Invalid Default Notices

[pinny24x7]

Sorry to hijack this thread but I have a query that has not been answered on a thread I started (http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/252913-default-notice-halifax-1000-a.html)

 

If a creditor terminates an agreement before the said remedy date in the default notice what options are available to the debtor.

 

For example, can/should the debtor instigate court proceedings for unlawful recession in order to seek closure?

Edited March 29, 2010 by pinny24x7
Added link to thread

[emandcole]

Hi Pinny, this is a big no no and clearly undermines your right to 'enjoy' that 14 day period to attempt to provide remedy.

 

Litigation may be a bit hasty, your first step is simply to accept their termination in a letter. There is an example in the posts above that you can use, send it recorded, print out the proof of delivery and keep all of the letters safe as they may be required if the creditor decides to get nasty.

[diddydicky]

Date of service is either 1st (First class) or 3rd (Second class) of June making earliest remedy date 16th June. It therefore fails by at least six days. Has it been terminated?

 

a DN which demands payment BEFORE a specified date (in this case BEFORE the 11th means you must remedy by the 10th)- so reducing the time by a further day

[diddydicky]

Sorry to hijack this thread but I have a query that has not been answered on a thread I started (http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/252913-default-notice-halifax-1000-a.html)

 

If a creditor terminates an agreement before the said remedy date in the default notice what options are available to the debtor.

 

For example, can/should the debtor instigate court proceedings for unlawful recession in order to seek closure?

 

you should send the letter quoted inpost 1929 and accept their unlawful rescission

[pinny24x7]

Hi Pinny, this is a big no no and clearly undermines your right to 'enjoy' that 14 day period to attempt to provide remedy.

 

Litigation may be a bit hasty, your first step is simply to accept their termination in a letter. There is an example in the posts above that you can use, send it recorded, print out the proof of delivery and keep all of the letters safe as they may be required if the creditor decides to get nasty.

 

you should send the letter quoted inpost 1929 and accept their unlawful rescission

 

Will send the letter off but then what should I do thereafter. I understand halifax will not be able to enforce through the courts but I was looking for closure, I don't want to hounded by the DCA's.

 

Thanks

[emandcole]

The acceptance of their rescission will not mean they won't chase you for the money, it does mean they are highly unlikely to litigate (and actually let it go to trial) as they may issue just to test your resolve.

 

You need to understand that just because the creditor has messed up doesn't mean that they will simply go 'fair enough' and let you off the hook. Yes, it has been fantastic for you but it doesn't automatically follow that you can also dictate what they should and shouldn't do now.

 

They will pursue this, if they don't you'd be very lucky. All you can do now is go along with any requests they make, remind them that only arrears are lawfully payable and bide your time. If you choose to litigate to get them to stop chasing you that's another issue entirely but one you'll have to be very well prepared for as you're always better off being the defendant.

[pinklover]

Is it just a simple line to accepting termination via a letter?! Do I do that first and then send diddydicky's letter above to accept their unlawful rescission?

 

I, on the other hand, does not mind DCA chasing me so long as it won't go to court..as I will be moving abroad for a few years soon. So, with this invalid DN, does it mean it'll be harder or not to the creditor's benefit to take me to court?

[professorgbr]

Date of service is either 1st (First class) or 3rd (Second class) of June making earliest remedy date 16th June. It therefore fails by at least six days. Has it been terminated?

Hi There yes it has been terminated and they have filed a countycourt claim

[diddydicky]

Will send the letter off but then what should I do thereafter. I understand halifax will not be able to enforce through the courts but I was looking for closure, I don't want to hounded by the DCA's.

 

Thanks

 

with respect- that is what is called "having your cake and eat it"

 

you still owe them the money- they just cant enforce it through a court

 

 

buy yourself a truecall and sit it out for 6 years

 

sit tight for a little while and you will start getting settlement offers - athough i wouldnt personally pay more than 10% to rid myself of it

[charlieboy39]

people should be careful when posting letters here, simply putting into a letter saying that you consider yourself relieved doesnt mean anything, if anything it actually reads "ive convinced myself im right, irrespective of the facts, so there )

 

this probabbly sounds odd on such a heavily one sided argument, but can some explain that if you have lend the money, not maintained the facility, then why shouldnt you have to pay it back? Granted, all banks etc have to issue notices in compliance with relevant statutes, but this just seems like a complete avoidance of responsibility.

 

Im honestly not trying to offend anyone, merely understand the ethos.

[Gallahad]

people should be careful when posting letters here, simply putting into a letter saying that you consider yourself relieved doesnt mean anything, if anything it actually reads "ive convinced myself im right, irrespective of the facts, so there )

 

this probabbly sounds odd on such a heavily one sided argument, but can some explain that if you have lend the money, not maintained the facility, then why shouldnt you have to pay it back? Granted, all banks etc have to issue notices in compliance with relevant statutes, but this just seems like a complete avoidance of responsibility.

 

Im honestly not trying to offend anyone, merely understand the ethos.

 

I take it from that that you fully understand the ethos of increasing interest charges to 34% when the bank rate is 0.5%

G

[Dotty50]

people should be careful when posting letters here, simply putting into a letter saying that you consider yourself relieved doesnt mean anything, if anything it actually reads "ive convinced myself im right, irrespective of the facts, so there )

 

this probabbly sounds odd on such a heavily one sided argument, but can some explain that if you have lend the money, not maintained the facility, then why shouldnt you have to pay it back? Granted, all banks etc have to issue notices in compliance with relevant statutes, but this just seems like a complete avoidance of responsibility.

 

Im honestly not trying to offend anyone, merely understand the ethos.

 

How about an interest rate hike to in excess of 34% for a customer who has NEVER missed a payment EVER! Check out what they advertise as STANDARD rates!

[Dotty50]

Snap Lol!!!!!

[Gallahad]

Great minds and all that Dotty;)

[Dotty50]

Hit a very raw spot Charlieboy39 but no offence taken.

[nks22]

Hi There yes it has been terminated and they have filed a countycourt claim

 

It would probably be a good idea to start your own thread and see what help and advice you can get in dealing with the court papers and case.

[Bradley68]

hi guys

i received DN dated friday 8th may 09 to be remdied 25th may. am i right in thinking there is not enough time .one day short first class mail,three days secound class mail.

received letter selling debt on too a DCA on 5th june 09. mbna were still investigating claim for unfair intrest rate.

was this unlawful recscission

thanks bradley

[nks22]

i received DN dated friday 8th may 09 to be remdied 25th may. am i right in thinking there is not enough time .one day short first class mail,three days secound class mail.

 

received letter selling debt on too a DCA on 5th june 09. mbna were still investigating claim for unfair intrest rate.

was this unlawful recscission

Sounds like it, especially as MBNA invariably send DNs by UK Mail, which counts as second class.

[Desperate Daniella]

Charlieboy,

 

Gallahad and Dotty beat me to it. Like the vast majority of people on CAG, I would think, I would have been able to meet my commitments on my cards if the interest rates hadn't kept going up and up. When you owe on a card, even if you are making the minimum payments, and sometimes considerably more than that, it doesn't mean that you can suddenly pay off the whole amount in one go.

 

Therefore, you are paying at one rate on a balance of, say, £5,000, and suddenly you are advised that your interest rate is going up. It's not that you have agreed a fixed term for six months before it increases or anything like that, it just comes out of nowhere.

 

So, unless you can find the £5,000 all in one go to pay the whole balance, you are stuffed. And your debt rises. And it is this which has caused so many people to start challenging the agreements, because if there is no enforceable agreement you are in a position to negotiate. The card companies insure against their losses, and they will then happily sell on these unenforceable debts to a DCA for as little as 10p in the £, while the cardholder has been charged an interest rate of 34%.

 

That is what isn't fair.

 

DD

[diddydicky]

people should be careful when posting letters here, simply putting into a letter saying that you consider yourself relieved doesnt mean anything, if anything it actually reads "ive convinced myself im right, irrespective of the facts, so there )

 

this probabbly sounds odd on such a heavily one sided argument, but can some explain that if you have lend the money, not maintained the facility, then why shouldnt you have to pay it back? Granted, all banks etc have to issue notices in compliance with relevant statutes, but this just seems like a complete avoidance of responsibility.

 

Im honestly not trying to offend anyone, merely understand the ethos.

 

clearly you have not read up on contract law or the right to "elect" when one party repudiates? the terminology used is legal terminology - just as a "vision technician" is a window cleaner!

 

as to your second point- are you aware that a credit agreement consists of a lot of terms and conditions?

 

Are you also aware that at the bottom of a consumer credit agreement there is a declaration, in the signature boxes which states

 

"sign this only if you wish to be legally bound by this agreement" ?

 

Are you aware that this declaration applies to both parties?

 

Are you aware that both parties agree that the agreement is regulated by and subject to the provisions of the the Consumer Credit act 1974 (as amended)?

 

Are you aware that if a party does an unlawful act then he/she steps into the area of general contract law?

 

 

Assuming that the answer to any of the above questions is NO - then go away and come back when you know something before making judgements about people on this forum

 

if the answer is YES

 

kindly now explain WHICH of the terms of the credit agreement and consumer credit act are allowed to be ignored or broken, and by which party! and which are not!

[charlieboy39]

DD thanks for the explanation, genuinely didnt think of that, and a fair point raised. Thanks

 

diddydicky i understand that the matters within these forums are extremely emotive. I DO understand terms contained within credit agreements, and certainly am familiar with the cca. What the CCA doesnt do well is set out remedies, or consequences for non compliance of areas. Frustratingly, this is inconsistent as some areas of the act (90-92) clearly set out remedy etc.

 

regarding DN's, and using NKs' post (sorry i couldnt find who they quoted). The cca states that the DN should give a deadline for remedy "no less than seven days" after the date of service. Indeed the date of service could be interpreted as in the post, but in NKs post it would suggest that the DN was right - but thats just off the back of seeing that one post.

 

apologies if i have offended anyone, not intended, forums such as these can be a great source of education.....

[nks22]

The cca states that the DN should give a deadline for remedy "no less than seven days" after the date of service.

That was amended in 2006 to fourteen days.

 

Indeed the date of service could be interpreted as in the post,

No, it couldn't. 'Service' is defined in the Interpretation Act 1978 as the second working day (for First Class) or fourth working day (for Second Class) after despatch.

 

You need to do some more reading. Try The Consumer Credit (Enforcement, Default and Termination Notices) Regulations. (PDF link: http://www.johnpughschambers.co.uk/Consumer%20Credit%20(Enforcement,%20Default%20and%20Termination%20Notices)%20Regulations%201983.pdf

)

Edited March 29, 2010 by nks22

[Smarterchick]

Dicky, you've just turned on a light...someone was saying just yesterday that the CCA was driving them and our judiciary nuts so she looked at the agreement under Contract law to bring things back to basics.. you just said

 

" Are you aware that if a party does an unlawful act then he/she steps into the area of general contract law?

I don'tsuppose you could put this into context for me in a short potted response could you. I'm just about to be repo'd and I need to cover all angles...what turns an agreement into contract law? (Mines an Unregulated one) even if you refer to Default notices as it's on a DN thread..sorry to hijack..

[charlieboy39]

Fair one. I was cleary wrong, thanks for the correction

[diddydicky]

Dicky, you've just turned on a light...someone was saying just yesterday that the CCA was driving them and our judiciary nuts so she looked at the agreement under Contract law to bring things back to basics.. you just said

 

" Are you aware that if a party does an unlawful act then he/she steps into the area of general contract law?

I don'tsuppose you could put this into context for me in a short potted response could you. I'm just about to be repo'd and I need to cover all angles...what turns an agreement into contract law? (Mines an Unregulated one) even if you refer to Default notices as it's on a DN thread..sorry to hijack..

 

nothing would "turn an agreement" into general contract law-its more a case of the acts of a party to the agreement not complying with the agreement or the specific regulations for that agreement or contract - there has to be "something else" if one party won't comply or "play ball"

 

IMO for all its complexity- basic contract law boils down to plain old fashioned common sense- it seeks to make sure that the "injured party" is no worse off than if the other side had not misbehaved and, by and large also makes sure that the injured party does not "take advantage of that fact" although in the CCA it can indeed "reward" the injured party- but that is a specific intent to uphold the overall effect of the act in punishing those unscrupulous lenders who would otherwise profit from their misdeeds

 

The normal remedy for the injured party would be to sue the other party if they are in breach of an agreement, but again this rarely happens in consumer credit agreements, more in commercial contracts where it is a lot easier to define or quantify the loss- a business can "mitigate" its losses by entering into alternative contracts and then sue its original contractee for the resultant losses.

 

with credit agreements the debtor does not find it easy to arrange alternative finance facilities if he falls out with his existing creditor- especially when the creditor files adverse information against the debtor

 

thus, the unfortuneate debtor finds it easier to take advantage of the provisions of contract law that cover such situations -

 

 

 

 

In contract law when one party refuses to honour the agreement the injured or performing party is immediately given a choice, he can affirm (insist that the other party performs- and if not sue him (which we have already said would be no good to a debtor against a creditor) OR he can "elect" to do what the other side did- and relieve himself of HIS obligations under the agreement - and at that point- since neither of the parties is now performing - the agreement is effectively terminated.

 

contract law is a very complicated subject and i would suggest , apart from this fairly simple "dipping of the toe in the water" beyond most caggers- luckily this is really as far as most caggers will need to go.

 

none of which- i suspect, with an unregulated agreement helps you much - except to say that the law will come to your aid if the effect of a repudiation of the agreement by the other party seeks to put you in a position you would otherwise have been in.