Default Notice Re-Issue

[george brown]

chez262 no i havent had the whole two dns issue,it would be difficult for them as in the court claim they say they have ended the agreement,,,

[chez262]

There was a recent case in CC where the claimant put forward PB's stance as a proposed solution having lost because of a faulty DN and the DJ dismissed it out of hand. Not because of bringing a 2nd case but because the agreement was terminated. I'll try and dig it out.QUOTE]

 

Hi gh,

 

If you manage to find this case please let me know, I would be most appreciative.

 

I have also raised my own thread

 

Many thanks for your assistance so far!

 

C

[gh2008]

I have also raised my own thread

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?278896-TN-then-DN-and-another-TN-will-an-application-to-set-aside-succeed

[Peterbard]

@Peter - To follow on from this - if a creditor takes you to Court on the back of a faulty DN and loses - are you saying that they could then following the loss at Court - re-issue a valid DN and tehn take action again. After all it would not be another action on the same matter as this time it would be on the back of a valid DN a very different matter.

At what point is an account terminated .....

 

Recently a creditor closed one of my account and wrote of the balance - now, I was in default and they had sent a DN (invalid) so again are you saying that that account is still 'live and kicking' and could be resurrected at any time ....

 

 

 

Hi

A default notice issued under section 87 of the act has only ever been a device to ensure that the debtor has the correct information regarding his breach and ample time to remedy. If a faulty default is issued than there is no sanction within the act for that error. Except that it prohibitws all further enforcement untill the error is rectified.

It is true that common law would allow for the possibility of an injunction be made for this breach but unlikely as the prejudice would be so small and the court would accept that the debtor would be given a further 14 days to pay to be sufficient remedy.

Common law permit that following repudiation of an agreement the debtor may as one of the remedies open to him agree to terminate the agreement this is true but this would not eradicate any of the liabilities under the agreement, in any case the CCA permit’s the debtor to terminate at any time so in that respect there is no difference. The reason for this facility in common law is to facilitate the withdrawal from a contract of the innocent party on breach of an agreement, this would be appropriate if say it was a builder that breached an agreement to perform and the hired wanted to sack him.

The only real issue her is one of can a creditor when terminating an agreement under section 98 of the agreement then issue a default termination under section 87 and re terminate. To be honest I do not know, but is suspects that if challenged the lender would say that he terminated only the right to draw down credit in the first instance, which would then leave him able to terminate after the default, it would then be up to the lender to prove otherwise, which would be extremely difficult.

Peter

[gh2008]

Hi

A default notice issued under section 87 of the act has only ever been a device to ensure that the debtor has the correct information regarding his breach and ample time to remedy. If a faulty default is issued than there is no sanction within the act for that error. Except that it prohibitws all further enforcement untill the error is rectified.

It is true that common law would allow for the possibility of an injunction be made for this breach but unlikely as the prejudice would be so small and the court would accept that the debtor would be given a further 14 days to pay to be sufficient remedy.

 

Agreed

 

Common law permit that following repudiation of an agreement the debtor may as one of the remedies open to him agree to terminate the agreement this is true but this would not eradicate any of the liabilities under the agreement,

 

Again agreed - however those liabilities, under the CCA, only extend to sums already due in these cases the CCA overrides Common Law (where the full amount is still owing)

 

in any case the CCA permit’s the debtor to terminate at any time so in that respect there is no difference. The reason for this facility in common law is to facilitate the withdrawal from a contract of the innocent party on breach of an agreement, this would be appropriate if say it was a builder that breached an agreement to perform and the hired wanted to sack him.

The only real issue her is one of can a creditor when terminating an agreement under section 98 of the agreement then issue a default termination under section 87 and re terminate. To be honest I do not know, but is suspects that if challenged the lender would say that he terminated only the right to draw down credit in the first instance, - in order to terminate any rights of teh debtor in cases of default a S87 Dn is required which would then leave him able to terminate after the default, it would then be up to the lender to prove otherwise, which would be extremely difficult.

Peter

 

I think we broadly agree

 

I also think you are taking the view that would be taken by the Courts - i.e. trying to go 'straight down the middle' whereas teh creditors are biasing their argument one-way and I am countering that with another viewpoint.

 

As we all know - until there is precedent - there is no 'right or wrong' answer only opinions.

[chez262]

Section 98 Duty to give notice of termination (non-default cases)

Subsection (1) - The creditor or owner is not entitled to terminate a regulated agreement except by or after giving the debtor or hirer not less than seven days’ notice of the termination

Subsection (6) - Subsection (1) does not apply to the termination of a regulated agreement by reason of any breach by the debtor or hirer of the agreement.

Please forgive my ignorance here but does this not suggest that a termination under s98 does not apply after a breach? Therefore s87 would automatically take precedence?

[Peterbard]

I think we broadly agree

 

I also think you are taking the view that would be taken by the Courts - i.e. trying to go 'straight down the middle' whereas teh creditors are biasing their argument one-way and I am countering that with another viewpoint.

 

As we all know - until there is precedent - there is no 'right or wrong' answer only opinions.

 

Hi

 

Yes i always try to take the view i think the court would take,probably why i get so much stick on here. I think though that is realistically the most useful way to approach.

 

Peter

[Guest]

..........but does this not suggest that a termination under s98 does not apply after a breach? Therefore s87 would automatically take precedence?[/font]

 

it specifically states that s98 only relates to 'non default cases'! so, where there is a default, then s98 is not applicable.

Edited October 3, 2010 by Ford
typo

[Peterbard]

it doesn't suggest. it specifically states that s98 only relates to 'non default cases'! so, where there is a default, then s98 is not applicable.

 

If a termination is under section 98 there is no reason why it cannot be applied to an account that had been issued a default notice,the default terminationj just cannot be acctioned on account of the defective notice.

 

Peter

Edited October 2, 2010 by Dodgeball
english

[Guest]

If a termination under section 98 is there is no reason why it cannot apply to an account that had been issued adefault notice,the terminationjust cannot be acctioned on account of the default notice.

 

Peter

the cca itself states that s98 relates to 'non default cases'. ergo, if there is a default, then s98 doesn't apply. full stop!!!

[Peterbard]

the cca itself states that s98 relates to 'non default cases'. ergo, if there is a default, then s98 doesn't apply. full stop!!!

 

Hi

 

Love when people end statement with "full stop or "End of" they are invariably wrong.

 

THe title refres to isuuance of the termination through or in the process of the default enforcement not after it. The creditor has used this as a means of termination after a case has been defaulted see Amex v brandon and i think also one of the rankin cases.

 

Peter

[Peterbard]

Hi

Sorry my last post was somewhat unhelpful, getting late and I am getting tired and a bit irritable

Yes section 98 says “none default cases“, but it also says “duty to give notice”. this is what the section is really for, the fact that it is there means that no notice is required on default cases or running account credit(subsection2a) and they can be terminated at any time without notice if that is what it says on the contract.

　

Regards

Peter

[Notasniceasjoe]

Is there a wind of change sweeping through CAG?

 

Just a few months ago the issue of an invalid default notice was widely stated to be a strong defence, in that it did not permit the benefits of s87 to be taken by the creditor. It seems to me that opinions are changing and that the validity of the DN is becoming something of a side issue. When we have creditors saying that if the DN was defective that they'll just issue one that is correct, and having several stabs at getting it right something sounds very fishy indeed.

 

If, as has been documented on here, that lack of sufficient days for remedy has been an effective defence, what has changed? Have there been any additional cases in the past 12 months that have set a precedent?

[Guest]

Hi

 

Love when people end statement with "full stop or "End of" they are invariably wrong. ..don't flatter yourself!

 

THe title refres to isuuance of the termination through or in the process of the default enforcement not after it. The creditor has used this as a means of termination after a case has been defaulted see Amex v brandon and i think also one of the rankin cases.

 

Peter

 

well, there is no other way to state what s98 itself clearly states! namely, that s98 relates to 'non default cases' only. hence the 'jestful' 'full stop'.

 

yes, duty to give notice of termination in 'non default cases'!

 

imo:-)

Edited October 3, 2010 by Ford
typo

[chez262]

Is there a wind of change sweeping through CAG?

 

Just a few months ago the issue of an invalid default notice was widely stated to be a strong defence, in that it did not permit the benefits of s87 to be taken by the creditor. It seems to me that opinions are changing and that the validity of the DN is becoming something of a side issue. When we have creditors saying that if the DN was defective that they'll just issue one that is correct, and having several stabs at getting it right something sounds very fishy indeed.

 

If, as has been documented on here, that lack of sufficient days for remedy has been an effective defence, what has changed? Have there been any additional cases in the past 12 months that have set a precedent?

 

I think it is a case of creditors now claiming a faulty DN is just a technicality and the DJ's are determining the outcome on whether the technicality has been prejudice towards the debtor. It would seem it is becoming difficult to prove to a DJ one was prejudiced against based on what people are saying on here. Oh and this is my solicitors opinion too.

[Peterbard]

well, there is no other way to state what s98 itself clearly states! namely, that s98 relates to 'non default cases' only. hence the 'jestful' 'full stop'.

 

yes, duty to give notice of termination in 'non default cases'!

 

imo:-)

 

Hi i did appologise for being sharp however the point is that the section saying none default acases only, does not have an effect on wether a creditor can terminate an agreement as i said it is about notice requied in fixed term none defalt cases.

 

Easy mistake to make

 

regards

peter

[Peterbard]

I think it is a case of creditors now claiming a faulty DN is just a technicality and the DJ's are determining the outcome on whether the technicality has been prejudice towards the debtor. It would seem it is becoming difficult to prove to a DJ one was prejudiced against based on what people are saying on here. Oh and this is my solicitors opinion too.

 

Hi

Yes the defective DN was only ever going to delay proceedings, some times the creditor would get fed up and rather than re file write the debt off but that is the only hope of success.

The Brandon case has really just moved the definition of what is a compliant DN a bit more in favour of the creditor.

It now seems that irrespective of the remedy time limit stated on the DN the court would relly on the fact of when the action under the notice was taken.

So if your termination was received 10 days after the default you still have a case,but if the notice says 10 days but the notice turns up in fourteen then there is no prejudice and no case

　

Best regards

Pete

[Guest]

Hi i did appologise for being sharp however the point is that the section saying none default acases only, does not have an effect on wether a creditor can terminate an agreement as i said it is about notice requied in fixed term none defalt cases.

 

Easy mistake to make

 

regards

peter

 

am aware of s98(1) and (2)(a) thanks. yes, as i said, s98 (which of course includes 1 and 2a!) applies to non default cases. the application of 1 and 2a was never disputed by me! i just reiterated the point that s98 applies to 'non default cases' (such 'cases' being, atm, those that involve ss 2 etc) . maybe my point was misinterpreted!

 

imo

Edited October 4, 2010 by Ford
typo

[jayjay11]

Having read through the last few days of this thread it seems that things are changing. I am alittle confused now tho In my case the creditor terminated without a DN evidenced by the log i recived as part of my SAR then went on to issue a dn and termination all properlly issued. also when the next threat o gram arrived i wrote and pointed all this out, the y wrote back and said "sorry is was not appropriate to terminate without a Dn first time so we did it again and thats ok!! we will proceed with collection" So with all thats gone on Do i still have a defence in anyone opinion?? Im sure i do but the way things have gone who knows!!

[gh2008]

I think it was M&M on here who had £25k claim and won on a faulty DN and the creditor in Court said they would go back and re-issue. The DJ said that he was having none of it as they had terminated.

 

I *do* still believe that the DN issue is valid however I also believe you will need a strong argument to counter the Claimant and that would normally mean employing Counsel.

 

There is no precedent as the creditors have *never* appealed a faulty DN. If they were that confident in their argument they would afterall they would get their claim and full costs *if* they won ..

[Notasniceasjoe]

Certainly the skeleton argument that Counsel for the Claimant had prepared in the SJ hearing that I had last month implied that a faulty DN was no defence, it went something like this - names and numbers have been changed to protect the innocent.

1. Nevertheless, the main point raised in the W/S concerns the Default Notice . Defendant states that the document (Exhibitxx) is the original Default Notice sent by Claimant to Defendant; Claimant is unable to verify this.

2. Claimant produces at (Exhibit yy)a recreated copy of the Default Notice; to the best of the Claimamt’s solicitor’s knowledge and belief this document is a copy of the original Default Notice. The Claimant does not concede that Exhibit xxis the original Default Notice.

3. W/S para zz draws attention to the requirement for the inclusion of the Office of Fair Trading Information Sheet as per the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (as amended). Exhibit yyis compliant; Exhibit xxis not compliant. Without the wording and information sheet as set out in W/S para zz the Default Notice is invalid.

4. Woodchester Lease Mana&ement Services Limited v Swain e” Co [1999] WLR 263 is authority for position that a Default Notice is not required to claim the arrears. Claimant can obtain summary judgement for the arrears.

5. Alternatively, Claimant can serve a valid Default Notice. The inevitable outcome will be that costs will be increased for the Defendant and the same outcome achieved.

6. Alternatively, Claimant refers to its contractual entitlement as set out at paragraph 10 to recover the balance. Exhibts xx1and xx2 can be taken to be demands for repayment of the balance; alternatively the issue of the claim form was sufficient demand for the debt (Joachimson v Swiss Ban/c Corporation [1921] 3 KB 110). In relying upon terms of the contract Claimant does not need to rely upon the default of Defendant as the basis for terminating the Agreement and under sections 87/88 CCA.

7. Consequently, it is submitted that even if the Default Notice does not comply with CCA it was effective at common law to terminate the Agreement and C is contractually entitled to the sum claimed in the Claim Form.

[gh2008]

Actually NotJoe that WS statement argues the exact opposite point!!

namely that the DN does NOT need to be valid in order to terminate the account .....

 

7. Consequently, it is submitted that even if the Default Notice does not comply with CCA it was effective at common law to terminate the Agreement and C is contractually entitled to the sum claimed in the Claim Form*.

[gh2008]

This is what I have been saying all along - these arguments can be very persuasive either way when they are presented by Counsel

[Notasniceasjoe]

I think that was what I was saying, wasn't it?

 

The argument(s) (since they offer three alternative arguments) - put forward is that a faulty DN is no defence, it's something that the creditor can make an end-run around.

 

It's like - See this cake? I'm eating it now. See this cake? I've still got it. Oooh, look, another cake! That's mine too.

[Peterbard]

Having read through the last few days of this thread it seems that things are changing. I am alittle confused now tho In my case the creditor terminated without a DN evidenced by the log i recived as part of my SAR then went on to issue a dn and termination all properlly issued. also when the next threat o gram arrived i wrote and pointed all this out, the y wrote back and said "sorry is was not appropriate to terminate without a Dn first time so we did it again and thats ok!! we will proceed with collection" So with all thats gone on Do i still have a defence in anyone opinion?? Im sure i do but the way things have gone who knows!!

 

This is not a new idea years ago you used to be able to buy a kit to "clean up your credit record" it consisted of a formated letter to the court asking for the judgement to be set asside because you did not recieve a default, the idea was tht as soon as you recieved the set aside notice you sent it of to the CRA registry(this was before computers) and this would give you a window to be able to negotiate with the creditor or apply for credit.

 

The creditor would of course re issue the default and terminate correctly in most cases but sometimes it would be to mouch trouble and you would get away with it.

 

THe real issue here which i think is being forgotten is the function of the DN it is not an agreement it is just notice of an action to recover, if the notice is incorrect it just needs to be re issued, that is how the court will see it. The termination issue is really not relavant never was, every one on here is gioing on about how they have been predjudiced by the termination, believe me the court will not see that, they will see how the creditor has been impeded in collecting his money

There is no loophole here trminationn af an agreement can be made at any time by either party so there is no such thng as unlawful termination.

 

A default termination cannot be isseued on a incorrect default if it couold it would not be a default temrination. A contractural termination or a section 98 will be a termination to draw credit usually and even if it is a full termianation, it is not a temination on breach of the act, it is the breach that makes the default actionable not the temination.

 

Peter