Anatomy of a Default Notice

[diddydicky]

I agree with you completely, apart from the biased judge bit. I prepared very well for my case ( thanks to a fellow cagger ) with all points covered, and yes it was only a 5 minute repo hearing that he ajourned to get further info. But he was 100% on the claimants side, basically ignoring me and anything I said, and agreeing with the claimant's solicitors every word.

 

I am an extremely confident, articulate person, used to dealing with people and controlling situations. But when put in front of the judge it is a whole different ball game.

 

i didn't say there were not ANY biased judges- just that they are not always biaised!!

 

Life is life- and in all walks of life people will have their opinions- however judges are also acutely aware that they are scrutinised - so if you feel things are not going your way and you have used the correct legal arguments- then you should make the judge aware that if he is leaning towards not accepting your legal arguments then he should make a full notation of his reasons for not accepting them- for appeal purposes.if nothing else- it will sharpen him up a bit!

[cosalt]

i didn't say there were not ANY biased judges- just that they are not always biaised!!

 

Life is life- and in all walks of life people will have their opinions- however judges are also acutely aware that they are scrutinised - so if you feel things are not going your way and you have used the correct legal arguments- then you should make the judge aware that if he is leaning towards not accepting your legal arguments then he should make a full notation of his reasons for not accepting them- for appeal purposes.if nothing else- it will sharpen him up a bit!

 

Ok that a good point, and to be fair in my case he could have just ordered the repo, but he didnt and adjourned. Maybe he was listening to me more than I thought !

 

The claimant is obviously aware they are on dodgy ground as they are trying to look for settlement out of court.

 

Cosalt

[diddydicky]

Ok that a good point, and to be fair in my case he could have just ordered the repo, but he didnt and adjourned. Maybe he was listening to me more than I thought !

 

The claimant is obviously aware they are on dodgy ground as they are trying to look for settlement out of court.

 

Cosalt

 

not necessarily- they are OBLIGED to seek to resolve the matter outside of the court process (as are you)- they may simply be being disingenuous in order at a later date to show that they have tried to comply

 

there are also costs implications at a later date where an offer has been refused

[pumpytums]

In my case the claimants way of seeking to resolve the issue was to send a letter asking me to withdraw my defence and admit to everything including 8% on an agreement covered by CCA 1974. To quote :-

 

 

It is our intention to proceed to Judgment in this matter and hereby enclose a letter for your consideration. By signing and returning this to us you will be admitting the debt in full and consenting to Judgment being entered. Upon Judgment being obtained we will look to make an application to the Court for a Charging Order as a means of securing the outstanding balance against your property. We will then revert back to you so that an amicable payment arrangement can be reached.

I of course declined their generous offer. I will of course be taking their "generous offer" to my hearing as it will answer the question about settlement very nicely.

 

Pumpytums

[cosalt]

In my case the claimants way of seeking to resolve the issue was to send a letter asking me to withdraw my defence and admit to everything including 8% on an agreement covered by CCA 1974. To quote :-

 

 

It is our intention to proceed to Judgment in this matter and hereby enclose a letter for your consideration. By signing and returning this to us you will be admitting the debt in full and consenting to Judgment being entered. Upon Judgment being obtained we will look to make an application to the Court for a Charging Order as a means of securing the outstanding balance against your property. We will then revert back to you so that an amicable payment arrangement can be reached.

I of course declined their generous offer. I will of course be taking their "generous offer" to my hearing as it will answer the question about settlement very nicely.

 

Pumpytums

 

 

Thats terrible pumpy ! what a bunch of idiots !

[means2anend]

subbing!

[AA99]

This Default Notice business is a minefield that shouldn't be, surely?!:?

[pumpytums]

This Default Notice business is a minefield that shouldn't be, surely?!:?

 

Very true,

I do wonder why such a well documented Statutory Notice can be butched so effectively by multi billion pound companies. How hard can it be to put a date on a piece of paper thats 14+4+ a couple for good measure.

 

I think one of the main reasons that they are done incorrectly is that the 1983 No 1561 Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983) that covers the form of the notices has basically been left behind in time. And is quite hard to find the following link will be very handy.

 

To find this I had to search for the amendment S.I. 1984/1109

 

http://www.johnpughschambers.co.uk/Consumer%20Credit%20(Enforcement,%20Default%20and%20Termination%20Notices)%20Regulations%201983.pdf

 

 

The only other way to get hold of this particular SI is to subscribe to one of the online Law databases. Do they have Law books in Library's for the unwashed?

 

But you would think a huge creditor would pay the fee to get one drawn up rather than the mickey mouse ones they try to palm off.

 

Pumpytums

[AA99]

Enforcement, Default and Termination Notices Regulations 1983

 

That's the one Barclayshark and CrapOne use in defence of not having to provide a copy of the CCA:confused:

[banker_rhymes_with]

Hello Pumpytums!

 

I think the thing to appreciate is the banks regard s87 as something inserted for their benefit, not for the Consumer's benefit.

 

Whereas the complete opposite is the case. The whole point is to allow Consumers who have stepped out of line, to be given a formal warning that allows them the option to put things right, then continue on as if they had done no wrong.

 

It's more Carrot than Stick, but there is a Stick element if the Carrot is ignored.

 

By comparison, the banks and DCAs only see it as being a Stick, and often are so keen to rush it all through to whack the Consumer with the Stick they feel was added for their sole benefit, that they cannot bring themselves to cut the Consumer any more slack than the absolute minimum they can get away with.

 

So, they see 14 clear days, and read it as 14 days maximum, not a second more. This is why so many fail to allow for Service, and fail to add in a little extra on top to ensure they are Whiter than White.

 

Many also see it as a one-way ticket, and have little appreciation that it's not intended that way at all.

 

The Act assumes that a genuine default is redeemable, not irredeemable.

 

Whereas the bankers only see it as irredeemable, and a s87(1) Default Notice is their authority to punish the Consumer by calling in sums not yet due without any prospect of reversing that.

 

Without CAG, they would be getting away with this all of the time. But even with CAG, they are still getting away with it most of the time, although a clued up CAGger can stop them dead in their tracks and turn their stupidity against them.

 

Cheers,

BRW

[pumpytums]

Thanks Banker rhymes with,

thats a brilliant explanation as you have said the s87 is a shot across the bows not a broad side.

 

I have noticed the big bad MBN@ has even stopped asking for the full balance on their DN's they still can't add up though or contain their enthusiasm for the full 14 days.

 

If you do get a biased judge who will not listen to your arguments especially when they are grounded in the very Statutes they should know. Is it simply an appeal process? or can you complain to a higher authority?

 

I know many people have said that if you get a judge who decides to sail off into uncharted waters should you simply ask them why they are ignoring the Acts laid down by Parliament? and if they continue to please explain very clearly why they are doing so for the appeal?

 

Thanks

 

Pumpytums

[vint1954]

That is where your clear defence comes in. If they ignore the law or try and interperate it their way, then if all fails, it's an appeal.

 

As DD says in the above post, most DJ's are solicitors who do not have specialist knowledge. They know court proceedures, but you need to lead them down your road to the correct judgement.

[middenmess]

A couple of points I always find somewhat confusing...

 

© 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.

 

Now I read that as you have 13 days in which to rectify--rectifying on the 14th day would be out of time.

 

 

Action intended to be taken by creditor or owner

6

A clear and unambiguous statement by the creditor or owner indicating, if any action specified under paragraph 3© or

(d) as required to be taken is not duly taken or if no such action is required to be taken, the action which he intends to take

by reason of the breach by the debtor or hirer of the agreement--

(a) to terminate the agreement;

(b) to demand earlier payment of any sum;

© to recover possession of any goods or land;

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred;

(e) to enforce any security;

(f) to enforce any provision of the agreement which becomes operative only on a breach of another provision of the

agreement as specified in the notice,

at any time on or after the date specified under paragraph 3© or (d), or, if no action is specified under that paragraph as

required to be taken, indicating the date, being a date [not less than fourteen days] after the date of service of the notice,

on or after which he intends to take any action indicated in this paragraph.

 

 

I read this to mean that the creditor cannot use the word 'May' in relation to any [purposed] action as that would be an ambiguous statement and would make the D/N defective.

I also read the last sentence as stating that the account can be terminated on the 14th day which aligns with my previous thought at the top of the post.

Edited May 6, 2010 by middenmess
Punctuation

[pumpytums]

With regards the first point I believe you are correct. Lets say you receive it on the 11th the date should be given as the 25th. I for example have a DN received on the 11th with a date of the 24th which is short by a day.

 

You do have 14days providing you count the day of service but the date on the DN should still show 14.

 

I have another DN that clearly states :-

 

PROVISION OF AGREEMENT BREACHED: The clause which requires you

to make payments at the time stated in the agreement.

NATURE OF BREACH: Failure to pay the overdue amount.

 

ACTION REQUIRED TO REMEDY: Payment of the overdue amount of

£xxx to us within 14 days of service of this notice.

 

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. If you do not take the action required by this notice before the date shown then the further action set below may be taken, against you. If the payment required is not received by us before the date shown we shall become entitled to demand payment of the whole outstanding balance on your account. We may take legal proceedings against you for the recovery of this balance which currently stands at £xxx or we may refer your account to debt recovery agents.

 

 

The text is exactly as above no caps or underlining, one of the worst I have ever seen.

 

 

Now the interesting thing is I have received a letter from their in house DCA (the OC's name is on the bottom) stating they require settlement of the debt. Only the arrears are shown on the letter but to me settlement of debt means the complete balance. So I think they have UR the agreement due to the DN been invalid. There was more than 14days between the DN and DCA letter but the DN is still invalid so they have blown the s87 rights.

 

 

 

 

Pumpytums

Edited May 6, 2010 by pumpytums

[exchange]

Hi one and all. I understand why people want to understand what is correct and what is not when it comes to DN's but I don't like the idea that this thread could become an 'Alternative comprehensive guide to DN's' for CCC's and DCA's, which may mean someone actually begins to work out what they should send out and they start getting them right! It would be ironic if enough information was gleaned from this website that we all start getting properly constructed legal notices.

I know I'm going to be shot down in flames for posting this, and I have been astounded by the depth of knowledge and help given on here, which has been a life saver for me, but I know these cretins read threads on here and they definitely need help. (In one of my more sarcastic responses to a DCA I suggested the purchase of a dictionary might help them understand what I had put in my last letter to them. Heard nothing since as a 4 syllable word is probabaly beyond them!)

Could we come up with some sort of coded way of giving out misinformation for them to follow?

Keep up the good work guys and gals and thanks to anyone who has helped me.

If my signature appears below (seems to be a bit haphazard) I have heard nothing for a while from anyone. Bound to have jinxed myself now!

Exchange

[cerberusalert]

Could we come up with some sort of coded way of giving out misinformation for them to follow?

As this is an open forum that would make it impossible for newbies to be able to distinguish fact from fiction.

[exchange]

Hi cerberusalert, I wasn't expecting my suggestion to be feasible. It was just thinking out loud so to speak!

I see from the number of posts you are being as busy and helpful as ever cerberusalert.

The battle continues!

Exchange

[AA99]

That is where your clear defence comes in. If they ignore the law or try and interperate it their way, then if all fails, it's an appeal.

 

As DD says in the above post, most DJ's are solicitors who do not have specialist knowledge. They know court proceedures, but you need to lead them down your road to the correct judgement.

 

Well said Vint

[overdone]

most DJ's are solicitors who do not have specialist knowledge. They know court proceedures, but you need to lead them down your road to the correct judgement.

The wisest statement on CAG I have come across. State the obvious in all correspondence and quote all the necessary acts. The obvious is not so to all.

[Craigbadger]

Regarding the date given on the dn, am I right in thinking that if you make the payment before the date given then they would not leave the default?. I recieved a default a while ago and fixed it within a week and it was never marked down.

 

What would the situation be if they were to leave the default notice on your credit record days before the remedy date?

Edited May 7, 2010 by Craigbadger

[vint1954]

The wisest statement on CAG I have come across. State the obvious in all correspondence and quote all the necessary acts. The obvious is not so to all.

Thanks for the comment overdone, but it is only repeating the views and advice of others such as BRW, CB, Diddydicky and PT. I feel sure there are more.

[vint1954]

Regarding the date given on the dn, am I right in thinking that if you make the payment before the date given then they would not leave the default?. I recieved a default a while ago and fixed it within a week and it was never marked down.

 

What would the situation be if they were to leave the default notice on your credit record days before the remedy date?

Well, I beleive that the defaults on your credit file, relate to missed payments. This has nothing to do with a subsequent notice, telling you that you have missed those payments and you now have to put it right in 14 days.

 

Not having checked my credit file, I am not sure how they register a DN on the credit files and how that differs from payment defaults.

[Craigbadger]

Well, I beleive that the defaults on your credit file, relate to missed payments. This has nothing to do with a subsequent notice, telling you that you have missed those payments and you now have to put it right in 14 days.

 

Not having checked my credit file, I am not sure how they register a DN on the credit files and how that differs from payment defaults.

 

Payment defaults show as a number 1,2,3(months in arrears)

I recieved a notice of default under s87 etc giving 28 days(no date, them just being lazy I think?).

They then marked by account as defaulted on the 26th day. I thought the time given was so you could avoid it.

[tedney]

 

Not having checked my credit file, I am not sure how they register a DN on the credit files and how that differs from payment defaults.

On my file, the repayment dates are shown as "D" and there is a separate listing showing the date of the Default. I have not checked on any if the date quoted is the date of the DNs I received, I suppose I should at some stage:?

IHTH

t

[vint1954]

Payment defaults show as a number 1,2,3(months in arrears)

I recieved a notice of default under s87 etc giving 28 days(no date, them just being lazy I think?).

They then marked by account as defaulted on the 26th day. I thought the time given was so you could avoid it.

That is correct, however they only need to give 14 days from service. If your notice says 28 days, then that should be that. Doubtless if you had rectified the default within the 28 days, they could have been persuaded to remove the default.