Default Notice -some Advice Please

[miffedpuppy]

What are the concequences of a OC or thier DCA sending out a default notice not in the prescribed terms, ie lower case not upper case, can they reissue the default notice again, as they have terminated the agreement in the original?

Could they then sell on the debt?

Would the debt be enforcable?

Would I have any recourse?

 

Thanks any advice would be welcome.

[miffedpuppy]

Reason I ask is that some of my accounts the default remedy period is 12 days on some the they have lower case statements and in one case the agreement has been terminated twice with only 12 days to remedy.

Any advice would be gratefully received

.

[miffedpuppy]

Can someone have a look at these and give me their opinion

 

http://i299.photobucket.com/albums/mm305/miffedpuppy/hfc1-1.jpg

http://i299.photobucket.com/albums/mm305/miffedpuppy/hfc2-1.jpg

 

seems to me on the above the dates are out only 12 days, this is a credit card.

 

http://i299.photobucket.com/albums/mm305/miffedpuppy/mercers2-1.jpg

http://i299.photobucket.com/albums/mm305/miffedpuppy/mercers2-2.jpg

 

On this one they have employed lower case seem to remember something pt said about it being upper case in the "IF ACTION NOT TAKEN..." bit, This is a credit card

 

http://i299.photobucket.com/albums/mm305/miffedpuppy/lloyds1.jpg

http://i299.photobucket.com/albums/mm305/miffedpuppy/lloyds2.jpg

Both the above are for the same account 10 days only on the 2005 one and 10 days on the 2006, Can they terminate the same account twice or indeed have they terminated the account (this was for an unsecured loan by the way)

Edited July 26, 2008 by miffedpuppy

[manchester1]

Miffed puppy, sorry i can,t help i am new on the site, however i am interested to see what the experts think.

 

Bump

 

Manc1

[pt2537]

WEll, i can help with the Mercers Default quite easily

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1617533.html

 

just read that thread, it should help you out as yours is the same as Vianos

[miffedpuppy]

Thanks PT i Thought it was but did not want to appear to hopefull.

 

Any chance you can give me chapter and verse on the others , I have read Vianos thread and I understand that it needs to be in caps.

Story so far Barclaycard have sold the debt to HFO they put in a claim (Turnballs) I had already put in a CCA before they started went legal (they ignored it) i have done my AOS and sent in a holding defence, requested CPR information (they ignored that too) sent in an N244 with a more complete defence (No info) and draft directions (supply or else in 14 days) Their 28 days was up today spoke to the court they said they had untill monday (they must work on a different calender to me) still no reply form them , Court told me my application was in front of a DJ.

 

Now the stupid question should Barclayshark sell this debt as they have unlawfully terminated the contract.

Edited July 25, 2008 by miffedpuppy

[Having_A_Knightmare]

Can I just clear something up.

 

If the creditor issues a default notice with the incorrect information (ie Not allowing the correct time to respond) if it goes to Court and you inform the judge he would have to through the case out??

 

Also can they then just go away and issue another default??

 

Cheers

 

HAK

[pt2537]

IMHO,

 

by cancelling the contract without lawful rights to do so, if they do go ahead and terminate the agreement on a invalid default, then they are arguably in repudiatory breach of that contract

[miffedpuppy]

Can any one point me in the direction of where it says in the CCA 1974 that they have to give 14 days notice on a default.

Thanks

[BARFLY]

Its subsections 2 and 3 of Section 88 of the CCA. It was updated in the 2006 act from 7 days to 14 days. Check first!

[miffedpuppy]

ok then it wont apply to my default notices cos thier dated 2004

[creditcardmug]

So for DNs before 2006, is it 14 or 7days?

I mean for instance if the agreement dates from 2000 for example, and the DN is issued now, does it have to give you 14 or 7 days to remedy?

[pt2537]

there seems to be some confusion over the 7 or 14 days

 

let me clarify, the 2006 act is irrelevant for this issue

 

we need to look at Schedule 2 of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended

 

NOTES

 

Amendment

 

Para 3: in sub-paras ©, (d) words "not less than fourteen days" in square brackets substituted by SI 2006/3094, regs 2, 3.

 

Date in force: 19 December 2006: see SI 2006/3094, reg 1.

 

Para 6: words "not less than fourteen days" in square brackets substituted by SI 2006/3094, regs 2, 3.

 

Date in force: 19 December 2006: see SI 2006/3094, reg 1.

 

 

[miffedpuppy]

Correct me if i am wrong but I think the regs apply to the issue of the DN NOT the date of the contract.

 

So if a DN was issued today its 14 days.

 

Prior to 19 December 2006 it would be 7 days.

 

Is this correct PT?

[pt2537]

Correct me if i am wrong but I think the regs apply to the issue of the DN NOT the date of the contract.

 

So if a DN was issued today its 14 days.

 

Prior to 19 December 2006 it would be 7 days.

 

Is this correct PT?

Correct;)

[creditcardmug]

Thanks pt and miffed, thats exactly what i was looking for

[banker_rhymes_with]

Hello Paul!

 

Sorry to butt in, can you please clarify one issue with Default Notices?

 

Is the 14 Days from when you receive the Letter, or are they allowed to say the clock starts ticking from the Date on their Default Notice Letter.

 

For example, if they sent one out Dated 1st July 2008, that wasn't received until 5th July, is the 14 Day Deadline the 15th July (based on their Letter Date) or the 19th July based on when it was received?

 

I've had a couple of notices that have not arrived here until over 5 Days after the Letter Date.

 

These also usually say, comply within 14 Days from the Date of this Letter, which I think is invalid, as no Date is stated, but that's another matter!

 

Thanks in advance.

 

Cheers,

BRW

Edited July 27, 2008 by banker_rhymes_with
Clarity of 14 Days.

[sytra]

I'm sure Paul (or someone else) will clarify, but the date have to be 14 days AFTER service, i have been told that legal service is 2 days after postage, for eg: posted 1st june, served 3rd June so 14 days from the 3rd.

 

Also a date has to be a date, not just add 14 days to x.

That is right isnt it????

 

Sytra

Edited July 27, 2008 by sytra
added txt

[creditcardmug]

The thing is you would put them to strict proof that they sent it on whatever date and that it still gave you 14 days to remedy, when you file your defence.

They never send them by recorded anyway, so cant proove you even got it in time to remedy, add to that that most of them fall down for a host of other reasons, it all means theyre stuffed basically.

[Having_A_Knightmare]

Ive got a default notice of one creditor what says at the top

 

Important Please read carefully

 

It should say

Important you should read this carefully

 

This IMHO makes the DN void

[creditcardmug]

Theres so many things that make them void, and i havent actually seen a good one yet, i must have at least 8, and ive seen lots on here, all no good for one reason or another and usualy many

[banker_rhymes_with]

Hello Sytra and Creditcardmug!

 

Many thanks.

 

About what I was thinking. The reason for asking was because at least two Default Notices that I have received have clearly been back-dated.

 

i.e. received by me a day or two after Posting, but the Default Notice was dated up to 5-7 Days before the Day when I think it was posted.

 

Two of them didn't bother to look at a Calendar, and just back-dated to a handy past date using the "blind-fold and pin" method...but shot themselves in the foot, as they selected a Bank Holiday and a Sunday respectively!

 

IOW, both were Days when they were almost certainly not working, so how on earth did they manage to write a Default Notice on those Days!?!

 

Putting them to Strict Proof could be quite fun, as they'd also need to prove they were working on those Days!

 

This is why I'm on a mission to try and de-code the Royal Mail Orange Postal Barcodes that appear on many Letters. I think there is a Date contained within these Barcodes and, if so, it could help to prove Date of Posting to within 1-2 Days, and reveal that bankers, DCAs and bank lawyers regularly back-date Letters to try and either pretend they complied with something, or to reduce the time to respond to a Default.

 

If interested, the Thread below is now discussing these issues, the link takes you to my main Post on the issue:

 

Bar Codes on DCA Letters (Post #35)

 

If anyone knows about these Barcodes, please drop in there and let me know!

 

Ive got a default notice of one creditor what says at the top

 

Important Please read carefully

 

It should say

Important you should read this carefully

 

This IMHO makes the DN void

 

I think you would be right, as there are certain areas of wording on a Default Notice that are Prescribed, so have to be in the format Prescribed.

 

Any change would potentially render that Default Notice invalid.

 

Cheers,

BRW

[creditcardmug]

Here is an extract from my defence re DNs, courtesy of paul, it should answer a few questions, and show how you can put then to strict proof.

 

31. I note that the claimants particulars of claim fail to even acknowledge service a Default notice as required by section 87(1) of the Consumer Credit Act 1974 before the claimant can even consider terminating the agreement or demanding repayment in full

 

32. I refer to the date of the letter as being the 29/11/ 2007; it is denied that the Default notice was received on the 29/11/ 2007 thus not allowing the prescribed time frame required by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which states, Regulation 2(2) schedule 2

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

33. Fourteen days were not allowed between service of the default and the time laid out where the alleged breach needed to be remedied. I therefore put the claimant to strict proof as to the date of service of said document

 

34. In addition to the failure of the default notice to allow the prescribed time frame, I note the Default is also deficient in the following areas

 

35. Section 2 (5) and (6) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 sets out the following

(5) Where any statement is required to be in a form specified in a Schedule to these Regulations and is reproduced in the notice, then apart from any heading to the notice, trade names or names of parties to the agreement-

 

(a) the lettering in the statement shall be afforded more prominence (whether by capital letters, underlining, large or bold print or otherwise) than any other lettering in the notice; and

 

(b) where words are both shown in capital letters and underlined in any statement specified in a Schedule to these Regulations, they shall be afforded yet more prominence.

 

(6) The wording in any such statement shall be reproduced in the notice without any alteration or addition, and in relation to any statement to be contained in the notice the requirements of any note shall be complied with, except that the words "the creditor" may be replaced by the name of the creditor, by the expression by which he is referred to in the agreement or by an appropriate pronoun, and any consequential changes to pronouns and verbs may be used.

36. The notice fails to include the following statement in the form as shown

 

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH

 

37. Also the notice fails to set out the statement as set out below

 

"IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]"

 

 

38. The statements referred to in points 36 & 37 are laid out in schedule 2 of Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)

 

39. 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) CCA 1974 which states

(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.

40. I note the opening part of section 88(1), which states

88. Contents and effect of default notice.

 

- (1) The default notice must be in the prescribed form.......

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

 

 

 

41. I note that the regulations do not allow any variation in the form of these statements and there fore it is suggested that where the statements are not as laid down in the regulations the default notice is rendered invalid as a consequence

 

42. 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 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 default

 

43. I suggest that since the claimant has not complied with the requirements to issue a valid default notice, the claimant should not be bringing this action before the court until the procedure set out for the protection of consumers has been followed. It is noted that the Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561) require strict compliance and clearly indicates in the wording that substantial compliance is not enough.

 

44. I respectfully request the court give consideration to the claimants rights to bring this case while not in compliance with Sections 87,88 & 89 of the Consumer Credit Act 1974 in respect of the default notice and its failure to adhere to Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)

 

 

45. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

[banker_rhymes_with]

Hello Creditcardmug!

 

Yes, sums it up well.

 

Likewise, if I can crack those Royal Mail Orange Routing Barcodes and more or less prove Date of Posting from the Date contained within the Barcode added to the Envelope...for anyone that has kept the Envelope, that could be concrete proof of their failure to Post on time, i.e. independent Proof that by posting late, they clearly failed to give the alleged Debtor the Prescribed Timescale to respond to the Default Notice.

 

If there is a Date in the Routing Barcodes, what's the betting bankers, DCAs and bank lawyers all switch to UK MAIL to avoid these inconvenient Barcodes!

 

Cheers,

BRW

[creditcardmug]

Ah i know where youre from now Bletchley Park lol, good luck with the codes