Anatomy of a Default Notice

[cerberusalert]

Even if the date of the letter was accepted as a working day for postal service it would still be four days short if 1st class & six days 2nd class.

 

A court assumes it was sent 2nd class unless the creditor can prove otherwise, but in this case even if they swore on the Bible/Koran/Tanakh or Lord of the Rings that it was posted 1st class it would still be defective.

[cerberusalert]

Date of Posting, 29th December 2008

30th Dec = +1 - in transit

31st Dec = +2 - Date of Service

1st Jan = 1st Clear Day

If it had been posted first class the working days for service would be 30th & 31st for you to receive it on the 1st, but as that was New Years Day there was no postal service it's a Bank Holiday, so you couldn't have received it until at least the 2nd. Now add 14 days for remedy = 16th.

[charlie*]

So, what you are saying is that Date of Service cannot be achieved if there is a Bank Holiday in the way?

 

That is what I thought, but, wouldn't have bet on it without expert

opinion.

 

Thankyou.

[cerberusalert]

So, what you are saying is that Date of Service cannot be achieved if there is a Bank holiday in the way?

Bank Holidays and weekends are not 'working days'.

[lexis200]

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"

 

I don't think you need to worry about date of service etc at all - they left 14 days dead in the first place, and then because of the lovely wording on DN's you had to pay before the 12th, which left you 13 days to pay even if they hand delivered it to you on the 29th!

[diddydicky]

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?

 

well i would have thought so

 

CFA lawyers are businesses

 

clear cut cases i would imagine would be of great appeal to them!!

 

important that you point out the failing to them in writing i think and also send them a copy of the judges comments in BOS v Robert Mitchell

where he told BOS that having continued with the action - in the face of having been made aware of simple and irrefutable points of law by the defendant they were very close to abuse of the court and were made to pay costs on an indemnity basis

[diddydicky]

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

 

 

if the DN was posted on the 29th then it was deemed to have been served on the 31st (wednesday) if posted first class

 

the 14 clear days start from the day after service- which is the 1st January and the fact of this being a bank Holiday is of no consequence- the 14 days do not excuse weekends and bank holidays

 

therefore by 1st class postage in this instance you would have until 14 january 2009 in which to remedy the alleged default

 

if is was posted 2nd class on the 29th then you would have been deemed served on Tuesday 6th January 2009 and would have had until 20th January to remedey the alleged default

[diddydicky]

If it had been posted first class the working days for service would be 30th & 31st for you to receive it on the 1st, but as that was New Years Day there was no postal service it's a Bank Holiday, so you couldn't have received it until at least the 2nd. Now add 14 days for remedy = 16th.

 

 

i think you are not quite correct here

 

the DN is deemed to have been served ON the second working day after posting

 

NOT AFTER the second working day after posting

 

a DN posted on a Monday by First class willl be deemed served on the Wednesday

[Undercover-Elsa]

well i would have thought so

 

CFA lawyers are businesses

 

clear cut cases i would imagine would be of great appeal to them!!

 

important that you point out the failing to them in writing i think and also send them a copy of the judges comments in BOS v Robert Mitchell

where he told BOS that having continued with the action - in the face of having been made aware of simple and irrefutable points of law by the defendant they were very close to abuse of the court and were made to pay costs on an indemnity basis

 

Thanks for the reply DD

Good point about the quote.

I've already accepted the termination, in the midst of a longer letter as there's unfair relationship/irresponsible lending issues here too, although the agreement is OK.

It's such an outstandingly poor DN I'd love this to become a test case! They could hardly claim de minimus here. It's a large debt too so you'd think they'd be more careful.

Elsa x

[lexis200]

Am I missing something with this DN?

 

29th Dec 08 to 12th Jan 09 is 14 days flat isn't it? No days allowed for service at all, and must pay before the remedy date. Even if it was a standard two weeks with no bank holidays etc it would not be valid, so why is so much importance being given to whether or not it was served on x date and whether x date was a bank holiday?

 

It seems that all the extra info is just muddying the point that it can't be valid whatever the date it was delivered.

[diddydicky]

simply because whilst in this case the DN is defective at any rate

 

it would be quite wrong for caggers - especially those still trying to get their heads around how they work.........to be under a false impression as to the "deemed date of service" of a DN

 

remember people are learning from these threads as well as those directly involved!- and want to be able to work out how their own DN's are relevant

[skintlondon]

Hi Elsa & All,

 

This info is very useful. I have a query of my own. My flat was repossessed in September 2008. I had 2 outstanding credit card debts. On my credit file I am shown as defaulting on one agreement in March 2009 and the other in July 2009. I didn't tell either credit card company that I was moving (I was officially homeless - staying in a hotel but no fixed address) so would not have received a Default Notice from either credit card comapany.

 

My question is, were they entitled to show my credit file as defaulted when I never received a Default Notice and therefore didn't have the opportunity to remidy the situation?

 

Thanks,

 

Skint

[lexis200]

I get that, but from what I could see no-one mentioned at any point that the default was wrong whatever the service date was - I'd say that is important info as it would alleviate doubt on the part of the poster and would then allow them to get their heads around the intricacies of service etc with a clear head.

 

It also illustrates to people learning from the threads that if they receive a DN with those properties it will never be valid.

[diddydicky]

yep they did- i think crebusalert made it clear that the DN itself was defective in any event

[lexis200]

Hi Elsa & All,

 

This info is very useful. I have a query of my own. My flat was repossessed in September 2008. I had 2 outstanding credit card debts. On my credit file I am shown as defaulting on one agreement in March 2009 and the other in July 2009. I didn't tell either credit card company that I was moving (I was officially homeless - staying in a hotel but no fixed address) so would not have received a Default Notice from either credit card comapany.

 

My question is, were they entitled to show my credit file as defaulted when I never received a Default Notice and therefore didn't have the opportunity to remidy the situation?

 

Thanks,

 

Skint

 

Unfortunately the reason you didn't get a DN was probably because you'd not informed them of a change of address so I don't think this would have much mileage as an argument.

 

I do hope your situation has improved, it must have been dreadfully stressful.

[lexis200]

yep they did- i think crebusalert made it clear that the DN itself was defective in any event

 

Yes he did, but still in relation to posting dates and working days...

 

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.

[charlie*]

see post below

Edited June 21, 2010 by charlie*

[charlie*]

To me, the 'ordinary course of post' means that letters are dropped in the nearest post box on leaving the office for the day at 5pm and usually delivered anytime from 8.30 am to midday.

When I worked for a very large company, yonks ago the post was collected by Royal Mail in the late afternoon from the post room - around 5pm, I recall.

Edited June 22, 2010 by charlie*

[diddydicky]

lets get this straight......

 

 

if it is posted on the 29th first class- it is deemed served ON the second working day after posting

 

posted 29th (monday) 1st working day 30th (tuesday) 2nd working day 31st (Wednesday) -therefore it is served on the 31st (this being the second working day after posting

 

it does not matter what time of day it was posted - if the claimant swears that it was posted on 29th and it was dated that day- then that is what the court will accept (unless you can prove otherwise)

 

forget all talk of "in transit"

[charlie*]

ouch, that hurts, DD

[diddydicky]

[charlie*]

Hmmmm!

Edited June 22, 2010 by charlie*

[Artie44]

if the claimant swears that it was posted on 29th and it was dated that day- then that is what the court will accept (unless you can prove otherwise)

 

They may swear that it was posted that day, backed up by their computer records, but without proof of posting how can a court determine whether it was posted 1st or 2nd class?

[means2anend]

Thats why you should ALWAYS KEEP the envelopes...that is the best evidence of 'how you prove otherwise'

 

m2ae

[pumpytums]

If they have a witness statement saying it was posted 1st a court would accept that. However most companies now send letter 2nd class (or worse) the only OC I'm personally aware of that send letters 1st are Capone.

 

Generally each company uses the same postal service for all mail.

 

Pumpytums