Default Notices: time to remedy

[Shepherdess]

Re: Default Notices: time to remedy

It depends on circumstances.....the excerpt is misleading. The final sentence relates to all the other aspects of the case too.
You need to read, reread and digest the full judgement to clarify whether it has relevance in your own case.
My understanding of this confusing ramble of a judgement is that the appeal against an SJ was denied because NOT ONLY was the dn (marginally) faulty in dates, BUT ALSO his honour agreed with amex that as the agreement had a clause allowing it to be cancellable at any time, irrespective of default by the debtor (as in the case of Amex v Harrison) then they could do that anyway, so the DN was unnecessary. Section 98 (Duty to give notice of Termination..non default cases) did not apply as it was not a fixed term agreement.
So you need to distinguish your own case from this in any way you can.

It's a subject which is open to interpretation and misinterpretation and warrants further serious discussion to clarify.
Shepherdess

[greta-girl]

Re: Default Notices: time to remedy

I see that there were other issues involved, specifically that a DN was not required, but the Judge did not simply state that the DN was not needed. He took the time to spell out in detail that allowing less than 14 days would not invalidate it.

That part of the judgement seems to be self-contained and it was a high court judge, so unless the entire judgement is sucessfully appealed won't that part of it be hard to argue against in a county court?

[Shepherdess]

Re: Default Notices: time to remedy

Hmm hard maybe, impossible..not in my opinion.
Others may differ. Even judges would differ.
As I said, I think you'd need to distinguish your own case in some way, for instance by demonstrating that you WERE prejudiced by the shorter time.
Or by contesting on a different point..eg in this case the appellant failed to contest the incorrect format, in addition to the time period, in that it should have given an actual date, for clarity, or the fairness, in that the Creditor set a 14 day deadline without allowing for postage.
Or the fact that despite the clause in the agreement allowing the creditor to terminate the running agreement at any time, nonetheless they did not use this route, they chose to use a Default Notice, therefore they had not utilised the clause as they had not written invoking it as a reason for termination. Instead they brought it up after the case started, apparently (although prior to the appeal).
Seems to me this judgement was a cynical attempt to close as many perceived "loopholes" as possible, an excercise in Creditor rather than Consumer protection.

What are your own circumstances, Greta-girl? Do you have a case pending?

Shepherdess

PS Here's the full transcript

[middenmess]

Re: Default Notices: time to remedy

Reading through that judgement I get the distinct impression that it was a case of 'You owe the money-you pay it back'

To me it also demonstrates the need to be professionally represented especially as a good barrister would have made sure that the case was decided on the law that is the 1974 CCA and not by dubious interpretations of it.

In one judgement it now seems that Default notices served under 87-1 are not worth the paper that they are written on and can be dismissed at a Judges's whim and the default/penalty charges that many thousands have reclaimed with only a small fight from the CC companies can be included willy-nilly in any case against you. etc.etc.

Where do we go from here?

If Brandon had claimed and been paid back the unlawful charges,would he then have had a better chance of winning his case?

[greta-girl]

Re: Default Notices: time to remedy

What are your own circumstances, Greta-girl? Do you have a case pending?

Shepherdess

I have several recent DN's which are short of the 14 days so this topic is very important to me. My financial position worsened dramatically through no fault of my own which meant I could not keep up with credit card debt payments, made worse by levels of interest which were regularly raised as base rates fell.

Unfortunately I'm not in a position to afford legal representation if it ever comes to it so I would be forced to represent myself.
Self-representation in court for such complex technical matters obviously puts the lay person at a significant disadvatage. I see comments that the devil is in the detail but how many LiP's have anywhere near the ability necessary to argue with the clarity and focus of an experienced counsel?

The result, in judgements like Amex v Brandon make it increasingly difficult to negotiate with creditors with the aim of reaching an affordable schedule of repayment. If it comes to it I will be forced to defend myself in copurt but I am becoming increasingly pessimistic about the likely result.

Despite what the CCA says it looks like the chips are becoming stacked higher and higher against the consumer. It amazes me that judgments can sometimes seem very wrong and yet the only way to challenge them is to be able to throw money at an appeal, which in almost all cases is impossible. What price justice?

The only saving grace for me is that they can't get blood from a stone.

[middenmess]

Re: Default Notices: time to remedy

I have several recent DN's which are short of the 14 days so this topic is very important to me. My financial position worsened dramatically through no fault of my own which meant I could not keep up with credit card debt payments, made worse by levels of interest which were regularly raised as base rates fell.

Unfortunately I'm not in a position to afford legal representation if it ever comes to it so I would be forced to represent myself.
Self-representation in court for such complex technical matters obviously puts the lay person at a significant disadvantage. I see comments that the devil is in the detail but how many LiP's have anywhere near the ability necessary to argue with the clarity and focus of an experienced counsel?

The result, in judgements like Amex v Brandon make it increasingly difficult to negotiate with creditors with the aim of reaching an affordable schedule of repayment. If it comes to it I will be forced to defend myself in court but I am becoming increasingly pessimistic about the likely result.

Despite what the CCA says it looks like the chips are becoming stacked higher and higher against the consumer. It amazes me that judgments can sometimes seem very wrong and yet the only way to challenge them is to be able to throw money at an appeal, which in almost all cases is impossible. What price justice?

The only saving grace for me is that they can't get blood from a stone.

Not all creditors rush to court and as you obviously know there are often other factors in your favour beside having received a D/N that doesn't conform with the CCA.

Having read numerous threads on how LIP's have fared when defending in court it is obvious that those who have researched and know their case and the relevant case law inside out and then some do better than the average LIP who through no fault of their own are less able to deal with questions and issues that arise during proceedings;it is also noticeable that the Judge lottery is a considerable factor as some would appear to have made their decision in the bank's favour before the commencement of the case.

Before court is considered by a creditor a competent person can delay for a considerable time by requesting their CCA's and questioning them on receipt by written communication as they also can when sifting through the information contained within a SAR..

Based only on my experiences it soon becomes apparent which of your creditors can be temporarily held at bay and which one's have decided to be complete arses and make your life hell.Once your account is sold on,delaying court action becomes more difficult.

Requesting your late charges back [with contractual interest] can also take a while.

Communicating by letter with the OC is the recommended way but I found that phoning them when I wanted some answers and not when they demanded a call from me also pushed the time scale on especially when a written reply from me was required.

By putting account[s] into dispute if the CCA's are not pukka and withholding payment some people find that this period of non payment enables them to get their finaces back on track a little which can often help with future decisions.

You end your post by saying that they can't get blood out of a stone so if you are a woman of straw then letting them know that at the appropriate time should discourage them from commencing proceedings from which they can obtain nought.

Even if not quite a woman of straw and the Judge finds for the Bank,the court can only order repayment within your means,I believe.

The decision in Amex v Brandon appears so wrong.So much so that I hope we've not heard the last of that case.

[lovethebanks]

Re: Default Notices: time to remedy

The problem here i believe is the 2 law system common law and statute law many judges will be swayed towards common law if allowed many POC's state cca 1974 so it stands to reason that is the law that must be used and not let the claimant or judge sway from that law all agreements under £25000 are also regulated by this act so it stands to reason that must be used

You need to make that very clear from the start

And statute law takes precedant does it not? I know that often these cases are lost because of bad presentation by defenders but I also believe (and I think most solicitors/lawyers would tell you this in private) that the judiciary are capable of handing down some extraodinary judgements that fly in the face of legislation.

[Lord_Alcohol]

Re: Default Notices: time to remedy

The judge in Brandon states that no enforcement action was taken for over 14 days following the date of the DN, but what is to say that AMEX would not refuse payment of the arrears after the 14 days (to effect the remedy)? They could very well say, "Ah, no, sorry - it's too late. We want the full amount".

AMEX may have proposed, in court, that they would accept remedy after the DN expired but would that actually happen in the real world? How would the debtor know that that opportunity existed, when he's received a legal notice that specifies a specific timescale?

It therefore seems an odd argument to focus on the debtor's 'errors' when there is nothing to hand that remotely suggests that there is more time than that actually given in the DN.

Is it possible to somehow indicate to a DJ/DDJ that you will ask for permission to appeal if he/she takes a view that doesn't fit with CCA?

LA

[middenmess]

Re: Default Notices: time to remedy

Is it possible to somehow indicate to a DJ/DDJ that you will ask for permission to appeal if he/she takes a view that doesn't fit with CCA?

AFAIK

If you're sure of your onions and you believe the judge to have erred in law when dealing with the CCA, ask him/her to note their reasons for so doing as these explanations might be useful in any appeal that ensues.

[Guest]

Re: Default Notices: time to remedy

Hi
Just come acros this and have seen similar on CAG.

It starts with the proposition that if a credit agreement is terminated off the back of a incorrect defalt notice then the creditor can only demand arrears and nothing due under the contract. Do i have that right, now dont get out of your chair i just wonder if there is any case law to support this.
s.

Logically if the incorrect default notice stops the creditor from proceeding to trial then doesnt it also prevent the default termination? so the agreement would still be active.


Peter

[Lord_Alcohol]

Re: Default Notices: time to remedy

Hi Peter

Yes, it's an old chestnut.

I started this thread specifically to find out what others thought about the time-to-remedy issue but yes, if the DN is defective then presumably the OC is not entitled to seek unpaid amounts. It's all set out in s87(1)(b) as clear as day.

Whether he can then correct his mistake after apparently terminating the agreement is another matter and one I know nothing about. As you suggest, termination would not be 'lawful' without a compliant DN, so if he's 'terminated' via a defective DN does the agreement endure or has he unlawfully terminated it?

In my limited experience, there is very little practical doubt that the agreement is terminated. On two occasions I have asked that the agreement be reinstated following pitifully defective DNs, only to have the proposal in each case dismissed by the OC. I have then subsequently accepted the OC's termination and pointed out their breach of s88 (removing the benefit of s87(1)(b) to them), to no effect at all and am now waiting for them to begin action.

I think you're right and the agreement should endure until a proper DN is issued, but the reality seems very different.

Cheers
LA

[Guest]

Re: Default Notices: time to remedy

Hi
he thinng is are we talking about termination of agreement or termination of right to draw down credit.
I get the impression that the creditor will say it is which ever condition gives them the advantage and who is to say.

Unless the quote the actual subsection on the termination notice of course.

The test would be if someone had actually challenged the rights of the creditor on an incorrecdtly defaulted, terminated agreement you would think it would have occured somewhere.
Peter
------------------------------- merged -------------------------------

Hi Peter

Yes, it's an old chestnut.

I started this thread specifically to find out what others thought about the time-to-remedy issue but yes, if the DN is defective then presumably the OC is not entitled to seek unpaid amounts. It's all set out in s87(1)(b) as clear as day.

Whether he can then correct his mistake after apparently terminating the agreement is another matter and one I know nothing about. As you suggest, termination would not be 'lawful' without a compliant DN, so if he's 'terminated' via a defective DN does the agreement endure or has he unlawfully terminated it?

In my limited experience, there is very little practical doubt that the agreement is terminated. On two occasions I have asked that the agreement be reinstated following pitifully defective DNs, only to have the proposal in each case dismissed by the OC. I have then subsequently accepted the OC's termination and pointed out their breach of s88 (removing the benefit of s87(1)(b) to them), to no effect at all and am now waiting for them to begin action.

I think you're right and the agreement should endure until a proper DN is issued, but the reality seems very different.

Cheers
LA

Hi by the way i do sympathise with your problem, when you raise these questions it is easy to give the impression you are on the side of the creditor in this, nothing could be further from the truth, but we must get our fscts right particularily now when all avenuse are being closed off.

Regarding the restitution of a terminated account the thing is they could say the account itself haas never been terminated because as you say the default notice was faulty, howecer you ability to draw down on the account is, as far as the debtor is concerned there is no real difference and it allows the creditor to pursue all the debt.
Peter

[lovethebanks]

Re: Default Notices: time to remedy

[QUOTE=peterbard;168270]Hi
he thinng is are we talking about termination of agreement or termination of right to draw down credit.
I get the impression that the creditor will say it is which ever condition gives them the advantage and who is to say.

Unless the quote the actual subsection on the termination notice of course.

The test would be if someone had actually challenged the rights of the creditor on an incorrecdtly defaulted, terminated agreement you would think it would have occured somewhere.
Peter
------------------------------- merged -------------------------------


Hi by the way i do sympathise with your problem, when you raise these questions it is easy to give the impression you are on the side of the creditor in this, nothing could be further from the truth, but we must get our fscts right particularily now when all avenuse are being closed off.

Regarding the restitution of a terminated account the thing is they could say the account itself haas never been terminated because as you say the default notice was faulty, howecer you ability to draw down on the account is, as far as the debtor is concerned there is no real difference and it allows the creditor to pursue all the debt.
Peter (quote)

But it wouldn't allow the creditor to pursue all of the debt as the creditor was not allowed to issue the termination. The termination itself would in a sense not be worth the paper its written on.

I know what your saying about it being important to clarify the facts but the problem is that one persons facts are another persons irrelevant observations.

[Guest]

Re: Default Notices: time to remedy

[quote=lovethebanks;168290]

Hi
he thinng is are we talking about termination of agreement or termination of right to draw down credit.
I get the impression that the creditor will say it is which ever condition gives them the advantage and who is to say.

Unless the quote the actual subsection on the termination notice of course.

The test would be if someone had actually challenged the rights of the creditor on an incorrecdtly defaulted, terminated agreement you would think it would have occured somewhere.
Peter
------------------------------- merged -------------------------------


Hi by the way i do sympathise with your problem, when you raise these questions it is easy to give the impression you are on the side of the creditor in this, nothing could be further from the truth, but we must get our fscts right particularily now when all avenuse are being closed off.

Regarding the restitution of a terminated account the thing is they could say the account itself haas never been terminated because as you say the default notice was faulty, howecer you ability to draw down on the account is, as far as the debtor is concerned there is no real difference and it allows the creditor to pursue all the debt.
Peter (quote)

But it wouldn't allow the creditor to pursue all of the debt as the creditor was not allowed to issue the termination. The termination itself would in a sense not be worth the paper its written on.

I know what your saying about it being important to clarify the facts but the problem is that one persons facts are another persons irrelevant observations.

Hi
Well it would mean the account was still active so the bank could issue a new default and continue with the action. Irrellevant, to whom.

By the way if i was to make an irrellenat observation i would say so.

Peter

[Lord_Alcohol]

Re: Default Notices: time to remedy

Termination of the agreement means just that, in my experience, and not just restriction of credit. I also understand that the account remains active but that the agreement is ended. For example, I can pay money in to my account but have no further entitlement to pay the minimum monthly amounts as specified.

I also understand that an OC is not obliged to issue a termination notice. Therefore the debtor may not receive one.

Often, the OC's termination has to be assumed from things such as demands for the full balance or court action. An appeal from the debtor to reinstate will almost certainly fall on deaf ears. It is therefore fairly clear that the OC wishes the contract ended and, for me, that is the key point.

It's easier to understand when the OC claims goods under s87(1)(c) and comes round to collect them. In my view, that is termination!

Going back to s87(1), it is crystal clear that the OC would be in breach if he demands unpaid amounts without first issuing a compliant DN. My view (at the mo) is that if he does this and turns his back on CCA, then he must lose all entitlement to unpaid amounts because the agreement was formed under CCA and nothing else. The OC cannot expect to get away with offering a regulated agreement, breaching that regulation and then expecting to receive all amounts given.

And let's not forget that the debtor has breached his agreement (hence the DN), whereas the OC has breached the Act as well as the agreement, despite all the resources at his disposal.

LA