CCA's and Dave against the world !!!

[car2403]

I'm thinking that if a default and then a termination notice is inaccurate and invalid, then we could argue that a further default notice (corrected) cannot be issued as the agreement is no longer in force. This is the creditors own fault as they have acted unlawfully.

 

If they cannot then follow the correct procedure, then they can't take the next step in issuing court proceedings.

 

Just thinking out loud really, is there any merit in this?

 

Yeah, IMHO at least, as that's what I was meaning, in that by issue of another Default Notice the creditor is looking to enforce the agreement again, which they should be prevented from doing.

 

I'm sure we can bang heads together and get something worded that convinces a Judge it's right - or at least gives no leeway for the creditor to argue against it.

[davefirewalker]

OK guys ......default notices

 

Just been looking at my RBS loan which in my opinion may be OK although there may be an issue with it.

 

the default notice was issued in both my wifes name and mine.......although it was only me that signed. The loan was in fact mine, although it was serviced from a joint account.

 

whats the position ????

 

Have they cocked up,

 

not only that but i'm sure there will be some penalty charges on it also, will have to check

 

Any ideas

 

Dave

[Hopeful1]

Hi Dave!

 

As you've probably guessed i am no expert but i cannot see how that would be correct to have your wife's name on the default notice. Whether it would be enough to make it invalid i don't know.

 

I also wondered if it raises data protection issues? Was a default noted on your wife's credit file?

[davefirewalker]

Hi Dave!

 

As you've probably guessed i am no expert but i cannot see how that would be correct to have your wife's name on the default notice. Whether it would be enough to make it invalid i don't know.

 

I also wondered if it raises data protection issues? Was a default noted on your wife's credit file?

 

Hi Hopeful.....

 

I have ONLY JUST noticed it ....I'll give the credit files a check very soon

 

Dave

[ian1969uk]

Dave, if the default is inaccurate due to the amount being partially made up of penalty charges, then it is invalid. If they have registered a default then on your credit record, you may be able to claim damages.

 

The case law for these is:

 

Woodchester vs. Swayne & Co

and

Kpohraror v Woolwich Building Society

[davefirewalker]

Dave, if the default is inaccurate due to the amount being partially made up of penalty charges, then it is invalid. If they have registered a default then on your credit record, you may be able to claim damages.

 

The case law for these is:

 

Woodchester vs. Swayne & Co

and

Kpohraror v Woolwich Building Society

 

 

Hi Ian ....

 

thanks for taking the time to reply, yes i knew that as I am using part of it (Kpohraror v Woolwich Building Society) in my main claims against MS and Barclays

 

I dont know as yet if there are any penalties on on the loan, but am sure there must be.

 

my question though was It has included my wife on the default ??? is this right ? or have they cocked up in a big way?

 

rgds

 

Dave

[The GodMother]

I thought they could only deafult the person who took out the credit.

 

So in your case they can only deafult you an not your wife.

 

Chrissi

[davefirewalker]

I thought they could only deafult the person who took out the credit.

 

So in your case they can only deafult you an not your wife.

 

Chrissi

 

MORE to the point.........

 

if after defaulting both of us.........is the default legal ??

 

I am not interested in the default per se,

 

I AM interested in if it is now an illegal default and termination of contract ??

 

rgds

dave

[car2403]

MORE to the point.........

 

if after defaulting both of us.........is the default legal ??

 

I am not interested in the default per se,

 

I AM interested in if it is now an illegal default and termination of contract ??

 

rgds

dave

 

I'd say the Default Notice is inaccurate as it includes a debtor under the agreement that wasn't party to the original - this alone should make it unlawful. The regs clearly state that the debtor and creditor should be identified on the Notice - if they aren't, it can't be relied on for enforcement.

 

Now the question is, have they Terminated your agreement on the back of this Notice? If they did, it will add weight to your case as you've suffered more prejudice as a result. (Loss of benefit under the contract)

 

I've discussed issue (in general) with Peter Bard on the main CCA thread and he believes that they can simply issue another (corrected!) Notice - I don't think they can due to the Wilson -v- FCT (and the other Wilson cases) arguments that states they can't rely on the Act for enforcement once they've unlawfully rescinded the contract. (Which is what has happened, IMHO)

 

In short, a Notice that is inaccurate has to be unlawful, whether it includes charges or not, as they haven't followed the prescribed process for Default/Termination. Whether it is or not is a matter of fact though - it's arguable either way, it just depends on whether the Judge sides with you or not and how you put you case across.

 

I don't think there's any caselaw on this, so using pursuasive argument is your best bet.

[paulwlton]

1. Kasumu v Baba-Egbe (1956) AC 539, 551

Lord Radcliffe – When the governing statute enacts that no loan which fails to satisfy any of its requirements is to be enforceable it must be taken to mean what it says, that no court of law is to recognise the lender as having a right at law to get his money back.

 

 

There may be something in the above.

 

Paul

[Alphageek]

That is interesting Paul.

[car2403]

1. Kasumu v Baba-Egbe (1956) AC 539, 551

Lord Radcliffe – When the governing statute enacts that no loan which fails to satisfy any of its requirements is to be enforceable it must be taken to mean what it says, that no court of law is to recognise the lender as having a right at law to get his money back.

 

 

There may be something in the above.

 

Paul

 

Do you have the judgment for this, Paul?

[Newborn]

Isn't that a Nigerian Case? Or have I got the wrong one?

PATIENCE KASUMU AND OTHERS v. GBADAMOSI BABA-EGBE (Nigeria. P.C. Appeal No. 9 of 1955. Judgment delivered on 17th July, 1956.)

 

Newborn

[paulwlton]

Isn't that a Nigerian Case? Or have I got the wrong one?

PATIENCE KASUMU AND OTHERS v. GBADAMOSI BABA-EGBE (Nigeria. P.C. Appeal No. 9 of 1955. Judgment delivered on 17th July, 1956.)

 

Newborn

 

I believe the same principle applied in Barclays v Prospectus Mortgages in 1974.

[davefirewalker]

Hi Paul...

 

just had a look at this and it seems to mirror the judges sentiments in wilson v fct......ie that it was parliments intention to punish the creditor for failing in his duty to get his paperwork right. the punishment being that any money outstanding is lost to him.

 

rgds

 

Dave

[car2403]

Hi Paul...

 

just had a look at this and it seems to mirror the judges sentiments in wilson v fct......ie that it was parliments intention to punish the creditor for failing in his duty to get his paperwork right. the punishment being that any money outstanding is lost to him.

 

rgds

 

Dave

 

All adds to the cause though, doesn't it?

 

It's probably quite easy to distinguish one claim from Wilson v FCT (yeah, right! But they will try!) but having a barrage of caselaw backing your claim up can't hurt.

 

Just several more pages to photocopy for your bundle, if you get that far!

[davefirewalker]

All adds to the cause though, doesn't it?

 

It's probably quite easy to distinguish one claim from Wilson v FCT (yeah, right! But they will try!) but having a barrage of caselaw backing your claim up can't hurt.

 

Just several more pages to photocopy for your bundle, if you get that far!

 

Ouch........

 

it wont be so much of a bundle as a pallet

 

I can see several forrests having to be cut down..........paperless society ?? yeah right.

 

Dave

[maybelline]

OK guys ......default notices

 

Just been looking at my RBS loan which in my opinion may be OK although there may be an issue with it.

 

the default notice was issued in both my wifes name and mine.......although it was only me that signed. The loan was in fact mine, although it was serviced from a joint account.

 

whats the position ????

 

Have they cocked up,

 

not only that but i'm sure there will be some penalty charges on it also, will have to check

 

Any ideas

 

Dave

 

(just a thought but my sis is sorting out an old agreement that hubby had with prev wife, something to do with spouse liability? not saying they are right at all!)

[FANTASY CHARGES]

TRY these links for that nigerian case

 

 

 

http://www.lawnet.lk/docs/case_law/nlr/common/html/NLR74V545.htm

 

http://www.ipsofactoj.com/archive/1979/Part4/arc1979(4)-008.htm

 

http://links.jstor.org/sici?sici=0026-7961%28197003%2933%3A2%3C131%3A%22TEO%22C%3E2.0.CO%3B2-H&size=LARGE&origin=JSTOR-enlargePage

 

IT WILL COST 13 DOLLARS ( PRESUME AMERICAN DOLLARS) TO BUY THE JUDGEMENT

http://links.jstor.org/sici?sici=0021-8553(195721)1%3A1%3C45%3APKAOVG%3E2.0.CO%3B2-F

 

AND SOME more links that hopefully are useful !!!

 

http://www.ipsofactoj.com/archive/1979/Part4/arc1979(4)-008.htm

http://law.ato.gov.au/atolaw/view.htm?DocID=JUD%2F162CLR221%2F00004

[RTF] TRINIDAD & TOBAGOFile Format: Rich Text Format - View as HTML

Ormerod L.J.'s dissenting judgment in Williamson's case is a powerful one and .... Dent [1931] 2 K.B. 579; Patience Kasumu & Others v. Gbadamosi Baba-Egbe ...

http://www.ttlawcourts.org/Judgments/HC/stollmeyer/1998/hcaCv1142_1998.rtf - Similar pages

[FANTASY CHARGES]

I'd say the Default Notice is inaccurate as it includes a debtor under the agreement that wasn't party to the original - this alone should make it unlawful. The regs clearly state that the debtor and creditor should be identified on the Notice - if they aren't, it can't be relied on for enforcement.

 

Now the question is, have they Terminated your agreement on the back of this Notice? If they did, it will add weight to your case as you've suffered more prejudice as a result. (Loss of benefit under the contract)

 

I've discussed issue (in general) with Peter Bard on the main CCA thread and he believes that they can simply issue another (corrected!) Notice - I don't think they can due to the Wilson -v- FCT (and the other Wilson cases) arguments that states they can't rely on the Act for enforcement once they've unlawfully rescinded the contract. (Which is what has happened, IMHO)

 

In short, a Notice that is inaccurate has to be unlawful, whether it includes charges or not, as they haven't followed the prescribed process for Default/Termination. Whether it is or not is a matter of fact though - it's arguable either way, it just depends on whether the Judge sides with you or not and how you put you case across.

 

I don't think there's any caselaw on this, so using pursuasive argument is your best bet.

 

'

DON'T forget the angle that mrs Dave has been "defamed" by being named in the default !!

[car2403]

'

DON'T forget the angle that mrs Dave has been "defamed" by being named in the default !!

 

A Default challenge will cost less than a defamation case.

[davefirewalker]

..

 

onward and upward.......to Infinity and Beyond

 

dave

[noomill060]

Nigeria was a colonial outpost of the British Empire in 1956, so presumably the judgement carries as much weight as a UK one.

[davefirewalker]

Hi guys....

 

Just been rereading this thread from the very start.........zzzzzzzz

 

and I am amazed how much we have all learned from each other, and how far each of us has got on our journey to debt freedom.

 

some have posted a few times and seem to have fallen by the wayside, but the vast majority are still here continuing there own battles and more importantly helping each other.

 

I can remember paul...pt2537 when he first started here with his claim against littlewoods....look at him now, the guy is an absolute star, and deserves his place next to whatever god he believes in. RESPECT !!

 

Anyway I think the Merlot is now getting the better of me, so Ill shut up

 

rgds to all

 

pt2537

shane5408

ncf

odc

hellhasnofury

maybeline

tomterm8

car2403

Alphageek

most of you have been along for the ride from near the begining....

.

.

jeez theres just too many of you guys to mention

 

dont be upset if i havent mentioned you......just a thank you to a LOAD of people on here and the rest of CAG all doing good work

 

rgds

 

Dave

[Penfold92]

Did you gain anything from the emails I sent you? I tried to Skype and PM you, but did not get a reply?

 

Penfold