Urgently need to know the difference between a CPR18, CPR 31.14 and CPR31.16

[stone-broke]

Yes......the DE-MINIMUS rule has been BUSTED! Well done to Mr B :0)

[means2anend]

The only thing absent...the issue appeared not to be raised .... unless anyone else can point it out...is HOW MANY GOES can they have to 'correct a defective DN'..before termination of a default or non-defaulted account

 

m2ae

[caro]

The only thing absent...the issue appeared not to be raised .... unless anyone else can point it out...is HOW MANY GOES can they have to 'correct a defective DN'..before termination of a default or non-defaulted account

 

m2ae

 

As many as it takes. Courts have even been known to stay cases to give creditors a chance to get it right.

[stone-broke]

The only thing absent...the issue appeared not to be raised .... unless anyone else can point it out...is HOW MANY GOES can they have to 'correct a defective DN'..before termination of a default or non-defaulted account

 

m2ae

 

If they have terminated then they can't have another go, because they have already terminated through a TN and also started court proceedings. I think it means in this scenario they have unlawfully terminated; nevertheless, they terminated. In effect, I think I might be right in assuming that they now lose their right to enjoy s87. This would now limit them to claiming only what was actually due before Termination, ie the Arrears.

 

If I am wrong in what I am thinking, I am sure someone will come along quickly and correct me!!

 

SB

[The Mould]

If they have terminated then they can't have another go, because they have already terminated through a TN and also started court proceedings. I think it means in this scenario they have unlawfully terminated; nevertheless, they terminated. In effect, I think I might be right in assuming that they now lose their right to enjoy s87. This would now limit them to claiming only what was actually due before Termination, ie the Arrears.

 

If I am wrong in what I am thinking, I am sure someone will come along quickly and correct me!!

 

SB

 

Good afternoon Mrs SB

 

I have stated the legislation applicable before on your case (among other things), for ease of reference, I reproduce the same herein.

 

As far as alternative pleadings are concerned, if a claimant should wish to amend his statement of case then he must comply with CPR Part 23 and file an application seeking the court’s permission to amend such (this applies to the defendant also). One cannot plead his claim in the claim form and argue with some other matter not set out therein(without compliance of said CPR).

 

Statute says it all; it really is quite simple, regardless of what others may ‘think’.

 

Default notices

87 Need for default notice.

(1)Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

(a)to terminate the agreement, or

(b)to demand earlier payment of any sum, or

©to recover possession of any goods or land, or

(d)to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e)to enforce any security.

(2)Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective.

(3)The doing of an act by which a floating charge becomes fixed is not enforcement of a security.

(4)Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.

 

Annotations:

Modifications etc. (not altering text)

C1S. 87 applied (1.11.2009) by The Payment Services Regulations 2009 (S.I. 2009/209), regs. 1(2)©, 52(d) (with reg. 3)

 

88 Contents and effect of default notice.

(1)The default notice must be in the prescribed form and specify—

(a)the nature of the alleged breach;

(b)if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

©if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

(2)A date specified under subsection (1) must not be less than [F114] days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those [F114] days have elapsed.

 

(3)The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the [F114]days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

 

4)The default notice must contain information in the prescribed terms about the consequences of failure to comply with it[F2and any other prescribed matters relating to the agreement].

[F3(4A)The default notice must also include a copy of the current default information sheet under section 86A.]

 

(5)A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

 

Annotations:

Amendments (Textual)

F1Words in s. 88(2)(3) substituted (1.10.2006) by Consumer Credit Act 2006 (c. 14), ss. {14(1)}, 71(2) (with Sch. 3 para. 10); S.I. 2006/1508,art. 3(2), Sch. 2

F2Words in s. 88(4) inserted (16.6.2006) by Consumer Credit Act 2006 (c. 14), ss. {14(2)}, 71(2) (with Sch. 3 para. 10); S.I. 2006/1508, art. 3(1), Sch. 1

F3S. 88(4A) inserted (1.10.2008) by Consumer Credit Act 2006 (c. 14), ss. {14(3)}, 71(2) (with Sch. 3 para. 10); S.I. 2007/3300, art. 3(3), Sch. 3

 

89 Compliance with default notice.

If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or © the breach shall be treated as not having occurred.

 

A default notice is not a Stay of Execution

During the course of considering an application for a stay in the proceedings, the court will consider the balance between the needs of the judgment debtor, and whether those needs displace the judgment creditor’s ordinary entitlement to prompt satisfaction of the judgment.

 

S87(1) clearly states the legislation applicable in respect of Statutory provisions imposed upon creditors relating to the ‘necessary’ service of a default notice, in such cases where the creditor fails to comply with said obligation, the needs of the debtor, protection granted by the statute, far outweigh any needs of the creditor, who, in his said failings, has displaced his ordinary entitlement, that is, his ordinary entitlement to demand and or enforce pursuant to s87(1)(a)(b)©(d)(e).

Failure, by any reason, of the creditor, to comply with said statutory requirements imposed, will not extinguish his termination of the contract nor shall such failure extinguish his demand(s) for earlier payment of any sum, the displacement of his ordinary entitlement remains out of reach to him.

 

Without the service of a valid said statutory notice, there can be no Judgment awarded to the creditor for the full sum claimed by him, he can of course claim for the arrears that were due before he terminated, however, since he failed to comply with the prescribed language (above), he has lost the entitlement afforded (again, above), the debt does still remain but the creditor cannot enforce.

 

Kind regards

 

The Mould

[stone-broke]

Oh hello again Mr M and thank you for the above! Hope all is well.........

 

Does this mean that the arrears cannot be claimed too?

 

SB

[Guest]

.......unlawfully terminated...........

 

SB

 

yes. ie failure to comply with statute.

one issue is whether they can go away, 'correct' things, and then come back?

[caro]

yes. ie failure to comply with statute.

one issue is whether they can go away, 'correct' things, and then come back?

 

Another one for the judge lottery methinks.

[Guest]

Another one for the judge lottery methinks.

 

to add to my post

can they come back, or would their dn failure be final (eg rescission for breach)?

can their claim for performance (an equitable remedy) be defeated by equity itself eg's their 'mistake' and/or in breach themselves of 'vital obligations'?

Edited October 30, 2011 by Ford
typo

[Basil Fawlty]

The one thing that I'm very confused about is, when do I know that the account has been terminated? What actually denotes ''termination''?

 

BF

[stone-broke]

The one thing that I'm very confused about is, when do I know that the account has been terminated? What actually denotes ''termination''?

 

BF

 

From what I have read on here, Termination is denoted when you receive the TN and also the account(s) have to be terminated before they can start legal proceedings.

 

SB

[rockwell304]

From what I have read on here, Termination is denoted when you receive the TN and also the account(s) have to be terminated before they can start legal proceedings.

 

SB

 

 

I've noticed on several occasions here that creditors do not always issue TN's. the debtor is left in a form of suspended animation. I assume there are other methods of termination such as the creditor selling the account to a debt purchasor. Are there others?