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an update I have been told by a solicitor today that it is not wrong to issue a termination notice on the same date as a default notice and that as far as terms and conditions are concerned they do not have to be within the 4 corners of the signed agreement they can be given on a seperate sheet if thats the case we are all getting it wrong.

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an update I have been told by a solicitor today that it is not wrong to issue a termination notice on the same date as a default notice and that as far as terms and conditions are concerned they do not have to be within the 4 corners of the signed agreement they can be given on a seperate sheet if thats the case we are all getting it wrong.

 

Well tell the solicitor to go read up on the house of lords ruling Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) IF he is stating that they can be on any seperate piece of paper

 

which states:

 

“28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

“29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order….”. (my emphases)

 

“30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....”

 

And furthermore:

 

“36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor”.

 

there are others too, clearly he isnt a consumer law expert

 

S.

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Hello ltc1607!

 

an update I have been told by a solicitor today that it is not wrong to issue a termination notice on the same date as a default notice and that as far as terms and conditions are concerned they do not have to be within the 4 corners of the signed agreement they can be given on a separate sheet if that's the case we are all getting it wrong.

 

The solicitor sounds like a real Consumer Credit expert.

 

Perhaps you can get him to explain his opinions in that case.

 

If I were you, however, I'd start looking for another Solicitor. If they start out saying things like this, then things can only get worse.

 

Solicitors like that will use their considerable skill and knowledge to snatch defeat from the jaws of victory for you.

 

Cheers,

BRW

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Hello ltc1607!

 

Thanks for that as far as DN is concerned I was only given 14 days not 14 + 2 he said a Judge could still enforce that.

 

How does he work that out? This solicitor is making things up as he goes along.

 

Going back to your first Post:

 

I have a default notice from the co-op dated 11th feb 2009 giving me until the 25th of feb to pay the arrears

 

The 11th Feb 2009 was a Wednesday.

 

If posted via 1st Class Post, then the Date of Service is Friday 13th February 2009.

 

You must have 14 clear days from then, which takes you to Friday 27th February 2009.

 

They said you had to remedy the alleged default by Wednesday 25th February 2009.

 

Unless my Maths is failing me worse than usual, it would appear that your Solicitor cannot count.

 

It is arguable that it is not correct to set a deadline on one day, and take action on that same day, so the earliest they should do anything once you have failed to remedy the alleged default, should be no earlier than Saturday 28th February 2009.

 

But how ever you look at this, you have clearly not been allowed 14 clear days in that Default Notice, rendering the Notice defective on that basis alone.

 

Cheers,

BRW

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an update I have been told by a solicitor today that it is not wrong to issue a termination notice on the same date as a default notice and that as far as terms and conditions are concerned they do not have to be within the 4 corners of the signed agreement they can be given on a seperate sheet if thats the case we are all getting it wrong.

 

or, to be more precise,

 

you have been told today by a solicitor who doesn't know his arse from his elbow a complete load of old ballcocks

 

tell us who he is so that no one on here accidentally asks him to represent them!!

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Thanks for that as far as DN is concerned I was only given 14 days not 14

+ 2 he said a Judge could still enforce that.

 

perhaps he was in danger of missing his weekly session with miss whiplash and wanted to get you out of the office in a hurry!!

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an update I have been told by a solicitor today that it is not wrong to issue a termination notice on the same date as a default notice and that as far as terms and conditions are concerned they do not have to be within the 4 corners of the signed agreement they can be given on a seperate sheet if thats the case we are all getting it wrong.

 

Just because a Solicitor says it doesn't make it right

 

The other thing of course is that as far as terms and conditions are concerned they can be in a separate document HOWEVER the specific prescribed terms must be contained in the document that you signed

If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

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an update I have been told by a solicitor today that it is not wrong to issue a termination notice on the same date as a default notice and that as far as terms and conditions are concerned they do not have to be within the 4 corners of the signed agreement they can be given on a seperate sheet if thats the case we are all getting it wrong.

Putting it simply, he is wrong.

 

Get another solicitor and check that he knows about consumer law. If all he does most days are Wills, then he will not know.

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agree with the above, most solicitors wonlt touch consumer stuff cause they ainlt got a clue.

 

from what you have the DN is NOT valid and as above there is cases to refer to clarification

 

ida x

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The Solicitors concerned are so they say experts in consumer credit and handle claims.

 

Erm, no they're not!

 

Or if they are, how many of the claims that they say they handle have they won?

 

If it's more than zero with that grasp of the simpler points of how a DN works I'd be utterly gobsmacked. Imagine how they'd be if they had to start actually thinking about the things that are open to interpretation in it!

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Totally agree. What's so infuriating is the hourly rate they charge for such ignorance. I could do that! :D

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Sorry, have to agree with the rest of the Caggers, your solicitor is not the answer, as he has ignored or does not know some pretty basic stuff. Either find one who does, or stick to CAG and defend yourself.

Good luck

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Totally agree. What's so infuriating is the hourly rate they charge for such ignorance. I could do that! :D

this time next year we could be Millionaires Lexis...

 

Excellent idea - I'll just have a quick look on Autotrader and see what we can pick up a yellow Robin Reliant for so that we can look ultra professional:D

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i have had a (slight) change of heart on my hitherto scathing response to these solicitors and i retract my comments on the following basis

 

in post 72 they made (according to the poster) two points

 

taking the second one first they are in fact CORRECT if they are saying that Terms and conditions need not be on the four corners (if they were referring to the GENERAL terms as opposed to the prescribed terms)

 

the first point on reflection could be "up for debate" so before we slag them off totally, (and whilst it is my opinion that they are wrong) i am a layman- who has the hard evidence to say that a TN cannot be issued on the last day of a DN

 

could there be an argument that the end of the day is taken to mean the end of a "business day" i e 5pm rather than say midnight.

 

so if the creditor stayed to 5pm waiting for the payment and then issued the TN at say 6pm or 7pm as he is working late?

 

His argument may be that the debtor could not get to a bank or into his offices after 5pm to pay the arrears nor could the postman or a process server so where is the debtor disadvantaged by his writing the letter that day rather than the next day (when in all probability the next day would be the earliest day of posting if he put it in the office mailing system at 7pm!)

 

Indeed even if he put it in the post on the way home the debtor would not receive it until after the deadline in the DN had expired so again where is the debtor disadvantaged?

 

just food for thought!

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I think I get what you're saying, but even if they do try that tack, the fact is they allowed 14 days flat. We can all see that it is deemed served after the normal course of posting, so they may be quibbling over hours but in fact they need to be able to find at least 2 extra days to make it ok.

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so if the creditor stayed to 5pm waiting for the payment and then issued the TN at say 6pm or 7pm as he is working late?

 

Indeed even if he put it in the post on the way home the debtor would not receive it until after the deadline in the DN had expired so again where is the debtor disadvantaged?

 

just food for thought!

 

I agree DD about the T&C in a seperate document but as you say certain prescribed terms must be within the signature document.

 

However, the point on the TN is different because a termination letter says we have terminated your agreement so the length of time to reach you is irelevant as it is already terminated when the letter is typed.

 

When I asked for opionions on the DN thread the general feeling was that the TN cannot issued on the same day as the DN expires.

 

However, the DN earlier on this thread is several days short of compliant if my memory is correct.

 

Pedross

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i

could there be an argument that the end of the day is taken to mean the end of a "business day" i e 5pm rather than say midnight.

 

IMO - No - the statute doesn't say that - I don't see how you can imply it - what is a business day - the average court order says 4pm - the average Solicitors' stays open until 5.30pm alternatively it would be be the business day of the organisation making the decision to terminate - if they work until 10pm at night - that is their business day

 

Indeed even if he put it in the post on the way home the debtor would not receive it until after the deadline in the DN had expired so again where is the debtor disadvantaged?

 

That's an interesting point - I don't think that disadvantage actually matters - if it did unless you were able to pay the amount shown on a DN off in full by the due date you would never suffer a disadvantage. I think that the real issue is that Consumer Credit is a regulated statutory scheme and that a creditor MUST comply or their actions are unlawful.

 

just food for thought!

 

I've made a couple of observations in black bold

If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

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I've made a couple of observations in black bold

 

the first point was up for discussion

 

however as i see it the creditor is going to try to persuade the court that the date on the letter (the last day of the remedy date) is de minimus in that the debtor would not have seen that date on the letter until at the very least until the day after the end of the remedy period - and possibly 4 days if sent second class,

 

now unless the payment of the arrears "crossed" the TN (in which case i would suggest the matter would not then be in court) it seems to me that the judge would seriously consider this as de minimus issue because the debtor clearly was not prevented by the dating of the letter from remedying the default by the last day of the DN. and could not have known, on the last day he had to remedy, that the creditor had dated a termination letter that day.

 

The problem i have is that all my arguments are based on what i perceive to be common sense and although matters of law are involved i also believe that judges too (especially in the lower court) can be persuaded by common sense arguments from either side and not just ours

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the first point was up for discussion

 

however as i see it the creditor is going to try to persuade the court that the date on the letter (the last day of the remedy date) is de minimus in that the debtor would not have seen that date on the letter until at the very least until the day after the end of the remedy period - and possibly 4 days if sent second class,

 

now unless the payment of the arrears "crossed" the TN (in which case i would suggest the matter would not then be in court) it seems to me that the judge would seriously consider this as de minimus issue because the debtor clearly was not prevented by the dating of the letter from remedying the default by the last day of the DN. and could not have known, on the last day he had to remedy, that the creditor had dated a termination letter that day.

 

The problem i have is that all my arguments are based on what i perceive to be common sense and although matters of law are involved i also believe that judges too (especially in the lower court) can be persuaded by common sense arguments from either side and not just ours

 

I don't think that you can argue de minimis - the statute gives a specified number of days.

 

It's a bit like the old Road Traffic Act restriction on laying informations for road traffic offences - unless there'd been an accident or notice of intended prosecution - if the information was a day late it was bad and had to be dismissed

If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

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I don't think that you can argue de minimis - the statute gives a specified number of days.

 

It's a bit like the old Road Traffic Act restriction on laying informations for road traffic offences - unless there'd been an accident or notice of intended prosecution - if the information was a day late it was bad and had to be dismissed

 

well i am well pleased to be proved wrong on this one IGNM

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I agree with IGNM. There is no 'de minimis' issue here. The statute is quite clear. Fourteen before any action can be taken. There is also case law.

 

Unfortunately, it appears a number of judges (and solicitors by the look of this thread) seem to think that there is an de minimis argument. We MUST remind all lawyers that this time frame is in the statute itself, not secondary legislation or 'guidance'. Furthermore, when the period was extended from 7 days by the Consumer Credit Act 2006, it was the statute itself that exteneded the time period to 14 days. Parliament couldn't have made its intention any clearer. 14 days. Period!

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I agree with IGNM. There is no 'de minimis' issue here. The statute is quite clear. Fourteen before any action can be taken. There is also case law.

 

Unfortunately, it appears a number of judges (and solicitors by the look of this thread) seem to think that there is an de minimis argument. We MUST remind all lawyers that this time frame is in the statute itself, not secondary legislation or 'guidance'. Furthermore, when the period was extended from 7 days by the Consumer Credit Act 2006, it was the statute itself that exteneded the time period to 14 days. Parliament couldn't have made its intention any clearer. 14 days. Period!

 

i'm convinced

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