Default Notices: time to remedy

[Lord_Alcohol]

Re: Default Notices: time to remedy

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card account and the customer was informed that the account was terminated and all future credit facilities were withdrawn/cancelled and the monthly PPI facility was also withdrawn/cancelled is it now the position that the account is not actually terminated until a compliant d/n is issued?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

Yes, it makes no sense does it?

My thoughts at the mo after a glass of plonk is that these arguments that suggest the ag endures after the lender terminates are incorrect and not based on any known judgement, unless there is a judgement somewhere in which a court ordered the lender to issue a DN on a terminated ag.

It is just too complex and difficult to understand (well, it is for me).

Woodchester helps as the judge did not order Swain to issue a new DN.

Even in Brandon the judge could have solved the problem in an easier way by just telling Amex to issue a new DN. But he didn't.

My view remains that if a lender terminates then that's that. It's then up to him to persuade a court that he mistakenly terminated and that he must now issue a new DN. I think the banks know this, otherwise there would be a raft of defective DN/termination cases being heard everywhere, and I think that Peter touched on this earlier.

Peter's argument that a lender can issue a DN on a terminated contract is interesting but not one I agree with (yet) as it would require so many convolutions of the Act as to become almost nonsensical. The lender would have to admit his mistakes under ss 87 and 88, admit he was wrong to record a default (and should remove it), admit he served a TN without entitlement and terminated the agreement unlawfully, reinstate the agreement so that the debtor can comply and somehow offer all the entitlement of s89 so that the debtor wakes up the next day and thinks it was all a bad dream.

I just don't see it at all.

LA

[Guest]

Re: Default Notices: time to remedy

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?

Hi
The creditor is not entitled by breach of the contract to terminate or….
This does not prevent him terminating for any other reason so it is up to them the cannot however enforce the termination unless they have complied with section 87
I think you are mistaken interest accrues because you still have their money, nothing to do with your entitlements under the agreement. Once the agreement is terminated it will depend on the post termination interest arrangements on your contract.
As to your PPI I would think it would be ok until the agreement was terminated but you would have to check your agreemnt.
It cant, it would just be in the same condition as before the notice was issued.
Again the effect on your credit ratting has nothing to do with a notice under section87 it is a record of your repayment performance. Remedy of the notice is an irrelevance.
Would you be in a hurry for them to produce a compliant notice?
Peter

[jumper999]

Re: Default Notices: time to remedy

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.

Thanks mm, here is my cca and would like any help or advice. I believe that it may be a recon

http://i450.photobucket.com/albums/q...t/HSBCCCA1.jpg

http://i450.photobucket.com/albums/q...t/HSBCCCA2.jpg

http://i450.photobucket.com/albums/q...t/HSBCCCA3.jpg

Does it contain all the prescribed terms? I know that I have a faulty DN as it did not give me enough time to remedy and then my account was terminated.

Maybe peter will be able to advise

[paulb2905]

Re: Default Notices: time to remedy

Jumper i think MM meant start a new thread with your info and links posted - still the thing to do - thats part of the problem with the DN thread over on CAG it got hijacked with ppls issues.

This thread is really an academic thread to try and come to some understanding on the consequences of issuing/not issuing a DN and subsequent actions.

[middenmess]

Re: Default Notices: time to remedy

Would you be in a hurry for them to produce a compliant notice?

Read more at: Default Notices: time to remedy - Page 10 - Legal Beagles Consumer Forum

Its been over a year now with my BC and similar for the Halifax.

Both companies advised that D/N's faulty-both deny that they are.

Defaults registered by both companies.

Both being chased by DCA's on behalf of OC's

[paulb2905]

Re: Default Notices: time to remedy

Peter,

I think is see where the differences in opinions lie.

You seem to work from the premise that an account can NEVER be terminated unless everything HAS been done correctly ie compliant DN, 14 days etc TN then whatever action the OC wishes to take be it legal or securitisation etc.

However i argue that the obverses is permissable eg that an account CAN be Terminated (albeit unlawfully) without the correct procedure being carried out.

Would you agree that this is the situation??

Again the effect on your credit ratting has nothing to do with a notice under section87 it is a record of your repayment performance. Remedy of the notice is an irrelevance.

think your confusing the issue the title of the thread is Default Notice time to remedy - no mention of CRA default reporting (except perhaps as ancillary to a DN not being received)

[jumper999]

Re: Default Notices: time to remedy

Jumper i think MM meant start a new thread with your info and links posted - still the thing to do - thats part of the problem with the DN thread over on CAG it got hijacked with ppls issues.

This thread is really an academic thread to try and come to some understanding on the consequences of issuing/not issuing a DN and subsequent actions.

Sorry, good idea but thought I would pick you guys brains here too LOL.

[middenmess]

Re: Default Notices: time to remedy

Paulb2905

This thread is really an academic thread

Best several of us leave now then LOL

Sorry, good idea but thought I would pick you guys brains here too LOL.

Read more at: Legal Beagles Consumer Forum - Reply to Topic

That will only be a 2 minute job

[jumper999]

Re: Default Notices: time to remedy

Don't know if anyone has seen Little Britain where that magician goes

Look in to my eyes, look in to me eyes, not around the eyes, not around my eyes, but in to my eyes, when I click my fingers you will forget everything that has just happened in the last 10 minutes.

He then clicks his fingers and says 123 your back in the room

Do you think he was the guy who originally wrote the CCA Act and now we are being made by the Government to forget everything?

Just a thought................
------------------------------- merged -------------------------------

Paulb2905



Best several of us leave now then LOL





That will only be a 2 minute job

That be 2 minutes more than I need LOL!!!!!!!!!!!!!!

[Lord_Alcohol]

Re: Default Notices: time to remedy

Hi
No obviously your are right I haven’t answered comprehensively enough from your perspective.

Naughty...

The creditor does not have to reinstate your agreement.

It's the old bogey of s89;

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 only way in which this section can be accommodated is where there is a live agreement and a compliant DN. There's no getting away from it. Either the contract is regulated under CCA or it isn't. If it is, then s89 must apply.

Btw, the words "the breach shall be treated as not having occurred" have no meaning if the contract has been terminated. The lender would have to reinstate the contract in order to allow the debtor entitlement to this section.

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.

Yes, I agree with this and the lender will get nowhere. However, if he's terminated the contract he's doubly ****ed, because now he's lost his chance to issue a new DN too.

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?

Yet the lender would have to do this in order to issue a new DN.

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.

I think that's right, but the problem is that the lender has terminated (even though not entitled). As the agreement is terminated, no further amounts can accumulate as there are no agreed T&Cs covering this. This was the case with my BoS account.

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.

Did the agreement continue in Woodchester? I never knew that. Is there ant detail about this anywhere?

TIA
LA

[paulb2905]

Re: Default Notices: time to remedy

Lol im not phased by any apparent "digs" at me, im not legally trained and never claimed to be.

I am convinced, until proven otherwise, that there is a legitimate argument substantiated in Law that a contract (agreement) can be repudiated (unlawfully terminated) by a party to a contract.

It appears that Peter was happy to argue that common law prevents a repudiation of contract and has now moved onto Statute preventing a repudiation (my apologies if that isnt what you meant).

I dont believe either situation has merit.

Common law will allow repudiation happily (see various cases already quoted)

Statute may intend that a contract cannot be terminated unless........... but where an OC acts in the belief that they have, or were entitled to, terminate this effects a repudiation of the contract and the debtor becomes the injured party entitled to compensation for damages or loss thereon (Khorapor).

To approach this from the position that where an OC has erroneously terminated the contract (invalid/no DN or whatever) entitles them to work from the premise that the contract had in fact never been terminated (by virtue that they hadnt carried out the correct procedure) is a completely farsical one and is an affront to any person of intelligence.

The contract has been terminated by deed & action and the "ordinary man" would be reasonable to assume that a contract has been terminated.

The only outstanding point(s) would be whether the debtor would agree to reinstate the agreement (which he can do) or whether he has confirmed acceptance of the repudiation (which he may or may not be aware of).

This is an "academical" discussion until someone is prepared to go to court to prove it either way.

Heres the Supreme Court Appeal where the earlier decision was overturned (original being that the full amount of the agreement was payable) and that only the "correct" value of the arrears plus interest was payable with an award on scale for costs

[jumper999]

Re: Default Notices: time to remedy

Great stuff paul and thanks for that attachment.

My agreement was terminated on the back of a faulty DN......do you think that I ca use the Woodchester case in my defence as I have received a claim from HSBC?

Need to prepare a defence and trying to get as much as help as possible.

[Guest]

Re: Default Notices: time to remedy

Its been over a year now with my BC and similar for the Halifax.

Both companies advised that D/N's faulty-both deny that they are.

Defaults registered by both companies.

Both being chased by DCA's on behalf of OC's

In what way are the DNs incorrect?

If you dont mind me asking

I presume they have not terminate your account or have they

Are you still getting regular statements ? are they still adding interest

Peter

[Guest]

Re: Default Notices: time to remedy

Hi Paul

Pleas believe me no "Dig was intnded2 I mearly ment that i had not explained to your satisfaction that is all i was echoing your comment about explaining to muy satisfaction not others which is a legitimate point.

Anyway

No i do not believe that a termination can be unlawful my reasons are given some posts back on this thread I shall add a link,.

I think that thes points have been argued enogh now on here. From my point of view i now understand this aspect of the CCA as much as i am going to. All i would say is, the best of luck if you are using this arguemnt and please if you would refrain from recomending it to others at least untill it is proven by a verifyable case, which i am sure you will.
I shall of course be elswhere lurking about

http://www.legalbeagles.info/forums/...103#post179103

Peter

[Lord_Alcohol]

Re: Default Notices: time to remedy

Peter

You state;

If you present a court with a claim that the default notice you received was defective and they agree, all they will do is ask the creditor to issue a new one. No other argument will be entertained.

(My underlining)

This did not happen in Woodchester and did not happen with Brandon. Other arguments were entertained. I am sure that defective DNs have been used in other cases; do you know for sure whether the court will in fact ask the lender to issue a new one?

I realise that it is your position that a defective DN followed by termination does not extinguish a regulated contract and that this is why a DN may be served subsequently. I understand that your reasoning is that there is no "entitlement" given to the lender to take this action, hence the agreement endures.

However, there was no "entitlement" given to the debtor when he failed to make the payments that resulted in the DN, yet it happened anyway.

I therefore feel that "entitlement" is just that, and that actions occur whether there is entitlement or not. The debtor breached without entitlement to do so; the lender terminated without entitlement to do so. The agreement is therefore concluded, only leaving liabilities to be considered.

My view on liabilities is that the lender erroneously terminated the contract and then went on to insist that it was terminated. He mistakenly considered that all sums are now due, but this cannot be so because unpaid amounts are only due when the contract is terminated according to s87/88.

As per Woodchester, the only sum that can possibly be due is the arrears on termination. To arrive at a different amount that could be the same as the balance outstanding prior to termination would require some mind-bending convolutions of the Act that make very little sense.

LA