Worth paying in full?

[broccoli_greens]

Hoping you can help with this one.

 

I have multiple defaults on my credit file now and I'm trying to save up to do some full and final settlements. Given the defaults being on there, is there any advantage to me in aiming to save the entire balance of the debt up (it'll take a great deal longer but probably achievable one way or another), or would I be in exactly the same position either way, even with "partially settled" all over my file?

 

If the defaults will rule me out of all credit for the whole six years until they come off my file, there's little point postponing making offers for reduced settlements. Am I right, or is it still better to have 'settled in full' on the record despite the defaults?

 

broc

[dx100uk]

wont make any odds

default, setlled, partial settlement, ccj

 

they are all viewed the same...........bad.

 

have you looked at making sure these defaults are correct

 

i'e default notice gave correct date to rememdy by?

the dn did not contain any unlawful fees in its figure?

 

etc etc

 

there are lots of ways dn's are invalid and LOTS of them are just that...invalid.

 

dx

[broccoli_greens]

Assuming some were faulty, and I got them removed, couldn't they just issue new ones? I'm sure a few have issues from memory. I posted them on this forum when I got them ages ago.

[dx100uk]

you cannot have two default notices for the same 'default sum'

so if the first is invalid, no, they can't re-issue a correct one for the same ammount

 

dx

[broccoli_greens]

if the first is invalid, it'll be a good defence in court, won't it? That much I'm pretty sure of - the account was closed improperly.

 

they wont/cant go to court on an invalid DN

 

But realistically speaking, if the paper notice is invalid, am I likely to get the corresponding CRA entry removed?

 

yes if the default was as a result of a faulty DN - MUST be removed

 

 

The bottom line is that I am in default. And, realistically again, are the creditors and CRAs likely to leave my file free of a new DN if the first was invalid?

 

you cannot be defaulted twice for the same event!!

 

They're unlikely to accept that the DN is invalid without first taking me to court, aren't they?

 

as above

they will not dare to go near the court with a faulty DN, they will be blown right out the water.

 

 

Whatever the technicalities, it's the presence of the DN on my file that causes the problem. I don't want to waste my time going down this route, or save like hell to pay in full, unless I can actually clean up the CRA file a bit with some chance of success.

 

as in post 2

 

 

What do you think?

 

Thanks again,

broc

 

 

dx

[Papa_Smurf]

Hoping you can help with this one.

 

I have multiple defaults on my credit file now and I'm trying to save up to do some full and final settlements. Given the defaults being on there, is there any advantage to me in aiming to save the entire balance of the debt up (it'll take a great deal longer but probably achievable one way or another), or would I be in exactly the same position either way, even with "partially settled" all over my file?

 

If the defaults will rule me out of all credit for the whole six years until they come off my file, there's little point postponing making offers for reduced settlements. Am I right, or is it still better to have 'settled in full' on the record despite the defaults?

 

broc

 

If I was in your postion I would wait until the creditor proposes a F&F that way you would have the upper hand in negotiations.

 

If you offer a F&F the creditor will think 'great, broccoli greens has money, we'll get every penny'. The creditor wont just want some of your money, they will want it all!

[Papa_Smurf]

Hoping you can help with this one.

 

I have multiple defaults on my credit file now and I'm trying to save up to do some full and final settlements. Given the defaults being on there, is there any advantage to me in aiming to save the entire balance of the debt up (it'll take a great deal longer but probably achievable one way or another), or would I be in exactly the same position either way, even with "partially settled" all over my file?

 

If the defaults will rule me out of all credit for the whole six years until they come off my file, there's little point postponing making offers for reduced settlements. Am I right, or is it still better to have 'settled in full' on the record despite the defaults?

 

broc

 

If I was in your postion I would wait until the creditor proposes a F&F that way you would have the upper hand in negotiations.

 

If you offer a F&F the creditor will think 'great, broccoli greens has money, we'll get every penny'. The creditor wont just want some of your money, they will want it all!

[broccoli_greens]

Thanks for your help everyone - appreciate it.

 

On the default notice question, is there a definitive guide somewhere on the site? I'll go have a root around but if anyone has the link handy....

 

Something that shows what criteria a valid DN would have to meet?

 

Thanks,

broc

Edited September 14, 2010 by broccoli_greens
Clarify what I'm asking for re. a definitive guide

[dx100uk]

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

2. Under the Interpretation Act 1978 Section 7, it states:

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

2. Practice Direction

Service of Documents - First and Second Class Mail.

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for

serving of documents :-

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default

Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

6. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which

states:

Section 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.

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

Section 88. Contents and effect of Default Notice

(1) The Default Notice must be in the prescribed form…

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

16. 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.

 

 

plenty more

 

just use advance search for:

 

invalid default notice

 

dx

[broccoli_greens]

Thanks dx. I'll take a closer look at the DNs I've received and maybe post a few to verify that I've understood correctly.

 

Appreciate your help.

 

broc

[broccoli_greens]

dx,

 

I've rooted out my various default notices, some of which are obviously full of problems and others a bit more ambiguous. I'll post them one at a time for while in this forum so I get a clear picture on each. However, I'm wondering about dates in particular.

 

Your example above differs from what I've found elsewhere and I'm wondering whether I'm missing something. Let's take an example:

 

Date of DN: Monday 20 Sept 2010

Deemed Served: Wednesday 22nd September 2010 (the second working day after posting) - your example above would have it on Thursday instead? Why?

Earliest date to rectify: Wednesday 6th October 2010 ([not less than fourteen days] after the date of service)

 

Also a few of my DNs were issued on Saturday. The second working day after posting would still be Tuesday wouldn't it?

 

Thanks,

broc

[dx100uk]

not mine

thats from the OFT i think.

 

1st class is 2 working days, 2nd class is 4 working days

 

dx