Default Notices: time to remedy

[Angry Cat]

Re: Default Notices: time to remedy

Thanks for your input AC
Am I right in thinking public access is where you approach a barrister directly?

Also I believe a small mistake in your post 12
I believe a valid DN is only required if the OC wishes to terminate because of a breach

Correct, re: public access route.

Why, a mistake?

[New_Age_Biker]

Re: Default Notices: time to remedy

Line 1 states
1. A default notice is required if the lender is to terminate the agreement.

I believe most are able to terminate an agreement if they feel like with a notice period or if there is a breach with a valid Dn

I appreciate we are talking about a breach condition but did not wish to confuse others who may read this at a later stage
no offence intended

[Angry Cat]

Re: Default Notices: time to remedy

Absolutely, no offence taken Biker

My post is advice in relation to; the failure of serving a default notice

[Angry Cat]

Re: Default Notices: time to remedy

Biker, Jeremy Gordon may be able to assist you:
http://www.lambbuilding.co.uk/members/profile.php?id=9

It wouldn't cost a lot of money to obtain his opinion; ascertain the best course of action to take.

The Direct/Public Access route can be of benefit but remember you have to do all the work that a solicitor would normally do.

http://www.barcouncil.org.uk/about/publicaccess/

[New_Age_Biker]

Re: Default Notices: time to remedy

Thanks AC, I will make contact tomorrow

[Lord_Alcohol]

Re: Default Notices: time to remedy

Guys

Ta for all the useful input!

One of the several reasons I wanted to sound you out was that there have been a few posts on LB by CurlyBen that appear to suggest that a few days too few to remedy might be de minimis.

On CAG (where I've been happily lurking for the past few years) there are several examples of judges that have dismissed a defective DN (defective in time rather than in amount) as irrelevant. One common(ish) reason is that the judge considered the additional time (ie, the prescribed time) would have made no difference to the outcome!

I completely agree with you turningtheworm - I've had CCA forced down my throat by a particularly unpleasant OC and would like to use it against him in turn.

In my case, I could have sorted the arrears had I had the full allocation of time and would have done so as I have had that account for 15 years and wanted to keep it going (and also avoid adverse data). The DN arrived with 3 days to remedy but clearly shows insufficient time. I am basing my defence on this, but don't want the stress of court only to find the judge unconcerned with technicalities!

Before the DN went off I did speak to the OC and tried to reason, but he was having none of it. So the defect in time is pretty much all I've got to work with.

Cheers
LA

[New_Age_Biker]

Re: Default Notices: time to remedy

LA, can you prove the conversation with the OC?
May need another SAR to include telephone logs or copy itemised phone bill
If so the judge cannot dismiss as de minimus, you tried to settle but there was insufficient time
IMHO

[Lord_Alcohol]

Re: Default Notices: time to remedy

LA, can you prove the conversation with the OC?
May need another SAR to include telephone logs or copy itemised phone bill
If so the judge cannot dismiss as de minimus, you tried to settle but there was insufficient time
IMHO

Hi Biker

Well, the DN states that if I am able to make an "acceptable arrangement to pay" within 28 days of the notice, then they will not record the default with the CRAs. On that basis I made a small payment over the phone and they gave me a payment reference, and this also shows up on CC statement and bank statement.

I raised this with the OC after he had terminated (and also, much later, with the FOS), and he has flatly denied any such arrangement was made or conversation held. So, apart from the payment reference and credit showing on statements, I have no evidence at all.

The issue I have with this is that a debtor only has time to use the phone to try and sort things out, but is forced to speak to badly trained customer service staff who may even be in Mumbai. It doesn't really surprise me that they say they have no evidence, although their level of organisation is worse than mine.

I tried to establish a regular payment a month after the DN (with Blair Oliver and Scott). I paid the arrears to them (about £1,300) and set up a DD to pay £300 a month. They told me that the a/c would then pass back to the bank and all would be fine.

Out of the blue I had a demand for the full amount again. BOS hadn't set up the DD and no money had been taken. They and the bank denied all knowledge of the DD. However, when the FOS looked at it, they found that a DD had been set up but then immediately cancelled by the bank!

So it is quite difficult to understand their motives or believe what they say.

This, of course, is in addition to the "true copy" of the agreement they later sent, an agreement signed in 1995 but which refers to legislation passed in 2004! I have kept the original and there is very little doubt that they have provided a forgery which they maintain is the actual agreement. I mention this as the DN refers to a section in the new agreement which I breached, but cannot have breached in the original as it refers to something entirely different.

It really is making my head spin...

LA

[Shepherdess]

Re: Default Notices: time to remedy

Since Parliament deemed the timescale important enough to increase it from 7 to 14 days I don't see how the courts could pass off 3 days as de minimus.
Keep hammering this point home to the OC, and point out that even should a DJ agree with the creditor, there is little doubt that a High Court Judge would correctly apply the law at appeal. Insist that if they continue litigation having had the fatal flaw in their case pointed out to them several times, they are abusing the Court system.
------------------------------- merged -------------------------------
Might be an idea to keep those date discrepancies in the recon under your hat, make them jump through hoops in providing an audit trail / witness statement, then point out the discrepancies to the judge!

[New_Age_Biker]

Re: Default Notices: time to remedy

Also I believe there is case law where a claimant was criticised for continuing with a claim once fatal defects had been pointed out to them. I will try to find the reference, I think I saw Diddydicky use it OTR.
I would suggest that as payments were made and you can prove from your telephone bill that the calls took place it would be difficult for them to argue the content of the calls was not as you say.
Your FOS complaint must also hold you in a good position

[fluffystuff]

Re: Default Notices: time to remedy

Also I believe there is case law where a claimant was criticised for continuing with a claim once fatal defects had been pointed out to them.

I think you might be referring to this one :- BOS v Robert Mitchell (June 2009)

[Lord_Alcohol]

Re: Default Notices: time to remedy

Just a quick thank you to you all for your help with this - am really chuffed to have had such good advice!

Just one further question - assuming I can show that the recon is a fake (and it really is very easy!) and also show the supporting docs in which BoS insist that the recon is the real thing - is this likely to help my position in any way? I mean, what would the practical advantages, if any, actually be?

While I would be very pleased to see one or two of the bank's senior management behind bars for forgery, I'm not sure there is actually any real advantage to seeking this (other than revenge ).

Thanks again everyone!

LA

[Angry Cat]

Re: Default Notices: time to remedy

Under legislation a debtor must be provided with 14 "clear days" after the date of service of a DN.
After allowing the specified time for same to be delivered in the ordinary course of post;
1 day short may be deemed to be de minimus but not 3 days.
------------------------------- merged -------------------------------

Just a quick thank you to you all for your help with this - am really chuffed to have had such good advice!

Just one further question - assuming I can show that the recon is a fake (and it really is very easy!) and also show the supporting docs in which BoS insist that the recon is the real thing - is this likely to help my position in any way? I mean, what would the practical advantages, if any, actually be?

While I would be very pleased to see one or two of the bank's senior management behind bars for forgery, I'm not sure there is actually any real advantage to seeking this (other than revenge ).

Thanks again everyone!

LA

Have you been provided with the inception terms and conditions (the T&C's that related to the account at the point of opening) and terms as varied?

Or, have they just provided a recon. with current terms?

[mystery1]

Re: Default Notices: time to remedy

This one ?

M1

[Lord_Alcohol]

Re: Default Notices: time to remedy

Under legislation a debtor must be provided with 14 "clear days" after the date of service of a DN.
After allowing the specified time for same to be delivered in the ordinary course of post;
1 day short may be deemed to be de minimus but not 3 days.
------------------------------- merged -------------------------------


Have you been provided with the inception terms and conditions (the T&C's that related to the account at the point of opening) and terms as varied?

Or, have they just provided a recon. with current terms?

Yes, the OC sent the original T&Cs from 1995/6 along with the recon. which included its own T&Cs.

The T&Cs were originally (I think) on the back of the application form (of which I have a copy). I know they are early ones as they refer to Halifax Building Society (which disappeared I think in 2001) and also refer to the 1984 Data Protection Act (not the 1998 version).

The recon. includes various T&Cs - none of which I recognise.

Cheers
LA