MandM vs Egg Loan ***Won with Strike Out***

[vjohn82]

I remember reading this on the forum... I don't know where because I only saved the wording to a word file... but here goes:

 

Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

[MandM]

I remember reading this on the forum... I don't know where because I only saved the wording to a word file... but here goes:

 

Ahhh. that's the one VJohn. That was in my defence.

 

Might still go for the Monty Python reply though :D. Nice one BD.

 

M

[gh2008]

That sounds like X20's words

[gh2008]

Once a DN once issued, and terminated, cannot be followed by a second DN, as the "agreement" has been terminated, so it follows you cannot default an account which does not exist!

well, IMHO the account still exists and teh debt still exists albeit unrecoverable in Law. The first 'DN' is not even a DN as it does not comply. However once they terminate (for any reason of teh debtor being in breach) without a valid DN then that is it for them and they can only recover true arrears at the time of termination. (i.e. any sums already due)

That is unlawful rescission of Contract/repudiatory breach of Contract...for which you can ask them for compensation

 

if you can show how you have suffered 'damages'

 

 

Fairbyblues thread may help you with this one....I had that info above stored from there so may help you on this

fairbyblue /MBNA-Restons Court 20th.March-they have issued 2 default notices./ **WON**

(you may want to read back a little on here but hope it helps)

 

ta for the link though - all good for future reference.

 

Still reckon we need a 'template letter' for the DN after TN/claim

[Bigdebtor]

I agree. A good foolproof template letter for this would be invaluable.

[gh2008]

I agree. A good foolproof template letter for this would be invaluable.

 

Foolproof !! - nothing can ever be foolproof as fools are so ingenious ....

 

sorry - all this talk of parrots

[Bigdebtor]

GH

 

Good point! I've never heard that saying before!

 

I'll try to remember it. Do you know who came up with it?

 

BD

[Guest HeftyHippo]

I seem to remember from earlier in the thread you used a statement similar to Vjohns post above - was that in court when they asked permission to adjourn so they could rectify that mistake, or was that another thread?

 

In the court hearing did they at any time admit the account was closed? (or terminated, inoperative, unopen or any other synonym or euphemism?)

 

It is quite clear the DN can only be issued to a valid, live account. I think there is a danger of this dragging on and on, and you need to stamp on it before they forget what they've already done and start the whole round of debt collections again - DCS, threatening letters etc.

 

Certainly I think complaints to the OFT and FSO are needed for what they're worth, and you should be starting to make noises about claiming for damages - every letter you open takes up your time, and you have to re-examine their threats and evaluate the current situation with regards to their letter to see what you need to do.

 

What was the outcome of the court action? They failed, but was the fate of the account commented on by the judge in terms of what your liabilities were?

 

Without producing new evidence, they can't go to court again, and I suppose the 'default' they're talking about is the same one as before? Or are they saying you defaulted after they terminated the account to create a 'new' default?

 

I think if they're persisting with the original cause of default, after court refused (if I understand) permission to adjourn so they could reissue, that might possibly be construed as contempt of court, and if there is any hint that the judge told them they could not reissue the DN for the original default, you might start making noises about that, as to do so after the judge said they couldn't suggests they have ignored the judges decision.

 

Another thing is if they are still citing the original cause of your default, and are threatening or start to threaten legal action, that might be abuse of process - without new evidence, they cannot start a new case (I understand), and if they wish to use the same evidence, they should appeal.

 

did you accept the termination at any time? did you come to any agreement about your liability and make arrangements to settle it?

Edited May 30, 2010 by HeftyHippo

[NGEddie]

Its mental the way they seem to all make the same mistakes over and over, where a few hours, ok days and weeks! spent on here reading it becomes clear and sticks in your head what it allowed and what it not, yet these people do it for a living, badly!

[Lord_Alcohol]

Well, this is getting interesting again!

 

Have received a letter from the solicitors enclosing a NEW default notice . They've had a few months to think about it now - no calls, no contact - and obviously decided that the appeal route is far too risky.

 

These are the same solicitors that confirmed almost a year ago that the account was now terminated and then proceeded straight to court.

 

Just looking for a nicely worded reply to give them.

 

M

 

Hi MandM

 

I would simply write and make three points;

 

1. That they have terminated the contract and therefore any further DN is wholly irrelevant.

 

2. That they are in breach of the Solicitor's Code of Conduct 2007, Rule 10.01 (5);

 

It would be unfair to demand anything that is not recoverable through the proper legal process. This would include a letter of claim and any other communication with another party to the action.

 

The Code can be viewed at;

 

Solicitors Regulation Authority - Solicitors' Code of Conduct 2007

 

(Assuming, of course, that these sols are regulated )

 

3. Their demand justifies a complaint about them to the Law Society (for misconduct), although I think the Law Society will refer to SRA.

 

It may be that the sols have been instructed to try and entice you into implicity reinstating the contract if there is no unequivocal denial by you, so firm, swift action is needed!

 

Hope useful.

 

LA

[gh2008]

Hi MandM

 

I would simply write and make three points;

 

1. That they have terminated the contract and therefore any further DN is wholly irrelevant.

 

2. That they are in breach of the Solicitor's Code of Conduct 2007, Rule 10.01 (5);

 

It would be unfair to demand anything that is not recoverable through the proper legal process. This would include a letter of claim and any other communication with another party to the action.

 

The Code can be viewed at;

 

Solicitors Regulation Authority - Solicitors' Code of Conduct 2007

 

(Assuming, of course, that these sols are regulated )

 

3. Their demand justifies a complaint about them to the Law Society (for misconduct), although I think the Law Society will refer to SRA.

 

It may be that the sols have been instructed to try and entice you into implicity reinstating the contract if there is no unequivocal denial by you, so firm, swift action is needed!

 

Hope useful.

 

LA

 

Very interesting - especially the last point - and even more reason me thinks for a template letter to be created.

[Mydogsawestie]

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if you can show how you have suffered 'damages'

 

Yes your reputation has been damaged by the unlawful entry of the defaults on your credit reference file and you have been distressed and inconvenienced by there actions!

 

The case of Kpohraror v Woolwich Building Society shows clearly that substantial damages can be claimed for injury to a person’s credit rating, without the need to demonstrate any actual damage suffered. The amount awarded was £1,000 and you shall be claiming this amount from them.

[NGEddie]

Thats very interesting, may be able to use this on mine as well

[NGEddie]

M, out of interest, was this new DN actually valid this time?! even though we know it doesnt count.

 

On ours they had structed it using my defence as a guide of what they done wrong the first time by the looks of it, lol

[MandM]

M, out of interest, was this new DN actually valid this time?! even though we know it doesnt count.

 

On ours they had structed it using my defence as a guide of what they done wrong the first time by the looks of it, lol

 

Had it of been '1st time' issue then yes. Apart from it didn't contain the leaflet/info relating to debt help. It's dated now with a month to rectify.

 

M

[MandM]

out of interest, what have they put down as arrears? arrears at termination or arrears as though repayments should have been made

 

Here's a letter from DD totally different circumstances, but there are some nice pointers http://www.consumeractiongroup.co.uk/forum/legal-issues/242517-storecard-claim-served-what-9.html#post2830927

 

It appears that they have put the 'arrears' as if the termination never happened - all "current". Looks like they're hoping to deny that the account was ever terminated. Not sure how they can claim that they never knew as it was the Sols that sent the termination letter .

 

M

[Guest HeftyHippo]

what about the issues i ask about earlier mandm? default cause etc

[MandM]

That sounds like X20's words

 

Yep. Always a good starting point

[MandM]

Hi HH

 

I seem to remember from earlier in the thread you used a statement similar to Vjohns post above - was that in court when they asked permission to adjourn so they could rectify that mistake, or was that another thread? I think that was another thread.

 

In the court hearing did they at any time admit the account was closed? (or terminated, inoperative, unopen or any other synonym or euphemism?) Never came up although I had some 'words' prepared if it had. Based mainly around the Sols actual letter stating termination

 

It is quite clear the DN can only be issued to a valid, live account. I think there is a danger of this dragging on and on, and you need to stamp on it before they forget what they've already done and start the whole round of debt collections again - DCS, threatening letters etc. Agree.

 

Certainly I think complaints to the OFT and FSO are needed for what they're worth, and you should be starting to make noises about claiming for damages - every letter you open takes up your time, and you have to re-examine their threats and evaluate the current situation with regards to their letter to see what you need to do. Correct.

 

What was the outcome of the court action? They failed, but was the fate of the account commented on by the judge in terms of what your liabilities were? No. He did comment that I may not have heard the last of this. Original DN was kept by the court for 'future reference'

 

Without producing new evidence, they can't go to court again, and I suppose the 'default' they're talking about is the same one as before? Or are they saying you defaulted after they terminated the account to create a 'new' default? They have totally ignored the 1st one and created a 'New' DN.

 

I think if they're persisting with the original cause of default, after court refused (if I understand) permission to adjourn so they could reissue, that might possibly be construed as contempt of court, and if there is any hint that the judge told them they could not reissue the DN for the original default, you might start making noises about that, as to do so after the judge said they couldn't suggests they have ignored the judges decision.

 

Another thing is if they are still citing the original cause of your default, and are threatening or start to threaten legal action, that might be abuse of process - without new evidence, they cannot start a new case (I understand), and if they wish to use the same evidence, they should appeal.

 

did you accept the termination at any time? did you come to any agreement about your liability and make arrangements to settle it?Terminated and accepted!!1 [/quote]

 

Hi MandM

 

I would simply write and make three points;

 

1. That they have terminated the contract and therefore any further DN is wholly irrelevant.

 

2. That they are in breach of the Solicitor's Code of Conduct 2007, Rule 10.01 (5);

 

It would be unfair to demand anything that is not recoverable through the proper legal process. This would include a letter of claim and any other communication with another party to the action.

 

The Code can be viewed at;

 

Solicitors Regulation Authority - Solicitors' Code of Conduct 2007

 

(Assuming, of course, that these sols are regulated )

 

3. Their demand justifies a complaint about them to the Law Society (for misconduct), although I think the Law Society will refer to SRA.

 

It may be that the sols have been instructed to try and entice you into implicity reinstating the contract if there is no unequivocal denial by you, so firm, swift action is needed!

 

Hope useful.

 

LA

 

Thanks LA. Will have a read through and see what this all means. Looks good though.

 

M

[Guest HeftyHippo]

I'll revise a bit of what I said before then. I'm puzzled that the case was struck out, presumably on the basis that the DN was invalid. What they've done now is to remove the flaws from the DN, but still quoting the original cause for complaint. Not sure how that affects the strike out - assuming the account was still live, could the same facts of the default be 're-used' on another DN, or does the fact that the DN was struck out, also mean the facts quoted in the case ie the default were also struck out?

 

Its academic, because the new DN is dated 'now' whereas you have a letter from them stating the account is terminated and the DN cannot be applied to a dead account. We all know that, but it may help to understand how they think they can proceed. Do they really believe they can issue a new DN and carry on as before or are they just trying it on? On the other hand are they just totally thick and don't understand the law (although this is really very simple), and incompetent to the point that they can't be bothered to learn?

 

Whatever, I think you are heading to another round of chasing. Personally I would complain to everyone (the link above looks good) even though its probably not going to achieve much and ignore them and see if they do try to go to court. At some point you may be able to recover costs so keep an eye on how much of your time it occupies.

[MandM]

I'll revise a bit of what I said before then. I'm puzzled that the case was struck out, presumably on the basis that the DN was invalid. What they've done now is to remove the flaws from the DN, but still quoting the original cause for complaint. Not sure how that affects the strike out - assuming the account was still live, could the same facts of the default be 're-used' on another DN, or does the fact that the DN was struck out, also mean the facts quoted in the case ie the default were also struck out?

 

Its academic, because the new DN is dated 'now' whereas you have a letter from them stating the account is terminated and the DN cannot be applied to a dead account. We all know that, but it may help to understand how they think they can proceed. Do they really believe they can issue a new DN and carry on as before or are they just trying it on? On the other hand are they just totally thick and don't understand the law (although this is really very simple), and incompetent to the point that they can't be bothered to learn?

 

Whatever, I think you are heading to another round of chasing. Personally I would complain to everyone (the link above looks good) even though its probably not going to achieve much and ignore them and see if they do try to go to court. At some point you may be able to recover costs so keep an eye on how much of your time it occupies.

 

I think that they are hoping that they can just start again and forget the past 10 months! Or that i'll say "fair cop, paperwork's correct - now who shall I pay" lol.

 

The judge was very clear in that their case was struck out 'on a point of law'. They had the option to appeal this and have chosen not to - the risks would be far to high I suspect.

 

M

[MandM]

I should also mention that it appears that this thread is being monitored . Will update this further when I can.

 

M

[Guest HeftyHippo]

No point in them appealing, the DN was wrong and will remain wrong! That's why they've issued another, but as I said, why do they think they can just carry on? Their stupidity? Their incompetence and laziness? Or you giving in?

[Lord_Alcohol]

I think that they are hoping that they can just start again and forget the past 10 months! Or that i'll say "fair cop, paperwork's correct - now who shall I pay" lol.

 

The judge was very clear in that their case was struck out 'on a point of law'. They had the option to appeal this and have chosen not to - the risks would be far to high I suspect.

 

M

 

I think it would be useful to get to the bottom of this, as it sounds like the creditor doesn't realise that the contract is ended and if this new DN 'goes off' then you'll have a new default on your credit file to deal with.

 

If the termination letter is from the sols then I guess it is possible that the creditor believes the contract endures. However, if the original claim was for the full amount of monies unpaid, then there is no doubt at all that the contract is ended even if you have no TN from the creditor. The basis of any contract disappears when both sides go to court.

 

I think I would definitely notify the sols (cc the creditor) to advise them of this, and it might also be worth mentioning that this is an abuse of process and represents misuse of data if this is being recorded with the CRAs.

 

LA

[MandM]

No point in them appealing, the DN was wrong and will remain wrong! That's why they've issued another, but as I said, why do they think they can just carry on? Their stupidity? Their incompetence and laziness? Or you giving in?

 

Absolutely, very strange. Each action they take will (by me) be referred back to the original claim - will make sure it haunts them for some time to come yet.

 

M