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I'm working my way through my Default Notices, preparing details of which are valid and which are not, and why.

 

One element is puzzling me, and that's the bit about making statements prominent and more prominent.

 

The Consumer Credit Act (Enforcement, Default and Termination Notices) Regulations 1983 says paragraph 5:

 

Where any statement is required to be in a form specified in a Schedule to these Regulations ad is reproduced in the notice, then (apart from trade names, headings etc)

 

a) the lettering in the statement shall be afforded more prominence (whether by capital letters, underlining, large or bold print or otherwise) than any other lettering in the notice; and

(b) where words are both shown in capital letters and underlined in any statement specified in a Schedule to these Regulations, they shall be afforded yet more prominence

 

This applies to these statements:

 

“IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH”

 

“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"

 

Now, as I understand it, where those statements are made in the DN, they have to stand out from the other text. That's usually done by using capitals as shown above. No part of the text is underlined though, so what bits should be 'more prominent'?

 

Does it mean that underlining isn't compulsory, but if a creditor chooses to underline something in the statement, then it must have more prominence than the rest of the statement?

 

I have several DNs and I think they all have underlined bits, but it's not all the same bits! Hence my confusion about what is correct.


To those who give me reputation points, thanks. I don't usually pay attention to how much rep I receive, so I don't acknowledge it but I appreciate the favourable comments I receive when I sometimes talk sense.

"The attempt to combine wisdom and power has only rarely been successful and then only for a short while"Albert Einstein

 

"One should examine oneself for a very long time before thinking of condemning others".

Moliere (Jean-Baptiste Poquelin)

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it would help a lot of people to clarify this, particularly those who are willing to do the work themselves rather than post everything up for someone else to check for them.


To those who give me reputation points, thanks. I don't usually pay attention to how much rep I receive, so I don't acknowledge it but I appreciate the favourable comments I receive when I sometimes talk sense.

"The attempt to combine wisdom and power has only rarely been successful and then only for a short while"Albert Einstein

 

"One should examine oneself for a very long time before thinking of condemning others".

Moliere (Jean-Baptiste Poquelin)

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Please contact a member of the site team if you are offered help off the forum for a a paid or no win no fee service.

 

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regulations 1983

 

the above PDF for the regulations (1983) from johnpughchambers . co . uk

may be wrong.

Specifically: I believe certain words which should be underlined, have not been.

The reason I say this is because I have seen a version which DOES show some words as underlined - but I no longer have a copy :.(


Carpe Jugulum

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Thanks for the comments

 

Ida, I'd read that post but it didn't help as it doesn't show the required statements. I understand the bit about making something 'more prominent' but don't know which bit!

 

bigegg, thanks. That's the copy I have. I couldn't find a copy anywhere else and like to have the latest copy of the original source, just in case of errors.

 

It looks like that copy may indeed have mistakes.

 

I have several DN's and a couple have underlined text that in different places. Which is good, as it means at least some are wrong...... I just need to find out which ones! LOL


To those who give me reputation points, thanks. I don't usually pay attention to how much rep I receive, so I don't acknowledge it but I appreciate the favourable comments I receive when I sometimes talk sense.

"The attempt to combine wisdom and power has only rarely been successful and then only for a short while"Albert Einstein

 

"One should examine oneself for a very long time before thinking of condemning others".

Moliere (Jean-Baptiste Poquelin)

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I've emailed a friend of mine who has access to a law library. hopefully, I will be able to host and post a better version in the next couple of days.

 

I would guess that your local library would be able to provide a copy?


Carpe Jugulum

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thanks bigegg, since my last post I've been searching for an 'authoritive' copy of the SI and there aren't any. Plenty of people writing what they say it should be and plenty of contradictions too. Even on this site...

 

The argument is about the two statements above. Most posts I've seen agree that

 

"BEFORE THE DATE SHOWN" is underlined and so should be given extra prominence.

 

There differs an opinion regarding

"DO NOT"

 

some have both words underlined, others just the 'NOT' with the appropriate extra prominence.

 

I have DNs with both versions, but now I know the copy of the regulations I have is inaccurate in this respect, it's not safe to rely on it to build my cases.

 

There is a post on this site where a site team member had a copy from Lexis that didn't have any underlining, and he was as confused as me. Sadly that thread didn't have a 'correct' copy uploaded

 

as for my library........ no chance. Encyclopaedia Britannica is about the most official thing there, oh, and a few British Standards


To those who give me reputation points, thanks. I don't usually pay attention to how much rep I receive, so I don't acknowledge it but I appreciate the favourable comments I receive when I sometimes talk sense.

"The attempt to combine wisdom and power has only rarely been successful and then only for a short while"Albert Einstein

 

"One should examine oneself for a very long time before thinking of condemning others".

Moliere (Jean-Baptiste Poquelin)

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try section 5 of

http://www.oft.gov.uk/shared_oft/business.../consumer_credit/oft1002.pdf

for info

 

and this should be required reading to get a password for cag:

 

Mishcon de Reya, Solicitors, London : News and Events : Articles : Judgment: Basil Rankine vs American Express Services Europe Limited

 

hope that helps get you digging

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Hello HB (I'm still searching!)

 

Yeah, I tried those places. Opsi stops about 1987 for SIs for some reason. Its funny, I was reading an ACT on that site going back to 1837 (I think) about Piracy, yet I can't read a SI from 1987.... I wonder which is more relevant today (probably the Piracy Act, IF the people in the driving seat of this country recognise that the financial institutions are modern day pirates)

 

Anyway, I've found 2 contradicting posts on site

 

Artie44 quotes Pinky as saying that "DO NOT" should be underlined

ie: DO NOT

 

see: http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/231071-crap-one-invalid-default-2.html#post2574848

 

(I use Artie's quote simply because its easy to see being a short post whilst Pinkys post just above is not quite so easy to read)

 

whilst Summerbreeze quotes PT as saying that only "NOT" should be underlined,

ie: DO NOT

 

see: http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/196312-invalid-default-notices-4.html#post2199326

 

Both agree that "BEFORE THE DATE SHOWN" should all be underlined

ie BEFORE THE DATE SHOWN

 

and both add the relevant bolding for extra prominence

 

BTW, in no way am I criticising any poster, simply trying to find out exactly what it required by the Regs, and highlighting how minor errors can be propagated and spread without anyone realising

 

I've already read the Rankine case, seems to be a template for how not to do things!

 

As for oft1002, its too general. If I'm building a case for court, I need exact info to quote, hence my search for a authoritative copy of SI 1983/1561

 

Folklore and Chinese whispers worry me in places like this. As I said in my other post, I've got a few of these so I want to get it right at the outset, rather than going tats up at the first hurdle!

 

Thanks for your replies everyone. Now, if someone out there has a genuine copy of the Regs covering Default Notices, or has a link to a reiable copy, lets hear from you!

 

(Before anyone points out, I recognise that a difference in bolding and underlining might not persuade a judge that a DN is invalid, but coupled with other minor defects it might. And anyway, I may as well make sure that I know what a DN should be like, even f the banks don't!)

Edited by HeftyHippo

To those who give me reputation points, thanks. I don't usually pay attention to how much rep I receive, so I don't acknowledge it but I appreciate the favourable comments I receive when I sometimes talk sense.

"The attempt to combine wisdom and power has only rarely been successful and then only for a short while"Albert Einstein

 

"One should examine oneself for a very long time before thinking of condemning others".

Moliere (Jean-Baptiste Poquelin)

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I would try your local main library or even better a local university library

The oft link only mentions 2006 and 1974

- cannot believe someone else is still on here, go to bed hippo its nearly 3am!

Edited by hungrybear

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Hippos are nocturnal! Well, some are. BTW I was talking about my main library. Its just been 'modernised'. I can get my verrucas looked at and get my teeth cleaned whilst I'm there. But the reference section is now the size of a small office.... progress.

 

My local university doesn't have a law section... might have to be shelling out for it at this rate.


To those who give me reputation points, thanks. I don't usually pay attention to how much rep I receive, so I don't acknowledge it but I appreciate the favourable comments I receive when I sometimes talk sense.

"The attempt to combine wisdom and power has only rarely been successful and then only for a short while"Albert Einstein

 

"One should examine oneself for a very long time before thinking of condemning others".

Moliere (Jean-Baptiste Poquelin)

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a thought came to me, if it's this hard to track down then maybe it's a bit clutchy at straws to rely on for unlawful rescission?

 

for a dn I would only be 'happy' challenging the main bits - time for remedy, action to remedy, termination before date on dn and the like.

 

I feel that the (wrong) dj may just chuck out any defense based solely on a capitalized word or an underlining if the claimant had complied with the major aspects of the legislation, but no doubt someone will prove me wrong on that!

 

- bears hibernate, so where does that leave me? - fair game for a judgment by default if i'm not careful:D.

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I've received your PM. The words underlined I have taken from the forum - there are numerous threads on it if you search around - and from the DNs I have received. I agree with hungrybear that it is unlikely that this alone would render a DN unlawful in court -the time to remedy the breach, amounts etc would have to be wrong. It is not a De Minimus matter in that it must be laid down as specified but is unlikely on its own to get a ruling of unlawfulness. The thing about a DN is that all things taken together make your case for the DN being unlawful stronger.

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From the OFT:

 

6.2 The requirements are set out in the Consumer Credit (Enforcement,

 

Default and Termination Notices) Regulations 1983.

49 In particular, the

default notice must indicate:

50

the nature of the alleged breach of the agreement

the action needed to remedy the breach or to compensate the

creditor, and the date by which this must be done

the consequences of failure to comply with the notice

the action intended to be taken by the creditor in the event of noncompliance

the procedures relating to the recovery of goods under a hirepurchase

or conditional sale agreement

a statement indicating the debtor's right to apply to the court for a

time order, giving more time to repay the debt

prescribed wording regarding sources of help or advice.

49

SI 1983/1561 as amended

50 Schedule 2 to the 1983 regulations

 

 

 

and I also found this:

 

Made - - - 24th October 1983

Authority: Consumer Credit Act 1974, ss 76(3), (5), 87(4), 88(1), (4), 98(3), (5), 182(2), 189(1)

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Enforcement, Default and Termination Notices)

Regulations 1983 (SI 1983/1561)/1

1

(1) These Regulations may be cited as the Consumer Credit (Enforcement, Default and Termination Notices)

Regulations 1983 and shall come into operation on 19th May 1985.

(2) In these Regulations, "the Act" means the Consumer Credit Act 1974.

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Enforcement, Default and Termination Notices)

Regulations 1983 (SI 1983/1561)/2

2

(1) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section

76(1) of the Act (which relates to the duty to give notice to the debtor or hirer (non-default cases) before taking certain

action t o enforce a term of an agreement) shall contain--

(a) a statement that the notice is served under section 76(1) of the Consumer Credit Act 1974;

(b) the information set out in paragraphs 1 to 5 of Schedule 1 to these Regulations; and

© statements in the form specified in paragraphs 6 to 8 of that Schedule.

(2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section

87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section

88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain--

(a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974;

(b) the information set out in paragraphs 1 to 3, 6 and 8 of Schedule 2 to these Regulations; and

© statements in the form specified in paragraphs 4, 5, 7[, 8A] and 9 to 11 of that Schedule.

(3) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section

98(1) of the Act (which relates to the duty to give notice to the debtor or hirer (non-default cases) of termination of an

agreement) shall contain--

(a) a statement that the notice is served under section 98(1) of the Consumer Credit Act 1974;

(b) the information set out in paragraphs 1 to 5 of Schedule 3 to these Regulations; and

Page 1 of 10

© statements in the form specified in paragraphs 6 to 8 of that Schedule.

(4) The lettering in any notice given under paragraph (1), (2) or (3) above shall, apart from any signature, be easily

legible and of a colour which is readily distinguishable from the colour of the paper.

[(4A) Any notice to be given under a provision of these Regulations shall be in writing and given to the debtor or hirer

in paper form.]

(5) Where any statement is required to be in a form specified in a Schedule to these Regulations and is reproduced in

the notice, then apart from any heading to the notice, trade names or names of parties to the agreement--

(a) the lettering in the statement shall be afforded more prominence (whether by capital letters, underlining, large or

bold print or otherwise) than any other lettering in the notice; and

(b) where words are both shown in capital letters and underlined in any statement specified in a Schedule to these

Regulations, they shall be afforded yet more prominence.

(6) The wording in any such statement shall be reproduced in the notice without any alteration or addition, and in

relation to any statement to be contained in the notice the requirements of any note shall be complied with, except that the

words "the creditor" may be replaced by the name of the creditor, by the expression by which he is referred to in the

agreement or by an appropriate pronoun, and any consequential changes to pronouns and verbs may be used.

(7) Where any note requires any words to be omitted, those words shall be omitted or deleted.

(8) Where a notice is to be given under sections 76(1) and 98(1) of the Act in relation to a regulated agreement, one

notice may be given under the two sections reproducing the combined effect of Schedules 1 and 3 to these Regulations.

(9) Sections 76(1), 87(1) and 98(1) of the Act shall not apply in the case of non-commercial agreements in relation to

which no security has been provided.

 

Does this help?

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Thanks MKB. I already have a copy of the SI, but it has errors in it. I'd like a copy known to be accurate

 

I accept as I say above, that mere underlining may be considered a minor issue, but reiterate the point that the copy of the SI I have has at least one error, and I would feel more confident going through ALL the documents I have and comparing them with known accurate copies. To use inaccurate documents as a yardstick could lead to fatal flaws in an argument.

 

It worry me that such much is simply taken at face value on sites like this, and opinions can possibly mutate like Chinese whispers into 'facts'


To those who give me reputation points, thanks. I don't usually pay attention to how much rep I receive, so I don't acknowledge it but I appreciate the favourable comments I receive when I sometimes talk sense.

"The attempt to combine wisdom and power has only rarely been successful and then only for a short while"Albert Einstein

 

"One should examine oneself for a very long time before thinking of condemning others".

Moliere (Jean-Baptiste Poquelin)

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any point e-mailing the oft and/or opsi? - surely if there is a definitive they must have it - isnt that opsi's job as the 'new' hmso?

 

quote the hippo:

'It worry me that such much is simply taken at face value on sites like this, and opinions can possibly mutate like Chinese whispers into 'facts''

 

Yes, red is the new green!!! This is why you must always refer to statute section and case law in the arguments. Least we forget that its 'balance of probability' NOT 'beyond resonable doubt'.

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As far as I am aware, nothing about the advice on unlawful Default Notices has ever been "taken at face value" on this site -posters have been knowledgable about the law and everyone should check the law on any matter so they know what how to proceed. What you are looking for is evidence of the key phrases underlined. That doesn't mean that posters on here are speculating - they know what the regulations are. You can get a copy of the original 1983 Act from HMSO.

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I disagree pinky. There are TWO contradicting quotes here. At least one of them MUST be wrong. Obviously, someone has taken something at face value and hasn't checked that what they quoted was correct. You admit that you took your wording from this site. That seems to be taking it at face value. To say that people know the regulations is obviously not true, otherwise there wouldn't be different versions of what is 'correct' being quoted, and some one would be able to point to a known accurate source. Maybe someone does have a true copy, and maybe some people do know this particular regulation, but with different quotes in circulation, some people don't know the regulation.

 

I'm not criticising anyone here, so theres no need for anyone to be defensive, but I have DNs with THREE different versions of this text. I need to know which are correct and which are not, and the same goes for the rest of the documents.


To those who give me reputation points, thanks. I don't usually pay attention to how much rep I receive, so I don't acknowledge it but I appreciate the favourable comments I receive when I sometimes talk sense.

"The attempt to combine wisdom and power has only rarely been successful and then only for a short while"Albert Einstein

 

"One should examine oneself for a very long time before thinking of condemning others".

Moliere (Jean-Baptiste Poquelin)

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I am not being defensive. Regulations should be checked as a matter of course by everyone, as I have said. I don't give it as much weight as other requirements of a DN because I don't think it is key to a DN being ruled unlawful.

 

This is from someone's actual defence they produced in court and was printed on this site on 10 January this year. It accords with what I have on 3 unlawful DNs so I certainly haven't taken anything at face value and am confident of the argument I will eventually be producing in court.

 

"89. The notice fails to include the following statement in the prescribed form as shown below (note the correct use of Bold Text):

 

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH”

 

90. The Default Notice also fails to include the additional statement in the prescribed form as shown below:

 

"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 [OR A SURETY]"

 

91. The statements referred to in points 89 and 90 are laid out in Schedule 2 of Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)."

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I am not being defensive. Regulations should be checked as a matter of course by everyone, as I have said. I don't give it as much weight as other requirements of a DN because I don't think it is key to a DN being ruled unlawful.

 

."

 

 

exactly... My advise my large african friend is not get too bogged down in this

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be nice to have a definitive answer tho...


Carpe Jugulum

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.....Does it mean that underlining isn't compulsory, but if a creditor chooses to underline and capitalize something in the specified statement, then it must have more prominence than the rest of the statement?.........this seems right?

.......

 

On its own then, it may be a 'minor' issue. but added to other deficiencies, non compliance with para 5 b may just 'tilt' the 'balance', or 'preponderance', in favour?


IMO

:-):rant:

 

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where words are both shown in capital letters and underlined in any statement specified in a Schedule to these Regulations

 

in the copy mention above :

regulations 1983

 

no statements in the schedule are underlined.

why mention underlining unless there IS some?


Carpe Jugulum

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in the copy mention above :

regulations 1983

 

no statements in the schedule are underlined. agreed.

why mention underlining unless there IS some? see para 5 a and b in post 15.

 

so an eg of a compliant 5 b statement would be as per those in pinky's post #20?

Edited by Ford

IMO

:-):rant:

 

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