Default notice - thoughts on validity

[Hungryforinfo]

I have posted this thread in the hope I can formulate a view on whether the attached default and termination notices are invalid for the purposes of responding to a court claim. I have the issue in another thread on a wider range of issues but it is buried so I have extracted it in teh hope I can get some comment .

 

So far I have a view that for the default notice to be invalid I would need to know when it was posted and received (which I currently can't be sure of) but I received the following comment from another post> i could use another opinion on it before I use this as a defence. No offence meant to anybody. :

 

1) In this case it doesn't matter too much when the DN was posted as it doesn't specify an actual date to rectify, but says " ... must be received within fourteen calendar days from the date of this Default Notice", thereby not allowing any days for service. So defective DN;

 

A second opinion would REALLY BE APPRECIATED. If you know what regulation I refer to so that I can point out the deficiency that would be even better but not essential!

Default notice Amex CAG version june08.pdf

Cancellation of account notice Amex june2008 CAG.pdf

[postggj]

default notice is crap

 

saying to pay the arrears within 14 days is not good enough

 

a date has to be inserted to rectify the default by

 

if this ever went to court, all you would be liable for are the arrears up to the default notice, thats it, forget the rest

 

keep that on the qt though

 

only works when a court claim has been issued

[babybear39]

Without a doubt the DN is useless as it MUST state a specific date to be remidied by.

[Hungryforinfo]

Could someone point me towards what law regulation refers to the date issue (i.e. the date must be specified) as I do have a court claim and assume in my response to the claim I need to reference what the breach is.

[alangee]

Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.

 

Alan

[Pinky69]

The Default Notice is unlawful because it does not allow the required 14 days from the date of service for the alleged breach of agreement to be remedied, in breach of Section 88 (2) of the Consumer Credit Act 1974 as amended by the Consumer Credit Act 2006.

[Dipply75]

Thought I'd chime in too as I am looking for confirmation of a crap DN...I think yours is crap too

 

Reccommend asking on this thread for some advice if they have issued a court claim. I got great help there.

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/208663-tale-dodgy-dn-further-69.html

[diddydicky]

I have posted this thread in the hope I can formulate a view on whether the attached default and termination notices are invalid for the purposes of responding to a court claim. I have the issue in another thread on a wider range of issues but it is buried so I have extracted it in teh hope I can get some comment .

 

So far I have a view that for the default notice to be invalid I would need to know when it was posted and received (which I currently can't be sure of) but I received the following comment from another post> i could use another opinion on it before I use this as a defence. No offence meant to anybody. :

 

1) In this case it doesn't matter too much when the DN was posted as it doesn't specify an actual date to rectify, but says " ... must be received within fourteen calendar days from the date of this Default Notice", thereby not allowing any days for service. So defective DN;

 

A second opinion would REALLY BE APPRECIATED. If you know what regulation I refer to so that I can point out the deficiency that would be even better but not essential!

 

the default notice must give you 14 clear days within which to remedy the alleged default.

 

this does not include the date you were served

 

if sent by 1st class post it is deemed to have been served 2 working days after posting (in the absence of proof it is assumed it was posted on the day it was dated)

 

for 2nd class post it is 4 working days

 

clearly therefore even if it were posted 1st class on the date of the letter it cannot give you 14 clear days from date of service to remedy the matter and is defective

 

it will also be defective if any unlawful charges are included in the arrears amount claimed.

 

personally (no disrespect to other posters) the question of the date "specified" on the DN is deemed by some to mean a specific date is entered ( ie 14 april 2009)

 

it is my contention that if you seek to ask the court to defect the notice on the grounds that the DN says "XXXX days from the date of this notice" that you will fail

 

I have read many court details and appeals as posted on threads on this site and elsewhere , where the DN has been discused in detail in court and in those i have read NOT ONE court has ever ruled (or been asked to rule) that the expression of the date in number of days from the date of the letter is sufficient to disqualify the DN)

 

in your case it does not matter because the number of days aint enough anyway but i would counsel against banking your hopes on any DN's you get where this is the sole reason for disputing it.

 

I am happy to be proved wrong on this by any cagger that can point me to a court case where this specific point alone has been found to defect a DN

[alangee]

I think you are right about the date diddy, if you are trying to prove a defective DN on this point alone. However it can be used as part of a number of reasons (insufficient time, wrong arrears amount, not in prescribed format) to build a stronger case for a defective DN.

 

Alan

[babydoll0141917]

subbing

[cerberusalert]

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.

 

Being a pedant again, but when I studied Linguistics, the word 'date' was defined;

 

Etymology:

Middle English, from Anglo-French, from Late Latin data, from data (as in data Romae given at Rome), feminine of Latin datus, past participle of dare to give; akin to Latin dos gift, dowry, Greek didonai to give

Date:

14th century

1 a: the time at which an event occurs b: a statement of the time of execution or making

2: duration

3: the period of time to which something belongs

4 a: an appointment to meet at a specified time ; especially : a social engagement between two persons that often has a romantic character b: a person with whom one has a usually romantic date

5: an engagement for a professional performance (as of a dance band)

— to date : up to the present moment

[babybear39]

I go with the pedants on this one

[cerberusalert]

Using the reasoning that the word 'date' can be used to determine the number of days would be akin to receiving an invitation along these lines;

 

Fred & Thelma Flintstone would like you to attend the wedding of their daughter Pebbles to Bam Bam son of Barney and Betty Rubble at the Bedrock Church at 2pm 92 days from the date of this letter.

[babybear39]

Ecellent reasoning cerb, I like

[Pinky69]

I am about to use the date argument in court. It couldn't be clearer than is it is in the CCA 1974 - it mentions the word "date" 4 times in the relevant paragraph.

[babybear39]

Good luck with that Pinky and let us know how you get on please...

[Pinky69]

Thanks Babybear. I have 3 cases which are all ready to be lodged at court but I have had to deal with an aunt's illness and trips to and from hospital so I haven't been able to get to court! However. she is now recovering so I hope to get going soon.

[Hungryforinfo]

Picking up on the points about having more than one reason for the Default Notice (DN) being defective please let me know if there are any other obvious flaws. I don't have the statements immediately prior to the DN so don't know if unlawful charges were added. I tended to pay the minimum payments until 3 or 4 montsh before the DN was served and don't think there were late fees etc applied to the account. I also saw a comment on this thread re 'prescribed format' for DN's being anothe rpossible angle and would be grateful for any comment on this. The DN is attached to post 1.

[stereophonicsfan]

Hi all

 

I have a default notice where i have several reasons for it being invalid, some of which are:

 

There are NO dates, details or ANYTHING ELSE which relate to my loan. It has no details about me whatsoever.

 

It was attached to a letter from the lender with some details, but only the outstanding loan amount not the arrears amount.

 

It has 14 days from the default notice, not date of service.

 

I am not taking this to court but it is being looked at by the Ombudsman service. Would I get the same result as with court?

 

Also, does the fact that the default notice has no details about me or my loan at all mean that the bank could deny that it is their default notice at all? I have CCA'd and SAR'd the bank but only in the last few days, obviously no replies yet.

 

Would appreciate some opinions. Don't have a scanner to post up and tried to upload via photobucket but unreadable .

 

Sorry hungryforinfo, just realised I should have started my own thread for this, not tagged onto yours. I have no advice I can give you, as you see I am not very well up on where I stand either. My apologies again.

Edited July 25, 2009 by stereophonicsfan

[Pinky69]

The Consumer Credit Act 1974 88 (1) states that a Default Notice must be in the prescribed form. Your Notice does not conform to the specific format laid down in the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 in that it does not render key phrases which must be included “more prominent yet” where they have been underlined.

 

THE WROTE THE UNDERLINED PHRASES LIKE THIS

THEY SHOULD HAVE BEEN LIKE THIS SO THE PHRASES UNDERLINED WERE MORE PROMINENT

 

Schedule 1 (4) of the above Regulations states that a Default Notice should contain:

 

A clear and unambiguous statement by the creditor or owner indicating--

(a) which (one or more) of the following types of action he intends to take, in order to

enforce the term of the agreement,--

(i) to demand earlier payment of any sum;

(b) the manner and circumstances in which he intends to take such action; and

©) the date, being a date not less than seven (14) days after the giving of the notice on

or after which he intends to take such action

 

They say in 3) that they "may" sell it to a debt collection agency who "may" do this or that - that is not "clear and unambiguous" and no date is given for when they will do this.

 

Check the Regualtions yourself because all the advice that must be included isn't there.

[Hungryforinfo]

stereophonicsfan - no problem and good luck.

 

Pinky69 thanks for the info. I think you are mostly referring to the paragraph in the Default Notice (DN) :

 

'IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE STATED DATE NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THIS BREACH. IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE STATED DATE THEN FURTHER ACTION SET OUT BELOW MAYBE TAKEN AGAINST YOU.

 

I read your reply as meaning the phrases within the sentence need to stand out (eg emboldened) but they don't although the phrases are underlined.

 

Your point on being 'clear and unambiguous' is noted but I can see an argument that they are not being unambiguous if they tell me what they may do!

 

I'll try and trace the regulations that refer to the prescribed terms for Default Notices. I couldn't see them in the CAG library.

[cerberusalert]

Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.

 

 

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[Hungryforinfo]

Thanks so much for the link. A real time saver!

[Pinky69]

They are being ambiguous when they tell you what they "may" do - that doesn't tell you what they WILL do and that is what is meant by something being "clear and unambiguous". There must be no doubt about the action they will take.

[Hungryforinfo]

Thanks. I'll include this in my defence.