Court claim issued by HSBC on a faulty DN & TN

[jumper999]

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

No TB it is not to do with this thread

[jumper999]

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

I need some help to strike out HSBC's claim against me. Is there anyone who is able to help or advise please?

[diddydicky]

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

I do not mean to be rude

but, its like saying that, smashing a window on a car, hotwiring it and taking it for a ride doesnt amount to theft contrary to the Theft Act

if you breach your repayment clause, you are indeed defaulting on the contract, this is actionable as the creditor can sue you, subject to the requirements of s87(1) being complied with

when you stop paying you are intimating an intention not to adhere to the contract, to suggest otherwise is like saying Saddam Hussein is a nice guy and that Michael Jackson should work in a kindergarten

taking the car in this way does not indeed amount to theft contrary to the theft act!


the points to prove in theft is that the offender "dishonestly appropriated property, belonging to another, with the intention of permanently depriving the other of it

thus, where an offender "takes" a car as you describe- the offence is one of "taking and driving away" or "taking without the owners consent (TWOC) is because it is near on impossible for the crown to prove that the offender intended to permanently deprive the owner of the car ( i was going to dump it in a layby honest guv)


just as a man who goes into a neighbours garden whilst he is on holiday, takes the lawnmower over the fence and into his own garden- uses it for 2 weeks and then puts it back- is similarly not guilty of theft- because he did not intend to permanantly deprive the owner of the lawnmower

[diddydicky]

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

LA

Brandon did not find that prejudice was necessary, HHJ Denyer found that there was no prejudice in failing to be given the 14 days and that was what he based his judgment on, wrongly,

There are protection mechanisms that could have been utilised, such as a time order, or an argument of unfairness, but there is no magic gem that is gonna pop up and write off this debt in my opinion, i just cant see it.


EDIT**

Also, i would add that each case turns on its own facts, if it is established that while the default notice shows less than 14 days, but you make no effort to remedy the breach, then you are unlikely to convince a judge that you have suffered prejudice of any kind.

it would depend on what counts as "prejudice"

the vast majority of recipients of a Dn will be unlikely to have the funds to hand to remedy the DN (if they did - then they would not have been in arrears in the first place)

the Dn is accompanied by a leaflet telling the recipient that this is an important notice and directing him to sources of legal advice - it is therefore reasonable to assume that parliament intended that the recipient should take legal advise (and that takes time to arrange)

t is common knowledge that one cannot get a "next day appointment with Citizens advice or any of the free financial advisers- they are all very busy"

it is unlikely that one would get a solicitors appt within 2/3 days either

which is presumably why parliament decided that 7 days was not enough time for a debtor to seek advice and/or decide to raise funds to remedy the Dn or challenge it. and presumably is why they increased it to 14 (not 13/12/10/5 etc)

The act was designed to protect the unsophisticated borrower against the might of the financial institutions which is why it insisted that the DN be delivered with precision and no room for error

the "prejudice" IMO would be that the already beleagured debtor- faced with only say 10 days (including weekend or bank holiday days) in which to seek advice and then seek to raise finances is likely to take a "transactional decision"- to simply throw in the towel and give up - truly prejudiced in that he will then face further costs of recovery.

The argument that the time required to allow the debtor to remedy the DN is de minimus is surely countered by the argument that if the court today deems 13 days not to be prejudicial- then what of 12 days 11 days 10 days 5 days 1 day- where does the court draw the line and by what authority does it decide when the lack of time in the Dn WILL become prejudicial to the debtor/ and by what authority does it repeal the will of parliament in this respect.

you admit that you have never run a DN defence - i have and won (admittedly the claimant was trying to force me to pay the entire balance of the account - including sums not yet due under the agreement therefore making it impossible to satisfy s89 and my defence caused the claimant to discontinue ) but nevertheless- to say that a DN argument cannot be run and won is too simplistic- and if you just throw in the towel then you are handing victory on a plate to the claimants

As i understand it in brandon- what the judge actually said was that although the DN did not allow brandon 14 days- because they did not actually terminate until 21 days=- he had plenty of time to remedy

if the claimant does not allow 14 days from date of service AND terminates on or before the date stated- which itself is less than the prescribed 14 days from the date of service then i would argue that the judge would have arrived at a different decision (in fact i could be wrong but i am sure he did make that comment in his judgement)

furthermore- the cca requires the creditor to leave the debtor in "no doubt" as to what he must do in order to remedy the breach- and what the consequences are if he fails to do so.

therefore if the creditor says that unless the breach is remedied by XXXX the creditor will terminate the agreement and demand payment in full etc- then the unsophisticated debtor is entitled to take the creditor at his word

it is not for him to muse over the dates in the DN and make a "prediction" as to whether the creditor will or will not do what he said- he does not have a crystal ball- the debtor therefore will believe that on XXXXXX the creditor will do what he said- and that if the debtor feels he has insufficient time to remedy he will as previously stated be inclined to throw in the towel.


to argue that such a decision- based on what the creditor told him in a prescribed document was not prejudicial is plain barmy.

A further argument is this

lets say a DN states that the default must be remedied by 1st February 2011

the debtor- on learning of brandon- instead remedies the default on 7th February and tells the creditor "thats ok its only a week late"
#
I am willing to bet a pound to a bucket of pigs*t that the creditor will say "ta very much for the £600 you paid" - however as you were to have remedied by 1st feb we cannot take your payment as remedying the default and we have (5 minutes before receiving the payment no doubt) terminated your agreement as stated in the Dn and now require you to pay the sums that were not yet due and to which we are now entitled..........and thanks for the £600 quid on account

if i was Brandon i think i would have employed better lawyers

[jumper999]

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

Thanks DD shame things are not as simple as they seem when it comes to faulty DN's anymore.

[diddydicky]

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

Thanks DD shame things are not as simple as they seem when it comes to faulty DN's anymore.

on the contrary i think they are- i just think that some folk have "thrown the towel in" over one (brandon) decision when that decision was in relation to the particular facts of that case- not a catch all for all DN disputes and it can be shown in many other DN defences that the facts are not the same as those ruled on in Brandon

i cant see how those who have never run a DN defence can be so down on the outcome

they also (IMO) fail to account for the fact that often- faced with the particular circumstances of the DN defence- the claimant may then discontinue- which although not a decision made by the court- is still a result for the LIP

which is what happened in one of my cases

[Lord_Alcohol]

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

I completely agree with you diddy.

There seems to be an argument (not shared by me) that "the full entitlement would make no difference - the debtor is 6 months in arrears, so how will he find the money in 14 days?".

That argument is endorsed, it seems, by the FOS. I have recently had a decision made against me, in which the Ombudsman states that "there is no suggestion that a compliant default notice would have caused LA to take a different approach".

This I think is the question; why do some assume that "it would make no difference", when there is at least a reasonable possibility that it might? Without the full entitlement we will never know.

Therefore there must be prejudice; the lender has already decided that there is little possibility of repayment. He sends off his DN knowing it is defective, on the basis that it makes no difference whether it is a few days out. He makes it slightly tougher for the debtor to remedy, thus ensuring that he can go to a sympathetic judge for a quick judgement.

This is why I think you are wholly correct diddy and the doomsayers on LB are wrong to dismiss this apparently minor defect in DNs and go with Brandon.

LA

[Amethyst]

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

doomsayers?

[basa48]

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

I completely agree with you diddy.

There seems to be an argument (not shared by me) that "the full entitlement would make no difference - the debtor is 6 months in arrears, so how will he find the money in 14 days?".

That argument is endorsed, it seems, by the FOS. I have recently had a decision made against me, in which the Ombudsman states that "there is no suggestion that a compliant default notice would have caused LA to take a different approach".

This I think is the question; why do some assume that "it would make no difference", when there is at least a reasonable possibility that it might? Without the full entitlement we will never know.

Therefore there must be prejudice; the lender has already decided that there is little possibility of repayment. He sends off his DN knowing it is defective, on the basis that it makes no difference whether it is a few days out. He makes it slightly tougher for the debtor to remedy, thus ensuring that he can go to a sympathetic judge for a quick judgement.

This is why I think you are wholly correct diddy and the doomsayers on LB are wrong to dismiss this apparently minor defect in DNs and go with Brandon.

LA

I agree with LA and DD. There is much persuasion in the arguments of where does the shortening of times for remedy end? and the lenders wanting to get to termination and judgement a.s.a.p.

I often get disheartened when LBers forgo any legal advice and go the I&E / DMP advice.

I appreciate CAG is a little 'gung-ho' at times and some do have rose tinted glass on, but when you have your back against a wall sometimes the only way is to fight. OK you may lose and attract heavy costs, but you still can't get blood out of a stone.

I think from my own point of view I would rather go down fighting, especially when I know my agreements are unenforceable and at least one DN invalid. Unfortunately my knowing does not convince a biased court.

[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.

[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

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

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!!!!!!!

[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.

[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