Default Re: Me V Bank - defective DN and unfair relationship defence.

[toomanycalls]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

I havent worked out yet from the thread if the figure on the DN is the figure for arrears TO DATE (as if the contract had continued) ? or just arrears to the date of the first DN ?

That would be the arrears to date (more or less, it doesn't quite work out by my maths).

I'd like to see so if they send an incorrect DN and falsely terminate, when the problem is found out and they try to rectify they actually lose out on everything between times and the contract picks up where it left off so the debtor doesn't suffer any disadvantage and has the option to just start normal payments back up.

We do now have many months additional interest, court fees etc, none of this would have applied originally so are they likley to wipe that out, my guess is not.

[Garlok]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

Hi TMC,

As you have gathered we have porfessional legals looking after our case, but I got extremely worried about all these additional charges/interest being added by the DCAs various and the like. We were told to jts ignore them, they would be recovered without a problem should the OC ever dare to go to court. There must be a legal basis for this statement but will admit to not having found it ------ Yet.

regards
Garlok

[Algee]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

As I understand it, a Creditor is unable to claim arrears, unless they issue regular arrears notices. So if the creditor terminates and obviously doesn't send regular arrears notices (because he as well as the debtor think the agreement is terminated) then how can he claim anything other than that stated as arrears on the original DN, if he issues a subsequent valid/invalid one?

Alan

[toomanycalls]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

As I understand it, a Creditor is unable to claim arrears, unless they issue regular arrears notices. So if the creditor terminates and obviously doesn't send regular arrears notices (because he as well as the debtor think the agreement is terminated) then how can he claim anything other than that stated as arrears on the original DN, if he issues a subsequent valid/invalid one?

Alan

The last notice of sum in arrears received was dated 19.12.10, the day before the LBA but not received untill late Feb '11. The previous one was dated 2.7.11, a few days before the termination letter.

Is that regular?

[mystery1]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

The last notice of sum in arrears received was dated 19.12.10, the day before the LBA but not received untill late Feb '11.

Do you have the envelope ? Does it have a postmark on it (when was it sent) ?

M1

[toomanycalls]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

I do have the envelope which makes me think I received it quite recently, maybe late Feb rings a bell because before this case started I didn't keep envelopes and I remeber something turning up weeks after it was dated (I suspect it was this), only probably the last month or so. Its a first class postage paid with a 12 letter code, is that trackable?

[basa48]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

i dont think so

in order to serve a valid DN the creditor has to show not only that the debtor has breached a terms of the contract but what he must do " to put it right"

if the creditor himself terminated the contract/cancelled the agreement and told the debtor that he was no longer contracted to make monthly payments- then he can hardly claim in a Dn that the debtor had breached a term of the agreement (in respect of monthly payments that the creditor now claims were due since his (the creditors_ termination/cancellation) and refusal to accept monthly payments .

if the creditor now claims that the agreement was not terminated or cancelled- he nevertheless still told the debtor that monthly payments were no longer acceptable- therefore amending the terms of the agreement- and he still cannot (IMO) claim that the debtor has breached a term of the agreement which the creditor himself proposed to the debtor- should be disregarded

There are a lot of assumptions going on.

As far as I know there are no time limits on how soon after a debtors breach a DN has to be served, nor how long a period they can allow for remedy (so long as it exceeds 14 days) or what amount the debtor is required to pay (so long as it does not exceed the arrears).

The theory espoused in many arguments from a well know contributor here is that a dud DN prevents termination, the ongoing argument resultant on that is that a creditor can therefore issue further DNs at any time because the agreement is still 'live'.

[basa48]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

Unfortunately Ame, I don't think that the contract/agreement can "just be picked up" where it left off. As diddydicky has said several times the damage has already been done to the debtor like trashed CRFs etc, the creditor has attempted to mislead quite deliberately the debtor by false and incorrect documentation. goodness knows they have had long enough to get it right!

There has to be remedy for that for the debtor. The Act's intention was clear in that should the creditor fail to observe the obligations imposed upon him by the Statute then it is quite right and proper that he should forfeit all right and benefits the agreement bestows upon him. If that is not the case then as I have argued some legal framework must come into play to provide remedy for the alleged debtor.

regards
Garlok

I agree Garlok.

I think (apart from the obvious 'is the agreement terminated without benefit of s87') "the creditor being a sophisticated (*lol*) organisation with a dedicated legal department MUST be able to serve a valid DN and not mislead and prejudice the debtor" is a very powerful argument.

There should be protection of the debtor from failure by creditors to act fairly and follow the rules. A lot will depend on how much prejudice the debtor is perceived to have suffered.

[toomanycalls]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

Interesting post over at CAG regarding Section 86 and the need to supply arrears statements regularly and enforcement cannot be commenced whilst in breach. No wonder my notice was dated the day before the LBA.

[pt2537]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

Interesting post over at CAG regarding Section 86 and the need to supply arrears statements regularly and enforcement cannot be commenced whilst in breach. No wonder my notice was dated the day before the LBA.

s86 is notice of sums in arrears, it only prevents enforcement until served with a good notice, this can be remedied at trial by serving a good notice

[Lord_Alcohol]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

s86 is notice of sums in arrears, it only prevents enforcement until served with a good notice, this can be remedied at trial by serving a good notice

A couple of questions arise from this;

1. Does the court have nothing at all to say about the creditor's apparent "termination" of the contract.
2. What would the new DN show as "arrears", when contractual payments were not acceptable by the creditor during the time before trial?

Hopefully there is a logical argument for both the above!

TIA

[mystery1]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

s86 is notice of sums in arrears, it only prevents enforcement until served with a good notice, this can be remedied at trial by serving a good notice

Also stops interest being added during the period of non compliance which may be interesting if they supply a fresh default notice. Many will add interest and the DN will once again be bad.

M1

[Lord_Alcohol]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

The theory espoused in many arguments from a well know contributor here is that a dud DN prevents termination, the ongoing argument resultant on that is that a creditor can therefore issue further DNs at any time because the agreement is still 'live'.

Basa

This is certainly an argument that seems to be supported by the courts, even with Harrison (the judge considered that a new DN could be served). However, I have yet to see any conclusive argument that clearly shows that the agreement is not terminated.

S87 merely says "entitled to terminate". It doesn't say "the agreement is not terminated until". Maybe semantics, but to my mind that means the creditor may only terminate and expect the entitlements of the Act where he observes the regs, and nothing more than that.

That the creditor does in fact terminate is, to me, crystal clear. Otherwise I have dreamed the two years of threats from DCAs, the mock court papers, the endless phone calls, the banging on the front door and, importantly, the insistance that I pay the balance and not the contractual payments. To ignore this in order to serve a new DN is, in my view, taking the p**s.

[toomanycalls]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

There was a thread OTR last week that was in court with the same bank, faulty DN, they reissued halfway through proceedings and amended the PoC nwhich was not defended by the OP but the judge dismissed it at the hearing

The requirement of section 87 of the Act is that a Default Notice is issued BEFORE the claimant can take the steps outlined in the section.
The section does not state the Default Notice can be issued AFTER action or at A DATE IN THE FUTURE or more particularly WHEN THE CLAIMANTS SOLICITOR HAS REALISED THERE IS A FATAL ERROR IN THE PARTICULARS OF CLAIM.
The claimant has admitted in the Amended Particulars of Claim that the Default Notice was issued after they had terminated and so therefore they are not entitled to bring the claim in the first place.

What's the likelyhood of them having another go starting again and referring to the new DN. Would estoppal not apply?

[pt2537]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

There was a thread OTR last week that was in court with the same bank, faulty DN, they reissued halfway through proceedings and amended the PoC nwhich was not defended by the OP but the judge dismissed it at the hearing



What's the likelyhood of them having another go starting again and referring to the new DN. Would estoppal not apply?

I tend to agree, the judge determind the case, therefore Res judicata applies