Court claim issued by HSBC on a faulty DN & TN

[Angry Cat]

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

"the creditor", as per section 189.

[pt2537]

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

So clearly this is a major set back for any debtor served a faulty DN!!



How can this be regarded as a win?

There is no longer any reason to include any reference to DNs in the Act. They are now pointless!! Another judicial stitch-up!!!

I can see before long the Act being totally thrown out of the window. It is becoming useless to a debtor as protection.

What a complete farce!!!!!!!

I dont understand the view here?

A default notice is a requirement to prohibit termination, to provide the debtor with a chance to put right his breach of contract.

If he remedies the breach as specified by the act, then the breach has never occured by virtue of s89 CCA

So if the notice issued is bad, what can the Creditor claim?

he can per woodchester v swain, a case everyone latches onto, claim the arrears without a default notice.

This is accepted by Goode, Bennion, Lloyd & Guest and the Courts.


So, what if the notice is bad.

Well, i am being asked to go into the High Court judgment here, and i cannot. But enforcement cannot be taken on the back of a bad notice, so, the Claimant needs to serve a valid notice, now if he gets to trial on the back of a bad notice he cannot claim the full debt only the arrears at that point

He will fall into further difficulties with Johnson vs Gorewood, as he will be estopped from going back for more.

If he remedies the bad notice and it expires before trial then he will be able to recover the full monies, termination is not necessary before suing for the balance outstanding.

As for selling the debt,

i would draw your attention to the fact that you have the right to reject interest rate hikes, and restrict credit and pay off the balance on the current terms. If the account is assigned as a result of your breach, because the creditor wants it off his books, then if the notice is bad, the DCA can say you have no credit limit, but you must pay off the debt in accordance with the contract, he can allow that without problem

So the sale of an account to a DCA changes nothing surely, i dont see it does anything different.

I wish i could say more, but when this High Court judgment is handed down,then it will hopefully make clear the position

as for a farce, no i do not think it is at all, a default notice was never meant to let you avoid a debt, the Act allows this in other provisions, but a default notice is to notify you of the matters that have gone wrong and to advise you how to put it right, lets not forget s129 was put in for default notices to allow the court to make further orders as to allowing the debtor more time
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LA

Its flaming frustrating

your on the right lines, i cant say why, as much as id love to

but yes the Unfair relationship comes into play

[middenmess]

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

absolute assignment

Definition



Assignment in which all (and not merely a portion of) benefits, liabilities, and/or rights are transferred by one party to another, without any pre-condition.

If so assigned how does the DCA amend a defective D/N especially in those instances with early 'agreements' where no agreement has been produced [or is ever likely to be]
The debtor cannot be bound to the terms of a non existent agreement.

[Lord_Alcohol]

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

Two different "Acts", LA.

The DPA deals with the CRA's, but it is an uphill struggle...

Thanks AC, you're right.

But...has PT given us a clue...?

The OC can't take action on the back of a duff DN. But he does anyway. So what happens then? He can issue a new DN, but he's still fallen foul of s89 (the debtor's entitlement to put things back to how they were "as if the breach never occured").

Thoughts...;

1. The OC has issued duff docs and fallen foul of CPRs, so settles with the debtor to avoid the OFT sniffing around.

2. The debtor defends using s140 (unfair rels).

3. The OC apologises and compensates, and the agreement continues.

4. Both sides agree an equitable exit.

So maybe this is in fact GOOD news...?

[pt2537]

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

Confusing answer for the OP, PT!

But, I would add that only "the creditor" can serve a default notice under the Act.

so your saying the DCA cant be the creditor?

if thats so then section 78 can never apply,

[Angry Cat]

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

I can't follow that reasoning because how can the creditor who is not now the creditor reduce a credit limit to 0 when there is now no agreement in place to reduce the credit on?
The DCA cannot have the debt repaid to them over the term of the agreement as there exists no agreement between the debtor and the DCA-they have bought a debt,not an agreement.

Or am I overdue for bed?

Absolute assignment.

[middenmess]

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

Easily answered

If the debt is sold to a DCA who cannot provide credit and allow the matter to continue with advances of more credit, then it is not a problem as the creditor can reduce your credit limit to 0 and say you must repay the account over the term of the agreement

I can't follow that reasoning because how can the creditor who is not now the creditor reduce a credit limit to 0 when there is now no agreement in place to reduce the credit on?
The DCA cannot have the debt repaid to them over the term of the agreement as there exists no agreement between the debtor and the DCA-they have bought a debt,not an agreement.

Or am I overdue for bed?

[Angry Cat]

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

Any thoughts on where the hapless debtor stands once he's had his credit file trashed and sued for the balance?
LA

Two different "Acts", LA.

The DPA deals with the CRA's, but it is an uphill struggle...

[Lord_Alcohol]

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

(2) Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective.

But surely this is to do with restricting the debtor's "right to draw upon any credit" when he breaches, and nothing to do with anything else?

The debtor breaches, a DN is served, and the remaining credit (if any) is restricted (ie, the debtor has no access to it). A simple precursor to closure of the account.

I am very confused.

[Lord_Alcohol]

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

The High Court, Mercantile Court, ruled t hat the defective default can be remedied, as no action can be taken on the back of a dead notice.

Any thoughts on where the hapless debtor stands once he's had his credit file trashed and sued for the balance?

The action that can't be taken has already been taken.

LA

[Angry Cat]

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

Easily answered

(2) Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective.

The extract is from 87 CCA 1974

If the debt is sold to a DCA who cannot provide credit and allow the matter to continue with advances of more credit, then it is not a problem as the creditor can reduce your credit limit to 0 and say you must repay the account over the term of the agreement

Confusing answer for the OP, PT!

But, I would add that only "the creditor" can serve a default notice under the Act.

[basa48]

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

So clearly this is a major set back for any debtor served a faulty DN!!

but lets just say we won, and a creditor is not able to terminate without a good notice, if the notice is bad he cannot because he is barred by statute, terminate no matter what he says

How can this be regarded as a win?

There is no longer any reason to include any reference to DNs in the Act. They are now pointless!! Another judicial stitch-up!!!

I can see before long the Act being totally thrown out of the window. It is becoming useless to a debtor as protection.

What a complete farce!!!!!!!

[pt2537]

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

So a termination on the back of a defective DN is ineffective and the agreement endures? What then if it is sold on? Can the DCA issue a revised DN? What would be the arrears and if I paid the arrears the agreement should continue as if there was no debtor breach. As the DCA cannot offer credit facilities where does that leave things???

Easily answered

(2) Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective.

The extract is from 87 CCA 1974

If the debt is sold to a DCA who cannot provide credit and allow the matter to continue with advances of more credit, then it is not a problem as the creditor can reduce your credit limit to 0 and say you must repay the account over the term of the agreement

[basa48]

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

The High Court, Mercantile Court, ruled t hat the defective default can be remedied, as no action can be taken on the back of a dead notice.

So a termination on the back of a defective DN is ineffective and the agreement endures? What then if it is sold on? Can the DCA issue a revised DN? What would be the arrears and if I paid the arrears the agreement should continue as if there was no debtor breach. As the DCA cannot offer credit facilities where does that leave things???

[pt2537]

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

The High Court, Mercantile Court, ruled t hat the defective default can be remedied, as no action can be taken on the back of a dead notice.