Help with a default notice please.

[got no money]

Hi,

 

this is my first post and I hope it is the right forum. I have received a default notice, and I wanted to get an opinion on whether it is valid. All is okay with dates etc. but i think there may be a problem with the wording and emphasis.

 

It states-

 

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

 

iF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU.

 

Most of the DN's I have seen on this forum seem to have certain words underlined like this

 

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

 

iF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU.

 

My question is does this underlining make a difference? And if so has anyone successfully shown in court that it is a defective DN on this basis?

[harrassed senior]

Well not particularly knowledgable in this area, but I would thank that as long as that part which you feel should be underlined is in caps and bold, I would think that would be satisfactory.

 

Search on the forum for Defaults and you will find several threads. Will try and find some info for you.

[harrassed senior]

This is an excellent thread and should clarify things for you:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?200901-Anatomy-of-a-Default-Notice(1-Viewing)-nbsp

[got no money]

Thanks for your reply harrassed senior, I have read the thread you highlighted,

 

would you know where I can find what the 'prescribed wording' is for a DN? I have tried looking in CCA1974 act itself but cannot find it

[Guest]

see this thread for eg re underlining etc http://www.consumeractiongroup.co.uk/forum/showthread.php?234740-prominent-and-more-prominent-text

on its own prob not enough, imo

[robinredbreast]

Agree with Ford ... although not strictly compliant as yes the parts you have highlighted should be underscored - if this is the only error, and you have a correctly executed agreement as well, I can't see a Judge (should it go to court) rule in your favour. Sorry, I know not probably what you wanted to hear ... !!

 

Have you had your agreement checked out to make sure its correctly executed ?

 

Robin x.

[got no money]

Thanks anyway, just thought worth a go!

[got no money]

Agreement in post April 2007

[Guest]

are there any unlawful charges, or missold PPI? is the arrears amount on the dn accurate?

although, technically, failure to comply with para 5b of the 1983 regs is a breach of statute, it's a question of what effect this failure on its own has in practice!

are you sure that the dates are compliant? don't forget to allow for 'service'. 2 days if 1st class, 4 days if 2nd class, excluding bank hols.

[got no money]

Another question regarding this DN please. It states the amount that needs to be paid to remedy the breach £xxx ( which equals one months payment plus £50 of charges, £25 for sending a letter, and £25 for issuing a default notice), is this allowed? or am I clutching at straws now!

[harrassed senior]

I think you would need to read the Terms and Conditions on the original agreement.

[got no money]

I have now received a letter from a DCA (who I understand to be the in house dca for this bank), on the 9th day following service of my DN, a demand for full payment of outstanding balance some £11000 odd. Does this automatically mean they have failled to give me the statutary 14 days?

[robinredbreast]

Now we're talking ..... but we may need to proceed with caution ....

 

A DN is the legal opportunity for you the Debtor, being in breach of your original credit agreement in having missed payment(s), to remedy the breach/default by paying the outstanding monies, whereby the agreement is treated as if the default never happened ... (i.e in-effect putting you back to the start ... whereby if you default again the cycle re-starts).

 

However, 9 days into your service period, they demand the full amount. That means that in paying the full amount you wouldn't be putting the ball back to sqaure one as it were, but would be completely redeaming your loan and therefore ending your agreement.

 

So they are guilty of unlawful repudiation of the agreement, in that they have not allowed you sufficient time to remedy the breach (i.e 14 days from service) - which is against the CCA74.

 

Now then .... that being said we have a slight problem with the recent Brandon case .....

 

The bones of the Brandon case is that the Debotor argued that the Debtor had not given sufficient time in the DN for them to remedy, which rendered the agreement unenforceable ... whereby it was argued by the Creditor & accepted by the Judge .. that regardless of the time given for remedy, the Debtor had no intention to remedy the breach regardless - and therefore the error in time for remedy was academic ....... the Judge acceped this and found for the Creditor..!! I don't want to frighten you (I'm in this position myself with a few creditors), but I think its important to be armed with anything that may rear its head in Court, it just means that you're prepared.

 

But technically and in strict regard to the CCA74 - they are guilty of unlawful repudiation and have thereby lost the benefit of s87, in that they can not claim any sum due in the future, and have lost that right forever. Maybe worry about the Brandon case if you're skidding into Court with them .. !!

 

They are legally only able to claim the genuine arrears (which I don't think can include penalty charges, as they are not technically credit repayments so are technically not genuine arrears /missed payments under the agreement).

 

If this were me, I would accept their unlawful repudiation of the agreement and tell them that they have thereby lost the benefit of s87, I don't think I would tell them why they have achieved unlawful repudiation - but thats up to you - you could leave them to work it out for themselves. (I also wouldn't tell them about them being legally due the arrears under the agreement, let them find that out for themselves too).

 

See what they come back with ... !!

 

PS =- don't know if this has been raised .. but have you absolutely gone throught your CCA with a fine tooth comb ... you're looking for errors or omissions.

 

 

So you're checking:-

• That the amount borrowed, the term and monthly repayments in the CCA are correct to what you did borrow, what you were paying per month etc
  
• Have you checked the APR is correct ?
  
• As Ford says .. any PPI ... if so did you want it, need it, afford it, felt pressured into buying it (to be accepted for the credit/loan) ?
  

Check .. check ... and check again .... the devil's very much in the detail ... and could give you another pronged attack ..

 

Robin x

[got no money]

thanks robinredbreast for your reply, i will indeed proceed with caution. Thanks for the advice. The agreement is from 2008 so my understanding is that even if there were errors in the original agreement they can be enforced through the courts. No ppi with loan either.

[Guest]

imo

the t and c's of a cca regulated agreement cannot override the cca. ie 'your statutory rights are not affected'! s87 specifically states that a DN in the prescribed form must be served where a creditor 'by reason of any default' seeks termination, any sum not yet due etc. don't know the full facts of the brandon case but, if the J held that the term'n clause in a regulated agreement overruled the requirements of the cca (if relevant) then the decision would be wrong in law. the general Q is though, as there is no statutory remedy for a s87/88 breach, what effect does a breach of S87/88 have in the particular circumstances!?

Edited September 3, 2010 by Ford
typo

[robinredbreast]

No ... errors or omissisons from or under the CCA74, no matter WHEN the agreement is from means that it MAY be unenforceable in court - its just that post 2007 Creditors tended to be aware of the faults and tightend up the CCAs .... but there are still errors in post 2007 CCAs .. and yours may be one of them..

 

Have you posted the CCA up for everyone to have a look at ?

 

Robin x

Edited September 3, 2010 by robinredbreast
typo .. oops !

[got no money]

Hi thanks for the replys. I haven't actually requested the agreement, though I think it was done online. I will do so now.

 

I think I have found a way of posting DN and DCA letter. Please could someone check dates for me, is the important date on the DCA letter the day it was written or received by me? The amount demanded by Albion is the full balance

 

DN from AA Finance was sent UKMail2 (2nd class I presume)

Letter from Albion was sent UKMail1 (1st class?)

 

I have both envelopes.

 

http://i1194.photobucket.com/albums/aa365/gotnomoney1/Defaultpage1a.jpg

http://i1194.photobucket.com/albums/aa365/gotnomoney1/Defaultpage2a.jpg

http://i1194.photobucket.com/albums/aa365/gotnomoney1/Albion.jpg

[robinredbreast]

Hi,

 

Ok ... AA DN - dated (Friday) 14 Aug 2010 & you say sent 2nd class - which means 4 day delivery period from getting into postal system.

 

• Written on a Friday - so wouldn't have gone into the mail system until Monday (IMHO) which gives us a date of 16 August 2010
  
• plus 4 days travelling time gives us earliest delivery of Fri 20 Aug or latest delivery time of Sat 21 Aug 2010. (lets use the 21st )
  
• plus 14 prescribed calender days for remedy gives us a remedy date of Sat 4 September 2010 - but we have a bank holiday in this time frame on Monday 30 May 2010 - so that takes it down to 13 days. (and a correct date for remedy of 5 Sept 2010)
  
• so the DN is 1 day short IF received on Sat 21 Aug 2010 - however IF recd on Friday 20 Aug 2010 then we have the required time period allowed as denoted in the DN of 4 Sept 2010
  

• The letter from Albion is dated Sunday 29 August 2010 - and you say sent 1st class (=2 days svc).
  
• It would have gone into the postal system on Tuesday 31 May 2010 (remember Monday 30 May was a bank holiday)
  
• So that gives us a receipt time of 2 Septermber or 3 September - both dates still (just) before the DN cited cut off date of 4 Sept 2010.
  

So unlawful repudiation occured by Albions pre-empted letter of 29 August - clearly guessing that you were not going to remedy the DN issued by AA -- how far sighted of them .. do you think they'll give me tonights lottery numbers !!!!

 

Hope this makes sense ... or is it as clear as mud !!??

 

 

Hope this helps ...

 

Robin x

[got no money]

thanks robinredbreast, all is clear. I was so hoping there would be something wrong with this default notice.

[Craigbadger]

CCA them for sure.

I had a 2008 agreement which I did online, they wrote back saying they had no documentation from when I had opened the account. I had only done a SAR for charges.

From what I gather they would still need to prove that you had an agreement with them and lets be honest if there was no paperwork theres always the chance technology went wrong etc.

[robinredbreast]

Sound advice .... so your next move is

 

• request a cca
  
• scan and post up - whereby everyone will give their opinion
  
• if its an iffy CCA we will tell them that & accept unlawful repudiation
  
• if its an ok CCA .. we still accept unlawful repudiation and see what their next move is ....
  
• then we plot your next move ...
  

Robin .. x

[got no money]

.... and now I have just added Albion Collections to my Christmas Card list!

[got no money]

Thanks again for your help robinredbreast

[Guest]

robin

 

you state a bank hol in may! did you mean the august bank hol? in any event, AFAIK, a bank hol counts as one of the '14 days'. (but a bank hol doesn't count re as a 'working' day re 'service' period?) so, imo, it seems that the dn dates are ok even if 2nd class. but, as you say, it seems that they may have demanded the full amount before the 14 days.