Default Notices: time to remedy

[Lord_Alcohol]

Re: Default Notices: time to remedy

Hi Peter

Ta for this, I understand what you mean but still a few niggles...do you mind having a look...?

This from the regs
A clear and unambiguous statement by the creditor or owner indicating--
(a) which (one or more) of the following types of action he intends to take, in order to enforce the term of the
agreement,--
(i) to demand earlier payment of any sum;
(ii) to recover possession of any goods or land;
(iii) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred;
(b) the manner and circumstances in which he intends to take such action; and
(c) the date, being a date not less than seven days after the giving of the notice, on or after which he intends to take
such action.
Demanding earlier payment of any sum
5
Where the creditor or owner states that he intends to demand earlier payment of any sum,
(a) the amount of the sum before deducting the amount of any rebate on early settlement;
(b) where any rebate on early settlement is allowable under the agreement or by virtue of section 95 of the Act--
(i) the amount of the rebate allowable calculated on the assumption that early settlement takes place on the date

The above is from the 1983 Consumer Credit (Enforcement, Default and Termination Notices) Regulations, but refers to Schedule 1 which applies to non-default situations only, so not relevent (I think) for s87 situations.

We need to be looking at Schedule 2, which applies to default situations (don't we?). Schedule 2 has a different set of requirements, although similar in places. The most important requirement is service of a compliant DN.

The recovery of arrears on a live account can be surd for without a default, this is why if the defauolt is found to be ineffective only the arrears are payable. The agreement then remains active as the termination would also not have been effective.

The problem I have with this is that the lender issues a defective DN (a seriously defective DN) then terminates. You are right in that he is not entitled to terminate, but we have this old chestnut again don't we where the debtor tries to get the lender to fix his mistake but he won't and continues his recovery action. This may go on for a considerable period, even ending up in court.

It's really this particular situation that is causing me the most trouble. Logic says to me that the lender cannot avail himself of s87(1)(b) because the DN is defective and he cannot reinstate the agreement (either because it was not terminated in law or because it was terminated and requires the debtor's consent to reinstate).

If a court rules that the contract endures, then it is imposing CCA on both parties. If that happens, then surely the debtor can demand that s89 should also apply? S89, as we all know, provides that the debtor is able to remedy the breach as though it had never occurred, but can never do this if he has been dragged through court.

While there are no sanctions for cocking up a DN, if termination is followed by some hard-nosed recovery action that could be extremely stressful for the debtor, it seems perfectly acceptable for the lender to permanently lose his s87(1)(b) entitlement.

Another way of looking at it might be an equitable compromise, in which each party returns monies taken during the lifetime of the agreement. I have seen the argument that when a lender takes steps that are 'outside' of CCA (eg, a duff DN and termination) then this might seem a logical and wholly fair (to both sides) solution.

So I still do not know what's what here, and suppose it will take a court to figure it out unless it has already been ruled upon.

The remedy of the breach does not mean that the agreement is restarted. The breach that is remedied is the one that entiles the creditor to enforce that is all, it does not mean anything else other than than section 87 cannot entitle the creditor to enforce

For this to take effect then surely s89 must be wholly irrelevant; the debtor is completely unable to remedy the breach as though it had not occurred. How does the lender get this exemption?

Action by the creditor or owner to be ineffective if breach remedied or compensation paid
4
Where any action is specified under paragraph 3(c) or (d) as required to be taken, a statement that the provision for the
taking of any action by the creditor or owner such as is mentioned in paragraph 6 will be ineffective if the breach is duly
remedied or the compensation is duly paid in the following form--
"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER
ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH".

Yes, this is from Schedule 2 of the 1983 Regs and seems to support my view that the contract may not be terminated on breach without first serving a s87(1) DN that complies with s88. The above also allows for s89.

Despite what is widley believed the default notice is not a last chance to revive your relationship with the creditor ,it is your last chance to avoid enforcement for repayment of the loan.

Does this mean that, even were a debtor to comply with a DN and remedy the breach, the creditor would still terminate and demand the balance anyway (accepting that he can if he wants, but is it a fair business practice)?

Are there no instances of DNs being complied with and the relationship continuing?

TIA
LA

[Guest]

Re: Default Notices: time to remedy

Hi Peter

Ta for this, I understand what you mean but still a few niggles...do you mind having a look...?



The above is from the 1983 Consumer Credit (Enforcement, Default and Termination Notices) Regulations, but refers to Schedule 1 which applies to non-default situations only, so not relevent (I think) for s87 situations.

We need to be looking at Schedule 2, which applies to default situations (don't we?). Schedule 2 has a different set of requirements, although similar in places. The most important requirement is service of a compliant DN.

Sched 2

clear and unambiguous statement by the creditor or owner indicating, if any action specified under paragraph 3(c) or
(d) as required to be taken is not duly taken or if no such action is required to be taken, the action which he intends to take
by reason of the breach by the debtor or hirer of the agreement--
(a) to terminate the agreement;
(b) to demand earlier payment of any sum;
(c) to recover possession of any goods or land;
(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred;
(e) to enforce any security;
(f) to enforce any provision of the agreement which becomes operative only on a breach of another provision of the

agreement as specified in the notice,


The problem I have with this is that the lender issues a defective DN (a seriously defective DN) then terminates. You are right in that he is not entitled to terminate, but we have this old chestnut again don't we where the debtor tries to get the lender to fix his mistake but he won't and continues his recovery action. This may go on for a considerable period, even ending up in court.

It's really this particular situation that is causing me the most trouble. Logic says to me that the lender cannot avail himself of s87(1)(b) because the DN is defective and he cannot reinstate the agreement (either because it was not terminated in law or because it was terminated and requires the debtor's consent to reinstate).


The DN is defective so is the termination, so the agreement is active and still drawing interest. If the creditor is interested in just recovering arrears he could do this by taking the appropriate action under the section he has not he wants to claim all the money on the agreement. Section d above says he can it is the same provision as in sched 1

If a court rules that the contract endures, then it is imposing CCA on both parties. If that happens, then surely the debtor can demand that s89 should also apply? S89, as we all know, provides that the debtor is able to remedy the breach as though it had never occurred, but can never do this if he has been dragged through court.

While there are no sanctions for cocking up a DN, if termination is followed by some hard-nosed recovery action that could be extremely stressful for the debtor, it seems perfectly acceptable for the lender to permanently lose his s87(1)(b) entitlement.

Yes stressful not really a defence in law, I think we would be talking prejudice and I think the court would be more concerned with the prejudice against the creditor in that he has lost entitlement to his money

Another way of looking at it might be an equitable compromise, in which each party returns monies taken during the lifetime of the agreement. I have seen the argument that when a lender takes steps that are 'outside' of CCA (eg, a duff DN and termination) then this might seem a logical and wholly fair (to both sides) solution.

So I still do not know what's what here, and suppose it will take a court to figure it out unless it has already been ruled upon.



For this to take effect then surely s89 must be wholly irrelevant; the debtor is completely unable to remedy the breach as though it had not occurred. How does the lender get this exemption?

The breach is remedied if the debtor pays the amount on the notice this stopw the inforcement action. If the account is live it cannot be terminated so it continues.
But if the creditor is asking for the full amount of the loan then the breach being reedited wil just mean that the agreement is settled and the cought action will not be allowed

Yes, this is from Schedule 2 of the 1983 Regs and seems to support my view that the contract may not be terminated on breach without first serving a s87(1) DN that complies with s88. The above also allows for s89.

This is my view also it may not be terminated on breac, it does not say cannot be termianted


Does this mean that, even were a debtor to comply with a DN and remedy the breach, the creditor would still terminate and demand the balance anyway (accepting that he can if he wants, but is it a fair business practice)?

The debtor can terminate at any time but would not be able to enforce that temination without issuing a valid DN and for that you would have had to breach the agreement again.

Are there no instances of DNs being complied with and the relationship continuing?


Yees if the breach is capable of remedy and only payments of arrears are required..
TIA
LA

See ABove

Peter

[Guest]

Re: Default Notices: time to remedy

Hi Peter

Ta for this, I understand what you mean but still a few niggles...do you mind having a look...?



The above is from the 1983 Consumer Credit (Enforcement, Default and Termination Notices) Regulations, but refers to Schedule 1 which applies to non-default situations only, so not relevent (I think) for s87 situations.

We need to be looking at Schedule 2, which applies to default situations (don't we?). Schedule 2 has a different set of requirements, although similar in places. The most important requirement is service of a compliant DN.


Sched 2
clear and unambiguous statement by the creditor or owner indicating, if any action specified under paragraph 3(c) or
(d) as required to be taken is not duly taken or if no such action is required to be taken, the action which he intends to take
by reason of the breach by the debtor or hirer of the agreement--
(a) to terminate the agreement;
(b) to demand earlier payment of any sum;
(c) to recover possession of any goods or land;
(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred;
(e) to enforce any security;
(f) to enforce any provision of the agreement which becomes operative only on a breach of another provision of the
agreement as specified in the notice,


The problem I have with this is that the lender issues a defective DN (a seriously defective DN) then terminates. You are right in that he is not entitled to terminate, but we have this old chestnut again don't we where the debtor tries to get the lender to fix his mistake but he won't and continues his recovery action. This may go on for a considerable period, even ending up in court.

It's really this particular situation that is causing me the most trouble. Logic says to me that the lender cannot avail himself of s87(1)(b) because the DN is defective and he cannot reinstate the agreement (either because it was not terminated in law or because it was terminated and requires the debtor's consent to reinstate).

The DN is defective so is the termination so the agreement is active and still drawing interest. If the creditor is interested in just recovering arrearshe could do this by taking the appropriate action under the section he has not he wants to claim all the money on the agreement. Section d above says he can it is the same provision as in sched 1

If a court rules that the contract endures, then it is imposing CCA on both parties. If that happens, then surely the debtor can demand that s89 should also apply? S89, as we all know, provides that the debtor is able to remedy the breach as though it had never occurred, but can never do this if he has been dragged through court.

Yes but remedying the breach just means thecreditor cannot enforce it does not mean that he should not have taken proceedings to recover arrears.

While there are no sanctions for cocking up a DN, if termination is followed by some hard-nosed recovery action that could be extremely stressful for the debtor, it seems perfectly acceptable for the lender to permanently lose his s87(1)(b) entitlement.

Another way of looking at it might be an equitable compromise, in which each party returns monies taken during the lifetime of the agreement. I have seen the argument that when a lender takes steps that are 'outside' of CCA (eg, a duff DN and termination) then this might seem a logical and wholly fair (to both sides) solution.

So I still do not know what's what here, and suppose it will take a court to figure it out unless it has already been ruled upon.



For this to take effect then surely s89 must be wholly irrelevant; the debtor is completely unable to remedy the breach as though it had not occurred. How does the lender get this exemption?

The section 89 refers to remedying the breach as refered to in section 87 it therefore removes the entitlement to enforce or terminate the agreement. It does not mean that the creditor was not entitled to take proceedings proir to that tot recover his money



Yes, this is from Schedule 2 of the 1983 Regs and seems to support my view that the contract may not be terminated on breach without first serving a s87(1) DN that complies with s88. The above also allows for s89.



Does this mean that, even were a debtor to comply with a DN and remedy the breach, the creditor would still terminate and demand the balance anyway (accepting that he can if he wants, but is it a fair business practice)?

Are there no instances of DNs being complied with and the relationship continuing?

Yes and the creditor will not be entitiled to termiantewhen the ccreditor has applied for the arrears to be paid then the contract will continue TIA
LA

See above

[Angry Cat]

Re: Default Notices: time to remedy

Hopefully, the following may assist:

A default notice is required if the lender is to terminate the agreement.

The fact that the customer may not be able to draw down on the facility does not amount to an termination (see section 87(2) of the Act).

"87.- Need for default notice
(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, 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.
(2) Subsection (1) does not prevent the creditor from treating the right to draw down upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferrment effective.
(3) The doing of any act by which a floating charge becomes fixed is not enforcement of a security
(4) Regulations may provide that subsection (1) is not to apply to agreements described by the regulations".

Should the lender seek to terminate the agreement a default notice would have to be served. There is no penalty for seeking to terminate without serving a default notice; the consequence is that the purported termination is ineffective.
If the creditor brings proceedings for the whole debt it will have to serve a default notice in accordance with section 88 before terminating and enforcing;
if it fails to do so, the debtor would have a defence to the claim for the amount due on termination.
Any failure on the part of the creditor to serve a default notice can be rectified by discontinuing the proceedings, serving a default notice and re-issuing a claim.

[Guest]

Re: Default Notices: time to remedy

Hopefully, the following may assist:

A default notice is required if the lender is to terminate the agreement.

The fact that the customer may not be able to draw down on the facility does not amount to an termination (see section 87(2) of the Act).

"87.- Need for default notice
(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, 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.
(2) Subsection (1) does not prevent the creditor from treating the right to draw down upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferrment effective.
(3) The doing of any act by which a floating charge becomes fixed is not enforcement of a security
(4) Regulations may provide that subsection (1) is not to apply to agreements described by the regulations".

Should the lender seek to terminate the agreement a default notice would have to be served. There is no penalty for seeking to terminate without serving a default notice; the consequence is that the purported termination is ineffective.
If the creditor brings proceedings for the whole debt it will have to serve a default notice in accordance with section 88 before terminating and enforcing;
if it fails to do so, the debtor would have a defence to the claim for the amount due on termination.
Any failure on the part of the creditor to serve a default notice can be rectified by discontinuing the proceedings, serving a default notice and re-issuing a claim.

Yes absolutely

Peter

[Lord_Alcohol]

Re: Default Notices: time to remedy

What are your thoughts when a lender refuses to accept his mistake and will not 're-open' the agreement in order to issue a new DN, but instead takes the debtor to court for the full amount?

If the court orders that the lender merely re-issues the DN and demand the arrears, where does that leave the debtor? Is it not utterly unreasonable of the lender to demand unpaid sums in the DN, then the full balance in his TN, record a default and sue the debtor, merely to have a court allow him to re-issue the DN along with a demand for additional sums in interest?

Also, presumably at this point the "arrears" will not be the original arrears, they will be the arrears to the date at which the new DN is served. That amount might be collosssal!

The debtor, of course, will find that his agreement has been terminated twice for the same breach, with DNs served for quite different amounts, and as for s89 he finds that the lender has gained total exemption. He finds that the lender was in error under s87, s88 and in his DN and TN, but that he 'gets away' with it at no cost to himself.

To me, this makes a total mockery of consumer protection legislation.

Anyone know of any judgements where this in fact has happened?

LA

[paulb2905]

Re: Default Notices: time to remedy

LA, im sorry i have to agree with you.

I have read a number of posts by Peter on CAG and other forums and do not doubt his ability to reason an argument and agree with many things that he has said in other posts. But I still have yet to see Peter, with particular reference to any statute, prove the whole DN/Termination argument in the way in which he perceives it. Other than to refer to common law.

Common law is happy to accept an Unlawful Termination of contracts (repudiation etc etc).

In*Golden Strait Corporation v Nippon Yusen Kubishka Kaisha*[2007], Lord Bingham said:

'The repudiation of a contract by one party ("the repudiator"), if accepted by the other ("the injured party"), brings the contract to an end and releases both parties from their primary obligations under the contract. The injured party is thereupon entitled to recover damages against the repudiator to compensate him for such financial loss as the repudiator's breach has caused him to suffer. This is elementary law.
The damages recoverable by the injured party are such sum as will put him in the same financial position as if the contract had been performed.'
What's more, the law will not merrily award whatever loss the injured party says he suffered. The court will require the injured party to prove his loss and further, will expect the injured party to take steps to mitigate the loss.*

'One must look at the contract as a whole, and if it is clear that the innocent party has lost nothing, he should recover no more than nominal damages for the loss of his right to have the whole contract completed.'*[Edmund Davies LJ in*'The Mihalis Angelos'*(1971)]

and where the DN is incorrect, eg they havent automatically reduced it for unlawful charges which have already been refunded to other accounts then

'This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage. The contract is likely to be in standard form and relatively complex with a number of detailed provisions. If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take what Mr Gruffyd conveniently referred to as "the next step".*[per Kennedy LJ in Woodchester v Swayne [1998]]

There is also the whole issue with the Creditor issuing an invalid DN then Terminating the account and selling onto a DCA.

Where the Creditor has sold the account onto a DCA either entirely without, or, issuing, a defective, DN they are acting on the belief that they have terminated an account and have the right to sell the debt on.
Under your argument where does this leave the debtor??? Is he to believe the account IS or IS NOT terminated? The only logical conclusion MUST be that the agreement is terminated.
Now as the OC didnt issue the DN (or correctly) he has by his actions terminated the agreement but Unlawfully - as he wasnt entitled to terminate the account by virtue of NOT sending the DN (or correctly).

The Creditor has acted in the belief that they are entitled to sell the debt following termination

"... a person who signs a document, and parts with it so that it may come into other hands, has a responsibility, that of the normal man of prudence, to take care what he signs, which if neglected, prevents him from denying his liability under the document according to its tenor".
[per Lord Wilberforce in*Gallie v Lee*(1971)]

'.. a man cannot escape from the consequences, as regards innocent third parties, of signing a document if, being a man of ordinary education and competence, he chooses to sign it without informing himself of its purport and effect..'
[per Scott LJ in*Norwich & Peterborough Building Society v Steed*(1992)]

I concur with the last post that withdrawal of function does not amount to termination. But the following are instances of Termination;
a) Demand payment in full of the whole debt (either before or after DN)
b) Selling the debt onto a DCA
c) Instigating legal proceedings for the full recovery of the debt as this is enforcement.

[Guest]

Re: Default Notices: time to remedy

What are your thoughts when a lender refuses to accept his mistake and will not 're-open' the agreement in order to issue a new DN, but instead takes the debtor to court for the full amount?

My thoughts are irrelevant , the court will decide if the default is valid or not and take the prescribed action

If the court orders that the lender merely re-issues the DN and demand the arrears, where does that leave the debtor? Is it not utterly unreasonable of the lender to demand unpaid sums in the DN, then the full balance in his TN, record a default and sue the debtor, merely to have a court allow him to re-issue the DN along with a demand for additional sums in interest?

Not with you if you get the full balance on the DN the section87 will be remedied and he cannot enforce a termination.

Also, presumably at this point the "arrears" will not be the original arrears, they will be the arrears to the date at which the new DN is served. That amount might be collosssal!

The debtor, of course, will find that his agreement has been terminated twice for the same breach, with DNs served for quite different amounts, and as for s89 he finds that the lender has gained total exemption. He finds that the lender was in error under s87, s88 and in his DN and TN, but that he 'gets away' with it at no cost to himself.

To me, this makes a total mockery of consumer protection legislation.

Anyone know of any judgements where this in fact has happened?

LA

See above
------------------------------- merged -------------------------------

What are your thoughts when a lender refuses to accept his mistake and will not 're-open' the agreement in order to issue a new DN, but instead takes the debtor to court for the full amount?

If the court orders that the lender merely re-issues the DN and demand the arrears, where does that leave the debtor? Is it not utterly unreasonable of the lender to demand unpaid sums in the DN, then the full balance in his TN, record a default and sue the debtor, merely to have a court allow him to re-issue the DN along with a demand for additional sums in interest?

Also, presumably at this point the "arrears" will not be the original arrears, they will be the arrears to the date at which the new DN is served. That amount might be collosssal!

The debtor, of course, will find that his agreement has been terminated twice for the same breach, with DNs served for quite different amounts, and as for s89 he finds that the lender has gained total exemption. He finds that the lender was in error under s87, s88 and in his DN and TN, but that he 'gets away' with it at no cost to himself.

To me, this makes a total mockery of consumer protection legislation.

Anyone know of any judgements where this in fact has happened?

LA

Hi could you please raise one point at a time i think the reason i have to keep repeating myslef is because we are nt addressing eac point and arguing it independantly.
In the mean time in answwer to the above

Hi
My thoughts are irrelevant , the court will decide if the default is valid or not and take the prescribed action
Not with you if you get the full balance on the DN the section87 will be remedied and he cannot enforce a termination.
As we have ascertained recording a default is nothing to do with default notice
Yes interest will continue to accrue why should they not you still have the creditors money.
Actually they will continue until the account is terminated
The agreement can only be terminated once by breach of the agreement unless the agreement is remedied then it will be ineffective in terms of section 87
It to me does exactly what it says on the packet gives the debtor 14 to pay before enforcement.
Where what has happened?

[Guest]

Re: Default Notices: time to remedy

LA, im sorry i have to agree with you.

I have read a number of posts by Peter on CAG and other forums and do not doubt his ability to reason an argument and agree with many things that he has said in other posts. But I still have yet to see Peter, with particular reference to any statute, prove the whole DN/Termination argument in the way in which he perceives it. Other than to refer to common law.

Common law is happy to accept an Unlawful Termination of contracts (repudiation etc etc).

and where the DN is incorrect, eg they havent automatically reduced it for unlawful charges which have already been refunded to other accounts then

There is also the whole issue with the Creditor issuing an invalid DN then Terminating the account and selling onto a DCA.

Where the Creditor has sold the account onto a DCA either entirely without, or, issuing, a defective, DN they are acting on the belief that they have terminated an account and have the right to sell the debt on.
Under your argument where does this leave the debtor??? Is he to believe the account IS or IS NOT terminated? The only logical conclusion MUST be that the agreement is terminated.
Now as the OC didnt issue the DN (or correctly) he has by his actions terminated the agreement but Unlawfully - as he wasnt entitled to terminate the account by virtue of NOT sending the DN (or correctly).

The Creditor has acted in the belief that they are entitled to sell the debt following termination



I concur with the last post that withdrawal of function does not amount to termination. But the following are instances of Termination;
a) Demand payment in full of the whole debt (either before or after DN)
b) Selling the debt onto a DCA
c) Instigating legal proceedings for the full recovery of the debt as this is enforcement.

Hi as before
I hae covered all this beore could you ask one question at a time.

I will answwer the query about the faulty DN sold to a DCA, firstly i presume you mean it has been fully assigned to the DCA because if not of course the OC would have to be part of the enforcement action.

If this was the case the court would not enforce and the creditor would have to issue another DN, if the assignment had been total then the DCA would be applicable if not it would have to be the orriginal creditor.

Peter

[paulb2905]

Re: Default Notices: time to remedy

Hi Peter,

Im sorry i dont believe you have answered the queries already (or perhaps to be more accurate answered them sufficiently from your perspective)

Your reply to the debt sold to the DCA by the OC surely presuposes that the OC now had a right to "reinstate" the agreement or to act "as if it had never been" terminated. Both these positions are a fallacy and are not supported in Law.

In fact the opposite is supported by law, and the "prejudice" argument holds little or no water.

[Caspar]

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

I have a huge interest in Common Law - you may find this exchange of letters interesting / amusing:


jon

28 April 2009

Dear Sir or Madam,
Could you please answer the following question. Is High Peak
Magistrates' court, located at Peak Buildings, Terrace road,
Buxton, Derbyshire, a court de-facto or a court de-jure?

Yours faithfully,

jon


Customer Services (CSHQ)

5 May 2009

Dear Jon

Thank you for your e-mail. I apologise for the delay in replying. Please would you clarify what you mean by these two expressions. H M Courts Service staff are not legally trained or permitted to give such advice so you may wish to seek independent legal advice.

R D Meek

Russell Meek
Customer Service Unit
H M Courts Service
0845 456 8770




jon

6 May 2009

Dear Customer Services (CSHQ),
Thank you for your reply, it confirmed for me the embarrasing
position you are in as you don't want to publicly announce that all
courts in the UK are de-facto courts, deriving all their assumed
power from colour-of-law statutes. There are no De-jure courts in
the UK anymore (courts of LAW), I already knew the answer to my
request, I just wanted to show others by way of watching you
sidestep the question like you have done. You insulted both mine,
and your own intelligence by suggesting that a) you do not
comprehend the terms I used, and b) that you are neither qualified
or authorised to answer. By the way b) cancels out a), as if you
did not understand the terms I used, then how would you know if you
were qualified or authorised to answer, sometimes you just make
yourselves look silly, but hey-ho you represent a fraudulent
de-facto court "service", so we should expect nothing else!

Thank you for your "trouble"

Yours sincerely,

jon



jon left an annotation (6 May 2009)

Defacto: Exercising power or serving a function without being legally or officially established: a de facto government; a de facto nuclear storage facility; A DE FACTO COURT!

Link to this

Veronica Chapman left an annotation (12 May 2009)

De jure: A Court of Justice. A Common Law court.

(In other words NOT a de facto court which is set up for PROVIDING THE SERVICE OF ADJUDICATION. A service that can be refused, if one does NOT wish to CONTRACT for said adjudication services)

[Guest]

Re: Default Notices: time to remedy

Hi Peter,

Im sorry i dont believe you have answered the queries already (or perhaps to be more accurate answered them sufficiently from your perspective)

Your reply to the debt sold to the DCA by the OC surely presuposes that the OC now had a right to "reinstate" the agreement or to act "as if it had never been" terminated. Both these positions are a fallacy and are not supported in Law.

In fact the opposite is supported by law, and the "prejudice" argument holds little or no water.

Hi
No obviously your are right I haven’t answered comprehensively enough from your perspective. I shall attempt to now,
The creditor does not have to reinstate your agreement. The remedy described in section 89 does not mean that he does it just means that the breach has not occurred so the notice cannot be used in order to entitle the creditor to enforce.
The agreement will be in whatever state it was in before the DN was issued.
The action is to recover all mounts under the agreement if you remedie, what would be the point in reinstating the agreement?
If the action was just to recover arrears then you would presumably be paying instalment in the interim and the agreement would still be running as the DN would not have been able to terminate.
If the agreement was still running but the termination had taken place any way and ended up in court the judge would just award arrears on the account and the agreement would continue as in Woodchester, in a hire case this is more likely because the liabilities under the contract are genuine pre estimates of costs where as in a loan scenario these are actual funds.
Not sure what you mean by my prejudice argument cold you remind me
Peter

[middenmess]

Re: Default Notices: time to remedy

The issuance of a defective default would also make the subsequent termination inactive so there would be nothing stopping the creditor from reissuing a new DN.

Read more at: Default Notices: time to remedy - Page 9 - Legal Beagles Consumer Forum

If a defective D/N was issued on a credit card account and the customer was informed that the account was terminated and all future credit facilities were withdrawn/cancelled and the monthly PPI facility was also withdrawn/cancelled is it now the position that the account is not actually terminated until a compliant d/n is issued?

If so how does that stand with interest continuing to accrue as interest could only be accrued if the agreement had continued in it's entirety with both parties having the benefits of the agreement--the lender to lend and charge interest the borrower to have a continuing/running credit account.If the customer has been denied these facilities,what right does the creditor have to charge interest during the period when the facilities in the agreement are just for the benefit of the creditor?

As the monthly PPI is also cancelled by the creditor during this limbo period before a compliant default notice is issued what would happen if during this period the customer would have wanted to make a valid claim on the PPI?


If when the valid default notice is eventually reissued the customer pays the requested arrears--how can the account possibly be as if nothing had happened?

How could they turn back the clock and undo the damage that a default marker on your credit ratings had caused?

What period of time would the courts accept as reasonable for a creditor to produce a compliant default notice,1 month,6 months a year?-- or at any time in the future that they feel like it?

[jumper999]

Re: Default Notices: time to remedy

I see that CAG have closed their thread on the Default Notices as it had been battered and thrashed around like fish, what a shame really could have done with some advice on a court claim I received from HSBC today...........even after I have a faulty DN.

Can anyone assist me please? I really would like to know if my cca is compliant and contains the prescribed terms too.

[middenmess]

Re: Default Notices: time to remedy

I see that CAG have closed their thread on the Default Notices as it had been battered and thrashed around like fish, what a shame really could have done with some advice on a court claim I received from HSBC today...........even after I have a faulty DN.

Can anyone assist me please? I really would like to know if my cca is compliant and contains the prescribed terms too.

Hi Jumper

Why not post up the paperwork minus personal info in the appropriate forum here and I'm sure that good advice will be given.