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

[Garlok]

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

Hi Guys,

I think we may be losing sight a bit as I could equally ask the question where in the Act does it actually say that a creditor may keep on issuing DN's, "terminations" etc until he does get it right?

As the re-issue of DNs is only made available by case law in the lower courts I would refer to comments made in the Wilson v First County case:-

Paragraph [26] of the judgment of Sir Andrew Morritt V-C in Wilson v First County Trust Ltd [2001] EWCA Civ 633 COURT OF APPEAL, CIVIL DIVISION, after Penelope Wilson appealed with permission of Judge Hull QC from his decision, sitting in the Kingston upon Thames County Court at Epsom on 24 September 1999, refusing her application for a declaration that the credit agreement which she had entered with the defendant, First County Trust Ltd, on 22 January 1999, was void and unenforceable:
“In effect, the creditor—by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms—must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid.”
LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd – 2003] All ER (D) 187 (Jul) paragraph [29]:
“The court’s powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court ‘shall not make’ an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court’s power to make an enforcement order.”
Francis Bennion is the draftsman of the Consumer Credit Act 1974 and a very well respected Barrister who specialises in Consumer Law. On his own website he stated:
“As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning.

Further Lloyd LJ sitting in the Court of Appeal said in 1993 that:-

"it matters not what the creditor intended, but what, by his actions and conduct he has led the debtor to believe"

Or words to that effect. We have discussed long and hard in the past what is not in the Act taking precedence over what is in the Act, now the boot is on the other foot with CofA statements to back it up.

Or are we saying that these rulings will only ever work in favour of the creditor now? A correctly served DN is the only way to enforcement which only occurss as per McGuffick or does it?

Perhaps pt, you can throw further light on it. I have looked at several cases including Mitchell, Harrison ( one of your own), a famous Liverpool case, and in most of those cases the courts when ruling on unenforceability also instructed the creditor to write off the debt in its entirety. hence does case law not seem to indicate that the two go together?

regards
Garlok.
------------------------------- merged -------------------------------
Sorry by the way all opur cases are still covered by section127 in its original form.

regards
Garlok

[New_Age_Biker]

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

I think the creditor loses the entitlement to use the courts to enforce, am I right Pt?
This may be able to be rectified upon service of a valid Dn

[pt2537]

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

Please someone tell me where in the 1974 Act it says a creditor who fails to serve a default notice loses all rights?

[volvodriver]

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

Hi N_A_B

I think you have it about right, it is certainly the way I read the quote from "Henderson". However your last comment may not be possible because Henderson says:

"negligence, inadvertance or even accident have omitted part of their case" and goes on to say "reasonable diligence". Surely getting a DN wrong over and over again (like Mercers in thousands of cases) is a systemic failure and hence could never be construed as reasonable diligence.

Just my thoughts.
regards
Garlok

Especially given that the DN is the key that unlocks and opens the door through which the creditor must pass to start his journey to recover his debt.

If the creditor, this "SOPHISTICATED FINANCIAL INSTITUTION" cannot get this right he should forfeit his right to start that journey.

Actually I think that's what the law said before it was fudged and obfuscation crept in.

[Garlok]

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

Hi N_A_B

I think you have it about right, it is certainly the way I read the quote from "Henderson". However your last comment may not be possible because Henderson says:

"negligence, inadvertance or even accident have omitted part of their case" and goes on to say "reasonable diligence". Surely getting a DN wrong over and over again (like Mercers in thousands of cases) is a systemic failure and hence could never be construed as reasonable diligence.

Just my thoughts.
regards
Garlok

[New_Age_Biker]

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

Thanks Garlok,
As I understand it then (trying to put it in plain english)
If proceedings are issued (for non-payment), all parts of the pre-action are part of that case.
As long as a defence is submitted which covers all points possible (including the faulty Dn if applicable)
It is not possible for a claimant to bring a new claim on evidence which has already been put before a court
This would leave the claimant the only option of discontinuing before the judge hears the case, thus requiring permission of the court before re-issuing
Or making an application to reissue the Dn or vary the POC if thats possible during litigation

[Garlok]

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

Hi N_A_B

This is about the best I can do in a hurry:-

In trying this question, I believe I state the rule of the court correctly, when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.
"The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."

There's a lot more on the net

regards
Garlok

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

Sorry to sound thick PT, can you explain in plain english what you mean by this statement?

Ha ha ha! lol. Well said buddy!

[toomanycalls]

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

We have guests....

[Garlok]

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

Another small point to be considered is whether you have received proper statements at the very least on an annual basis since the "termination". If not (and we have not seen hide nor hair for two years) then they are in breach of yet another fundamental requirment of their own T & Cs let alone those required by Statute and regulation. These must come from the OC if the there has been no absolute assignment.

Therefore the termination is just that a termination.

regards
Garlok

[New_Age_Biker]

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

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

Sorry to sound thick PT, can you explain in plain english what you mean by this statement?

Is it possible to make sure a creditor is in this position & therefore emulate this decision or would one just refer to this case?

[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

[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?

[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.

[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