Default Notices: time to remedy

[Angry Cat]

Re: Default Notices: time to remedy

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

Are you certain that the original terms issue 1995/6 that you have been provided with, are the correct one's?

Always a good idea to check these things out. Especially, if you hold the originals.

Many OC's have been caught out by trying to palm off the wrong set of T&C's!

[middenmess]

Re: Default Notices: time to remedy

AC

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.

IMO
An Act of Parliament is exactly that,An Act Of Parliament that must be adhered to.

No Judge can rewrite it and if they fail to apply it then they misdirect themselves and give you the perfect ground for appeal which will be upheld.

Any barrister worth his salt will be a wordsmith of repute and will try to sway the Judge with his arguments to win the case for his client which is what he is paid to do.

Unfortunately it must fall to the LIP to be equally as persuasive and to be able to correct and counter with good knowledge any incorrect interpretation of the Default Notice.

A difficult and often impossible task even for the strongest of LIPs especially if the Judge is a moral crusader so if the judge concludes that he can rewrite parts of the CCA and finds against you, then you have a point of law to take to appeal.

[Angry Cat]

Re: Default Notices: time to remedy

Quite so, middenmess!

That is why, I suggest to members who are in this particular position/out of their depth, to take the Public Access Route;
move their disadvantage, to an advantage;
gain advice about the most successful way in which to defend/appeal.

[Lord_Alcohol]

Re: Default Notices: time to remedy

Are you certain that the original terms issue 1995/6 that you have been provided with, are the correct one's?

Always a good idea to check these things out. Especially, if you hold the originals.

Many OC's have been caught out by trying to palm off the wrong set of T&C's!

I have assumed that they probably are, given that they refer to the 1984 DPA (not 1998). So I reckon pre-1998. But you're right - there is no way to verify this without the actual original agreement as I think they were printed on the back or supplied as part of an 'application pack' (I only have a copy of the front of the application form/agreement).

The 'original' set state that the OC may vary the T&Cs at any time, but there is an implication that any such variation would not be disadvantageous to the customer.

For example, the 'originals' state that any written notice (eg, a DN) will be assumed to have been served 4 days after the date it was issued. The new T&Cs have reduced this to 2 days. This seems to provide exemption for the OC from the service of documents regulations, but is nevertheless a retrograde step for me - especially as the OC has never used the first class mail service that might justify 2 day service and didn't even bother to comply with this when he sent the DN in 2008 (0 days for service were given).

Going through the filing cabinet, I have found I have kept all the 'replacement' agreements that the OC sent each time he issued a new card (on expiry of the old one). Each one of these documents is entitled a 'CREDIT CARD AGREEMENT REGULATED BY THE CONSUMER CREDIT ACT 1974'. I've found 3 of these, from 2003, 2004 and 2007. None of them were signed by the OC and none required my signature. The credit card was stuck to the front of each with some sticky stuff, which is still evident.

I've now discovered that the reconstructed 'true copy' that the OC sent to me last year is actually a copy of the last 'replacement' agreement of 2007, rather than the original of 1996. The only difference is that the OC has changed the name from Halifax Plc to Bank of Scotland.

It's therefore quite straightforward to show that I never signed or agreed to the recon, and also that the OC is wrong when he states that this is a recon of the original signed agreement.

Hope this makes sense and someone can show whether I can use this mess to my advantage somehow!

LA

[middenmess]

Re: Default Notices: time to remedy

Are you certain that the original terms issue 1995/6 that you have been provided with, are the correct one's?

Always a good idea to check these things out. Especially, if you hold the originals.

Many OC's have been caught out by trying to palm off the wrong set of T&C's!

Hi LA

Although not impossible for the OC to retain the T & C's that were particular to your application it must be considered as highly unlikely that they did.

How you can prove or disprove the set that they have sent you is going to be difficult to say the least.

I was fortunate in that my cc provider wrote and admitted that they were unable to provide a copy of the T & C's that were applicable to my card [from a similar time frame as yours] and were therefore unable to enforce--apart from giving it to various DCA's to chase.

[New_Age_Biker]

Re: Default Notices: time to remedy

I suspect you will have to build your case, piece by piece.
If you made a S78 request they must respond correctly (as per Carey), if they have not they cannot enforce
They are supposed to have the original agreement in order to enforce, you will have to rubbish what they have provided.
If they wish to enjoy CCA benifits they have to terminate correctly (assuming breach), prove they have not and that you accepted their termination. They can then only come after you for the arrears (check the Ts & Cs as their effect on this). they must issue a compliant Dn
Has the wording of any default sum notices been carried out correctly
Is the LBA of the correct format
Basically construct your defence to prove as many mistakes as you can, this brings their arguments down and casts doubt over everything they say

[Lord_Alcohol]

Re: Default Notices: time to remedy

Thanks folks - really appreciate all this.

One of the things bugging me is that, as the recon is a copy of the unsigned 2007 'replacement agreement' (as supplied with a replacement card) and is not a copy of the original application form/agreement, then is the OC is actually relying on an unexecuted agreement (because it is not signed by either party - s61 would apply)?

If he is (and I think he may be), where would that leave the issue of the DN? Is he entitled to issue CCA docs in this case? For example, the DN refers to a breach of a clause in the unexecuted agreement, not the actual agreement.

I also heard somewhere that an OC who issues recons and then claims they are a copy of the lawfully-executed contract commits an offence (I cannot recall under what legislation). Any ideas?

Biker - I had only one default sum notice (an arrears notice), dated the day after the DN and showing an amount far less than that claimed in the DN itself.

Middenmess - yes I agree, it seems a bit unlikely, although the 'original' T&Cs are certainly pre-1998.

It's a flaming nightmare dealing with this OC - a mass of paperwork, about 10 DCAs and all their letters, and a lot of very conflicting information from the bank.

Truly doing my head in ...

LA

[diddydicky]

Re: Default Notices: time to remedy

BOS v robert mitchell june 2009
------------------------------- merged -------------------------------
less than 14 days cannot be de minimus for the reasons already stated and any judgment that includes this statement should be appealed

a creditor who tries to argue that you didnt pay anyway- and they did not terminate until some time later- would (IMO) be the SAME creditor who- if you paid the amount of a DN 2 days after the stated deadline- would then grab the money and STILL terminate and maintain that you are still in breach as your failed to comply and the money was paid out of time

The DN is prescribed document and intended by parliament to leave the debtor in no doubt as to what he has done wrong, what he must do to correct it and when.

Parliament also decreed that the creditor must impart this information with precision

therefore, unless the debtor is blessed with powers of foresight- when he is presented with a prescribed document- which tells him that if he does not comply by a certain date- the actions mentioned within the DN will take place- then what does the law beleive that the debtor would make of the document

would he think - this appears to be a very IMPORTANT prescribe notice (for it says so) and if i do not comply the actions stated within it will follow

OR

does he think- well i know it says comply by a certain date- and i know it states that it is an IMPORTANT prescribed notice served under the act............but i think it is all bluff and bluster and that the creditor will not REALLY do what he says.........or he may do so- but not for several weeks or months


any judge who decides that the former is the view that the debtor would take would (IMO) be a fool and incompetent

[New_Age_Biker]

Re: Default Notices: time to remedy

LA
A default sum notice is not a Dn
It is the notice they have to send you when applying a charge to your account, such as a late payment fee. It has to have specific wording.
Check your documents, it's another arrow to fire at them

[Lord_Alcohol]

Re: Default Notices: time to remedy

Biker - see what you mean. No, I have no such notices at all but lots of charges slapped on the account (almost £1K). Was this part of the 2006 CCA upgrade?

Diddy - fantastic to find you here - my view when I received the DN (it was my first one) was that it was an important document and I needed to get my act into gear. That's why I spoke to the OC and made a small payment. At the time I wasn't aware of CCA and in fact thought that only 7 days were needed by the OC. I wrote to him shortly afterwards, mentioning the 7 days, and he replied (2 months later) to say that the DN was sent "well within the legal timescales" and didn't correct me by mentioning the change to 14 days prior to the DN.

But very reassuring to find that there is agreement over the issue of time to remedy. Reading the Act and the 1983 Notices regs, it does in fact seem crystal clear that 14 days + service are absolute requirements.

Am still very bothered with the recon issue though - having now discovered that it cannot be a recon of the original and can show this conclusively to a court. But would it help me to do so?

LA

[greta-girl]

Re: Default Notices: time to remedy

....less than 14 days cannot be de minimus for the reasons already stated and any judgment that includes this statement should be appealed

a creditor who tries to argue that you didnt pay anyway- and they did not terminate until some time later- would (IMO) be the SAME creditor who- if you paid the amount of a DN 2 days after the stated deadline- would then grab the money and STILL terminate and maintain that you are still in breach as your failed to comply and the money was paid out of time.

The DN is prescribed document and intended by parliament to leave the debtor in no doubt as to what he has done wrong, what he must do to correct it and when.

Parliament also decreed that the creditor must impart this information with precision therefore, unless the debtor is blessed with powers of foresight- when he is presented with a prescribed document- which tells him that if he does not comply by a certain date- the actions mentioned within the DN will take place- then what does the law beleive that the debtor would make of the document. would he think - this appears to be a very IMPORTANT prescribe notice (for it says so) and if i do not comply the actions stated within it will follow
OR
does he think- well i know it says comply by a certain date- and i know it states that it is an IMPORTANT prescribed notice served under the act............but i think it is all bluff and bluster and that the creditor will not REALLY do what he says.........or he may do so- but not for several weeks or months

any judge who decides that the former is the view that the debtor would take would (IMO) be a fool and incompetent

Does this blow the 14 day requirement out of the water? The words De Minimis weren't used in this failed appeal but I think it is relevant.

Here are extracts from American Express v Brandon in The Bristol County Court 25 May 2010. Judge Robert Denyer QC sitting as a Judge of the High Court:

"JUDGEMENT (as approved)..........

27. In some ways and at first sight the most compelling argument advanced by the appellant, and indeed argued by him in front of the Deputy District Judge, relates to the default notice and to section 87, 88 and 176 of the Act. This was a point raised by him in the court below and specifically adverted to by the Deputy District Judge in his brief encapsulation of the defendant's case at paragraph 5 because in paragraph 5(7) he says one of the points was that the default notice is invalid, and that it is a point,
obviously, which he pursues in front of me today.

28. Section 87 of the Consumer Credit Act 1974:

"Service of a notice on the debtor in accordance with section 88 (a
‘Default Notice') is necessary before the creditor…can become entitled, by reason of any breach by the debtor....

(a) to terminate the agreement; or

(b) to demand earlier payment of any sum… "

29. By section 88:

"The default notice must be in the prescribed form and specify –

(a) the nature of the alleged breach;

(b) if the breach is capable of remedy, what action is required to
remedy it and the date before which that action is to be taken."

Then by subsection 2:

"A date specified under subsection (1) must not be less than 14 days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or… before those 14 days have elapsed."

30. I have already indicated the dates of the default notice but in deference to the argument advanced by Mr Rankin the section 87 default notice is dated 19 June 2007.
It says this:

"You have failed to make the minimum payments due to your account as required by clause 3 of the terms and conditions. To remedy this breach the payment due on your account of £275.80 must be received within 14 calendar days from the date of this default notice."

31. Now the date of the default notice is clearly 19 June 2007. By section 176 of the Act:

"A document to be served under this Act by one person on another person is to be treated as properly served on the subject if dealt with as mentioned in the following subsections. The document may be delivered or sent by an appropriate method to the subject or addressed to him by name and left at his proper address."

32. So section 176 clearly contemplates service by post. The document may be sent by an appropriate method or addressed to him by name, but "sent" is the appropriate word and it seems to me the post is an appropriate method.

33. Mr Brandon makes the point that it is dated 19 June. The demand is that within 14 days of that date he was to pay £275, He makes the point this probably contravenes section 88(2) because the date would then have been less than 14 days after the date
of service of the default notice and he points me to authority, and I think he is right, if I send a letter by first class post the assumption made by the civil courts is that it will be delivered within two days of sending. So technically there is something in what he says in that by the time the letter was received on the face of things he would no longer have 14 days within which to remedy the breach. I take the point made by counsel on behalf of American Express that as a matter of fact there is no evidence from him as to when in fact he received the notice but simply working on standard assumptions it does seem to me that if posted on the 19th I would be entitled to assume it would arrive on the 21st.

34. Now, somewhat theoretical though it is, had American Express taken enforcement action within 14 days of 19 June, it may well be that the validity of that enforcement action would have been open to challenge. I express no final view on the matter but I do understand the argument because, to go back to section 87, it must specify the nature of the breach and if the breach is capable of remedy what action is required to remedy it. The whole idea is that a debtor should have 14 days within which to redeem the position, in this case pay £275.80. So I understand the argument.

As I say, I do not dismiss it as being unreal. But, the fact of the matter is no enforcement action was taken within 14 days of 19 June. So we have the service of the enforcement notice but nothing immediately happens. In those circumstances, even if
Mr Brandon's point is a good one, it seems to me to be not relevant in that he has not suffered any prejudice at all by virtue of that technical breach because, never mind within 14 days he did not, for example, within 21 days, which on my finding would clearly have been an appropriate period of time properly to comply with section 87. He did not send American Express the cheque for £275. Nothing happened. So he remained in breach of his obligation to pay a monthly instalment.

...............49. For all those reasons, with apologies for a somewhat lengthy judgment, this appeal is dismissed."

[Shepherdess]

Re: Default Notices: time to remedy

This judgement oozes with pro bankism. One could be forgiven for thinking that the statements were made by the claimant's council.

Begs the question, was too much emphasis given by the defence to the time to remedy...thus giving them something to (still wrongly) trash?

The argument, in my humble opinion, should have stopped here:

Section 87 of the Consumer Credit Act 1974:

"Service of a notice on the debtor in accordance with section 88 (a
‘Default Notice') is necessary before the creditor…can become entitled, by reason of any breach by the debtor....

(a) to terminate the agreement; or

(b) to demand earlier payment of any sum… "

29. By section 88:

"The default notice must be in the prescribed form.

The Default Notice was NOT in the prescribed form. For whatever reason. Further action is therefore precluded.

It's not rocket science is it..how come some judges can't comprehend it?

[Shepherdess]

Re: Default Notices: time to remedy

Shouldn't this have been countered with...
with all due respect we are not here to hypothesise whether the defendant would have been able to comply with the DN given the correct time scale or whether he would have had the forsight to know in advance on what date the creditor would take further steps.
We are here to establish whether the creditor issued a compliant default notice, without which he is clearly and specifically precluded from taking further action. There are no margins of error in Sections 88 and 89. Accordingly the creditor did not.

[middenmess]

Re: Default Notices: time to remedy

Where does Rankine come into it?

Counsel would appear to have been somewhat lacking in knowledge of the requirements of a compliant D/N [as was the appeal Judge] and doesn't seem to have made a competent argument about anything that the Judge would have had to accept and allow the appeal.

On the face of it a very poor result.

Can an appeal be appealed as this Judge's interpretation of the facts of this case and of the CCA would seem to be somewhat lacking?

[greta-girl]

Re: Default Notices: time to remedy

Does the judgement put the kybosh on having a DN ruled invalid because it does not allow sufficient time to remedy, or are there higher court rulings that take precedence?