Lender cannot produce Default Notice

[Gaston Grimsdyke]

Seems that is what they are doing using computerised records, witness evidence etc. At the end of the day assuming they are seeking accelerated payment or delivery of goods/land they are going to have to satisfy the court a compliant DN was served in order to prove their case anyway.

[pt2537]

or to exercise the termination aspect of the agreement

[Gaston Grimsdyke]

Indeed, or to terminate (by reason of breach).

[pt2537]

well yes, common sense suggests that you wouldnt issue a "default notice" unless there was a breach lol

[Gaston Grimsdyke]

What I meant is that you can terminate without breach (and therefore without requirement for default notice) in some circumstances.

[pt2537]

yes, i was just pulling your chain so to speak

[Gaston Grimsdyke]

Consider it pulled!

[Guest]

HI

 

Reading through this i would certainly agree that it is far better for the debtor to have a none compliant DN than no DN at all.

As said the creditor can manufacure a copy and who is to say if it is accurate?

Has the OP made any positive declaration that the amounts on the DN or the statutory period for remedy was not quoted correctly?

Was the agreement terminated post default prematurely?

I think these are the questions that the court is liable to be asking if you are going to say you where prejudiced by a defective notice.

Otherwise i think that GG may well be correct and the court will say that on the ballance of probabilities the notice was issued.

Peter

[pt2537]

It seems previous posts have been removed, however, as i said in those posts, obtaining disclosure is the key if there is no default notice provided.

 

There is provision in the CPR for a party to seek specific disclosure for example. Also one could utilise CPR Part 18 to ask questions concerning the default notice and ask through correspondence for example if the bank uses a generic template for its default notices. If the bank does, then there should be no problem with the bank disclosing a copy of its template. Of course if it refuses then one should take issue with this and become very suspicious as it would be fair to say that in all likelihood that the template would have issues and that would be the only reason i can see for refusing to print a copy from the system.

 

I accept you cannot check the figures if a copy is printed from a template, but you can check the form and content requirements

 

The burden is on the Claimant and it is the Claimants to discharge after all, if he refuses to produce his evidence then he deserves to lose his case

[Guest]

hi

so are we saying that the op need do nothing, just wait and hope the creditor does not produce?

 

OK say this does happen, what will the court do? we have documented proof that in the past courts have just stayed proceedings whilst the creditor re presented. is there any reason why this could not happen here. I think it mentioned cpr 3.4.

so at best wouldnt it would just be a delay of execution.

also would there be any impact on the eventual costs?

 

Peter

[pt2537]

No i think the OP ought to seek disclosure,

 

I think at least the template ought to be provided.

Edited April 23, 2011 by caro
Removing content that doesn't help the OP.

[Guest]

Hi

It would be good if the OP could get back to us with the name of the creditor.

 

Peter

[caro]

also would there be any impact on the eventual costs?

 

This is an important point that should always be taken into account when making a decision on what's the right way for you to proceed.

 

Make sure that you have all the information you need to make that decision and that you can back up what you say in court either based on statutes or case law. If you can demonstrate to your creditor that you have a good solid case there is every possiblility that you can avoid court altogether.

 

If you do have to go to court and your case isn't strong enough you put yourself at risk of costs, especially if the claim is for over £5k.

[pt2537]

To reaffirm my previous post

 

The Op ought to seek disclosure of the template which the Bank uses. This can be done by request using part 18 for further information, i did a thread on CPR 18 but do not have the link to that thread any longer.

 

Alternatively the OP could make an application for disclosure of the template.This would incurr costs if unsuccessful, but it is a balance that needs to be considered, on the one hand having at-least the template to scrutinise or on the other having nothing at all.

 

or at a CMC the court could be invited to make an order for disclosure of the template

 

If the Claimants case gets to trial and the notice is bad then there is a fair chance they will lose with adverse costs. Harrison vs Link has been taken in a number of cases to be the authority for the proposition that a "bad" notice cannot lead to any enforcement and accordingly the Claim should be dismissed.

 

This has happened in a number of claims recently as opposed to staying the proceedings, as one judge commented that it would prove impossible if the Debtor remedied the breach for a claim to go anywhere as the Claimants cause of action would be extinguished by the reissue of the new notice, furthermore the new notice would be a new cause of action in essence so would leave the pleaded case needing amending with costs to be paid to the Defendant if the Claimant sought to amend.

 

It seems the judiciary are dismissing claims where the notice is bad and making the creditors apply for leave to reissue

[Guest]

HI

 

Interesting do we have any judjements we can see that illustrate this. We do have a few on here where cases have just been statyed or DNs or just represented during proceedings.

One here where it seems the court considered it to be an irrelevence

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?213405-Hillesden-Securities-Ltd-(dlc)/page13

 

Peter

Edited April 25, 2011 by peterbard

[pt2537]

we are awaiting the transcription of the judgments

[pt2537]

HI

 

Interesting do we have any judjements we can see that illustrate this. We do have a few on here where cases have just been statyed or DNs or just represented during proceedings.

One here where it seems the court considered it to be an irrelevence

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?213405-Hillesden-Securities-Ltd-(dlc)/page13

 

Peter

Yeah that was before Harrison was handed down though Peter that case, however, i do not think that the same would happen if the OP had placed reliance on it

[Guest]

Hi Paul

Purely as a technical point, and again I am not making any assertions here just raising the question.

I have a problem in accepting that a default notice as the “cause for action”, is this quote from a judgement?

I would have thought that the cause for action would be the breach.

If it means that the evidence for the enforcement is based on the default notice, then I have a problem with that as well.

Firstly the default notice is not part of the enforcement process that only starts on events triggered by it(termination etc.).

We have I think established that no enforcement events can take place after a defective default notice, so logically how can the defective DN be evidence in an enforcement that cannot happen?

If it is not evidence then there is nothing stopping the creditor from using a corrected notice as the enforcement could not have commenced until a valid DN was acknowledged.

I hope you see what I mean, I realise this is a technicality but it does bother me I hope someone can clear it up.

Peter

[pt2537]

sorry maybe not making my point clear, it is often the case that i dont frame my point well enough on these boards,

 

what i was saying was, if the claimant accepts his notice is bad, then reissues a new notice, then the debtor remedies the breach by payment of the arrears, the Claimants cause of action becomes extinguished as there is no longer an actionable breach (s89 ). The Claimant would have to discontinue and then pay the Defendants costs, as he could no longer sue for the full balance

 

This is the point which was of concern to the DJ

 

Also the Judge interpreted Harrison at the final hearing to mean no enforcement because he found the notice was bad, he even refused the recovery of the arrears.

[Guest]

sorry maybe not making my point clear, it is often the case that i dont frame my point well enough on these boards,

 

what i was saying was, if the claimant accepts his notice is bad, then reissues a new notice, then the debtor remedies the breach by payment of the arrears, the Claimants cause of action becomes extinguished as there is no longer an actionable breach (s89 ). The Claimant would have to discontinue and then pay the Defendants costs, as he could no longer sue for the full balance

 

This is the point which was of concern to the DJ

 

Also the Judge interpreted Harrison at the final hearing to mean no enforcement because he found the notice was bad, he even refused the recovery of the arrears.

 

HI Paul

yes you and me both i have the added dissadvantage of haveing a keyboaard that cant spell.

 

Yes i see what you mean now and it makes perfect sense.

Peter

[caro]

All very interesting but until caggers have something concrete that they can use or refer to in their own cases, or to make informed decisions, it's not particularly relevant or helpful.

 

A judge is not going to be impressed with LIPs going into court with half a story that they can't back up. It's just the kind of thing that has turned the courts against borrowers who find themselves in difficulty and use technicalaties to try and fend off debt colloectors.

 

Can discussions please stick to information that is currently available for all to see. It's not really a balanced discussion unless all involved are privy to the facts, and only gives the reader one persons opinion of how the inforamation might be used.

[alsodada]

Hi everyone and thanks very much for the contributions. I'm afraid that I am a little slow in following all the arguments so kindly bear with me.

In answer to perterbard's question, the creditor is LloydsTSB.

If I get the general gist of contributions it is as follows, otherwise please correct me:

 

1. Faulty DN is better than no notice.

2. Creditor can use witness evidence and reference to inhouse computer systems to lay strong claim that the DN was sent out.

3. If creditor does this then it is assumed that the DN meets legal requirements and the suggestion that it may or may not be compliant will not be entertained.

4. If all the above are correct, then there is no credible defence that can be put forward.

 

If 4 above is a step too far, then are there any credible defences as I have no recollection receiving the DN or any copy of it and I have been extremely scrupulous in keeping all documentation.

 

Is it not possible to query the validity of the creditors assertions about the DN including any assertions that it satisfies legal requirements as a copy of the original cannot be produced.

 

Outside of court, the creditor's representative told me that she was advised by LloydsTSB that the notice was issued on 18.11.09 and the demand to pay was to be by 8.12.09 but that they did not have a copy of the original sent to me.

 

I will be obliged for your experience on suggestions on how to proceed as I am required to file a defence this week.

 

Thanks all.

[Guest]

Hi

This is where you really have to make your own mind up.

My view is that challenging a default notice is at best a device for giving you breathing space, and at worse may impact you as regards costs and more importantly the good will of the court.(PT will be better able to advise here)

I do not like giving advice as you will see if you read my posts because I do not know enough about your circumstances, but you must consider the implications of a forthwith judgement.(you have to pay the full amount forthwith). If it were me , avoiding this would be my main priority.

Have you made offers to the creditor that have been refused?

Has he been unreasonable in dealing with a genuine case of hardship, in my opinion based on the limited information I have these arguments are going to be of much more practical use to you.

Peter

[caro]

The problem that I see with using default notices, or even lack of them, to fight a court claim is that it's such an easy thing for them to correct. They can just send one and carry on from there so in my view there is little point in using this argument, especially if the court adjourn to allow them time to do this..

 

The only thing is, if it can be proved that they really didn't send one, which may be possible if you have impeccable records of all other correspondence and literature, is that they haven't followed the necessary steps to take you to court in the first place so you may avoid costs.

 

I wonder if a time order might be an option for you. http://www.nationaldebtline.co.uk/england_wales/factsheet.php?page=06_time_orders

[pt2537]

The problem that I see with using default notices, or even lack of them, to fight a court claim is that it's such an easy thing for them to correct. They can just send one and carry on from there so in my view there is little point in using this argument, especially if the court adjourn to allow them time to do this..

 

The only thing is, if it can be proved that they really didn't send one, which may be possible if you have impeccable records of all other correspondence and literature, is that they haven't followed the necessary steps to take you to court in the first place so you may avoid costs.

 

I wonder if a time order might be an option for you. http://www.nationaldebtline.co.uk/england_wales/factsheet.php?page=06_time_orders

 

EDIT

 

Caro can i direct you to

 

KEith Harrison vs Link Financial Limited

 

Lloyds TSB bank Plc vs Simpson

 

Then please tell me the default notice argument is pointless. The first case is a High Court judgment so is binding upon the lower courts

 

It is also not, contrary to suggestions, easy to put right such a failing as a bad notice, it is more complicated than that.

Edited April 25, 2011 by caro
Unnecessary offensive comment