Is this DN defective?

[robinredbreast]

Hi

 

Could I have some comments on the attached DN.

 

Specifically regarding unambigious statements .. in this case the actual amount required to satisfy the DN being clear and transparent.

 

The OC refers to:-

 

"instalments of £xxx are now due and owing. You may remedy this breach of your agreement by full payment of the arrears to us at the above address on or before xx July 2009"

 

My question is they are referring to instalments due ... then saying full payment of the arrears without giving a figure of the arrears (although I feel they mean the figure they quoted as instalments ) but from a legal and compliant point of view ... is this a clear and unambigious statement plainly explaining to the debtor just what is required by them (the £ figure) to satisfy the default, and what this figure is representative of ....?

 

I am currently in a repayment plan for this ... but on going through my file, and having been following the various default threads .. thought this statement in the DN seemed a little woolley to say the least .... (by the way the DN was issued when I was already in my repayment plan which is why I didn't look too closely at it at the time .. plus lack of knowledge about DNs at that time ...)

 

All comments and views welcome ....

egg default.pdf

[Bazooka Boo]

Egg are bloody useless

 

The DN is IMO defective as it does not state that in order to rectify the account you must pay the 'ARREARS' on your account by dd/mm/yyyy.

 

By stating that you need to pay 'installements?' IMO makes this as much use as toilet paper. Actually that is quite useful:p

[robinredbreast]

Hey BB .. thanks for dropping in ... !

 

I was thinking along these lines myself ... but I'm not DN expert .. but slowly learning the ropes about them .. and thats why this paragragh stood out to me when I re-read it ... (albeit 12 months after the event .. !!!! )

 

They terminated the agreement a couple of weeks after this DN - and I have been duly paying my agreed amount each month since about May of last year.

 

A question .... where can I go now with this ...??

 

Can I stop paying my monthly amount ... and when they write to me with the "we are taking you to court" or whatever ... bam them with the unlawful recession letter ... ?

 

If so ... how do I explain that I didn't accept it at the time (July 09) and its taken me a year to realise the impact of what they have done?

 

By the way the loan agreement was an online agreement post 2007 - so would imagine that its probably watertight ... ( judging from what I've read they're pretty good and rarely make a mistake in them ...)

 

Your thoughts ??

 

Robin x

[Guest]

hi robin

 

imo, the dn may be regarded as ok! there may be an issue re the 'specification' of the provision of the agreement allegedly breached.

but, the outstanding 'instalments' may be regarded as 'arrears', and the dn does state pay the 'arrears' by 20/07 to remedy.

[robinredbreast]

Thanks Ford ... always valuable to get lots of opinions .... although not what I wanted to really hear .. :-| ... but a Judge may exactly agree with you .. which is all part of the game ...

 

I am hoping that someone like Pinky will be along as she seems to be a real expert on DNs with lots of experience on them ... and will probably give me another completely different opinion ... !!!

 

Robin

[Old Cogger]

May be of use attached: -

oft1002 default notices requirements.pdf

[pumpytums]

Hi Robin,

I don't think they have allowed enough days if 2nd class or worst.

 

Payment if sent by cheque means last date would have been 8th July to allow for 8 working days clearance.

 

Assuming it was sent on the 23rd June (worst case) 2nd class would have been served on the 29th 14 days after gives the 13th July.

 

Assuming it was sent on the 23 June (worst case) 1st class would have been served on the 25th 14 days after gives the 8th.

 

So in my opinion just about in date if 1st, way out if 2nd. But it states us receiving the cheque so that adds another 2 days. So for Smeg to receive your cheque and credit to the account in time I reckon puts it at about 6 July. So its in the lap of the gods to be honest.

 

If it was 2nd invalid. If 1st very very tight indeed.

 

Why do egg make things so darn complicated?

 

Pumpytums

[robinredbreast]

Hi Pumpty .. thanks for dropping by !!

 

I honestly can't remember if it was 1st or 2nd ... I was concentrating on the ambiguous arrears situation ... I haven't got the envelope either ... so do we presume 2nd class !!

 

 

Also what did you think about the wording ??

 

Robinx

[robinredbreast]

Also .. thanks Mike for the attachment .... will have a good read .. !!

[pumpytums]

Hi Robin,

it's assumed to be 2nd unless they can prove otherwise. If it had been Capone it would have been 1st but most companies us UK mail or TNT which is classed as 2nd. Have a look for some other egg envelopes, I may have one at home I will check tonight.

 

Regarding the wording the following under schedule 2 should help these are the actual SI's that set the layout and content out.

 

http://www.johnpughschambers.co.uk/Consumer%20Credit%20(Enforcement,%20Default%20and%20Termination%20Notices)%20Regulations%201983.pdf

 

Pumpytums

[emandcole]

Just my tuppence worth but feel the DN is more likely to be accepted than not.

 

The info about payment clearance times adds some complication but even arguing second class was used and assuming it was actiually posted the day after the date on the DN (the 24th then) service would still be on the 30th a week after it was composed.

 

Payment is demanded before the 20th so by the end of the day on the 19th. That leaves 19 full days to provide payment.

 

If you were to use a debit card and it took 4 days to show in their account that still leaves the recipient of the DN with 15 days. The cheque adds a different angle again depending on variants but is not IMO enough to render it invalid.

 

Certainly not strong enough to rest a defence on should the need arise

 

How does the 'agreement' look? Believe smeg were quite bad at putting those together correctly?

[robinredbreast]

Thanks Emandcole ...

 

My main thrust was initially the wording regarding the arrears statement, not the dates of svc, but a good spot by Pumpty...

 

Would be interested in thoughts on the ambiguous wording regarding arrears/instalment etc ?

 

The agreement is an on line agreement, which seems to be ok ... I will dig it out and post up ....

 

I had an egg ccard and loan - both went into payment arrangements at the same time, they sold the ccard to Cagbot (to whom I'm making payments, but going to request a copy of my CCA from them) .. Egg interestingly retained the loan for themselves ... I suspect because they think its enforceable .. and it was quite big to be fair ...

 

Robin .. x

[Lord_Alcohol]

I think the posts above have everything covered RRB, although it might just be worth checking that the calulation of the arrears is correct. We all know what can happen when the amount demanded is a little too high...

 

Btw, did you get your arrears notices?

 

LA

[robinredbreast]

Hi Lord ...

 

Do you agree with BB's post ? Or that the DN is ok ?

 

The amount of arrears are ok...

[bustthematrix]

Just my tuppence worth but feel the DN is more likely to be accepted than not.

 

The info about payment clearance times adds some complication but even arguing second class was used and assuming it was actiually posted the day after the date on the DN (the 24th then) service would still be on the 30th a week after it was composed.

 

Payment is demanded before the 20th so by the end of the day on the 19th. That leaves 19 full days to provide payment.

 

If you were to use a debit card and it took 4 days to show in their account that still leaves the recipient of the DN with 15 days. The cheque adds a different angle again depending on variants but is not IMO enough to render it invalid.

 

Certainly not strong enough to rest a defence on should the need arise

 

How does the 'agreement' look? Believe smeg were quite bad at putting those together correctly?

RRB, I would agree with Emandcole's observations on the dates issue here, it does look like they've learned their lessons and have allowed more than enough time. It would be hard to defend on this point alone let alone at all!

 

In relation to other possible breaches, can't say anything stands out to me except maybe the instalment and arrears statement could be clearer.

 

One thing you may be able to use to fight the DN is of course the arrears figure, if they've got this wrong, you could use it, especially if it's higher than it should be.

 

Have you SARNed them for the statements? Have you written for a breakdown of the arrears figure stated on your DN? It's too late for them to reissue it etc as they have terminated it. If the arrears figure is inaccurate, then that makes the DN very wobbly IMO as per Woodchester vs Swayne & Co. See my further post below

[bustthematrix]

In Woodchester vs Swayne & Co [1998] EWCA Civ 1209 (14 July 1998)

 

Hear the words of LJ Kennedy, taken from the conclusion part:-

 

CONCLUSION

In my judgment, Mr Hodgkinson is right for the reasons which he has given. This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage. The contract is likely to be in standard form and relatively complex with a number of detailed provisions. If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take what Mr Gruffyd conveniently referred to as "the next step".

That, as it seems to me, is the scheme of the legislation. It would be frustrated if the notice could claim that in order to put matters right the hirer must pay a sum far in excess of the amount in fact owing and yet constitute a valid notice. It is all very well to say that a hirer can seek advice on receipt of a notice but a hirer has very little time in which to do so. It may be as little as seven days. (See Section 88 (2)). He may not at first appreciate that the large sum set out in the notice is inaccurately calculated and plain wrong. It may be, perhaps because of earlier defaults on his part or the incidence of interest, not at all easy to calculate what in fact is owing and the hirer may, thus, be misled into believing that the sum set out in the notice is right. He may even be frightened by that belief.

It is worth remembering that very often these type of contracts are, in fact, complicated in themselves, quite apart from the question of any default, that those who draw up the contracts, that is to say, the finance companies, have necessarily the obligation of being able to calculate what is owing thereunder. As Mr Hodgkinson points out, the words of Section 88 (1) require the lender to "specify" not only the nature of the breach - which in this case was adequately described as failure to pay the rental specified on their due dates - but also what action is required to remedy the breach. In the context of this case that meant specifying accurately what sum of money had to be paid.

The lender should be able to calculate, as I have already said, quite easily, what sum is due whereas the ordinary hirer may not know. Section 88 (1) (b) does not, in terms, refer to a sum of money only because it applies to all types of breach of contract. Section 88 (1) © is different because in the case of a breach which cannot be remedied compensation can only be expressed in terms of money so the sub-section is able to refer to "the sum (if any) required to be paid".

The argument which commended itself to the assistant recorder in the present case was that the approach to Section 88 (1) (b) of the 1974 Act should be the same as that adopted in relation, for example, to Section 24 (2) (b) of the Agricultural Holdings Act 1948. I do not agree. Here we are dealing with a statute which, for good and obvious reasons, requires a lender or owner to set out precisely what needs to be done to put right the alleged breach of contract. If a sum of money has to be paid it needs to be "specified". And if the figure given is more than the sum which the giver of the notice is entitled to demand, the notice, in my judgment, must be invalid. A similarly strict approach was taken in this court in relation to a preliminary notice under Case D of the Agricultural Holdings (Notice to Quit) Act 1977 in Dickinson v Boucher [1983] 269 EGLR 1159. But, as Mr Gruffyd points out, the words of the statute were very different. I do not, therefore, look to that authority for support in arriving at the conclusion to which I have already referred.

If you can, take some time to read through the entire case for a fuller picture. See Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998)

 

 

I never used to bother with such research in the earlier days as I always presumed it was over my head but it is certainly not. There may be a lot of legalese therein but if you are patient in reading through, you'll get a lot out of it.

[robinredbreast]

The arrears on the DN seem less then they should be .. which seems v odd .. so I thought I know I'll go on line and see what the payment schedule shows ..

 

I'm confused ... (doesn't take much .. )

 

Having just accessed my on line acct the loan account shows as a nil os balance ..

 

So I thought I'd (as I did about 12mths ago) re-look at my application/cca for my loan, as it was also stored here, to see if I had missed anything in the format, figs etc from first time I looked at it ..

 

Anyway, when tried to access my stored agreement facility .. the loan agreement has vanished from here too, the msg saying "you don't have any online agreements". (BTW the CCard wasn't an online app so the cca for that has never been available online)

 

Also shows my accounts as ...

 

1. Credit Card (which was sold to Ca**t who I've been paying ) but is showing with the OC as a live acct with an os balance ... albeit the last payment being shown is last yr.

 

and

 

2 Loan (now this was retained by E** to whom I pay each month) but is showing as having a nil balance .... and which also says there is no online agreement available to view .... and that if I have any queries I should contact the telephone no provided for more info ..

 

From looking at this, its possible that when the OC sold the ccard to Ca**t and amended their records, they have got them the wrong way round, and instead retained the ccard acct info, whilst wiping the loan acct from their system (the person who keyed this thinking that this was the acct that had been sold) ........ its not guaranteed but is possible ...

 

So, I think if I want to take this forward my next best step is to issue a SAR and see what that brings up ..

 

I'll let you know what happened ... but shall keep with the repayment

plan until that time ..

 

Robin ..

[diddydicky]

a high court has recently ruled that the lack of 14 days is not a bar to enforcement (due to be appealed) so the chances of sucessfully arguing "instalments" v arrears makes the DN invalid seems pretty remote to me

 

any disputes re insufficient time on a DN are now effectively worthless until the outcome of any appeal in the Brandon case

[emandcole]

We all hope of course that the Brandon case is appealed successfully. If the high court are effectively allowed to make things up as they go along the entire point of statute would be pointless. :-|

[diddydicky]

well if an appeal fails- it would bring into question whether s77-79 should be withdrawn by parliament from the act, since if a creditor can rely 9as in this case) on a seperate condition that he can terminate at will- then these sections become redundant

 

I am not a devotee of the "bent judge" brigade- but in this case- i think i might have to think hard of any other reason for the judgement!!

[Guest]

hi, does anyone have any further details on this case (Brandon). thanks

[diddydicky]

the defendant is considering an appeal at this moment in time

 

by all means point out the DN failings to the creditor- but if they take you to court you may have to ask for a stay on proceedings until the outcome of any appeal is known

[robinredbreast]

Bloody priceless isn't it .. !!!!

 

So a Judge can ignore a creditors legal incompetence and disadvantage to the layman consumer .. and believes he can wilfully ride roughshod over an act of parliment in the form of a statue ....

 

Do we have ANY rights or protection at ALL .... !!!!:mad: (ooh I'm bloody livid !!)

[diddydicky]

not puffin your chest out are you!

[robinredbreast]

Oooh Diddy .... I'm absolutely hoppin' .... !!!!!

 

But enough about me ...

 

This probably should go for discussion on Pinkys thread ... as we're going a big off tangent on my original post ... but if there are other areas they've ballsed up on the DN ..... of which I think the only current salient point (before the appeal of the 14 day remedy time) will now be if they have demanded the full amount (immediate termination), or incorrect arrears ... would this still be a valid and lawful point to be argued for unlawful recession ?

 

Please tell me yes ...

 

Robin x