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Hi, on the subject of post #12848 above, I read the following on another forum:

"the bank or institution that filed the default notice do not appear to have to prove that they even issued the notice in print form, never mind whether you received it or not. As long as it appears on their computer log as actioned,then I have been told by one institution that it is acceptable in a court of law?"

 

I always thought that the creditor/DCA should be able to provide a copy of the acutal default notice, much as they do with the agreement - I know that some people on here have raised this point in court and the judge was of the opinion that if the claimant could not provide the DN, then the case would be struck out.

 

The other query I have relates to NOAs, does the amount outstanding on the debt need to be shown on the notice, as I have received a copy of one, and there is no mention of how much is owed.

 

Magda

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Could someone take a look at Gazza's MBNA agrrement/application form in the following link please. Thank you. :)

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/159827-nat-west-default-notice-3.html#post1738273

 

This torn off slip or form does not comply with the Act, there are no precribed terms;

it is irredeemably unenforceable under section 127(3)

 

AC

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Hi, on the subject of post #12848 above, I read the following on another forum:

"the bank or institution that filed the default notice do not appear to have to prove that they even issued the notice in print form, never mind whether you received it or not. As long as it appears on their computer log as actioned,then I have been told by one institution that it is acceptable in a court of law?"

 

I always thought that the creditor/DCA should be able to provide a copy of the acutal default notice, much as they do with the agreement - I know that some people on here have raised this point in court and the judge was of the opinion that if the claimant could not provide the DN, then the case would be struck out.

 

The other query I have relates to NOAs, does the amount outstanding on the debt need to be shown on the notice, as I have received a copy of one, and there is no mention of how much is owed.

 

Magda

 

MAGDA,

I am given to understand that if a Default Notice has been served incorrectly and then the lender terminates; the consequence is that the purported termination is ineffective.

 

However, if the creditor brings proceedings a default notice can be rectified by discontinuing the proceedings, seving a default notice and re-issuing the claim.

 

I am given to understand by BRW that a debt that has been sold/ assigned to a DCA cannot be rectified by re-serving a NOD; BRW correct me if am I wrong.

 

With regards to a Notice of Assignment, I believe that the date and amount has to be correct, if it is not the assignment would be deemed ineffective.

A notice of assignment must be served to a debtor in person, or by recorded delivery post by the OC/Lender, the assignor.

 

AC

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MAGDA,

I am given to understand that if a Default Notice has been served incorrectly and then the lender terminates; the consequence is that the purported termination is ineffective.

 

However, if the creditor brings proceedings a default notice can be rectified by discontinuing the proceedings, seving a default notice and re-issuing the claim.

 

I am given to understand by BRW that a debt that has been sold/ assigned to a DCA cannot be rectified by re-serving a NOD; BRW correct me if am I wrong.

 

With regards to a Notice of Assignment, I believe that the date and amount has to be correct, if it is not the assignment would be deemed ineffective.

A notice of assignment must be served to a debtor in person, or by recorded delivery post by the OC/Lender, the assignor.

 

AC

 

An ineffective assignment can be rectified by serving a correctly formatted NOA, just as an ineffective NOD can be rectified in the same way.

 

There is no requirement to issue the NOA by recorded delivery - the requirement is to ensure that a NOA is sent to the debtor, not to prove that it was received. (Just as with a NOD, also)

Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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http://www.consumeractiongroup.co.uk/forum/legal-issues/159341-court-papers-received-what-2.html

 

I would be very grateful if I could have some help with my defence for the above thread. In potted form DCA taking me to court, two letters asking for the CCA have resulted in no CCA. They got the court paperwork wrong and were taking me to court for a loan and not a credit card and had my name wrong. My defence has to be in by the 9th of October, I have given them till the 4th to send me the revised POC for me to look at, but want to have a defence ready for the first POC as I will not give them the opportunity to try for a judgement by default if i am late with my defence. Also the DCA is watching my thread and reporting to the solicitor:p so I would like the final defence to be PM'd if possible:)

Any help most gratefully received.

Canaan

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MAGDA,

I am given to understand that if a Default Notice has been served incorrectly and then the lender terminates; the consequence is that the purported termination is ineffective.

 

However, if the creditor brings proceedings a default notice can be rectified by discontinuing the proceedings, seving a default notice and re-issuing the claim.

 

I am given to understand by BRW that a debt that has been sold/ assigned to a DCA cannot be rectified by re-serving a NOD; BRW correct me if am I wrong.

 

With regards to a Notice of Assignment, I believe that the date and amount has to be correct, if it is not the assignment would be deemed ineffective.

A notice of assignment must be served to a debtor in person, or by recorded delivery post by the OC/Lender, the assignor.

 

AC

 

An ineffective assignment can be rectified by serving a correctly formatted NOA, just as an ineffective NOD can be rectified in the same way.

 

There is no requirement to issue the NOA by recorded delivery - the requirement is to ensure that a NOA is sent to the debtor, not to prove that it was received. (Just as with a NOD, also)

 

Thanks for the replies both - so isn't it necessary for the claimant to be able to provide a copy of the DN in court? I ask, because someone on another thread has recently been to court and because the claimant could not provide a valid DN among the other documents produced, the judge has placed a stay on proceedings pending production of this document. I don't recall receiving a DN for several of my accounts, and I can't check if they are correct or not without actually seeing them.... thanks again, Magda

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so isn't it necessary for the claimant to be able to provide a copy of the DN in court? I ask, because someone on another thread has recently been to court and because the claimant could not provide a valid DN among the other documents produced, the judge has placed a stay on proceedings pending production of this document.

 

As finance companies/DCAs don't have to keep true copies of default notices, it seems that most DJs are willing to accept that when the companies' computerised records show a DN being sent, that's good enough. The defendant above must have been 'lucky' on their day in court. :)

Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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As finance companies/DCAs don't have to keep true copies of default notices, it seems that most DJs are willing to accept that when the companies' computerised records show a DN being sent, that's good enough. The defendant above must have been 'lucky' on their day in court. :)

 

Thanks FG, yes, it certainly does seem as if that person was lucky. It seems strange when you are told that if a DN is inaccurate in any way that this can then be used in your defence - so if, for example, the default stated that you needed to pay £4000 to rectify a problem, when in fact it was £2,000, this would (in theory) render the DN invalid. The same with the actual information that needs to be contained within a default - if it's missing, or incorrect, then again the DN should be invalid. How are you supposed to know any of this without actually seeing the document and checking it - I'm sure a lot of the time the DN's actually aren't sent out at all, but if this is the case, we have no way of proving it. The cards certainly seem to be stacked against us sometimes don't they. Thanks again, Magda

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As finance companies/DCAs don't have to keep true copies of default notices

 

As a DN has to conform to the specifications of the CCA Regulations a copy must be kept in case a dispute arises, primarily to protect the issuing company. It is a legal document after all.

 

The onus I would assume would be on the issuer to prove that it conformed to the regs. if any dispute arose.

 

Very poor document management not to keep copies of legal documents and I would be arguing strongly to have the default set aside due to non-compliance with the regs unless the issuer can prove otherwise. Why should a Court assume that the DN was compliant?

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Hello Magda!

 

I am given to understand by BRW that a debt that has been sold/ assigned to a DCA cannot be rectified by re-serving a NOD; BRW correct me if am I wrong.

 

That's not quite what I meant. As I see it, the issue hinges on the Termination of the Agreement. The Assignment is a later issue, and doesn't in itself say anything about the Enforceability of whatever is being Assigned.

 

Termination = something that existed, but that has now been brought to an end.

 

The CCA requires that before an Agreement (i.e. that is in default by the Debtor for whatever reason) can be Terminated, and in turn early repayment demanded, a lawful Default Notice must be sent.

 

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.

 

My point is that Termination is Termination. Once the Agreement is brought to an end, it has ended. It's like being Pregnant and giving birth, you can't just reverse that, become un-Pregnant and pop the baby back in!

 

I'm quite sure that when Francis Bennion was drafting the CCA, he didn't just select the word Terminate at random because he liked the sound of it. If he really intended this to mean sortof ended, easily reversed, a definite maybe end, he'd have chosen another word entirely or left it out. No, he chose Terminated and he absolutely meant Terminated.

 

If a Creditor wants to Terminate an Agreement and make the end final, then they must Default you beforehand, and that Default must be lawful and valid. It is a critical step and s88 outlines what is needed for that required Notice to be valid.

 

Again, s88 wasn't added just to pad out the middle bit of the Act.

 

If they get it right, then they can end the Agreement, and drag you into Court to have a chat about the early repayment issues. That's assuming they have the other paperwork in order, such as having to hand the Original properly executed Regulated Credit Agreement.

 

However, if they have messed up the Default Notice, and then gone on to Terminate the Agreement, it should be a one way trip. I cannot see anything in the Act that allows them to reverse a Termination, re-activate the Agreement and then go back to fix an invalid Default Notice.

 

Otherwise, how far back can they go to fix other issues, such as going back to fix an invalid Agreement! Look M'Lud, here's a nice new Agreement we knocked up last week, to fix the one we messed up 10 years ago. And here's the nice new Default Notice we knocked up yesterday, to fix the one we messed up last Christmas.

 

I do fully appreciate that this won't stop the creative banker from trying, and I'm sure it won't stop their creative Barrister from trying to smooth a brand new post-Termination Default Notice past a half awake Judge.

 

But, if you think about this, and are prepared to stand up and point out the clear logic to a Judge, then the lack of a valid Default Notice where they have also Terminated the Agreement, should be a knock out blow to any case they bring.

 

The original Default Notice must be set out in the Prescribed way, must allow the Statutory timescale from date of Service, and must be accurate in terms of the figures.

 

It's arguably no less important than the Agreement itself. Indeed, it should render any Agreement invalid if they mess up the Default and go on to Terminate, because that is an Unlawful Rescission of Contract. An Agreement is a Contract, it just happens to be one that is also Regulated by the CCA Act.

 

Rescission = annul or revoke, as if it never existed.

 

If the bankers send you a letter saying they have Defaulted and Terminated the Agreement, then it has ended. There can be no going back once they put the Termination in writing.

 

If the Default Notice was unlawful and invalid, that should present something of a major problem for them. I feel that they must produce a valid Default Notice in Court as much as they must produce a valid Agreement.

 

I think it can get messy when they Default but don't Terminate. Then the Agreement is in limbo, and I think they could, in theory, just trot out another Default Notice and then Terminate. But, by Court, they must show that the Agreement has ended, or else you can just say please can I have my Credit Card back, and I'd like to carry on making the minimum Payment, what's all the fuss about M'Lud.

 

So IMHO, the act of Terminating the Agreement is quite important, as it marks the cut-off point. The end of the Agreement. Beyond that, there is no Agreement to Default, just a Debt. The Court then must decide if that Debt is Enforceable...or not, but based on what came before the ending of the Agreement. The bankers should not be allowed to go back and fiddle the paperwork to fix errors.

 

Cheers,

BRW

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As a DN has to conform to the specifications of the CCA Regulations a copy must be kept in case a dispute arises, primarily to protect the issuing company. It is a legal document after all.

 

The onus I would assume would be on the issuer to prove that it conformed to the regs. if any dispute arose.

 

Very poor document management not to keep copies of legal documents and I would be arguing strongly to have the default set aside due to non-compliance with the regs unless the issuer can prove otherwise. Why should a Court assume that the DN was compliant?

 

In theory, this is true, but in practice, the Court turns a blind eye and enforces the debt anyway, regardless of the DN been original or accurate.

 

This is a clear err in law, especially considering Woodchester Lease Management v Swain, where this has already been ruled on, IMHO and gives very good grounds for an appeal.

 

Until District Judges know the CCA and the regs and all the caselaw that goes with it, we will get these travesties of justice along the way.

Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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... in practice, the Court turns a blind eye and enforces the debt anyway, regardless of the DN been original or accurate.

 

This is a clear err in law, especially considering Woodchester Lease Management v Swain, where this has already been ruled on, IMHO and gives very good grounds for an appeal.

 

Until District Judges know the CCA and the regs and all the caselaw that goes with it, we will get these travesties of justice along the way.

 

 

Agree, agree car! This is point I was trying to make too.

Makes your blood boil. Grrr...:evil:

Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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Hello Magda!

 

 

 

That's not quite what I meant. As I see it, the issue hinges on the Termination of the Agreement. The Assignment is a later issue, and doesn't in itself say anything about the Enforceability of whatever is being Assigned.

 

Termination = something that existed, but that has now been brought to an end.

 

The CCA requires that before an Agreement (i.e. that is in default by the Debtor for whatever reason) can be Terminated, and in turn early repayment demanded, a lawful Default Notice must be sent.

 

 

 

My point is that Termination is Termination. Once the Agreement is brought to an end, it has ended. It's like being Pregnant and giving birth, you can't just reverse that, become un-Pregnant and pop the baby back in!

 

I'm quite sure that when Francis Bennion was drafting the CCA, he didn't just select the word Terminate at random because he liked the sound of it. If he really intended this to mean sortof ended, easily reversed, a definite maybe end, he'd have chosen another word entirely or left it out. No, he chose Terminated and he absolutely meant Terminated.

 

If a Creditor wants to Terminate an Agreement and make the end final, then they must Default you beforehand, and that Default must be lawful and valid. It is a critical step and s88 outlines what is needed for that required Notice to be valid.

 

Again, s88 wasn't added just to pad out the middle bit of the Act.

 

If they get it right, then they can end the Agreement, and drag you into Court to have a chat about the early repayment issues. That's assuming they have the other paperwork in order, such as having to hand the Original properly executed Regulated Credit Agreement.

 

However, if they have messed up the Default Notice, and then gone on to Terminate the Agreement, it should be a one way trip. I cannot see anything in the Act that allows them to reverse a Termination, re-activate the Agreement and then go back to fix an invalid Default Notice.

 

Otherwise, how far back can they go to fix other issues, such as going back to fix an invalid Agreement! Look M'Lud, here's a nice new Agreement we knocked up last week, to fix the one we messed up 10 years ago. And here's the nice new Default Notice we knocked up yesterday, to fix the one we messed up last Christmas.

 

I do fully appreciate that this won't stop the creative banker from trying, and I'm sure it won't stop their creative Barrister from trying to smooth a brand new post-Termination Default Notice past a half awake Judge.

 

But, if you think about this, and are prepared to stand up and point out the clear logic to a Judge, then the lack of a valid Default Notice where they have also Terminated the Agreement, should be a knock out blow to any case they bring.

 

The original Default Notice must be set out in the Prescribed way, must allow the Statutory timescale from date of Service, and must be accurate in terms of the figures.

 

It's arguably no less important than the Agreement itself. Indeed, it should render any Agreement invalid if they mess up the Default and go on to Terminate, because that is an Unlawful Rescission of Contract. An Agreement is a Contract, it just happens to be one that is also Regulated by the CCA Act.

 

Rescission = annul or revoke, as if it never existed.

 

If the bankers send you a letter saying they have Defaulted and Terminated the Agreement, then it has ended. There can be no going back once they put the Termination in writing.

 

If the Default Notice was unlawful and invalid, that should present something of a major problem for them. I feel that they must produce a valid Default Notice in Court as much as they must produce a valid Agreement.

 

I think it can get messy when they Default but don't Terminate. Then the Agreement is in limbo, and I think they could, in theory, just trot out another Default Notice and then Terminate. But, by Court, they must show that the Agreement has ended, or else you can just say please can I have my Credit Card back, and I'd like to carry on making the minimum Payment, what's all the fuss about M'Lud.

 

So IMHO, the act of Terminating the Agreement is quite important, as it marks the cut-off point. The end of the Agreement. Beyond that, there is no Agreement to Default, just a Debt. The Court then must decide if that Debt is Enforceable...or not, but based on what came before the ending of the Agreement. The bankers should not be allowed to go back and fiddle the paperwork to fix errors.

 

Cheers,

BRW

 

Thanks for that BRW, it makes a lot of sense. I think a lot of the time, we assume the court will fail to see the point we are making, and don't push hard enough to get them to accept what is actually part of consumer legislation. It is the same with the orignal agreement thing - I think a lot of people still assume the court will say it isn't necessary and don't actually mention in their defence that they will expect the original to be produced in court. I realise that many judges are extremely biased and that it is a lottery on the day - you may get a judge who is fair and extremely knowledgeable on consumer law, but you may get one who is leaning heavily towards the claimant from the outset. However, I still think you need to push to make them take on board what you are saying and who knows, you then may have a chance of actually getting the outcome you want. I asked for the original agreement to be produced in court (you had told me on several occasions, as had Steven, that this should be available) and the court has stated in the hearing order that all orignal documents should be available at the hearing. So, it is certainly worth a try at least. Thanks again, Magda

Edited by MAGDA
typo
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Hi! I'm still very new here but BRW has kindly put me right about where best to post - thanks, BRW.

 

I need some advice on spotting a "reconstructed" CCA and, as suggested, I have started a thread:

 

Viscount Stair vs Amex

 

(I know this will have been done to death but there is so much good information on CAG that I can't find the bit I need right now.)

 

All help gratefully accepted and I hope to be able to repay any help in kind in time.

Edited by Viscount Stair
Replacing original post with link to shiny new own thread
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Hello Magda!

 

Yes, the biggest problem by far is the Judge Lottery issue.

 

The best defence to that is to try and have a crystal clear understanding of the points you are making to stop the Judge from making a poor decision...especially if he/she is so biased that they want to make a poor decision!

 

I think the CCA does say all that you need to see off a Court Claim based upon an invalid Default Notice and unlawful Termination but, it's not as clear as we would like. So, it's vital to know what points you are presenting, and make sure you state them very clearly and with as much supporting case history to back you up as you can find.

 

However, as we move steadily into the next banking engineered Recession, my greatest concern now is the political pressure that is inevitably being applied to the Judiciary to support the lame bankers who have caused this global financial mess in the first place. Please be in no doubt that this is not a Business Recession, much as the bankers would like to shift the blame elsewhere. What we are seeing is the inevitable banking boom/bust cycle because most major economies are now based on Debt Finance.

 

The banking bubble has to burst every few years, because that is how their system works. The problem for us, is the banking bubble gets bigger each time and, when it does go pop, the deflation gets worse each time. One day, the banking bubble may swell so large that, when it pops, it may not re-inflate. By then, the UK will just be one big Retail Park with nothing to sell, and everyone in so much Debt they couldn't buy anything even if they wanted to. We'll also by then have forgotten how to make anything...but at least we'll still have our own high quality Coal!

 

But, right here, right now, I fear we are going to see bank biased Judges being even more biased over the coming few years as the bursting banking bubble blows a big raspberry at us. Sadly, the odds are being stacked against the Consumer even more than they were.

 

When this next Recession is over, we'll see yet another huge transfer of assets to the banks. It is no accident that steps are already nearly in place to allow easier Charging Orders on Property. That didn't happen just by accident, it's part of a wider plan to shift even more of the housing stock over to the banks.

 

I urge everyone to sign FunkyFox's No 10 Petition to try and stop this wicked move from being enacted:

 

Charging Orders Petition - Sign it NOW!

 

At the last count, something like 50% of all Property is now bank owned. However, I think that will jump to perhaps 65% over the next few years. The bankers won't be happy until they get to 100%. Then they can lend and lend number-money far in excess of the build-cost or land value. The silly numbers will just get even more silly.

 

There was a large transfer of assets from Consumer to banker during the last Recession, this next transfer will be much bigger. The banks can't lose and won't be allowed to lose. After all, they are pulling all of the strings at the moment.

 

Sure, the bankers will sacrifice a few big sounding banks, and a shed load of bank employees will get a P45, but the core will do very well, and are no doubt already planning how to start re-inflating the banking bubble in a 3-4 years time.

 

Cheers,

BRW

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Hello Viscount Stair!

Still very new here, so if I am in the wrong place, I won't take it astray if directed to the right one.

 

No problem, and welcome to CAG.

 

It's probably wise to start your own Thread, as this Consumer Credit Act Thread is a huge, huge Thread, so your above Post will soon get lost in amongst the daily Posts that will soon appear...and so because of that, you may not receive the best attention.

 

However, CAG does have a dedicated Amex Forum, please see below:

 

Amex

 

The best tip is to start your own Thread, and then edit your above Post to add a Link to your own Amex Thread. That way, people Today can see your Post, and then click straight to your New Thread over in the Amex Forum. All being well, you'll catch the attention of enough people here to get things started over in the Amex Forum.

 

I'll watch out for it, and will gladly help out there however I can.

 

Cheers,

BRW

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A Default Notice is required if the lender is to terminate the agreement.

Should the lender seek to terminate the agreement a Default Notice would have to be served.

If the creditor brings proceedings for the whole debt it would have to serve a default notice that complies with s88 before terminating and enforcing.

If it fails to do so one would have a defence to the claim for the amount due on termination.

Any failure on the part of the creditor to serve a DN can be rectified by stopping the proceedings, serving a default notice and re-issuing the claim.

 

AC

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LINK FINANCIAL HAVE DONE A MASS MAILING OF DEFAULT NOTICES TO HUNDREDS OF CONSUMERS!

 

The majority of the accounts relate to agreements that have been sold / assigned to Link Financial Limited. Agreements that have already been defaulted and terminated by the original Lender.

 

The DN's state:

"We Link Financial Limited, give you notice of default acting on our own behalf as assignee of the benefit of the above referenced agreement and debt, AND ON BEHALF MBNA (and possibly other Lenders) TO THE EXTENT THAT THEY ARE STILL A CREDITOR"

 

One wonders what the meaning behind these DN's?

an attempt to panic consumers into settling disputed debts, or are they getting ready to ofload the debts onto a secondary assignee?

 

I still fail to see, how Link can default these accounts, the agreements have ended.

 

AC

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Hello AC!

 

Any failure on the part of the creditor to serve a DN can be rectified by stopping the proceedings, serving a default notice and re-issuing the claim.

 

I do not think that is supported by anything in the Consumer Credit Act, i.e. if they have by then already gone ahead and Terminated the Agreement.

 

A Terminated Agreement is just that, Terminated.

 

IMHO there is nothing left to Default. All that is left is a Debt, and the size and enforceability of that Debt must then be evaluated based on the Original Agreement, Original Terms, Varied Terms if so allowed, related Documentation and all Notices that were created before and during the lifetime of the Agreement.

 

Were this not the case, then the banker could go right back and re-create a better Agreement than the one they first created.

 

There has to be a cut-off point, and that cut-off point is the Termination.

 

Cheers,

BRW

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Thanks again BRW, I agree with everything you have said. We do have a debt based economy, and there really is nothing else left in this country now other than that really - and based on this, we were bound to be headed towards a fall, but as you say, the Banks always come out more or less intact. It is unfortunate though from our point of view, that judges often come down on the side of the creditor, especially when granting charging orders on unsecured debt. I really do not understand how a debt which was taken out on the understanding that it was not secured on property or anything else can then become secured, it just doesn't make sense. I do not have any proof that I ever received a default notice, they have not even provided a date when it was supposedly sent in their response to my defence, and I have absolutely no way of knowing if it was in the correct format or contained the information that it should, without seeing it, of course. So, I will definitely push for the claimant to provide a copy of this document in court.

 

AC thanks for your replies, the thing that confuses me if a creditor fails to serve a DN (which you say can be rectified by stopping the proceedings, serving a default and re-issuing the claim - and I'm sure you are correct, so not trying to imply otherwise) is that surely if they did not default correctly, or at all, then they did not have the right to assign the debt to a third party, as the agreement between the original creditor and the debtor has not been terminated. Therefore, surely everything that proceeded the 'termination' of the account has therefore not been carried out according to the legislation concerned and this would imply that the assignee is not the owner of the debt at all. Just something I have been thinking about recently, as it doesn't seem to make sense otherwise. Magda

Edited by MAGDA
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LINK FINANCIAL HAVE DONE A MASS MAILING OF DEFAULT NOTICES TO HUNDREDS OF CONSUMERS!

 

The majority of the accounts relate to agreements that have been sold / assigned to Link Financial Limited. Agreements that have already been defaulted and terminated by the original Lender.

 

The DN's state:

"We Link Financial Limited, give you notice of default acting on our own behalf as assignee of the benefit of the above referenced agreement and debt, AND ON BEHALF MBNA (and possibly other Lenders) TO THE EXTENT THAT THEY ARE STILL A CREDITOR"

 

One wonders what the meaning behind these DN's?

an attempt to panic consumers into settling disputed debts, or are they getting ready to ofload the debts onto a secondary assignee?

 

I still fail to see, how Link can default these accounts, the agreements have ended.

 

AC

 

i got one of those yesterday from Link. Despite the fact that LINK defaulted on my CCA request last year in May (yes, 2007).

An indicator that you are correct to say these were bulk - mailed.

The way I understand it, they are not even allowed to send this to me whilst being in default themselves ?

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Would it be too hopeful to think that perhaps Link Financial are teetering on the brink too & are getting DESPERATE? :D

Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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Certainly a possibility

I didn't hear from them for 15 months after they defaulted on my CCA request and now they send me a DN...??? HMMMM

 

At the moment Link seem to be taking a lot of people to court, so maybe the issue of the defaults is all part of their master plan.....

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  • dx100uk changed the title to Cap1 & CCA return
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