Default Notices: time to remedy

[TomThumb]

Re: Default Notices: time to remedy

This used to be my view also but the more i read the less sure i get.
Peter

Whilst its extremely useful to have a devils advocate.. do you ever have anything positive to say? You seem to enjoy pulling downs peoples defence and suggestions but offer little to build or help.

Just my opinion tho and no offence meant its just you seem very knowledgeable but prefer to use it in the negative instead of the positive.

Tom

[Lord_Alcohol]

Re: Default Notices: time to remedy

Yes it is an excellant piece writen by surfaceageant in 2008 i think, unfortunately although the language is very elegant it is fundaentally flawed.at least i consumer credit terms.

I think it is originally from Prof Sir Roy Goode QC in his seminal work (Consumer Credit Law and Practice) plus some from the Woodchester judgement.

LA
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Just my opinion tho and no offence meant its just you seem very knowledgeable but prefer to use it in the negative instead of the positive.

I agree. Peter, can you provide a list of cases where the OC terminated following a defective DN but the court has overruled and reinstated the contract, to the detriment of the debtor (ie, the OC has 'got away' with his various breaches of the Act)?

I am unable to find anything at all but do not have the contacts/access that you do.

Ta
LA

[Amethyst]

Re: Default Notices: time to remedy

In McGuffick a default notice was served under sec 87 of the Act AND the account was terminated under terms of the agreement although it was only looked at in terms of whether it consituted enforcement but there may be some clues there in that it wasnt made to be an issue that termination was under a term of the agreement rather than under the act.

Seems to have been looked at in Chadwick v Lloyds 2009 too, but I cant find the final conclusion on that - PT may have a better idea on that (was on appeal from Birmingham, HHJ Worster) - appeal (oral) was adjourned but nothing since. The issue was raised but not resolved.

A skeleton argument, provided by Mr Petts, Counsel for the Bank, some 10 to 15 minutes before the trial began, put forward an “alternative claim”: if the default notice was invalid, then the agreement should be treated as subsisting, with the result that Mr Chadwick was indebted to the Bank for the sums contractually due under the agreement so far as not paid.

“The Default Notice being invalid could be taken as an unlawful rescission of the Agreement and releasing the Defendant and Claimant from any further obligations including the continuation of the repayment of the monthly sums now being claimed as owing.”

There wasnt any ruling on the issue but the final directons of the appeal were

If not, I would strongly advise the Chadwicks to obtain some legal advice (possibly through the Citizens' Advice Bureau) before the matter comes back to court.

14. Accordingly, I order that the application be adjourned on notice to the Bank (with a time estimate of one hour). I direct that the application be reserved (if reasonably practicable) to myself.

[middenmess]

Re: Default Notices: time to remedy

A skeleton argument, provided by Mr Petts, Counsel for the Bank, some 10 to 15 minutes before the trial began, put forward an “alternative claim”: if the default notice was invalid, then the agreement should be treated as subsisting, with the result that Mr Chadwick was indebted to the Bank for the sums contractually due under the agreement so far as not paid.

Read more at: Default Notices: time to remedy - Page 5 - Legal Beagles Consumer Forum

If the Bank considered that account continued then it couldn't get to/be in court until the correct procedure was followed and to my way of thinking they should have withdrawn at that point with costs going to Mr.Chadwick--or is my thinking way off course?

[Guest]

Re: Default Notices: time to remedy

I think it is originally from Prof Sir Roy Goode QC in his seminal work (Consumer Credit Law and Practice) plus some from the Woodchester judgement.

LA
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I agree. Peter, can you provide a list of cases where the OC terminated following a defective DN but the court has overruled and reinstated the contract, to the detriment of the debtor (ie, the OC has 'got away' with his various breaches of the Act)?

I am unable to find anything at all but do not have the contacts/access that you do.

Ta
LA

Hi
No i cannot provide a list but i am aware of defective DN's being rectified and represented, to be honest this would not be news. It is after all the normal proceedure or do you think the act was designed to prevent the creditor from regaining his money on the presentation of an incorrect default noticce. It wasnt.

Think about it, think about the massive debate over secction 127(3), the human rights issue this went right to the lords because they thought it denied the creditor from the right to peaceful enjoymment of his goods, do you relly think that you can obtain the same result because of an incorrectly formated notice of action following the debtors default.

Peter

[Guest]

Re: Default Notices: time to remedy

Whilst its extremely useful to have a devils advocate.. do you ever have anything positive to say? You seem to enjoy pulling downs peoples defence and suggestions but offer little to build or help.

Just my opinion tho and no offence meant its just you seem very knowledgeable but prefer to use it in the negative instead of the positive.

Tom

HI
Yes I do come off s being rather negative but there is a reason,. I find that people get to caught up in these ideas and sometimes logic takes a back seat.
I could just agree with everyone else I am siure I could even come up with arguments to support but would that be helpful? Would it be honest. I know it would be a lot easier.
I don’t want to keep raking up the Egg thing but that is what happened there not really PTs fault but people refused to see the other side of the argument, refused to examine the logic, totally understandable, and downright difficult to do, especially when your financial well being is at stake.
I worked for a long time in a solicitors office( not as a solicitor , I did the books), but I can tell you that 90% of people that walked through the door with a cast iron case where turned away when presented with the facts. This is the real world as much as we would like things to be different.
Peter

[Guest]

Re: Default Notices: time to remedy

I think it is originally from Prof Sir Roy Goode QC in his seminal work (Consumer Credit Law and Practice) plus some from the Woodchester judgement.

LA
------------------------------- merged -------------------------------


I agree. Peter, can you provide a list of cases where the OC terminated following a defective DN but the court has overruled and reinstated the contract, to the detriment of the debtor (ie, the OC has 'got away' with his various breaches of the Act)?

I am unable to find anything at all but do not have the contacts/access that you do.

Ta
LA

Hi
Regarding the refernce to Prof Goode Please identify the refence i cannot see anything that remotely resembles this on the copy available to me it is however a massive volume. I know PT has a copy also at his work perhaps he can find it?
Again all Swain did was return money paid on a defective default notice unlessess i am missing something if so please point it out to me.

Peter

[Lord_Alcohol]

Re: Default Notices: time to remedy

Hi
No i cannot provide a list but i am aware of defective DN's being rectified and represented, to be honest this would not be news. It is after all the normal proceedure or do you think the act was designed to prevent the creditor from regaining his money on the presentation of an incorrect default noticce. It wasnt.

No, I believe the Act was designed to offer a safe platform for consumers to borrow money and for lenders to adhere to rules before they could recover that sum and the interest that comprises their profit.

All the lender has to do is issue a compliant DN. What on Earth is so difficult about that? If courts start dismissing defences based on incorrect documentation that has materially disadvantaged a consumer, what is so wrong about objecting to that?

Moreover, the Act itself states that the lender has no entitlement to unpaid amounts when a defective DN is issued !!

Think about it, think about the massive debate over secction 127(3), the human rights issue this went right to the lords because they thought it denied the creditor from the right to peaceful enjoymment of his goods, do you relly think that you can obtain the same result because of an incorrectly formated notice of action following the debtors default.

Hang on a mo. The s127 issue was about consumers utilising the Act to obtain the result that Parliament itself intended. Are you now saying that lenders are now exempt from Parliametary wishes that have been legitimately enacted? It certainly sounds that way.

The issue for me with defective DNs is that a creditor has demanded a sum that was too high to remedy the breach and was unaffordable (the Woodchester scenario) and another that offered 5 days to remedy. In both cases the lender's actions meant that the remedy could not be effected. This is hardly a matter of an "incorrectly formatted notice of action"; it is a material breach of the Act and of contract that has ensured that the matter ends up in court.

In my view a cynical abuse of legislation, unfortunately supported by you.

LA

[Amethyst]

Re: Default Notices: time to remedy

I cant see that a fault default notice should lead to anything other than putting the debtor back in the position they would have been in had a correct and valid default notice been served correctly tbh. And seems to me people are quite happy to use common law and standard contract law for repudiation etc, but when common law/contract law supports the creditor rather than the debtor then its suddenly wrong and inapplicable ?

[middenmess]

Re: Default Notices: time to remedy

Another bad result today when a cagger had his appeal application rejected.

He was appealing a judges ruling that the 14 days allowed by a D/N started when the creditor posted it,not from when it was received!

Me v Tesco/Incasso - Appeal in process

[Guest]

Re: Default Notices: time to remedy

No, I believe the Act was designed to offer a safe platform for consumers to borrow money and for lenders to adhere to rules before they could recover that sum and the interest that comprises their profit.

All the lender has to do is issue a compliant DN. What on Earth is so difficult about that? If courts start dismissing defences based on incorrect documentation that has materially disadvantaged a consumer, what is so wrong about objecting to that?

Moreover, the Act itself states that the lender has no entitlement to unpaid amounts when a defective DN is issued !!



Hang on a mo. The s127 issue was about consumers utilising the Act to obtain the result that Parliament itself intended. Are you now saying that lenders are now exempt from Parliametary wishes that have been legitimately enacted? It certainly sounds that way.

The issue for me with defective DNs is that a creditor has demanded a sum that was too high to remedy the breach and was unaffordable (the Woodchester scenario) and another that offered 5 days to remedy. In both cases the lender's actions meant that the remedy could not be effected. This is hardly a matter of an "incorrectly formatted notice of action"; it is a material breach of the Act and of contract that has ensured that the matter ends up in court.

In my view a cynical abuse of legislation, unfortunately supported by you.

LA

Yes i am al for cynical abuse of legislation:tinysmile_hmm_t2:

as usual you comlpetely miss my point.

Are you saying it was parliamentry intent that the consequenes of an incorrectly presnted DN would deny the crediotr of wrights to his goods,perminantly?

What i am saying is that was exaclty what section127 was for, and the courts faught tooth and nail before they had to give in.
what chance do you think you hae with a faulty DN, that after all was brought about by the breach of the debtor not the fault of the creditor.

Again the functionof the DN is to provide the information and time to pay, if it doesnt then the corrected information and time must be provided simple as that the only sancton is an added delay, nothing else as we are finding out

Peter

[Guest]

Re: Default Notices: time to remedy

I cant see that a fault default notice should lead to anything other than putting the debtor back in the position they would have been in had a correct and valid default notice been served correctly tbh. And seems to me people are quite happy to use common law and standard contract law for repudiation etc, but when common law/contract law supports the creditor rather than the debtor then its suddenly wrong and inapplicable ?

Hi

So you are saying that it does not matter if section 88 is complied with?
I am sure that is not what you meen but sould you expalin.

As for the creditor using common law the is no reason why he should there is no repudiation by the creditor

Drafting an incorrect DN is not a breach of core terms, termination of an account can be done lawfully at any time by either party, and if the agreement is termated then there is nothing stoppping the crediotr demanding repayment of liablities under the contract.

If he is not entitled to demand repayment of funds then the coulrt will not allow the enforcement that is its function.

Peter

[Amethyst]

Re: Default Notices: time to remedy

Hi

So you are saying that it does not matter if section 88 is complied with?
I am sure that is not what you meen but sould you expalin.

Nope not saying that at all.

Drafting an incorrect DN is not a breach of core terms, termination of an account can be done lawfully at any time by either party, and if the agreement is termated then there is nothing stoppping the crediotr demanding repayment of liablities under the contract.

If he is not entitled to demand repayment of funds then the coulrt will not allow the enforcement that is its function.

Peter

Yep thats what I was saying (in my own way lol)

[Guest]

Re: Default Notices: time to remedy

Nope not saying that at all.




Yep thats what I was saying (in my own way lol)

Flippin eck someone agreeing with me. there goes your popularity :tinysmile_grin_t:

PETER

[Lord_Alcohol]

Re: Default Notices: time to remedy

Yes i am al for cynical abuse of legislation:tinysmile_hmm_t2:

as usual you comlpetely miss my point.

Are you saying it was parliamentry intent that the consequenes of an incorrectly presnted DN would deny the crediotr of wrights to his goods,perminantly?

You referred to s127 and my reply was to that section.

I posted on here to find answers to what I consider to be a serious issue, of lenders unilaterally removing entitlements that have been established by Parliament. Nothing more than that. Your arguments appear to fully support the removal of those entitlements.

What i am saying is that was exaclty what section127 was for, and the courts faught tooth and nail before they had to give in. what chance do you think you hae with a faulty DN, that after all was brought about by the breach of the debtor not the fault of the creditor.

Ergo, the lender is exempt from s88? That is what you imply.

Again the functionof the DN is to provide the information and time to pay, if it doesnt then the corrected information and time must be provided simple as that the only sancton is an added delay, nothing else as we are finding out

Agreed, but the question is really where does the debtor stand when the account is materially ended, goods repossessed, and court action started? s170 rules out specific sanctions, but clearly failure to comply with s88 rules out s87(1)(b) and (c) and therefore the monies due are those owed at time of termination.

The contract is terminated on breach (not for any other reason). A compliant DN is a necessity (because the Act says it is), and that DN must be precise. The debtor is in my view completely entitled to view the lender's actions as a breach of contract and therefore to accept the lender's wishes.

I do not want to appear argumentative, and I agree that it was the debtor's fault that the DN was issued in the first place. My view has been that the DN is a 'wake-up call' that offers the debtor a final chance to puts things back to how they were before the breach occurred (s89). However, the reality is that lenders can form DNs so that they are impossible to comply with.

This is obviously not what the Act intended, otherwise it would not have bothered with s88 or the 1983 Regulations.

LA