Default Notices: time to remedy

[jumper999]

Re: Default Notices: time to remedy

LA I am afraid no matter how much we try and bash this DN thing around I believe that our fate has already been decided and sealed.

It would take a miracle if not more to get these lenders and courts to agree with what we are saying and trying to prove. I am not sure if the Brandon appeal on the 6 Dec 10 will apply if lost to all defaulty DN's issued to debtors. Only time will tell. I for one am not holding my breadth as I did with the refund of bank charges against the OFT.....then the Walker & Heath case.

It is obvious that the judge in the Brandon case took no notice of the CCA and what it states about what a DN should contain. The judge also allowed for £25 charges as acceptable for the lender to apply.

Now shoot me down if I am wrong but are we not allowed to ask for a refund of any charges applied to credit card accounts? HSBC agreed to the FOS to refund me my charges in 09........now if they knew they were legally entitled to claim them why did they offer to refund them?

This whole system is trying to confuse us and no one especially the government and legal system like a smart ass monkey especially a smart ass monkey who knows a bit about the legal system. I believe the correct word is LIP. litigant in person.

Can the UTTCR be used in these cases? Not sure.

[Lord_Alcohol]

Re: Default Notices: time to remedy

I know what you mean Jumper.

At the end of the day, these contracts are regulated by CCA. The lender issues a legal document with "Served under s87(1) of the Consumer Credit Act 1974" in bold at the top. We look at s87(1) and see that the lender has failed to comply with s88 and, in many cases, our entitlement to sort out the problem (albeit of our own making) is either eroded or removed altogether. We might even ask the lender to rectify his error before the DN expires (as I did with Egg), but he ignores our pleas.

Either these contracts are regulated by CCA or they are not. If they are, then surely they should be "properly" regulated and not half-cocked interpretations that stuff the consumer?

Then we have Woodchester (OK, 10 years ago now, but the same Act), where the court demanded "precision" in any DN.

I think with Amex the problem was the contract T&Cs seemed to get in the way of the DN. Even the judge agreed that there was "merit" in the argument that the DN was defective (it was just that the judge thought that no prejudice was suffered by Brandon).

My own view is that banks have their own agenda and are probably looking at this as PB has described. But that doesn't make it right. I started out with no intention at all of trying to walk away from these debts, but the bizarre way the banks have managed the problem has given me no other choice than to find a legal solution, even if only to batter the banks into accepting an amicable proposal.

In support of my paranoia, I keep asking myself why the banks simply cannot get these documents right.

Yes, I definately think that s140 is well worth looking at, especially if there has been clear prejudice against you.

LA

[jumper999]

Re: Default Notices: time to remedy

Thanks LA,

unfairness is that why did HSBC agree after many months to accept £1 when I was initially offering more. The prejudice being is that HSBC put me through many months of unnecessary stress, and this also an abuse of the courts because I will exactly the same thing to the judge as I have been saying to HSBC regarding my financial situation.

But this time I will also point out to the judge how HSBC have treated from the day I got in to difficulty. Like I said to PB on my other thread it is not a matter of winning or losing now it is a matter of principal.

Why make people go through so much for nothing.........and to take them to court and get a judge to stamp and say that yes you must pay the creditor x amount each. These lenders get off taking people to court , do you reckon that they are on commission? Every judgment in their favor then a bottle of champagne and cavier or some other kind of bonus.

Well I for one am going to fight this as I believe that I have been treated very unfairly and if I lose I'll get a CCJ and ordered to pay one or two pounds a month for the rest of my life.

If HSBC want to play like that then suits me just fine, but not before a good fight.

[paulb2905]

Re: Default Notices: time to remedy

I agree with you both (LA/Jumper)

Unfortunately whether on principle or as you have no other resort it will still come down to proving it in court.

And that presuposes that the OC/DCA etc doesnt pull out of proceedings to prevent a ruling entering into law if you did have a case.

Unfortunately I dont agree with Peter, i dont think his arguments have any strength to them - but that is his opinion and this is mine, were all entitled to our opinions.

His seems to rely on the basis that the court/law will bend over backwards and apply convoluted processes to ensure that Repudiation doesnt occur in any situation whereas i believe mine and others arguments apply a logical, proportionate and reasonable application of events, which has already been substantiated in previous case law.

I take nothing away from peters arguments and have enjoyed the deliberation of events in this thread.

I would also like to thank peter for his many threads on various forums which i have found to be well reasoned, well argued and informative - a great many that i do also agree with.

I think at the end of the day it is down to the individual to draw his own conclusions and pursue a course of action with which he is comfortable until such point as this has been tested in court and entered into case law - specifically with reference to a Credit Card (or similar) debt and the CCA74

[jumper999]

Re: Default Notices: time to remedy

I also agree with what you say paul and yes it is good to see what peter says as he kinda gives you a feel of what you will be and are up against if you get to court.

I think that the UTCCR can play a very significant part in all of this as after detriment to the consumer can be looked upon as as unfair term. It is about how well you prepare your case and how it is presented on the day.

If you are mentally prepared to lose and then you win it can only be a bonus, can it not?

Well that is how I am going to do this and if for any reason HSBC pulls out or I do then we will cross that bridge when we get to it.

[paulb2905]

Re: Default Notices: time to remedy

Heres an interesting point in relation to to the whole DN/TN thing (albeit from Scotland)

It promotes the TN as being a Negligent Breach Of Contract

The Law Reform (Contributory Negligence) Act 1945 provides as follows:

1. Apportionment of liability in case of contributory negligence

(1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage...

4. Interpretation

"fault" means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence.

5. Application to Scotland

... the expression "fault" means wrongful act, breach of statutory duty or negligent act or omission which gives rise to liability in damages, or would, apart from this Act, give rise to the defence of contributory negligence.

Do these provisions, well known in the law of delict, also apply to claims of damages for breach of contract?
The statute also applies in England, and there it has been held at appellate level that contributory negligence can only be pleaded by the defendant in cases where the breach consists in negligence by the defendant which can be characterised as either breach of an implied contractual term imposing an obligation to take care or as a failure to take care under a tortious duty of care - that is to say, in cases where liability in contract and tort is concurrent. The defendant cannot plead contributory negligence where his breach is in relation to a term imposing a strict liability, or where the law of tort could not have imposed liability in the same circumstances (for example, for breach of a contractual duty of care where tort liability is excluded).
In a case of negligent breach of contract, therefore, the plaintiff will argue that his claim is purely contractual, while in order to reduce the damages by bringing in contributory negligence, the defendant will argue that liability arises in both contract and tort. See Forsikringsaktieselkapet Vesta v Butcher (No 1) [1989] AC 852; Barclays Bank plc v Fairclough Building Ltd [1995] QB 214.
The basis for this approach is found in section 4 of the 1945 Act (above) defining fault. Section 1 requires that two parties both be at fault, each contributing to the damage of one. The definition of fault has two limbs.
The first refers primarily to the fault of the defendant which leads to the loss suffered by the injured plaintiff, and ends with the phrase "gives rise to a liability in tort". So the defendant’s fault must give rise to a liability in tort (albeit that the action is in fact brought for breach of contract). But it has never been necessary for contributory negligence to be conduct which, had it injured the defendant rather than the plaintiff himself, would have given the defendant an action.
Hence the second leg of section 4 requires to be wider than the first, and can only refer to the fault of the plaintiff.

In Scotland the issue has been considered in only two reported cases in the Outer House of the Court of Session. In Lancashire Textiles (Jersey) Ltd v Thomson Shepherd & Co Ltd 1986 SLT 41 a carpet supplier sued the manufacturer in respect of defective carpets which had been previously rejected by a customer of the supplier. The claim was for breach of the implied terms about quality in the Sale of Goods Act 1979, so the liability for breach was strict. The manufacturer pleaded that the supplier had been contributorily negligent in the way in which he had laid the carpet in the customer’s premises. Lord Davidson held that before contributory negligence could be pleaded against a pursuer in a breach of contract case his claim had to be based on fault; since the claim here was not based on fault, the plea was irrelevant. In Concrete Products (Kirkcaldy) Ltd v Anderson and Menzies 1996 SLT 587, two companies sued accountants for negligent breach of contract in auditing the companies’ books. The negligence lay in the failure to check the books to detect frauds by the companies’ employees. In their defences the accountants pleaded inter alia that the companies had been contributorily negligent. The companies argued that a plea of contributory negligence was irrelevant in any case of breach of contract. Lord Dawson held that the averments were not clearly irrelevant where the breach of contract involved negligence and the contractual obligation broken was co-extensive with a delictual duty of care.

These cases appear to be in line with the English authorities. Yet a questioning note may be raised if the Scottish definition of fault in section 5 of the 1945 Act is considered. Like the English section 4, section 5 has two limbs in its definition of fault, the second of them concerned with what will constitute fault on the part of the pursuer only (i.e. the part specifically referring to the defence of contributory negligence). The first limb, primarily concerned with the defender’s fault giving rise to the claim of breach of contract, is different from the English first leg in that it contains no express reference to delict. Instead it talks about "wrongful act", which is distinct from "negligent act", and limits these only by saying that must give rise "to a liability in damages". Now any breach of contract, and not just those equally actionable as a delict, could be regarded as a wrongful act which gives rise to a liability in damages, thus making contributory negligence universally applicable
Contributory Negligence

[jumper999]

Re: Default Notices: time to remedy

Thanks paul, I think I will have an uphill battle trying to use something like that in my defence don't you think but thank you all the same it was very interestin to read.

[Lord_Alcohol]

Re: Default Notices: time to remedy

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

Brilliant! Absolutely priceless.

LA
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Jumper

Do you have a defence sorted? Will you defend on the basis of a duff DN? If so, how was your DN defective - or can I look this up OTR?

LA

[middenmess]

Re: Default Notices: time to remedy

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

BC.
In response to my CCA request they supplied one sided postal application from 1993 and a separate set of T & Cs.Wrote saying not happy with them so they set me a different set of T & C's both stated to be my original T & C's.

B/C didn't issue D/N but used their in house DCA's Mercers to do so with no address of BC on the D/N

Then another of their in house DCA's, Calders, wrote demanding the full amount within 7 days and stating that PPI was now cancelled as was the account.

I wrote by SD accepting their repudiation/rescission and asked to pay genuine arrears--letter ignored for last 12 months and not responded to but Moorcrofts etc. began to chase followed by current DCA, R.Way.

£600+ in charges/interest added before receiving letter letter stating monthly charges would no longer be added but interest on balance would now be 12% p.a. but this interest has not been added to the amount demanded in frequent letters from DCA for past 8 months.

No statement for past 5 months.



Halifax.
After requesting CCA and receiving copy of application form from 1989,Halifax then wrote admitting they could not locate agreement so would not enforce but would continue normal collection activities.

Received D/N but with 7 days still left in which to rectify the breach I then received a letter terminating the account followed soon after by request to pay full amount of account.

I informed them of their mistake but they denied that they had made one and instructed various DCA's to collect latest being R.Way and solicitors Horwich Farrely.

Officially defaulted in Feb. 3 months after D/N sent and no interest added since April.

Statement for Feb and next one 6 months later in August.

[Caspar]

Re: Default Notices: time to remedy

Have you read this. Unsure whether it's of help or not.

http://www.legalbeagles.info/forums/...d.php?p=180452

Common sense would dictate that a company cannot terminate a contract during a remedy period. Doesn't this amount to either Unlawful recission or repudiation (sorry - still getting my head round those things!)? But then courts and judges don't always use common sense!

[jumper999]

Re: Default Notices: time to remedy

Hi casper, I don't think that there is such a thing as unlawful rescission or repudiation anymore to be honest, but that is just my opinion.

HSBC terminated my agreement on the back of a faulty DN and I accepted their unlawful rescission/repudiation last year and ON sat I received a court claim from them that they are taking me to court

So you can see things ain't always as they seem

[MIKE770]

Re: Default Notices: time to remedy

usual HSBC tactic, Northampton no doubt, may be trying to get CCJ by back door, sure others will respond.

[jumper999]

Re: Default Notices: time to remedy

Thanks Mike,

Is it possible to get my charges refunded or is that out of the window because of the Brandon case?

If HSBC refunded my charges that would bring my balance below my credit limit?

[paulb2905]

Re: Default Notices: time to remedy

Hi Jumper - both exist in law, repudiation and rescission, and have been upheld in numerous cases and can be referenced to - all the way upto to the House of Lords (now supreme court).

The main issue is around how an LiP can put forward this argument conscisely and convincingly enough really and in particular with reference to an agreement covered under the Act.

I think what you have to remember is that this is at all times a CONTRACT, albeit one which is subject to certain conditions as laid down in the Act.

As i have said previously it is upto to the individual to decide whether he/she thinks that this is a route to proceed with or not.

[MIKE770]

Re: Default Notices: time to remedy

Thanks Mike,

Is it possible to get my charges refunded or is that out of the window because of the Brandon case?

If HSBC refunded my charges that would bring my balance below my credit limit?

Get your charges direct from HSBC, by getting list of all charges made as credit card charges should be easy to claim, but do not deal with claims companies, ?