Default notice - thoughts on validity

[diddydicky]

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

 

agreed

[Hungryforinfo]

I've just read the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 available via the link in post 22 and having trawled through it noticed that on page 1 under the sub header 'Authority: Consumer Credit Act 1974, ss 76(3) etc etc it does not include the section 87(1) which was section which the default I received referred to. If anyone knows where i can find the corect version please advise.

[cerberusalert]

Consumer Credit: Default Notices

[Pinky69]

Section 87 (1) is from the CCA 1974 - it is that that legislates for the issue od DNs.

[diddydicky]

Default Notices

 

Section 87(1) of the 1974 Act allows the creditor to send you a default notice giving you fourteen days from the date you receive it to pay the arrears. The default notice must contain all of the necessary information under the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 ('the 1983 Regulations'), which includes

 

a statement saying the notice is a default notice served under section 87(1) of the 1974 Act

 

a description of the agreement

 

the name and address of both the debtor and the creditor

 

details of the breach (i.e. late payment) and, if the breach can be remedied, the date by which it must be remedied or, if the breach is not capable of remedy, the amount required to be paid after the expiry of the specified date;

 

a statement saying: if the action required by this notice is taken before the date shown no further enforcement action will be taken in respect of that breach

 

a statement saying: if you do not take the action required by this notice before the date shown then the further action set out below may be taken against you

 

a clear and unambiguous statement saying that if the action is not taken by the date specified, what it will do (for example, if will it terminate the agreement and recovery possession of the motor vehicle)

 

 

none of the underlined terms in my opinion make reference to the fact that the date must be "specified" in a particular way

 

before i would feel comfortable telling a newbie to sit tight on a DN which contained ONLY this as a reason for dispute i would want to be pointed to a case that has been run and won on this point!

[Hungryforinfo]

I noticed the wording diddydicky provided on his post puts a very different slant to comments on a date being specified for the default to be remedied. The key phrase in this regard seems to be 'Section 87(1) of the 1974 Act allows the creditor to send you a default notice giving you fourteen days from the date you receive it to pay the arrears.' The key words within this phrase 'from the date of receipt' blows out of the water the need to specify a date. Am I reading this correctly or is there some other legislation that requires the date to be specified on Default Notices?

Edited July 26, 2009 by Hungryforinfo
Missed a key word

[cerberusalert]

From the Consumer Credit (Enforcement, Default & Termination Notices) Regulations 1983

 

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.

 

I think it is safe to assume that if the Act intended to mean a period of days from the date of the service, it wouldn't be worded "the date, being a date [not less than fourteen days] after the date of service of the notice", it would be more along the lines of; the date, being a period of not less than fourteen days after the date of service of the notice.

[Hungryforinfo]

Great. I have found the wording you refer to on the version of document I printed off. I'll go with it!

[diddydicky]

From the Consumer Credit (Enforcement, Default & Termination Notices) Regulations 1983

 

 

 

I think it is safe to assume that if the Act intended to mean a period of days from the date of the service, it wouldn't be worded "the date, being a date [not less than fourteen days] after the date of service of the notice", it would be more along the lines of; the date, being a period of not less than fourteen days after the date of service of the notice.

 

The act is littered with instances where the wording "could have been more precise" and i still maintain that this "date" is open to presentation in the way that creditors are presenting them

 

i have read several threads on this forum over the last few months where arguments have been -presented to the court as to the fact that the 14 days stated in the DN did not allow sufficient clear days.

 

Also some where because the creditor could not prove first class post and/or was careless as to posting on a Thursday or Friday even cocked up when allowing 17 days in th DN

 

Not once was it reported in any of these threads that the judge ruled that it was immaterial as to whether enough days were allowed because the wording of the date was unacceptable in itself. - indeed very recently on one thread i recall reading that where only 13 days had been allowed- the judge dismissed the shortfall and accepted the DN - so much for statutory documents!

 

judges will IMHO especially in lower courts continue to apply their OWN interpretation of what is a genuine objection and what is not

 

It would seem pointless for me to continue the argument as it is now circular however until someone points me to a case stated or authority to support the view that the judge must reject this form of stating the date on the TN i will continue to advise caution to anyone who might seek to rely in this defect alone to "down a DN" in court

[Hungryforinfo]

Thanks. I will look to include other arguments so I am not 100% reliant on the date issue.

[Hungryforinfo]

If the account was terminated within the minimum 14 days of being served with a default notice does this need to be declared in an initial response to a claim or can it be raised at the hearing or some otehr point in the claim process? I note an earlier post (post 2) said to keep it on the qt but am not sure why?

[babybear39]

The reason you keep the faulty DN quiet is that it can then not be reissued

[Pinky69]

It cannot be reissued if the account has been terminated before the lawful time for remedying the breachoired - there is no account to default. I think what the earlier poster meant is to keep it up your sleeve in case there are any proceedings then you can hit them with it in court. It depends on the circumstances. I am taking court action against DCAs so I have raised it as part of the summons - they are aware of it and have kept their heads low.

[diddydicky]

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.

 

pointless to keep arguing the point so l i'll hold my counsel until i hear how you get on (i have one received today with 28 days on it)

 

is it the ONLY defence to the DN or are there other problems with it?

[diddydicky]

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.

 

So your doctor when giving you a course of antibiotics says to you:

 

i want you to take one of these tablets at 8am , 4pm and midnight on the 13 july , then another at 8am 4pm and midnight on the 14th july and another at 8am 4pm and midnight on the 15 july, and another at 8am 4pm and midnight of the 16 july ,and another at 8am 4pm and midnight on the the 17 july, and another at 8am 4pm and midnight onthe 18 july , and another at 8am 4pm and midnight on 19th July and if you do not feel any better come back and see me on the 26th July?

 

 

Funny my doctors says to me:-

 

Take one of these tablets 3 times a day for the next 7 days and come back and see me in a couple of weeks if you don't feel better!

 

and, funnily enough, despite being known by some of a purveyor of inanne drivel- i still managed to work out that was the 26th without even breaking sweat!

Edited July 28, 2009 by diddydicky

[Pinky69]

I am not making any defence with a DN . I am using unlawful rescission as part of my case AGAINST them to remove default entries from my credit reference reports and there are several breaches of consumer credit laws in my cases against them. So please do keep your own counsel because I don't need it.

[middenmess]

So your doctor when giving you a course of antibiotics says to you:

 

i want you to take one of these tablets at 8am , 4pm and midnight on the 13 july , then another at 8am 4pm and midnight on the 14th july and another at 8am 4pm and midnight on the 15 july, and another at 8am 4pm and midnight of the 16 july ,and another at 8am 4pm and midnight on the the 17 july, and another at 8am 4pm and midnight onthe 18 july , and another at 8am 4pm and midnight on 19th July and if you do not feel any better come back and see me on the 26th July?

 

 

Funny my doctors says to me:-

 

Take one of these tablets 3 times a day for the next 7 days and come back and see me in a couple of weeks if you don't feel better!

 

and, funnily enough, despite being known by some of a purveyor of inanne drivel- i still managed to work out that was the 26th without even breaking sweat!

 

Whilst I respect DD's point of view with the anti-biotics examples above,I for one would have perferred to be told by the doctor to see him on the 26th because that is a precise date and leaves no doubt in my mind as to when I have to see the Doctor again.

 

In example 2, I would have interpreted the doctors instructions to be to see him 2 weeks after I had finished the 7 day course of treatment, that being on the 2nd August!

[diddydicky]

Whilst I respect DD's point of view with the anti-biotics examples above,I for one would have perferred to be told by the doctor to see him on the 26th because that is a precise date and leaves no doubt in my mind as to when I have to see the Doctor again.

 

In example 2, I would have interpreted the doctors instructions to be to see him 2 weeks after I had finished the 7 day course of treatment, that being on the 2nd August!

 

good points but the last sentence nit picking

 

in BOTH examples i was referring to 2 weeks from the date that i was seeing the doctor otherwise clearly i would have mentioned 2 august in both examples.(and the doctor does not have his own diary and would not be able to give you that date- but i digress)

 

 

 

The "point " of my post was to show that the point made by the "other poster" was cheap and a one example fits all policy rarely works

 

he himself on other threads accepts that not all things are "black and white"

 

i sincerely hope i am proved wrong on this date thing on the DN but until that time my advice remains to be wary (fine if you understand the risks) of attempting to derail a DN on this point alone , the more so when the number of days given in it is 28 days

 

(obviously 14 days is always going to be defective in any case,

[babybear39]

I think it's best put to bed now and we'll agree to differ on what DATE actually means

[cashins]

Consumer Credit: Default Notices

 

Handy post that Cerberusalert.

 

I have 2 DNs issued Nov 08 which, as well as having other problems, don't have the statements required after 01 10 08 (a date which I had forgotten about).

 

David

[middenmess]

DD

 

After I'd written my post at #42 I decided it was drivel and tried to edit [delete] it but obviously couldn't even get that right!!!!

[diddydicky]

DD

 

After I'd written my post at #42 I decided it was drivel and tried to edit [delete] it but obviously couldn't even get that right!!!!

 

that's ok it caused no offence!

 

dick

[tinkerbell20]

It cannot be reissued if the account has been terminated before the lawful time for remedying the breachoired - there is no account to default. I think what the earlier poster meant is to keep it up your sleeve in case there are any proceedings then you can hit them with it in court. It depends on the circumstances. I am taking court action against DCAs so I have raised it as part of the summons - they are aware of it and have kept their heads low.

 

 

The creditor can issue a DN at any time - you then have the legal argument over whether the agreement had been terminated or not. Much better to sandbag them at court with the Defective DN when it is too late to do any rectification work:D

[diddydicky]

Originally Posted by Pinky69

It cannot be reissued if the account has been terminated before the lawful time for remedying the breachoired - there is no account to default

 

so Bill Shiddings case never happened then?

[tinkerbell20]

Originally Posted by Pinky69

It cannot be reissued if the account has been terminated before the lawful time for remedying the breachoired - there is no account to default

 

so Bill Shiddings case never happened then?

 

 

Think we're all waiting to see the Judgment before coming to a decision on that one.....................