Default Notices: time to remedy

[middenmess]

Re: Default Notices: time to remedy

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

Are you sure?

Charges used to be refunded with a minimum of resistance but since the judge in Brandon declared them as being fine it might well prove far more difficult to do so now.

[MIKE770]

Re: Default Notices: time to remedy

I got mine april last year! see what others advise as well?

[middenmess]

Re: Default Notices: time to remedy

I got mine april this year! see what others advise as well?

Might not be relevant but the Brandon judgement had not been made public at that time I believe.

I'm all for people reclaiming their charges but didn't want people to be disappointed if their claims are turned down after having high expectations of a few bob back.

Perhaps the site team would like to post their view on this question?

[jumper999]

Re: Default Notices: time to remedy

Thanks guys,

But I believe peter wrote that the brandon case has no relevance to my case, just need to get it confirmed from somewhere that I am entitled.

[middenmess]

Re: Default Notices: time to remedy

Thanks guys,

But I believe peter wrote that the brandon case has no relevance to my case, just need to get it confirmed from somewhere that I am entitled.

Hi jumper


I've posted the question about charges on a new thread here..

Are charges still reclaimable after Brandon - Legal Beagles Consumer Forum

[nick20045]

Re: Default Notices: time to remedy

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.

double jeopardy

[nick20045]

Re: Default Notices: time to remedy

c) Instigating legal proceedings for the full recovery of the debt as this is enforcement.

you will find that solicitors will quote rankines v amex et all and mcguffick v rbs that even issuing proceedings does not constitute enforcement

then again you can counter argue that and i quote from a legal site:

Comment
The court’s strident and blunt approach is to be welcomed. This includes the statement at paragraph 9 that the Consumer Credit Act was introduced to protect the individual unsophisticated in financial affairs in contracts with unscrupulous and sophisticated financial institutions. It was not designed to help individuals in the financial services business make money out of financial institutions through exploiting its undoubted technicalities. In the latter regard, the court did not hesitate to dismiss the Rankines’ various arguments in a commensurate tone.
However, with respect, it is submitted that Mr Justice Simon Brown QC was mistaken when he stated, at paragraph 16:
‘In the Tesco case, where they are seeking enforcement, section 78(6) of the Act does not have the effect contended for by the Rankines. First, the prohibition is against a creditor ‘under an agreement’. The agreement was at an end. Therefore there is no reason why there cannot be enforcement. Secondly, the word ‘enforce’ is not descriptive of the commencement of proceedings. Bringing proceedings during a time when the agreement has been brought to an end is only a step taken with a view to enforcement. It is not actually enforcement.’
The grounds for questioning the statement are the following:
(i) In section 189(1) ‘creditor’ is defined as ‘the person providing credit under a consumer credit agreement … and in relation to a prospective consumer credit agreement, includes the prospective creditor’; ‘debtor’ is defined as ‘the individual receiving credit under a consumer credit agreement … and in relation to a prospective consumer credit agreement includes the prospective debtor’.
(ii) The Agreements Regulations identify ‘creditor’ and ‘debtor’ with reference to their respective descriptions irrespective of the status of the agreement. In other words, the expressions are used to identify the relevant parties under, or to, the agreement.
(iii) The expression ‘enforce an agreement’ is utilised in the Act to mean to take steps to assert one’s rights under the agreement, regardless of whether the agreement has come into force, is still extant or has been ended. Thus, section 65 of the Act uses the expression ‘enforceable’ when referring to whether an improperly executed regulated agreement is enforceable against the debtor on an order of the court. Section 127 refers to enforcement orders in the case of infringement. Applying for an order under this section might amount to seeking enforcement of the agreement, as the heading to Part IX also suggests, namely: ‘Enforcement of certain regulated agreements and securities’.

[middenmess]

Re: Default Notices: time to remedy

I have trouble understanding that reasoning.

To my mind it's akin to a situation in a criminal court where part way through a trial it is realised that the defendant was not cautioned before being charged.

Would the judge ask a police officer to approach the dock,read the defendant his rights and then proceed with the trial?

[nick20045]

Re: Default Notices: time to remedy

sorry but ONCE a DN is issued and the creditor sends out a letter saying the agreement has been terminated it makes no difference if he sends out another dn or not. the agreement is terminated. to resurrect the agreement the debtor has to agree that the agreement is resurrected which obviously you do not do

no judge can order that a proper and non faulty dn is to be sent which is why in woodchester and brandon and many other claims this was not done

the other matter is that a faulty dn or, as in my case no dn was sent BUT the bank instructed a DCA to collect the full amount claimed owed (the creditor sent a letter stating what was owed but it was not a DN and about two weeks later got the letter from the DCA which proved no DN was sent) DOES unlawfully terminate an agreement

i actually issued the proceedings against the creditor not vice versa. i know some of you will think i must have been nuts to do that BUT what i had in my hands gave me confidence i would win

two hearings. in both they sent barristers. one was cos they did not file a defence and i won by default. they sent a barrister to get that judgement waived. the second one was to prove that they have a reasonable chance of fighting the claim. again another barrister. when the judge finished i asked about costs and he told the barrister that their client was to pay the costs. oh they came with mcguffick v rbs and carey v hsbc (funny cos mine was a s.77 whereas carey is a s.78) and rankines v amex!!!!!

last week, few days before the hearing, got a letter making an out of court offer (i claimed harassment). i called them and upped the offer and then we agreed to a tomlin order and that the hearing be vacated

as to that court of appeal judgement (the one about 4 pages down on this thread), that judgement has nothing to do with the CCA. that is about contract law and convenancing.

the CCA gives the requirements as per the act on how to terminate with the view to enforce BUT you have section 89 which says that if the default is remedied then the breach is to be treated as having never occurred

now, instead of panicing read what it says on the DN if it does not give the 14 days. IF it says for example, "after this date we reserve the right bla bla bla" then you are stuck with the randon ruling

IF on the other hand it says something like "on this day we will terminate the agreement, the full amount becomes due bla bla bla" then your argument is that "as the wording is specific i can only interpret that IF (and this is where you are challenging the randon ruling) i had paid the money even a day after the creditor could still have terminated, on the specified date, would have wanted the full amount and still issued proceedings. in short, the creditor as of the date specified could have just taken the money paid as a deposit whereby prejudicing me and denying me of my entitlement as per s.89"

in short, you are not a mind reader. for all you know the creditor could have just cancelled the agreement on the date specified BECAUSE that is what it says on the DN. the fact that they took a week, a month or whatever is immaterial. as of that date your s.89 rights were taken away from you

in my personal opinion both brandon and rankines should have never argued their claims as they did and that is why the solicitors are using those appeals as case law

[paulb2905]

Re: Default Notices: time to remedy

Nick i would be interested in the link (if possible) in relation to your post @ 277

Your preaching to the choir as far as im concerned, i agree that termination is termination whether or not they are entitled to do so or not as they "ordinary person" must assume that by the words or actions of the Creditor they have in fact Terminated the agreement.

I also think that "entitled" also goes to the heart of Lawfull Termination or Unlawfull Termination (technically REPUDIATION).

The only reason i now know of Unlawfull Rescission (acceptance of Repudiation) is from having to look into legally defending my case in court, for the "ordinary person" it is safe to conclude that if the OC said it was going to Terminate (including selling the debt to a DCA) then they have now terminated the agreement.

[Lord_Alcohol]

Re: Default Notices: time to remedy

Excellent Nick, thanks. Must say I agree with your view on termination entirely, and have done for some time.

In other threads on this worthy site there are those getting very annoyed about this, yet without offering any clear supporting evidence that an agreement continues following a defective DN and termination. Some are saying that the court will merely instruct the lender to issue a compliant DN which, to my mind, is never going to happen.

Some respected posters have taken this view - they know who they are!

It is therefore hard to understand why there remains support for the view that terminated agreements can be resurrected in order to re-issue a DN. You mention s89 Nick - in my view a section which is just as important as any other in CCA - yet some Beaglers give it the back of their hands without offering reasons why.

Can I ask on what grounds you sued? Was it a damages claim?

TIA
LA

[Guest]

Re: Default Notices: time to remedy

post 5043

I Have many many more

http://www.consumeractiongroup.co.uk/forum/showthread.php?196312-Invalid-Default-Notices/page253&highlight=welshperson3

[paulb2905]

Re: Default Notices: time to remedy

Peter, thats all well and good - but its interpretation of Statute and the judges lack of knowledge that is letting us down.

Once again its the ability of a LiP (or even solicitor) to think on their feet and argue it correctly.

The judge may not want to rule in favour of a Defendant (or claimant) BUT where statute is plain, clear and intelligible the COURT MAY NOT INTERPRET STATUTE, that IS called IMPEACHMENT

[Guest]

Re: Default Notices: time to remedy

Peter, thats all well and good - but its interpretation of Statute and the judges lack of knowledge that is letting us down.

Once again its the ability of a LiP (or even solicitor) to think on their feet and argue it correctly.

The judge may not want to rule in favour of a Defendant (or claimant) BUT where statute is plain, clear and intelligible the COURT MAY NOT INTERPRET STATUTE, that IS called IMPEACHMENT

Hi Paul really you cannot keep saying judges are wrong.

The problem is the statute is plain, it just doesnt say what you want it to.

With the greatest of respct.
A default notice is a notice before action nothing more, that is what parliament agreed it would be and that is what it is.
It cannot be dostorted into something it is not
Termination is not as big a deal as you make out a creditor can terminate an agrement at the drop of a hat, if its inforcement of the termination you are refering to then that is up to the judge to decide.
If it is not just he wil not do it , you cannot penalise the creditor for asking the question otherwise everyone who went to court would be guity of repudiating an agrement.

I have argued over and over again how the ACT works but this after all is what it comes down to. I am affraid Judges have the final say missinformed or not.

Regards
Peter

[paulb2905]

Re: Default Notices: time to remedy

Peter,

I continually find myself "biting my tongue" when you post on this issue.

I have a great deal of respect for the advice i have seen you posted all across the Web but on this one issue i really believe that you have a blinkered view of the topic.

When ever someone critisices you, you either get defensive or refuse to continue to discuss.

I completely agree you are entitled to your opinion, but what seems to be lacking in all your arguments on this particular subject is a Logical, reasoned argument based in FACT or STATUTE or CASE LAW.

You postulate and post up theoretical examples, but fail (imo) completely to reason these out.

Whereas i feel (again imo) that i have shown factual and reasonable arguments based upon Statute and case law, with reference to contract law.

If you feel that i am wrong to critiscise a Judge or Judges for making decisions that are CLEARLY WRONG that is once again "your opinion".

It doesnt take a lot of reading to find many examples of just that happening.

Statute is enacted by Parliament, the courts may interpret this ONLY where there is ambiguity. To apply an INTERPRETATION to a plain, intelligible section of ANY ACT IS IMPEACHMENT.

Despite your opinion this is FACT.