are to be found in T & C's leaflets that often arrived with the credit card itself - a week or so perhaps after the application had been submitted.

 

Thanks,

charlie

Edited June 18, 2010 by charlie*

[diddydicky]

'This notice should include a copy of the current OFT information sheet on default. This contains important info about your rights and where to go for support and advice. If it is not included, you should contact us to get one'.

 

 

there is a clue to the answer in the question!! if parliament intended that the information was important then clearly it's ommission cannot be a de minimus issue- especially if the information was NOT enclosed since then you would have been none the wiser to its existence

 

service of a dn is deemed to be 2 working days after posting (tuesday in this case) and the 14 days starts from the wednesday) or 4 working days if not posted RM first class

[charlie*]

DD, thank you very much...... helps enormously.

 

Have a nice weekend.

 

charlie

Edited June 18, 2010 by charlie*

[charlie*]

DD, does this then mean that the Date of Service, where a DN dated on the Wednesday sent by first class post, would be the Friday, but if it was sent by second class post the Date of Service would be the following Tuesday,

 

OR....

 

...do the working days have to be consecutive.... this being so, again

the above scenario would mean that the Date of Service would be the following Thursday week, would it not?

 

[pumpytums]

Hi Charlie,

only working days Mon-Fri are classed as postal days so if it's dated Saturday its send Monday. For 1st class count 2 days after day of posting for service for 2nd or TNT etc count 4.

 

So If dated Monday service would be deemed Wednesday for 1st

So If dated Monday service would be deemed Friday for 2nd

 

So if dated Thursday service would be deemed Monday for 1st

So if dated Thursday service would be deemed Wednesday for 2nd

 

Basically you start counting the first working day after the date on the letter. Remember bank holidays are not counted for postal days.

 

You are correct DN dated Wednesday would be served on Friday 2nd would be classed as the Tuesday.

 

I hope this helps

[charlie*]

hi pumpy,

 

Thanks for that, pity its not consecutive, but at last, I think I've finally got my head round it.

 

It's taken quite a while

 

charlie

[diddydicky]

if a letter is posted via royal mail on a saturday- first class -then the date of service will be the second working day after posting (the date of posting does not have to be a "working day-" - since RM collects post from their boxes on saturdays and sundays. and so the letter would enter the RM postal system on these days.

 

if however it is posted on a saturday by a private carrier then you would need to check the carriers terms as many (UK mail for example) do not collect mail from their clients on a saturday or sunday

 

if the letter was DATED on a saturday and the dates on the dn were crucial to your defence then i would be inclined to call witnesses and evidence from that company to state what the postal proceedures are since most companies send their mail to an internal mailing department each evening and the mail would rarely enter the RM system on the same day of writing the letter.

 

Further- staff working weekends in these large companies would usually put their mail in the internal mail trays for their internal mail room to deal with on the following monday

[middenmess]

.....since RM collects post from their boxes on saturdays and sundays.

 

 

As far as I know RM do not collect on Sundays any more

 

ftp://ftp.royalmail.com/Downloads/public/ctf/rm/106831_col_del_pdf_02.pdf

[diddydicky]

thats good- then only if posted on the saturday -otherwise its monday

 

i even had one dickhead creditor date a DN 1st January 2009 and then 9 months later their witness made a statement that the DN would have been posted the same day it was issued by first class post!!

 

just a shame that it never got to court

[Undercover-Elsa]

My prize framed one is dated Christmas Eve (a wednesday). Even if Royal Mail 1st Class couldn't have arrived till New Yrs Eve 31st. Date for remedy..3rd Jan. Bless them! Best Christmas present ever.

This may well go to court. Do you think there would be any possibility of getting a CFA in place for this type of case, DD?

Edited June 20, 2010 by Undercover-Elsa

[charlie*]

I was a bit previous above, 'cos I just cannot get

my head around another DN... to be absolutely sure....

 

The letter is dated Monday, 29th December 2008,

the remeday date is given as BEFORE January 12th.

 

On the face of it, Date of Service would appear to be

Wednesday, 31st, the first Clear Day being New Years

Day, 1st January 2009.

 

Is this correct, if not, would some patient cagger

please explain.

 

Getting there slowly, MANY THANKS,

 

charlie

 

PS: My user name should have been "gettingthereslowly"

[cerberusalert]

No matter how you look at it, it is defective. If it was posted 1st class they have to allow 2 working days for service so you couldn't have possibly received it before 2nd Jan (New Years day is not a working day), add the 14 days to remedy and it should be 16th, they said remedy before 12th which in effect means by the 11th which means it's 5 days short. If it was posted 2nd class it would be 7 days short.

[means2anend]

I was a bit previous above, 'cos I just cannot get

my head around another DN... to be absolutely sure....

 

The letter is dated Monday, 29th December 2008,

the remeday date is given as BEFORE January 12th.

 

On the face of it, Date of Service would appear to be

Wednesday, 31st, the first Clear Day being New Years

Day, 1st January 2009.

 

Is this correct, if not, would some patient cagger

please explain.

 

Getting there slowly, MANY THANKS,

 

charlie

 

PS: My user name should have been "gettingthereslowly"

 

 

 

gettingthereslowly!!!....you are 'rightcharlie*'

[charlie*]

Cerberus....

 

This is the root of my confusion.... you say in your post above....

 

'No matter how you look at it, it is defective. If it was posted 1st class they have to allow 2 working days for service so you couldn't have possibly received it before 2nd Jan (New Years day is not a working day), as the Date of Posting is Monday, 29th Dec why are you not classing Wed 31st as a working day? add the 14 days to remedy and it should be 16th, they said remedy before 12th which in effect means by the 11th which means it's 5 days short. If it was posted 2nd class it would be 7 days short'.

 

Date of Posting, 29th December 2008

30th Dec = +1 - in transit

31st Dec = +2 - Date of Service

1st Jan = 1st Clear Day

 

Thanks muchly,

charlie

[cerberusalert]

as the Date of Posting is Monday, 29th Dec why are you not classing Wed 31st as a working day?

Because even if it was posted the day it's dated it would not have been collected/posted until the close of day then you add the working days for service from the day after. Even if it was picked up at noon that would only make it half a working day.

[charlie*]

ah, I see a glimmer, I will dwell upon it, see iof it goes click

for me

 

Do you really think one would get away with that if it came to

the crunch?

 

Many thanks... again

 

charlie