New Court Claim On Bad Default Notice

[postggj]

LETS GET OUR TEETH INTO THIS ONE, ITS FICTION BUT HAS AND WILL OCCUR TO DEBTORS

1/ A CREDITOR ISSUES AN N1 COURT CLAIM
2/ IT IS DEFENDED ON THE GROUND DUFF DEFAULT NOTICE
3/ CREDITOR WITHDRAWS CLAIM
4/ CREDITOR THEN ISSUES COMPLIANT DEFAULT NOTICE
5/ NEW CLAIM ISSUED

PART 38 Discontinuance and subsequent proceedings
DOES NOT APPLY AS ITS N A NEW DEFAULT NOTICE

The Harrison ruling made clear no enforcement was allowed with a bad notice,"

WHAT IME AFTER IS AY CASE LAW TO BACK UP THE FACT THAT THE CREDITOR CAN REISSUE A NEW DEFAULT NOTICE AND GO BACK TO COURT FOR THE FULL AMOUNT OR IS THE CREDITOR TIED TO JUST THE ARREARS

[teaboy2]

Re: New Court Claim On Bad Default Notice

LETS GET OUR TEETH INTO THIS ONE, ITS FICTION BUT HAS AND WILL OCCUR TO DEBTORS

1/ A CREDITOR ISSUES AN N1 COURT CLAIM
2/ IT IS DEFENDED ON THE GROUND DUFF DEFAULT NOTICE
3/ CREDITOR WITHDRAWS CLAIM
4/ CREDITOR THEN ISSUES COMPLIANT DEFAULT NOTICE
5/ NEW CLAIM ISSUED

PART 38 Discontinuance and subsequent proceedings
DOES NOT APPLY AS ITS N A NEW DEFAULT NOTICE

The Harrison ruling made clear no enforcement was allowed with a bad notice,"

WHAT IME AFTER IS AY CASE LAW TO BACK UP THE FACT THAT THE CREDITOR CAN REISSUE A NEW DEFAULT NOTICE AND GO BACK TO COURT FOR THE FULL AMOUNT OR IS THE CREDITOR TIED TO JUST THE ARREARS

Not sure i follow as the Harrison Ruling is Case law so you answered your own question there.

Though a creditor can not reissue a default if they have sold the account after issue the Invalid Default. As th following case law prevents them doing so -

Failure of a Default or Termination Notice to be accurate not only invalidates such notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998 but it is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt (Wilson v First County Trust Ltd (2003) UKHL 40, Wilson V Robertsons (London) Ltd(2006) EWCA Civ 1088, Wilson v Pawnbrokers (2005) EWCA Civ 147) - but would also give the claimant a claim for damages in the sum of £1000 (Kpohraror v Woolwich Building Society (1996) 4 All ER 119).

Basically once the original creditor has sold the account the agreement under the consumer credit act ceases to exist, as defaults are issued under the agreement, then since the agreement not longer exists no default notice can be reissued and it becomes a matter of the creditor having then unlawfully rescinded the contract/agreement. Only way a creditor can get issue a new default when the account was sold, is if they buy back the account AND the debtor has also agreed to the agreement being reinstated (which lets face whos going to be stupid enough to agree to that lol) - So when people come to me and they have invalid default notices i advise them simply to wait till the creditor sells the account before mentioning it.

Though if the original creditor has not sold the account, then the agreement still exists and as such they are able to reissue a default notice to remedy the original invalid one - BUT only if they are the original creditor and they own the account and have not sold it on to a 3rd party like a DCA.

Heres some great reading for you - http://www.shweb.pwp.blueyonder.co.u...0sched%206.pdf

[seduraed]

Re: New Court Claim On Bad Default Notice

how do i know if a default notice is invalid?

[Algee]

Re: New Court Claim On Bad Default Notice

Teaboy

Two different circumstances.

First instance OC issues invalid DN, sells account to DCA, who then issues his own DN. What is the status of this account?

Second instance OC issues invalid DN, sells account to DCA, who are informed of invalid DN. OC buys it back threatening to issue a valid DN. What is status with this?

Alan

[basa48]

Re: New Court Claim On Bad Default Notice

Not sure i follow as the Harrison Ruling is Case law so you answered your own question there.

Though a creditor can not reissue a default if they have sold the account after issue the Invalid Default. As th following case law prevents them doing so -



Basically once the original creditor has sold the account the agreement under the consumer credit act ceases to exist, as defaults are issued under the agreement, then since the agreement not longer exists no default notice can be reissued and it becomes a matter of the creditor having then unlawfully rescinded the contract/agreement. Only way a creditor can get issue a new default when the account was sold, is if they buy back the account AND the debtor has also agreed to the agreement being reinstated (which lets face whos going to be stupid enough to agree to that lol) - So when people come to me and they have invalid default notices i advise them simply to wait till the creditor sells the account before mentioning it.

Though if the original creditor has not sold the account, then the agreement still exists and as such they are able to reissue a default notice to remedy the original invalid one - BUT only if they are the original creditor and they own the account and have not sold it on to a 3rd party like a DCA.

Heres some great reading for you - http://www.shweb.pwp.blueyonder.co.u...0sched%206.pdf

Not sure how much of this I agree with.

If a creditor issues a bad DN then the DN and subsequent termination are invalid, i.e. the agreement still exists. AFAIK the creditor is free to issue another valid DN.

I know of nothing to stop a creditor selling on a debt whether he thinks it terminated or not or whether it is subject of a bad DN or not. The account (and underlying agreement) still exists.

[teaboy2]

Re: New Court Claim On Bad Default Notice

Not sure how much of this I agree with.

If a creditor issues a bad DN then the DN and subsequent termination are invalid, i.e. the agreement still exists. AFAIK the creditor is free to issue another valid DN.

I know of nothing to stop a creditor selling on a debt whether he thinks it terminated or not or whether it is subject of a bad DN or not. The account (and underlying agreement) still exists.

Once sold the agreement is terminated (whether lawful or not) there is no such thing as invalid termination only unlawful termination which is unlawful rescission/reputiation and the agreement ceases to exist whether lawfully of unlawfully terminated as either way its still terminated rightly or wrongly and therefore the agreement still ceases to exist and only the right to repayment of the debt remains for 6 years which is when it becomes statuted barred - The error people make is that the Harrison v Link Financial case did away with unlawful rescission it did not as the judge in his judgement did not say if the DN can be rememdied after termination only that he saw no reason why it can not be rememdied, though failed to explain his reasoning. If unlawful temination meant that the termination did not happen and the agreement remained in place, then there would be no such thing as unlawful rescission/repudiation and those that won cases based on unlawful rescission/repudiation, will simply have won by error of law.

However once the account is sold, then regardless of the date of the notice of assignment an agreement legally ceases to exist beyond the date of the actual assignment (whether terminated lawfully or unlawfully) and the creditor is no longer entitled to any monies owed once the debt is assigned and the judge in the harrison case was, in my opinion, was wrong when he stated that as the notice of assignment was sent after the remedy date that payment to MBNA would have still been good discharge. As MBNA simply were no longer entitled to such payment as they had already rescinded the agreement on the actual date it was sold (assigned).

Its important to note that the judge made the following statement - bad notices can sometimes be remedied - I am of the view he was refering to being able to remedy bad notices prior to termination when he said sometimes, and not after termination. The fact he failed to go into details to this supports my opinion as in order for him to judge that a bad default notice can be rememdy post termination he would have to give explanation as to how that is so, and on what grounds, given the law says otherwise. If am wrong then that would mean all rescinded/repudiated contracts regardless of type can not be terminated unlawfully and as such continue to endure, which would be ridiculous to be honest and would go against the below case law. So a contract can be terminated and cease to exist regardless of whether the termination is lawful or not, to say otherwise is the same as saying you can not breach statutory law, and doint so means it did not happen which is what some would have you believe when they say you can not unlawfully terminate a credit agreement of the back of a bad DN, which means no termination occured and therefore leading to the pure fiction that you can not be in breach the statutory law governing the termination of credit agreements, when the fact is the act of termination did occur and so did the breach of statutory law. Unawful rescission/repudiation means that a party responsible for such unlawful rescission/repudiation would not be entitled to the benefits of such rescission/repudiation that they would have been entitled to if they had lawfully rescinded/repudiated the agreement/contract, where as the other party would be entitled to claim for damages as compensation of such unlawful act of termination of the agreement/contract.

Once a creditor sells a debt, they have accepted that they have rescinded/repudiated the agreement and the agreement is terminated even if on the back of a bad DN.

So in my view the Harrison case strenghens the previous case laws of:

Failure of a Default or Termination Notice to be accurate not only invalidates such notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998 ) but it is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt (Wilson v First County Trust Ltd (2003) UKHL 40, Wilson V Robertsons (London) Ltd(2006) EWCA Civ 1088, Wilson v Pawnbrokers (2005) EWCA Civ 147) - but would also give the claimant a claim for damages in the sum of £1000 (Kpohraror v Woolwich Building Society (1996) 4 All ER 119).

Teaboy

Two different circumstances.

First instance OC issues invalid DN, sells account to DCA, who then issues his own DN. What is the status of this account? They can't as the credit agreement was with the original creditor and ceases to exist when the debt is sold. its the DEBT that is sold not the agreement or terms of the agreement that cover the issue of defaults as the DCA is not a party to the original agreement then they can not issue a DN only the original creditor can prior to selling the account (debt)

Second instance OC issues invalid DN, sells account to DCA, who are informed of invalid DN. OC buys it back threatening to issue a valid DN. What is status with this? Thay Can not as they require the debtors consent to reinstate the agreement that ceased to exist when the OC sold the account to the DCA. So if the OC buys back the account they are buying back the DEBT, just like if the DCA sold it to another DCA so they require the debtors consent to reinstate the agreement that was terminated and ceased to exist.

Alan

When a DCA buys a debt they only have 3rd party rights to the debt and as they were not am originally named party of the original agreement the agreement no longer exists, so they are only entitled to collect the debt and request payment and enforce it, But they can only enforce it if the OC has issued a valid DN prior to termination of the agreement (sale of the debt) and the CCA is valid and enforceable. Otherwise the debt is unenforceable and termination on the back of an invalid default notice means the OC has not properly terminated the agreement i.e. unlawful rescission (though must point out improper termination doesn't mean the agreement has not been terminated as it has, just they not lawfully terminated, so it still ceases to exist)

Others may disagree on my views on unlawful rescission or that it does not apply to consumer credit agreements, yet i have not seen anywhere in the credit act that allows for unlawful rescission or for the contract to endure post unlawful termination or allows for the Creditor to reissue a DN when they had previously terminated the agreement meaning the agreement no longer exists. Only time it allows for them to do so under the act is prior to termination.

So its not a question of they can not terminate the account till they issue a valid DN, as they perfectly well can terminate regardless of DN, and they do so as soon as the debt is sold to a DCA which is what unlawful rescission is in regards to credit agreements. You simply can not commit an unlawful act or termination and then say it did not occur or does not apply as they have now issued a valid default notice as issuing a valid default notice post termination, when the agreement no longer exist, would require the new DN to necessarily state a date by which you would be required to comply (remedy) after which you would be in default and the agreement terminated. Meaning that the second default would therefore maintain the pure fiction that the agreement had endured after originally was terminated and ceased to exist - Which clearly that can not be the case as the agreement does not exist after the unlawful termination on the back of the original invalid DN. Therefore the second Default Notice would automatically be invalid as no credit agreement exists for such DN to be issued under.


Additonal Point

The Credit act makes it clear that upon remedy of a default Noitce the default shall be treated as not having occured, and therefore the account/agreement will be return to its prior standing before the breach/default occured. Therefore if sold to a DCA prior to the remedy before date on the DN then its impossible for the account to return to its previous standing before the breach/default occured and therefore not possible to treat that breach/default upon the remedy of the breach/default as not having occured. Which itself makes the DN invalid as section 89 of the act makes it clear that if remedied on or before the date of required for rememdy then the breach shall be treated as not having occured - therefore the creditor would have no valid grounds in which to terminate the agreement. It is also clear they can not terminate till after the date or remedy as the act does not allow for them to terminate lawfully prior to such date. So in both cases, in this paragraph, the creditor will have commited unlawful termination rescission/repudiation of the agreement.

[Guest]

Re: New Court Claim On Bad Default Notice

Hi
I am not getting drawn into this again, but if you want to know how this workx look at MY thread and MY posts.on the issue,you will find plenty on here, Ignore all the other rubbishand you wil be ok.:tinysmile_kiss_t4:.

I will just tell you this though, no CCA have ever been deemed to be rescinded, it is an impossibiity beause there is always a liabiity under the contract and the act will not allow it, also there is no such thing as ulawful termination in a consumer contract, an agreement is either terminqated or it is not, an unlawfully terminated agreement is just an untermineted/active agreement.

Peter

[teaboy2]

Re: New Court Claim On Bad Default Notice

I am not going by what others have said but by my own interpetation of the law, act, and said judgements. So i will not ignore the rubbish as you put it am afraid :tung:

I have noticed that both here and on CAG you seem to be one of the main few advocates against the unlawful rescission argument. The liability under the agreement is the debt which in any case becomes repayable on lawful rescission, but not under unlawful rescission, the agreement ceases to exist as the original party is no longer honouring their part and as the DCA is not an original party then they can not take the place of the original party in regards to fulfilling the original parties obligations under said agreement - but no one said the debt does not cease to exist anway as even without the agreement the debt still exists.

The DN itself allows for the termination so saying the act does not allow for it is not true and i would love to see where it specifically states that it does not allow for recission in breach of the satutory law.

What your saying is that, A) and act of termination can not occur as doing so is a breach of statutory law and B) as such - Such an act in breach of statutory law shall be deemed as not having occured - Talk about getting away with breaking the law.

No where in law does it say a breach of satutory law is not a breach and should be treated as not having occured.

if what you were saying was true and it was an impossability to rescind a CCA as they will always be liabilitys, well the same would have to be true for all types of contracts where liabilitys exist - The fact is though is that simply is not the case.

[capricorn1601]

Re: New Court Claim On Bad Default Notice

Teaboy, i know this is an old thread, but is very relevant to me at the moment. Is there any instances were DCA's have been able to reissue a default notice on the back on one issued by the OC which was deemed invalid? Back in Dec 2009 MBNA issued one to me which was invalid. It was sent second class and I kept the envelope. In Jan 2010 it was sold on then again in 2013. I wrote to MBNA accepting unlawful termination in Jan 2010. Now it is held with Aktiv K. They are asking to see the envelope the DN was served in. From asking around and reading up there appears to be a fear that they may be aiming to reissue a new DN which is compliant. Can a DCA do this or will it have to go back to the OC?

[ironman]

Re: New Court Claim On Bad Default Notice

You cannot terminate a credit agreement on the back of a faulty Default notice. It will be like a default has never been issued and the account then sold as live to a DCA.

Jones V Link Financial [2012] EWHC 2402 (QB) Supports that the DCA being the assignee of a debt is the creditor within the meaning of s.189 CCA 1974 (as amended)

It will be down to the DCA to isues a new Default notice as any previous will be ineffectual from the original creditor to enforce

As to the DCA, you show them nothing, why would you want them to hang you by showing them the envelope and Default notice. Just tell them it will be provided in any court bundle if required

[capricorn1601]

Re: New Court Claim On Bad Default Notice

Hi Ironman, surely by selling on an account, whether correctly or incorrectly served with a DN will terminate a Credit agreement. Therefore it would not be a live agreement

Has anything changed with case law since teaboy originally wrote the above?

[ironman]

Re: New Court Claim On Bad Default Notice

You do not need to terminate an agreement to sell it by simple assignment, either with or without a Default notice. A credit agreement is still a commodity to be traded

[capricorn1601]

Re: New Court Claim On Bad Default Notice

But surely by asking for the amount in full, terminates the agreement?

[ironman]

Re: New Court Claim On Bad Default Notice

But that demand for full payment was based on a duff Default notice so De minimis, irrelevant

A creditor can terminate an agreement and demand full payment at any time to terminate even if the account has been run in accordance with the terms and conditions. You do not need a default notice to terminate, only advance notice. A bank can remover a overdraft simpy by giving notice as an example to call the loan in

In law the termination never happened as the default notice as pre action was ineffectual

It is like continuing to use poison fruit from the same tree, cause and effect