Default Notices: time to remedy

[Amethyst]

Re: Default Notices: time to remedy

did they get away with it?

[pompeyfaith]

Re: Default Notices: time to remedy

and they oh so conveniently forgot to bring theirs and the judges trial bundles after reading my WS

[New_Age_Biker]

Re: Default Notices: time to remedy

PF
Surely that would go against the solicitors code whereby they are obliged to act in their clients best interests

[pompeyfaith]

Re: Default Notices: time to remedy

yes and no yes in that at that point it should have been struck out and no in that costs were denyed and they did not get the CO they were after furthermore the judge only ordered £20 a mth and said that was the most this court would order given the facts as to how they have handled the case
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yup CPR PART 1 comes to mind and im sure that is what the judge was refering to

[Guest]

Re: Default Notices: time to remedy

Anybody have any thoughts on my post 71?

Hi NAE
Sorry got distracted.
Seems to me that the default termination is a different animal to the none default variety.
It seems fairly clear that whilst a creditor can terminate an agreement that has not defaulted, what they really mean is terminate the right to drawdown credit.
I to be honest am still unsure as to the argument that says if an agreement is terminated after an invalid agreement then no further corrected agreement can be issued.
Seems a bit contradictory to me as surely if the default notice is ineffective then the termination cannot be valid, if this is the case the agreement is still active and the creditor free to simply issue a corrected one.
Bit chicken and egg really.
So like the lady says I think we are just going to have to wait until a judgment is produced to point the way
Peter

[New_Age_Biker]

Re: Default Notices: time to remedy

Maybe

Woodchester Lease Management Services Ltd v Swain & Co 1998
'that where the sum claimed [on the Dn] exceeded the amount the hirer owed the notice was thereby rendered invalid; and that, accordingly, since the plaintiff had not complied strictly with the statutory provisions, it could not recover damages under the contract'

I suggest this argument could be used to prevent enforcement via the courts on the back of a faulty termination, it may also prevent post contract interest from accruing and if the OC had been informed possibly a counter claim for damages
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As to termination of non default accounts, why can't they decide to take their ball home & stop playing?
I see nothing we can do about it as long as if their contract states they will give X number of days then if they comply they can close any of our accounts any time they feel like.
I am not sure how / how quickly they would then have the right to collect the outstanding balance though..

[Lord_Alcohol]

Re: Default Notices: time to remedy

Peter, you're right. Termination on breach cannot be valid without a compliant DN. s87 seems to be very clear here.

However, my experience is that the OC will not only terminate but enforce, even when his mistake is brought to his attention. I would therefore think that the debtor merely needs to accept that termination, which of course must include the OC's waiver of his entitlement to unpaid amounts (or goods).

The contract was regulated under CCA. Presumably if the OC wishes to end the contract without adhering to CCA, then he must also forego the benefits of CCA which may include his entitlements. If that isn't the case, then it opens the door to any number of rogue lenders who do not need to worry about CCA regulation.

Woodchester is useful here, as Biker has said. The judgement seems to suggest that the OC is utterly stuffed without a valid DN.

LA

[middenmess]

Re: Default Notices: time to remedy

Peter, you're right. Termination on breach cannot be valid without a compliant DN. s87 seems to be very clear here.

It's very clear to everyone apart from the seemingly ever growing number of Judges who impose their own interpretation of what is a compliant Default Notice.

[pompeyfaith]

Re: Default Notices: time to remedy

">

Real D/N



Altered D/N with dates changed and no company header this is the one put in trial bundle.

Note they also changed the clause I was supposed to of breached this was done to make it fit the new post 2007 conditions

[New_Age_Biker]

Re: Default Notices: time to remedy

LA
I am lead to believe that issuing for the full amount, on the back of a faulty DN, when only the arrears should have been claimed is grounds for the claim to be thrown out with costs for the defendant.

PF
This goes to prove why original documents should be available in court. I guess it would be nice if the DJ would look at facts when they are presented though.

[Amethyst]

Re: Default Notices: time to remedy

PF - who changed it - the sols ? Have you made a complaint ?

[pompeyfaith]

Re: Default Notices: time to remedy

yup the sols they got quite a rollicking from mbna im reliably told and no longer take on any new cases a complaint has been made to the sra and is still ongoing

[Amethyst]

Re: Default Notices: time to remedy

Good Thanks Pompey, let us know what occurs with it won't you.

[pompeyfaith]

Re: Default Notices: time to remedy

i have shared this to prove a point in that even the claimants can break under presure and indeed everything sent to you must be checked and double checked
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indeed i will amethyst

[Guest]

Re: Default Notices: time to remedy

Maybe

Woodchester Lease Management Services Ltd v Swain & Co 1998
'that where the sum claimed [on the Dn] exceeded the amount the hirer owed the notice was thereby rendered invalid; and that, accordingly, since the plaintiff had not complied strictly with the statutory provisions, it could not recover damages under the contract'

I suggest this argument could be used to prevent enforcement via the courts on the back of a faulty termination, it may also prevent post contract interest from accruing and if the OC had been informed possibly a counter claim for damages
------------------------------- merged -------------------------------
As to termination of non default accounts, why can't they decide to take their ball home & stop playing?
I see nothing we can do about it as long as if their contract states they will give X number of days then if they comply they can close any of our accounts any time they feel like.
I am not sure how / how quickly they would then have the right to collect the outstanding balance though..

Hi well this is the thing the situaltion you give where the creditor terminates the agreement without a default he cannot pursue the debtor for early payment of the loan, for that he would have to have issued a default notice, the argument is that he would not be able to do that because the agreement was terminated.

this is why a none default termination will always (i suspect be just a termination of debtors rights to draw further credit).

Peter