Court claim issued by HSBC on a faulty DN & TN

[diddydicky]

Re: Court claim issued by HSBC on a faulty DN & TN

for those who beleive that Waksman ruled DN defences no longer useful- this is what he REALLY said in brandon :-

Now, somewhat theoretical though it is, had American Express taken enforcement action within 14 days of 19 June, it may well be that the validity of that enforcement action would have been open to challenge. I express no final view on the matter but I do understand the argument because, to go back to section 87, it must specify the nature of the breach and if the breach is capable of remedy what action is required to remedy it. The whole idea is that a debtor should have 14 days within which to redeem the position, in this case pay £275.80. So I understand the argument. As I say, I do not dismiss it as being unreal. But, the fact of the matter is no enforcement action was taken within 14 days of 19 June.

there are many instances where incorrect figures/termination too soon etc still make Dn defences valid .

even the judgement that he DID make- based on the fact that the creditor did not actually terminate for 21 days and therefore the lack of 14 days was not relevant- is deeply flawed because in his judgement he made an assumption that the debtor was possessed of foresight which enabled him to know that when the creditor told him (which he is required to do with precision) in the DN that he would terminated at such and such a date....he didnt really mean it- and it is left to the debtor to "guess" when the creditor would terminate-

i would not say that anyone of sound mind could say that this "left the debtor in do doubt" which is what the act requires of the creditors DN.

[Lord_Alcohol]

Re: Court claim issued by HSBC on a faulty DN & TN

i am not quite sure that the point wtih regard to making adverse entries on your credit reference files could be succesfully argued- since even had they not served a DN- those entries would after 6 months of non payment- have been put on your file noting a default on the account in any event.

You're right there diddy, but I was thinking more of the default record.

As the ICO requires 28 days notice of this to be given to the debtor and as (usually I think) the OC includes this in the DN, but if the DN cannot be complied with due to its inherent defect (eg, demanding too much money) or is recognised as unlawful by the debtor (?) who refuses to comply with it (on thin ice here!), then perhaps it could be argued that the notice indicating that the default will be recorded is also defective?

This might be supported by the fact that the OC may have to issue a new DN and therefore a new DPA default notice, otherwise he would have to serve "Special" DNs without the DPA notice to customers originally served a duff DN.

Just a thought, but agree that not much can be done about the 6 months missed payments showing on the file.

[diddydicky]

Re: Court claim issued by HSBC on a faulty DN & TN

the other point in Brandon which the judge himself conveniently confirmed - is that a letter of termination means that the agreement is ended

he said this:-


35. What did happen was this. On 11 July 2007 American Express sent a notice of cancellation to Mr Brandon:
“This letter serves as notice of cancellation of your account and credit card account agreement with immediate effect. All monies outstanding on the account are now payable in full,”
And then it goes on to say that the account has been transferred to a debt collection agency.
“After a period of 28 days from the date of this letter steps will be taken to register the default status of your account with the credit reference agencies Experian and Equifax.”

36. So there is a termination on 11 July and further, providing that if nothing happens within 28 days, details of Mr Brandon would be supplied to the credit reference agencies.

37. On any view that letter seems to me to be an effective means of bringing the agreement to an end.

We all know that in the normal course of events- the creditor is blissfully unaware until after he has terminated (usually not until he goes to court in fact and is challened by the defendant) ........that his first DN is invalid.

he genuinely thought that he had terminated the agreement.

the judge in Brandon (from the above) clearly acknowledges that such a letter of termination does indeed end the agreement (and with it the requirement to make monthly payments)

So, 6, 9 12 months later (usually at the litigation stage) the creditor realises or is told the original DN was not valid and therefore he argues- neither was the termination and so attempts to serve a second DN

irrespective of whether his argument - that the TN due to the DN was never valid- he has nevertheless convinced the debtor- months beforehand- that the agreement is finished

It would seem to my mind therefore (apart from the practical difficulties of the second DN itself as discussed above) that for any right thinking person to suggest that the debtor has not been prejudiced in any way during this 6/9/12 month period- is purely fanciful.-- at the VERY LEAST the debtor has probably taken decisions in relations to other debts - based on the fact that his credit rating is trashed- in fact there are a myriad of transactional decisions that might flow from that event that the debtor may otherwise not have taken

If the CREDITOR thought the agreement was over, and a judge confirms that this is the effect of the termination letter- how exactly is the hapless debtor supposed to have a better understanding of what the situation is!

DN defences are IMIO very much still alive and kicking- and it is my belief that despite Brandon one could mount an argument in different circumstances that even if the creditor had not terminated for some time afterwards- and not withstanding that prejudice COULD in any event be shown - that a higher authority ( woochester) has ruled that that there is no requirement for the debtor to be prejudiced- in order for the creditor to be barred from taking that "next step"

if i have got the judgement in woodchester wrong - perhaps someone could enlighten me

[MIKE770]

Rte News - Banks Critised By Master Of The High Court

withdrawn

[pt2537]

Re: Court claim issued by HSBC on a faulty DN & TN

would be if the link worked

[MIKE770]

Re: Rte News - Banks Critised By Master Of The High Court

[quote=MIKE770;212085]withdrawn[/quote

[MIKE770]

Re: Court claim issued by HSBC on a faulty DN & TN

RTE News:

[banker_rhymes_with]

Re: Court claim issued by HSBC on a faulty DN & TN

This may help:

Banks criticised by Master of the High Court

Cheers,
BRW