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

[pt2537]

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

No other default notice until after termination, that one was wrong too but was not the one referred to on the POC



Pretty much. I'd of thought if nothing else they should of issed another default notice as the first one was "~settled"

i dont know if im missing something

but section 87(1) says, you cannot terminate without a default notice where the debtor has breached the agreement

The rescission / repudiation arguments gonna fly like a dodo in my opinion, and as i have said elsewhere, s170 would bar the common law remedies (see Arrow Global v Devlin Court of Appeal ) where only sanctions provided by the act are available.

In Devlin we sought to recover the monies paid under the doctrine of mistake but the appeal court said it was not available because the Act never prescribed it.

So in my view, personally, if the notice was bad you cant have had the agreement terminated, irrespective of what the creditor says

[toomanycalls]

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

if the notice was bad you cant have had the agreement terminated, irrespective of what the creditor says

So what does that mean then when they have initiated proceedings, terminated or not? I'm missing something.

[pt2537]

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

So what does that mean then when they have initiated proceedings, terminated or not? I'm missing something.

woodchester v Swain

They can recover the arrears

[toomanycalls]

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

woodchester v Swain

They can recover the arrears

Which has been my point of view all along. So you think I stand a chance? Do you think its worth an application to stikeout?

[New_Age_Biker]

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

As I understand it, the creditor can only use the court system to recover the arrears, they must then rely on DCAs etc to try to get the balance
If they have issued proceedings then it may be wise to pay the arrears quickly.
There may then be no cause of action.

Am I correct PT?

[toomanycalls]

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

Arrears already paid in this case, I paid them just outside the default notice period.

[Amethyst]

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

The term was five years ?

Taken out in 2005 ?

[New_Age_Biker]

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

But you then failed to make contractual payments, so more arrears would accrue
Perhaps advisable to write to them & ask for a true figure of the arrears on the account?

[toomanycalls]

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

The term was five years ?

Taken out in 2005 ?

No it was 7 years taken out in 2008.

[Amethyst]

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

lol, well I couldnt have got that much more wrong.

So you have 5 years ish left to go on it... so arrears will be payments missed between April 2010 and Jan 2011 (when claim was issued?) plus additional interest accrued, and the payments Feb 2011 to end of term not yet due so if they 'un terminate' the account you can pay the arrears (april 10 to Jan 11) have a clear credit file (for this one) and go back to making the contractual payments I presume ?

(or is that far too simplistic a view?)

[toomanycalls]

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

But you then failed to make contractual payments, so more arrears would accrue

Agree but no new default notice has been refered to in the POC so it should only be the arrears due on the DN.

Perhaps advisable to write to them & ask for a true figure of the arrears on the account?

Maybe?

[New_Age_Biker]

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

Even if they give you a genuine figure for the arrears, which you then pay, how can the agreement continue as Ame suggests. They have already trashed your credit file, prevented you from refinancing, etc
Is there a compensation claim you can make?

[toomanycalls]

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

lol, well I couldnt have got that much more wrong lol.

No problem, it must be extremely difficult to keep up with everything here, my head hurts just with this on.

So you have 5 years left to go on it... so arrears will be payments missed between April 2010 and Jan 2011 (when claim was issued?) plus additional interest accrued, and the payments Feb 2011 to end of term not yet due so if they 'un terminate' the account you can pay the arrears (april 10 to Jan 11) have a clear credit file (for this one) and go back to making the contractual payments I presume ?

(or is that far too simplistic a view?)

But Woodchester V Swayne states only the arrears lawfully due at the DN should be paid when the creditor delivers a faulty DN and then enforces on the back of it.

In theory, IF they could issue a new DN and I paid it yes the agreement would endure and they would have to rectify my credit file (for this one). I think that they have issued proceedings prevents another DN being issued.
------------------------------- merged -------------------------------

Even if they give you a genuine figure for the arrears, which you then pay, how can the agreement continue as Ame suggests. They have already trashed your credit file, prevented you from refinancing, etc
Is there a compensation claim you can make?

I'm sure there is some case law somewhere that a claim for damages of £1000 is possible for the trashed file without much need for proof (it was beginning to wayne anyway). TBH I'd be more than pleased to "get away with" the principle sum left to pay.

[Amethyst]

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

If this case was without the lack of contractual payments after the arrears were paid up I think I'd be 100% with you on this, but as you paid up the arrears (whether after or before the date given) and then missed a further three contracual payments before they terminated I don't think I am.

The notice was incorrect in that they asked for sums not yet owing (WvS) so completely with you on that. You calculated and paid the arrears sum only, thus the first DN allowed you to recify the breach and you did so the agreement should have continued - if you had of made the next three contractual payments properly then it would have continued as if there had been no breach.

However...You missed a further three contractual payments (paid a lower amount than due) so there should have been a second default notice before they terminated and took action.

So the argument would be the termination was without a DN ?

[toomanycalls]

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

So the argument would be the termination was without a DN ?

I agree, wonder what PT thinks?

The POC does state the first DN though.