Default Notices: time to remedy

[Lord_Alcohol]

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.

I agree, unless the lender had since taken the following actions;

1. Terminated the account
2. Recorded the dafault with the credit reference agencies
3. Demanded the full balance
4. Sued the debtor for the full balance

Once the lender takes these steps I simply fail to see how a court can instruct the lender to issue a new DN, presumbly describing the same breach, while turning a blind eye to s89;

89. If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or (c) the breach shall be treated as not having occurred.

The questions that arise would therefore be;

1. Does the lender not have to offer the full opportunity to remedy as per s89 (ie, is it optional)?
2. Would a court not consider the fact that the lender has considerable resources at its disposal and should be able to produce compliant documentation, and that the debtor is seriously disadvantaged due to the lender's mistakes?
3. I detect that the consensus here is that s88 is 'flexible' and that matters of a few days or a few thousand pounds are irrelevant, unless the debtor has taken some steps to deal with the matter before expiry of the DN. Am I right in thinking this (or interpeting it) from your post?
4. As the Act specifically states that the lender has no entitlement to demand "earlier payment" of sums due (s87(1)(b)) where the DN is defective, why does the argument now seem to be that he does?
5. Is the consensus now that Woodchester, had it come to court now, resulted in a different judgement?

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 ?

I think the reason for this is a complete absence of any other route apparently open to the debtor.

A contract may not state that the lender can terminate when/how he likes (eg, a running credit account), and the Act states the same where a breach arises. Yet the lender terminates nevertheless.

In Chadwick v Lloyds (http://www.bailii.org/ew/cases/EWCA/Civ/2009/726.html) the issue of UR has yet to be heard fully but it is worth noting that the judge has not dismissed the argument (as Peter has!).

LA

[Guest]

Re: Default Notices: time to remedy

I agree, unless the lender had since taken the following actions;

1. Terminated the account
2. Recorded the dafault with the credit reference agencies
3. Demanded the full balance
4. Sued the debtor for the full balance

Once the lender takes these steps I simply fail to see how a court can instruct the lender to issue a new DN, presumbly describing the same breach, while turning a blind eye to s89;

89. If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or (c) the breach shall be treated as not having occurred.

The questions that arise would therefore be;

1. Does the lender not have to offer the full opportunity to remedy as per s89 (ie, is it optional)?
2. Would a court not consider the fact that the lender has considerable resources at its disposal and should be able to produce compliant documentation, and that the debtor is seriously disadvantaged due to the lender's mistakes?
3. I detect that the consensus here is that s88 is 'flexible' and that matters of a few days or a few thousand pounds are irrelevant, unless the debtor has taken some steps to deal with the matter before expiry of the DN. Am I right in thinking this (or interpeting it) from your post?
4. As the Act specifically states that the lender has no entitlement to demand "earlier payment" of sums due (s87(1)(b)) where the DN is defective, why does the argument now seem to be that he does?
5. Is the consensus now that Woodchester, had it come to court now, resulted in a different judgement?

I think the reason for this is a complete absence of any other route apparently open to the debtor.

A contract may not state that the lender can terminate when/how he likes (eg, a running credit account), and the Act states the same where a breach arises. Yet the lender terminates nevertheless.

In Chadwick v Lloyds (http://www.bailii.org/ew/cases/EWCA/Civ/2009/726.html) the issue of UR has yet to be heard fully but it is worth noting that the judge has not dismissed the argument (as Peter has!).

LA

Dont see why the (as peter has) remark is nessesarry i havent dismissed anything, it does seem to me that the judge is saying that this form of argument is hightly dubious and the defendant should seek advice before persuing it, but that is merely my opinion i know nothing more of the case than you do.

Apart from that
I think most of this has been addressed before so I will not go through it again there is one point that I would like to make.

The section 89 referral to the breach not occurring if the remedy is made, is purely to be taken in context to the section of the act it contains .

When it says the breech had not occurred it mans had not occurred within part Vii of the act.

Not that the missing payments had not happened or the relationship with the creditor had not broken down.

If you look at the act you will see it is broken into sections, Pre-contractulural, signing of agreement, copies etc.
This one is concerned with default notices Part Vii.
Section 87 says entitled to on breach of an agreement, section 88 gives the form of the notice , section 89 gives the sanctions for not remedying the breach and says if it is remedied no breach will have occurred ,in other words section 87 will not be entitle the creditor to enforce, it closes the loop so to speak.

This does not mean that the breach has not occurred in any other sense the creditor may still consider the account in default if he wishes, he can still register a default on your file irrespective of the DN, as long as he can show that you have missed payments and he complies with the ICO guidelines, this is not an opinion it is a fact.

So you cannot say that the creditor damaged you in issuing a faulty DN because it damaged your credit record because a creditor does not have to issue a DN in order to place the entry.

Entries of defaulted accounts on CRA s are issued on all sorts of agreements most unregulated by the CCA, they all have to have similar guidelines as to what constitutes a default this is nothing to do with a default notice under the CCA the two notices may well be sent at the same time but they are unrelated in any other way.

A DN(section 87) only has to be issued to enable enforcement in court that is all it does.

Regards
Peter

[Guest]

Re: Default Notices: time to remedy

Hi
With the greatest of respect to Lord Alchohol
I think that most of the points raise by LA have been answerd and we obviously just don’t agree, I do not see any point in repeating myself to him .
I think we should just agree to differ and leave it at that . So I will not be responding to anymore of his posts.
Hopefully most of these issues raised by our conversations will have been resolved by my responses so far.
I of course have no proof of this so If anyone else wants to raise a question in regards to defaults, even if it has been covered I shall be pleased to respond.

Peter

[Lord_Alcohol]

Re: Default Notices: time to remedy

The section 89 referral to the breach not occurring if the remedy is made, is purely to be taken in context to the section of the act it contains .

When it says the breech had not occurred it mans had not occurred within part Vii of the act.

I agree. It is Part VII: Default and Termination Default Notices.

Not that the missing payments had not happened or the relationship with the creditor had not broken down.

You mean s89? I understand the meaning to be exactly as is stated in the Act. I also understand that the relationship between lender and borrower breaks down terminally where the default is not remedied and not before.

Section 87 says entitled to on breach of an agreement, section 88 gives the form of the notice , section 89 gives the sanctions for not remedying the breach and says if it is remedied no breach will have occurred ,in other words section 87 will not be entitle the creditor to enforce, it closes the loop so to speak.

Well, actually Section 87 begins;

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...

It is therefore not sufficient to merely issue a DN; it has to comply with s88 before that entitlement is available to the lender. That is what s87 says, or have I got that wrong? Additionally, the debtor merely breaching the agreement does not provide that entitlement.

This does not mean that the breach has not occurred in any other sense the creditor may still consider the account in default if he wishes, he can still register a default on your file irrespective of the DN, as long as he can show that you have missed payments and he complies with the ICO guidelines, this is not an opinion it is a fact.

However, where the DN clearly states that the default will only be recorded where the DN is not complied with, where do we stand there? Does this mean the lender can mislead the debtor into remedy and then record the default anyway?

Going back to s89, the intent and meaning is, to me, perfectly clear. The DN is, I believe, designed to offer the debtor one last opportunity to put things back to how they were before the breach occurred. Yes, I agree that this does not mean the breach didn't occur or that payment history should not reflect what actually happened. But, CCA is (to me) very, very clear here in that the debtor is given this last chance and that the lender must afford that chance to the debtor before taking his next steps.

So you cannot say that the creditor damaged you in issuing a faulty DN because it damaged your credit record because a creditor does not have to issue a DN in order to place the entry.

Well, yes, you can. According to the ICO, lenders must notify the debtor before recording the default, and offer a chance to remedy (as per the DN). Yes, some damage occurs (the payment history) but not the terminal damage that the default causes.

Entries of defaulted accounts on CRA s are issued on all sorts of agreements most unregulated by the CCA, they all have to have similar guidelines as to what constitutes a default this is nothing to do with a default notice under the CCA the two notices may well be sent at the same time but they are unrelated in any other way.

I merely refer to the statement in the DNs I have and have seen where the lender clearly states that the default will be registered with the CRAs unless the default is remedied.

A DN(section 87) only has to be issued to enable enforcement in court that is all it does.

You mean a DN that complies with s88 though, don't you?

I am sorry that you feel that your responses have provided the definitive resolution to this and that you will no longer reply to my posts. I do not agree with most of what you say because there does not seem to be anything in CCA or case law that supports it.

To summarise your position, you appear to believe that;

1. The lender can terminate any regulated agreement whenever he wishes.
2. It is not necessary for the lender to issue a DN at all because of 1 above.
3. No agreement can be terminated without a compliant DN so the debtor is unable to accept that termination (quite a conflict of stated fact there Peter!).
4. It doesn't matter that the DN states that the default will only be recorded where the breach is not remedied, but that it is recorded anyway.
5. It doesn't matter that the breach is made impossible to remedy through a defective DN because the lender can just issue a new one (ie, s89 does not apply).
6. The lender does not have to worry too much about s88.

Having gone through your posts in this thread, that seems to be your view and is not one I can agree with.

LA

[Guest]

Re: Default Notices: time to remedy

I agree. It is Part VII: Default and Termination Default Notices.



You mean s89? I understand the meaning to be exactly as is stated in the Act. I also understand that the relationship between lender and borrower breaks down terminally where the default is not remedied and not before.



Well, actually Section 87 begins;

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...

It is therefore not sufficient to merely issue a DN; it has to comply with s88 before that entitlement is available to the lender. That is what s87 says, or have I got that wrong? Additionally, the debtor merely breaching the agreement does not provide that entitlement.

However, where the DN clearly states that the default will only be recorded where the DN is not complied with, where do we stand there? Does this mean the lender can mislead the debtor into remedy and then record the default anyway?

Going back to s89, the intent and meaning is, to me, perfectly clear. The DN is, I believe, designed to offer the debtor one last opportunity to put things back to how they were before the breach occurred. Yes, I agree that this does not mean the breach didn't occur or that payment history should not reflect what actually happened. But, CCA is (to me) very, very clear here in that the debtor is given this last chance and that the lender must afford that chance to the debtor before taking his next steps.



Well, yes, you can. According to the ICO, lenders must notify the debtor before recording the default, and offer a chance to remedy (as per the DN). Yes, some damage occurs (the payment history) but not the terminal damage that the default causes.



I merely refer to the statement in the DNs I have and have seen where the lender clearly states that the default will be registered with the CRAs unless the default is remedied.



You mean a DN that complies with s88 though, don't you?

I am sorry that you feel that your responses have provided the definitive resolution to this and that you will no longer reply to my posts. I do not agree with most of what you say because there does not seem to be anything in CCA or case law that supports it.

To summarise your position, you appear to believe that;

1. The lender can terminate any regulated agreement whenever he wishes.
2. It is not necessary for the lender to issue a DN at all because of 1 above.
3. No agreement can be terminated without a compliant DN so the debtor is unable to accept that termination (quite a conflict of stated fact there Peter!).
4. It doesn't matter that the DN states that the default will only be recorded where the breach is not remedied, but that it is recorded anyway.
5. It doesn't matter that the breach is made impossible to remedy through a defective DN because the lender can just issue a new one (ie, s89 does not apply).
6. The lender does not have to worry too much about s88.

Having gone through your posts in this thread, that seems to be your view and is not one I can agree with.

LA

As i said earlier

i am not ging to keep repeating myself here you seem either incapable or unwilling to listen to the answers to your questions.
If anyone else is of your view i will be glad to respond.

Peter

[Angry Cat]

Re: Default Notices: time to remedy

The following link may assist;
please see 5, 13 & 16.

http://www.ico.gov.uk/upload/documen...3%20%20doc.pdf

Please note that the above relates to the DPA.

[Lord_Alcohol]

Re: Default Notices: time to remedy

i am not ging to keep repeating myself here you seem either incapable or unwilling to listen to the answers to your questions.

And equally you seem incapable of answering them. Indeed, you seem extremely reluctant to enagage in a debate at all, and appear to believe that any comment you give is definitive.

I posted the above in the hope that someone less intolerant of disagreement might respond and am surprised that you bothered to after your last outburst.

LA

[Lord_Alcohol]

Re: Default Notices: time to remedy

The following link may assist;
please see 5, 13 & 16.

http://www.ico.gov.uk/upload/documen...3%20%20doc.pdf

Please note that the above relates to the DPA.

Thanks AC.

I note that none of PB's remarks regarding defaults are supported by the ICO's document. This beg's the question: who is right; Peter Bard or the Information Commissioner?

LA

[Guest]

Re: Default Notices: time to remedy

Hi

Who do you think provided this document i got it from the Customer adviser at experian. It supports exactly what i said and so does he ,that the DN supplied in order to enforce under the CCA is not the same as the notice required by the CRA before the default is filed although they can be sent together they are not interdependant.

Peter

[Guest]

Re: Default Notices: time to remedy

Thanks AC.

I note that none of PB's remarks regarding defaults are supported by the ICO's document. This beg's the question: who is right; Peter Bard or the Information Commissioner?

LA

This from the guidluces any mention here of a default notice

??????? the clise is in the last paragraph.

AC nice to see you still barking up the wrong tree i see

10 Indicators of a default
The following indicate that a breakdown has occurred in most types of product (excluding those in the section on Exceptions at paragraphs 12-15). This list is not necessarily exhaustive.



The account has been referred to a collection agency or in-house debt collection department.

The account has been referred for legal action.
The account has been included in a bankruptcy, IVA, or similar.



The asset financed has been repossessed or instructions for repossession have been given.

The lender takes or has taken steps to cut off the service provided (or would do so if they were not prevented on social rather than commercial grounds or by other regulations, codes of practice or statute). The customer has not made satisfactory proposals in response to a demand for repayment.

[Guest]

Re: Default Notices: time to remedy

Thanks AC.

I note that none of PB's remarks regarding defaults are supported by the ICO's document. This beg's the question: who is right; Peter Bard or the Information Commissioner?

LA

YOu know i just cant ignore this
I speant a good dal of time in comuniation wiith experian checking my facts on this issue and am 100% sure of what i say.
Wher in the ICO information sheet does it dissagree with me .

Peter

[Lord_Alcohol]

Re: Default Notices: time to remedy

Er, well I must be the world's biggest thicko because your excerpt Peter appears to reflect exactly what is being said contrary to you; that breakdown of the relationship occurs after the remedy date in the DN, at which point the balance is passed to debt recovery.

The underlined sentence merely applies to the demand made for the balance after the remedy date in the DN.

Btw, in support of Angry Cat, the document in question is published by the ICO and is freely available on their website.

I have no idea why Peter is so objectionable today but truly wish he'd calm down and get himself a new keyboard.

LA

[Guest]

Re: Default Notices: time to remedy

And equally you seem incapable of answering them. Indeed, you seem extremely reluctant to enagage in a debate at all, and appear to believe that any comment you give is definitive.

I posted the above in the hope that someone less intolerant of disagreement might respond and am surprised that you bothered to after your last outburst.

LA

I have answerd your points more times than i can remember after a while it just becomes boring , i will answer if anyone else has the same mistaken impressions of the functions of the act but i think that you are a lost cause and i will not waste any more time on you.

Peter

[Lord_Alcohol]

Re: Default Notices: time to remedy

YOu know i just cant ignore this
I speant a good dal of time in comuniation wiith experian checking my facts on this issue and am 100% sure of what i say.
Wher in the ICO information sheet does it dissagree with me .

Peter

If you read it you will see.

Try starting at para 34. Then paras 9 and 10.

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

I have answerd your points more times than i can remember after a while it just becomes boring , i will answer if anyone else has the same mistaken impressions of the functions of the act but i think that you are a lost cause and i will not waste any more time on you.

Peter

I think you have already made your point and I remain very sorry that you have adopted this attitude.

You are not obliged to respond to my posts and I am a little puzzled why you continue to do so after your previous rather unpleasant remarks.

LA

[Guest]

Re: Default Notices: time to remedy

Er, well I must be the world's biggest thicko because your excerpt Peter appears to reflect exactly what is being said contrary to you; that breakdown of the relationship occurs after the remedy date in the DN, at which point the balance is passed to debt recovery.

The underlined sentence merely applies to the demand made for the balance after the remedy date in the DN.

Btw, in support of Angry Cat, the document in question is published by the ICO and is freely available on their website.

I have no idea why Peter is so objectionable today but truly wish he'd calm down and get himself a new keyboard.

LA

You are a bit like a irritating itch that just wont go away.

What exactly is it you wish to know keep it concise it is the last chance you will get so go ahead shoot.

Peter


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