DN Advice - I am concerned

[diddydicky]

I am fairly new on this forum but have read extensively including as many court cases as i can find here and elsewhere

 

i don't like to bring this up on individual threads anymore as i feel it might be unsettling for the poster to receive conflicting advice.

 

i am also cognisant of the length of time some caggers have been here and don't want to appear presumptious BUT

 

i really do feel that sometimes when posters are told that DN's are defective and to wait for the TN based on the claim that a SPECIFIC date is not mentioned - that they are being given unsound advice

 

We all know that there is a world of difference between what should and what does happen in court

 

I have not found ONE case of a court dismissing a DN as defective on the sole grounds that the date for compliance is stated as XXX days from the date of this notice as opposed to a specific date

 

Indeed i have read several cases where judges have discussed the fact that the XXX days from date of letter did not allow enough time for service but NEVER have they mentioned that the method of calculating the date was itself defective

 

I make the post in order to stimulate debate on this so that people are not misled into sitting back and thinking they are onto a winner in this one sole respect and my OWN mind would be put at ease if someone could point me to a case stated where the judge has actually commented adversely on this method of stating the compliance date

[BankFodder]

I agree that the courts very seldom are prepared to support the rules and use non-compliance as a basis for striking cases out.

[cerberusalert]

The main problem is that the majority of Judges are not particularly knowledgeable when it comes to the CCA 1974 & all it's amendments so it is always wise when defending not only to quote the relevant sections of the leglislation, but case law too.

 

The Judicial system is a strange animal and a number of considerations have to be made. Besides the fact that the system is steeped in archaic theatricals and etiquette, Judges are in the position to interpret leglislation as they deem fit.

 

Whenever you listen to cases it's akin to listening to a Shakespearian 'play on words', the use of semantics is pivotal and unless a case is presented clearly & succinctly it will fail.

[cerberusalert]

Defective default notices explained;

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2166205.html

[diddydicky]

The main problem is that the majority of Judges are not particularly knowledgeable when it comes to the CCA 1974 & all it's amendments so it is always wise when defending not only to quote the relevant sections of the leglislation, but case law too.

 

The Judicial system is a strange animal and a number of considerations have to be made. Besides the fact that the system is steeped in archaic theatricals and etiquette, Judges are in the position to interpret leglislation as they deem fit.

 

Whenever you listen to cases it's akin to listening to a Shakespearian 'play on words', the use of semantics is pivotal and unless a case is presented clearly & succinctly it will fail.

 

and is there any case law in this respect? that's what i'm after ideally

[cerberusalert]

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

 

SCHEDULE 2

FORM OF DEFAULT NOTICE BEFORE A CREDITOR OR OWNER CAN BECOME ENTITLED, BY REASON OF ANY BREACH BY THE

DEBTOR OR HIRER OF A REGULATED AGREEEMENT, TO TERMINATE THE AGREEMENT, DEMAND EARLIER PAYMENT OF ANY

SUM, RECOVER POSSESSION OF ANY GOODS OR LAND, TREAT ANY RIGHT CONFERRED ON THE DEBTOR OR HIRER BY THE

AGREEMENT AS TERMINATED, RESTRICTED OR DEFERRED OR ENFORCE ANY SECURITY

 

Regulation 2(2)

 

Details of agreement

 

 

1

A description of the agreement sufficient to identify it.

 

 

Parties to agreement

 

2

(1) The name and a postal address of the creditor or owner.

(2) The name and postal address of the debtor or hirer.

 

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

 

3

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than

fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and

the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

relevant case law is this too...

 

DEFAULT NOTICE

 

 

The Need for a Default notice

Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the petition.

It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

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)

Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974

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

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/176990-legal-default-notice.html#post1911404

[diddydicky]

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

 

 

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/176990-legal-default-notice.html#post1911404

 

i think we are at cross purposes here.....

 

what i am looking for is case law where a court has ruled that expressing the remedy date in terms of XXXXXX days from the date of the letter iis not acceptable and invalidates the DN!

[cerberusalert]

see: 88.(2) http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&PageNumber=0&NavFrom=0&parentActiveTextDocId=436428&ActiveTextDocId=436535&filesize=9451

 

The above is the section that specifies a date must be made, I'll have to do a search later for case laws.

[Braveheart12]

i think we are at cross purposes here.....

 

what i am looking for is case law where a court has ruled that expressing the remedy date in terms of XXXXXX days from the date of the letter iis not acceptable and invalidates the DN!

 

This is the case with 4 DN's that I have recently been served and would be interested to know of any such case.

[diddydicky]

see: 88.(2) Consumer Credit Act 1974 (c. 39) - Statute Law Database

 

The above is the section that specifies a date must be made, I'll have to do a search later for case laws.

 

i am be grateful to you for that - if i find anything myself as well i'll let you know

 

it just seems to me that the wording is open to interpretation and is not concise enough to nail the creditor down to putting a xxxxXX/xxxx date

[diddydicky]

i think the problem with 88(2) is that it says the " date specified must be a date xxxxxxxxxxx"

 

 

and is often misinterpreted as

 

" the date on the DN must be specific"

[the_shadow]

i think the problem with 88(2) is that it says the " date specified must be a date xxxxxxxxxxx"

 

 

and is often misinterpreted as

 

" the date on the DN must be specific"

 

Possibly but you could and should argue there that stating 28 days from this letter is not a date... its a number? isnt it.

 

S.

[cerberusalert]

date 1 (dt)

n.

1.

a. Time stated in terms of the day, month, and year.

b. A statement of calendar time, as on a document.

2. A specified day of a month.

3.

a. A particular point or period of time at which something happened or existed, or is expected to happen.

 

date - definition of date by the Free Online Dictionary, Thesaurus and Encyclopedia.

[diddydicky]

Without a doubt i would argue the point (and if i thought the judge was leaning towards accepting the DN would ask him to detail his reasoning in his judgement) but without precedence 9which i hope will turn up) my point is that we should not be giving the impression on threads that all is hunky dory in terms of defeating a DN on this basis alone

[diddydicky]

date 1 (dt)

n.

1.

a. Time stated in terms of the day, month, and year.

b. A statement of calendar time, as on a document.

2. A specified day of a month.

3.

a. A particular point or period of time at which something happened or existed, or is expected to happen.

 

date - definition of date by the Free Online Dictionary, Thesaurus and Encyclopedia.

 

good start- thats logged in the old brainbox (and word docs)

[cerberusalert]

Stating 'date specified ' is the same as stating 'specific date'.

[cerberusalert]

In all honesty, I don't think even the looniest of Judges would misinterpret the semantics of a "date specified must be a date".

[diddydicky]

Stating 'date specified ' is the same as stating 'specific date'.

 

i understand but it refers to the date "specified" in the document not to the date itself

 

in this circumstance the term "specified " is referring to the regulations and the document which contains the date- not that actual date itself