Anatomy of a Default Notice

[silverfox1961]

PS Congrats on joining the Site Team (I have only just noticed)

Thankyou. Doesn't mean I know what I'm talking about. Just don't have a real life, only a virtual one.

 

I don't know if you've seen this:

 

http://www.ico.gov.uk/upload/documents/library/data_protection/detailed_specialist_guides/default_tgn_version_v3%20%20doc.pdf

 

You say you were defaulted in 03. That's it-no more. Perhaps the DCA don't know about it and need reminding. The only way(s) to serve another DN is if they didn't file the first one with the CRA OR you satisfied the default before the date stipulated in which case it would never have been placed and even then I would still complain as they didn't file in a timely manner.

 

If they place it on your file, complain to everyone

[cymruambyth]

Thanks for the link; if my interpretation is correct, it throws up a few questions about Cabot etc 'buying debts' and starting their own default process.

[xboxer]

Morning all,

 

I stumbled across this thread yesterday and have a feeling in may apply to me.

 

My thread is here http://www.consumeractiongroup.co.uk/forum/showthread.php?308246-Black-Horse-defaults-and-more..

 

After sorting through my SAR this is the FIRST default notice I was sent..

 

.

 

I am aware that before 2006 the time limit was 7 days, so as the letter is dated 12th May 2005 (Thursday) and assuming the letter was sent First Class, Monday 16th would be the Service date..

 

So 7 clear days from then would mean that the date of action should be 24th May NOT 23rd May as stated..

 

That of course is allowing that it was sent First Class but in all likelihood it would have been Second Class..

 

The arrears total is right..

 

Is this enough to make it a dodgy default?.

 

It also states that;.

 

If you do not pay the arrears by that date this notice is to be treated as our demand for payment of the balance..

 

Would that be classed as my termination notice as I took no action?.

 

I was then sent another 3 defaults, all in the same format giving 11 days from the date of the letter BUT I take it they would be invalid as the first default is the one to go by?

[the_shadow]

They can make multiple attempts at getting the default correct until termination, cant remember when the regs changed from 7 days to 14 but any defaults raised after that date will require 14 days rather than the 7 at the time your agreement was taken out.

 

You should be aware that Brandon vs Amex limits the use of a default notice as being invalid argument currently, it's in the process of being appealed.

 

S.

[xboxer]

Hi Shadow,

 

Are you saying that this argument is currently a lost cause?

 

All FOUR of the defaults fall short on the days to rectify.

 

Default 2 was dated on Saturday 14th May 2005, Default 3 didn't take in consideration the May Bank Holiday & Default 4 was a day short as well.

 

Also the arrears they were asking for equates to March & April's payments, at the time of the letters date I was also owing May's payment so would of STILL been in breach of my agreement.

[the_shadow]

If you are going by the rectify date being invalid then they will quote Brandon vs Amex and state that no enforcement action was taken during the statutory rectify period and hence you were not prejudiced by the lack of 14 days or 7 etc etc.

 

If you are going by the amount being incorrect, then thats a stronger argument imvho.

 

S.

[xboxer]

Ok, I'm not too sure how best to proceed then?

 

I didn't receive a Termination Notice and BH filed for court proceedings in Nov 2005 for around £5000, won, got charging order and got paid full amount in March 2006.

[Undercover-Elsa]

Hi xboxer,

As Shadow indicates, things have moved on (deteriorated?) since this thread was started, due to various issues including the Brandon judgement mentioned above.

I append a copy for your reference. However an appeal is pending on 12th/13th July.

 

It's also now generally considered that an account terminated following a faulty DN renders the termination invalid, therefore another DN can be issued. Not a popular decision. However it's also been established that enforcement, as in a CCJ, cannot happen without a compliant DN.

You might want to take a look at Harrison vs Link:

 

http://www.bailii.org/ew/cases/EWHC/Mercantile/2011/B3.html

 

Your best bet is the incorrect amount on the last dn. Keep it under your hat until the last minute if they initiate proceedings.

 

Elsa x

Brandontranscript-U-E.pdf

[Undercover-Elsa]

Sorry...posts crossed while I was hunting links

[xboxer]

Ok thanks for the info and help so far.

 

I've had a read through both and think I understand it.

 

As stated the creditor can now issue as many DN's as they want until they finally get it right BUT can not enforce the debt without a valid DN.

 

Well in my case they did.

 

If I was to state to BH that they terminated the agreement with a faulty DN, BH can retrospectively quote the Brandon Judgement.

 

But as they have enforced the debt on a faulty DN then it is a whole different ball game?

 

Is it the fact of the arrears amount not being correct making the DN faulty?

 

Without wanting to be devils advocate on myself, could BH argue that the arrears amount was correct due to when the DN was issued that month's payment was only late and technically not in arrears? I am hoping this is not the case.

 

If it is definitely a case of enforcement from a faulty DN what kind of redress should I be looking for?

 

I apologise for all the questions but want to be sure in my own mind on what grounds in arguing on.

 

I am currently challenging them over the wrong satisfaction date of the CCJ, PPI and penalty charges on this account and would love to hit them with something else.

[Guest]

in general

have posted/mentioned this before in another thread (now closed!).

but, it has been previously briefly mooted in sweet & maxwell (Consumer credit; law and practice '85 pp179-80) that the law of 'mistake' may provide a remedy re non compliant dn?

there is of course the forthcoming brandon case which is supposed to address some things re a dn.

imo

[Undercover-Elsa]

Hi Ford,

Do you have the full quote, in context?

 

Thanks,

 

Elsa x

[Guest]

Hi Ford,

Do you have the full quote, in context?

 

Thanks,

 

Elsa x

 

hi elsa

it's an 'old' (but recently referred) one, but will try and get hold of it just now.

[nks22]

Worth noting this from Brandon:

"34. Now, somewhat theoretical though it is, had American Express taken enforcement action within 14 days of 19 June, it may well be that the validity of that enforcement action would have been open to challenge. I express no final view on the matter but I do understand the argument because, to go back to section 87, it must specify the nature of the breach and if the breach is capable of remedy what action is required to remedy it."

It's just a passing comment and doesn't have any force but worth bearing in mind if the lender did take some action during that 14-day period (as MBNA have done with many accounts by selling them on).

[jellybabe]

hello everyone,

i wonder if anyone can give me any advice on the DN i had received:

http://www.consumeractiongroup.co.uk/forum/showthread.php?152406-jellybabe-vs-Cahoot-Flexi-Loan&p=3461553&viewfull=1#post3461553

 

I'm very confused.

 

Thanks,

jellybabe

[brokebutnotbeatn]

Franky I find default notices confusing. I had one 2 years ago then the same lender sent another recently quoting I must pay £0.00 to remedy the default!

[Undercover-Elsa]

It would be soooo tempting to send them a cheque for £00.00!

[brokebutnotbeatn]

I did think about it! x it's like the credit card statements that quote the minimum payment £1 less than I'm paying on my plan but keep sending me the 'you have not paid the minimum payment' comment!

[Nomore Baloney]

Any news on these - I read a further judgement was due on 13/14th July.

[Undercover-Elsa]

The judges are still considering. Not sure how long they'll take..

[Nomore Baloney]

I'm in the throes of defending a court case. The solicitors have sent me a letter containing various docs to reinforce their position. They say that the OC sent a dafault notice way back.However they have sent what they caal a 'pro forma' copy. It is basically a template with no name, address, amounts or account numbers. I take it if I keep quiet and it goes to court, then it will be thrown out when I point out they have not got one, or as I am in the process of sending my defence off to court, is it too late for them to amend it if I write back and tell the solicitors to provide a proper version. On the face of it it would appear that they d not have one otherwise they would have sent one..

[citizenB]

A proforma is absolutely useless. You need the original in order to see if it was prepared correctly, gave you the correct amount of time to remedy the breach, gave the correct clause you had breached. On a profoma you wont know whether the original asked for the arrears that were due or the full amount (which is a nonono).

 

A proforma can be made to look as though all the information was accurate, when perhaps it wasnt.

[the_shadow]

I think you need to be very very wary here... they only need to convince a judge that they sent it to you and you didnt remedy it tbh, remember that county court is based on probabilities not certainties as in criminal law.

 

does your case have any other dependable points?

 

S.

[Ilike banks]

There are some dodgy people out there.

[Nomore Baloney]

I made a request under CPR 31.14 for a copy of the NOA and its method of delivery. They have said in their latest letter to me that it was sent by second class post and enclose a pro forma copy of that. However there is no proforma. So they have failed under my CPR request, and it therefore looks like the NOA which I never received was not in fact sent. I would imagine a judge looking at the 2 failures together would consider them to be unable to proceed. I have also never had an annual Statement of account.