Default Notices: time to remedy

[Guest]

Re: Default Notices: time to remedy

Hi
Not sure about your experiance but the regulations say that the creditor can terminate your tight to draw credit or teminate the agreement at any time without notice currently,subject only to what it says in therre t and cs.

A termination of contract means that the agreement is no longeer under under contract as per rankine.

This would mean that yes the creditor could not take any actions that where stipulated in the cca.

However the termination of right to draw credit can be given and taken away at any time.

Peter
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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

Hi LA

Not sure why you would assume that the oc would loose right s to recover money or goods if he did not comply with thte act.

No such sanction is stipulated within the act , a judge may consideer that he should be penalised, but his entitilement to heis goods does not change.

Section 170

Peter

[Lord_Alcohol]

Re: Default Notices: time to remedy

Hi Peter

I understood that termination on breach requires a DN first, but agree with you re the availability of credit.

Assuming the debtor has breached the agreement: the Act states that the OC may not claim unpaid amounts without first complying with s88 (format of DNs). Does his entitlement to unpaid amounts continue when he's not issued a compliant DN, terminated the agreement and taken the debtor to court? If so, this appears to make a mockery of CCA!

The Act seems to say that the OC's entitlement to money/goods is regulated by s88 (see s87(1)(b) and (c)). Presumably, if the OC has not complied with s88, he therefore has no such entitlement.

The Act seems very clear;

87. (1) Service of a notice on the debtor or hirer in accordance with section 88 (a "default notice") is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement, -

(a) to terminate the agreement, or
(b) to demand earlier payment of any sum, or
(c) to recover possession of any goods or land

etc

which is why I believe that the OC has no entitlement to anything where the debtor has breached but the OC has not issued a proper DN. I believe this is the case because the Act says so!

Where the OC really has unequivocably terminated the agreement without a compliant DN, then clearly he has done so in breach of s87(1).

Or have I got that completely wrong?!

LA

[Guest]

Re: Default Notices: time to remedy

Hi Peter

I understood that termination on breach requires a DN first, but agree with you re the availability of credit.

Assuming the debtor has breached the agreement: the Act states that the OC may not claim unpaid amounts without first complying with s88 (format of DNs). Does his entitlement to unpaid amounts continue when he's not issued a compliant DN, terminated the agreement and taken the debtor to court? If so, this appears to make a mockery of CCA!


, if the OC has not complied with s88, he therefore has no such entitlemenThe Act seems to say that the OC's entitlement to money/goods is regulated by s88 (see s87(1)(b) and (c)). Presumablyt.

The Act seems very clear;

87. (1) Service of a notice on the debtor or hirer in accordance with section 88 (a "default notice") is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement, -

(a) to terminate the agreement, or
(b) to demand earlier payment of any sum, or
(c) to recover possession of any goods or land

etc

which is why I believe that the OC has no entitlement to anything where the debtor has breached but the OC has not issued a proper DN. I believe this is the case because the Act says so!

Where the OC really has unequivocably terminated the agreement without a compliant DN, then clearly he has done so in breach of s87(1).

Or have I got that completely wrong?!

LA

Hi Peter

I understood that termination on breach requires a DN first, but agree with you re the availability of credit.

Assuming the debtor has breached the agreement: the Act states that the OC may not claim unpaid amounts without first complying with s88 (format of DNs). Does his entitlement to unpaid amounts continue when he's not issued a compliant DN, terminated the agreement and taken the debtor to court? If so, this appears to make a mockery of CCA!

Section 87 does not say the creditor cannot claim unpaid amounts, he can he just cannot

a) to terminate the agreement, or
(b) to demand earlier payment of any sum, or
(c) to recover possession of any goods or land, or
(d) to treat any right conferred on the debtor or hirer by the agreement as
terminated, restricted or deferred, or
He is quite intitled to chase arrears on the account.

(e) to enforce any security.


The Act seems to say that the OC's entitlement to money/goods is regulated by s88 (see s87(1)(b) and (c)). Presumably, if the OC has not complied with s88, he therefore has no such entitlement.

With respect no it doesnt
section 87 just gives the creditor right to prematurely demand recovery of those goods


The Act seems very clear;

87. (1) Service of a notice on the debtor or hirer in accordance with section 88 (a "default notice") is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement, -

(a) to terminate the agreement, or
(b) to demand earlier payment of any sum, or
(c) to recover possession of any goods or land

etc

which is why I believe that the OC has no entitlement to anything where the debtor has breached but the OC has not issued a proper DN. I believe this is the case because the Act says so!

Where the OC really has unequivocably terminated the agreement without a compliant DN, then clearly he has done so in breach of s87(1).

Or have I got that completely wrong?!

LA

HI
No you have not got it completely wrong.

The creditor has the right to recover his money plus interest as per the agreement, if the debtor defaults he has the right to pursue the debtor for the arrears without court action.

If he wants to take action in the court or do any of the other things stated on section 87 he must issue a valid notice.

If the notice is invalid it does not mean that he looses entitlement to his goods it mearly means he cannot take the next step in enforcing the agreement.

Nothing to stop him then issuing a correct default and continuing.
Section 87 does not have anything to do with the creditors entitlement to his goods, the creditor is always entitled to his goods(until paid for) or repayment of debt.

It merely sets the conditions where he can prematurely recover them all section 87 does is strictly outlined in
a) to terminate the agreement, or
(b) to demand earlier payment of any sum, or
(c) to recover possession of any goods or land, or
(d) to treat any right conferred on the debtor or hirer by the agreement as
terminated, restricted or deferred, or
(e) to enforce any security.

Should section 87 be ineffective in any way the goods or money is still due under the agreement nothing here says otherwise ,and I believe it would be against article 6(1) of the human rights act if it did.

Yes the creditor can Terminate the contract at any time( none default termination) but why would he would then not have the contract to enforce and recover the debt.

What he would do is terminate the ability to draw on the credit.
Peter

[lovethebanks]

Re: Default Notices: time to remedy

[QUOTE=peterbard;168296]

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

The point I was making is how many people (Litigants, Solicitors, Advocates, QC's) have walked into court thinking that they have a cast iron case, only to be told by a judge or judges that their arguments are insufficient or irrelevant.

The 'facts' as you call them can only really be decided by the judiciary as their opinions and decisions are what counts.

[Guest]

Re: Default Notices: time to remedy

HI
Just lately a lot of people are walking into courts, with facts and arguments based on misinterpretation of the regulations or misreading of case law.
I would like to think that one of the functions of forums like this is to try to reduce the likelihood of this happening..
Are you suggesting that we go into sourt without at least trying to understand the regulations that we are using to support our claims because someone may say they are irrelevant.
Have to disagree
Peter

[Joanna C]

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?

The Defendant represented himself -

[lovethebanks]

Re: Default Notices: time to remedy

HI
Just lately a lot of people are walking into courts, with facts and arguments based on misinterpretation of the regulations or misreading of case law.
I would like to think that one of the functions of forums like this is to try to reduce the likelihood of this happening..
Are you suggesting that we go into sourt without at least trying to understand the regulations that we are using to support our claims because someone may say they are irrelevant.
Have to disagree
Peter

I think your more than aware of the fact that I'm not suggesting that for one second. What I am suggesting is that we can debate this issue for as long as we want and whilst doing so should increase our understanding of the issues at hand, it will by no means allow us to obtain the "facts" as you call them. I say this because their are no facts as such, only arguments, one of which will be successful and one which will not.

[dad]

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.

The case you are thinking of is:

Bank of Scotland v Robert Mitchell - Leeds County Court - 1 June 2009

[Guest]

Re: Default Notices: time to remedy

I think your more than aware of the fact that I'm not suggesting that for one second. What I am suggesting is that we can debate this issue for as long as we want and whilst doing so should increase our understanding of the issues at hand, it will by no means allow us to obtain the "facts" as you call them. I say this because their are no facts as such, only arguments, one of which will be successful and one which will not.

HI

THere are certainly aguments some as you say are not worth continuing.

[lovethebanks]

Re: Default Notices: time to remedy

HI

THere are certainly aguments some as you say are not worth continuing.

Undoubtedly true. However the issues can be so complex and the arguments/interpretations so varied that it can be difficult to know whether it is worth pursuing or not. I've even found myself looking at peices of legislation on one day and interpreting it differently than I had on another occasion.

[New_Age_Biker]

Re: Default Notices: time to remedy

From the terms & conditions:
Ending the agreement
(a) You may terminate the agreement at any time by giving written notice to us
(b) We may terminate this Agreement.
(i) by giving at least 30 days written notice to you, or
(ii) subject to service on you of any notice required by law, in any of the circumstances set out in condition 7(B) {essentially in breach of the agreement/ overlimit}, or in any other execptional circumstances

Therefore if
The OC presents a final demand, then follows this with a defective DN am I to understand they are unable to enjoy the fruits of the CCA in that
a) They have forfitted the right to use the courts to enforce the agreement on sums not yet due. Sums not yet due therefore are only recoverable by other means
b) If the UR is accepted then the agreement has terminated and both parties are therefore not bound by the original terms/ agreement
c) Only the arrears are legally enforceable
d) The OC is in breach of the agreement
e) If proceedings are issued for the enforcement of the full amount a reasonable defence might be:
It is denied the claimant has the legal right to persue this debt as he has prevented his use of the Court system to enforce the agreement due to his failure to comply with the
requirements of terminating the agreement correctly
f) If you inform the OC of their failure before they progress to far towards enforcement they then leave themselves open for a costs claim as in Bank of Scotland v Robert Mitchell

[pompeyfaith]

Re: Default Notices: time to remedy

In my court case the DN was defective on dates and the account was terminated although i did not know it had been terminated until proceedings started as i had no notice

Now the sols did not know the DN was defective until they had issued the N1 and then found out from the creditor that they had terminated which meant they could not discontinue so the creditor could issue a compliant DN so what did they do?
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Answers on a postcard lol

[Guest]

Re: Default Notices: time to remedy

Hi

Dont know

Probably swore blind the account hadnt been terminated yet?

goin to tell us

[New_Age_Biker]

Re: Default Notices: time to remedy

Anybody have any thoughts on my post 71?

[pompeyfaith]

Re: Default Notices: time to remedy

Nope they changed the dates on the DN then put that altered copy in the trial bundles