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

[pt2537]

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

I shall bow out of this thread and am subscribing from it.

[New_Age_Biker]

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

One point on this, if the arrears are paid then that would leave the Claimant needing to discontinue and pay the debtors costs of the action as he would have no cause of action


Also if the matter is at trial, then one must also consider the issue of estoppal as the Claimant cannot restart a claim on the back of a defeat using the same facts

Is there a tactic here which could be used to great effect?
Allow the claimant to get to trial or within 14 days of it.
Pay the arrears as appears on the faulty Dn
Claim costs as the creditor would discontinue
case then becomes estoppaled?

[volvodriver]

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

I shall bow out of this thread and am subscribing from it.

I think that's most unfortunate.

It would be nice to know whether its because you now believe the view which you had is wrong, or because other posters on this thread with a different interpretation have failed to grasp a truth which renders their argument bound to fail.

Vdr

[Lord_Alcohol]

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

the problem you face is ignorance of the law is no defence,


which also presumably applies to a creditor serving a bad DN!!

the view of the creditors "spokesperson" that the creditor may not have realised that the DN was bad- therefore does not save him

(nor i suspect does the fact that the CCA requires the creditor to "act with precision" in the serving of the DN - and offers him no room for error!)

I agree totally. The comment from PT was in response to my post which merely asked what amount a second (good) DN could lawfully demand, after realisation that the first DN was bad.

This question remains unanswered (unsurprisingly!!) yet I do not see that it has anything to do with ignorance of the law. If anything, it is the creditor that is ignorant of the law in serving his bad DN when he should have known better. And let's keep in mind the considerable resources at the creditor's fingertips, and the simplicity of a DN...

I do not know why PT has left us - perhaps we are getting close to the truth and commercial considerations may come into play? Who knows? A reason would have been a big help.

I still consider that a lender that has terminated a contract (surely there is no longer any doubt that the contract is terminated?) without entitlement and eventually realises his mistake should seek an equitable outcome with the debtor. At a minimum, that should be reopening of the contract as it was, with a DN showing the correct amount of the original breach. Where the creditor has acted badly, then the issue of compensation should be considered.

I think just going to court and getting a new DN with a revised arrears for the intervening period is grossly unfair and should be the subject of a S140 claim from the debtor.

Just my opinion of course but Harrison may really point the way...

[Pumpytums]

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

Hi,
the thing to look at is the T&C of the agreement both parties signed for example there may be a term that states "Before making any demand we will take all the steps we are required to take by law for your protection".

So if they demand the full balance on a defective DN that you have pointed out to them and they continue to attempt enforcement have they not just broken the terms of the agreement? Have they not also fallen foul of s140a unfair relationships? Maybe a counter-claim would cheer them up a bit?

Again if they send a termination letter again haven't they broken the T&C?

Every time they demand the full balance have they not broken the T&C?

My opinion is that you both signed an agreement you both agreed to be bound by it the debtor gets more protection as they are more vulnerable. If the Creditor wishes to not be bound by the agreement that's their problem and something that should be pointed out.

I think with small claims if you can make the pill bitter enough the Claimant should back off they are not LIP and their legal bill is racking up every time you send a letter to their solicitor or get them to reply to letters. I think that's why the likes of Sunk Financial back-off if you defend it's not worth them shelling out to repeat court appearances that must be costing them £500 a pop.

As PT has stated s86A- is very useful as it required the creditor to send notices of sums in arrears. If they don't then the agreement ceases to exist temporarily for the time they fail to send notices. Basically the arrears can not build up or interest be charged during the period that the creditor fails to comply. Imagine I lent you £100 and we agree you will pay £10 a month, and I send statements each month, you fail to pay. I send you only a single arrears notice for £10 then 5 months latter send a DN stating arrears of £60 and I terminate the agreement. Basically the DN will be bad the interest cannot be added for the period I have not sent notices.

I'm not sure if the original arrears notice becomes invalid if it's left too long however. Also this may stop s69 interest as s86 clearly states all interest for the period of none compliance. May be worth a discussion.

I would imagine it would be very difficult once they mess it up for a creditor to produce an accurate DN if the account contains default sums as only simple interest is allowed on these. And as we know they always add compound.

UK Legal Documents, Legal Forms and Legal advice

Thanks

Pumpytums

[toomanycalls]

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

the thing to look at is the T&C of the agreement both parties signed for example there may be a term that states "Before making any demand we will take all the steps we are required to take by law for your protection".

So if they demand the full balance on a defective DN that you have pointed out to them and they continue to attempt enforcement have they not just broken the terms of the agreement? Have they not also fallen foul of s140a unfair relationships? Maybe a counter-claim would cheer them up a bit?

In this case the T&C state

"3 Right to demand earlier repayment
if any amount payable by you for more than 14 days or if any statement or representation made by you in the course of applying to enter this agreement is found to be incorrect then you shall, if we so demand by written notice, immediately pay to us the amount to settle your loan. If you have fallen behind with your payments we may pass information about what you owe us to a credit reference agencie. CRA record this information which may be seen by other companies you may apply to for a loan or credit and this may affect your ability to get credit."

[Pumpytums]

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

Blooming heck that first bit is a little hard to understand could be me though. Looks like if you don't pay a setup fee within 14days or make a miss-representation in your application then the full balance can be demanded.

So it looks like their is no term that allows them to demand immediate payment for any reason (other than above). That's good no Brandon cop out. So in that case the CCA that the agreement was signed under apply's. So they should still have to send a compliment DN before demanding the full balance/terminating. So in my opinion if they have not done so they have created an unfair relationship. Namely they have failed to abide by the CCA 1974 that you both agreed the agreement was under.

Just my opinion. Have a read up on s140 it's quite potent.

Pumpytums

[toomanycalls]

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

Blooming heck that first bit is a little hard to understand could be me though. Looks like if you don't pay a setup fee within 14days or make a miss-representation in your application then the full balance can be demanded.

I read that as if I'm 14 days in arrears they can demand the full amount outstanding.

However as its a CCA then they still have to follow procedure as none of there terms can override Parliament.

[Pumpytums]

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

That sounds a bit severe to be honest, if you missed a single payment by 2 weeks they can demand the full balance. As it's lumped in with the applying for loan bit I think it's when the loan was set up have a re-read.

"If any amount payable by you for more than 14 days or if any statement or representation made by you in the course of applying to enter this agreement is found to be incorrect then you shall, if we so demand by written notice, immediately pay to us the amount to settle your loan."

I could well be wrong.

Pumpytums

[diddydicky]

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

one thing i have just argued, admittedly in the case of a debt purchaser not the original creditor, but they relied on a bad notice, they tried to serve a good notice but had failed to give effect to s86(a-d) of the CCA

so default sums and interest had been added to the balance, which meant it was a bad notice again.

Maybe we should put our minds to consider how best to defeat these things than arguing among ourselves? i cannot see how in light of HHJ Chambers QCs judgment, that it can be said that a creditor cannot reissue a notice,

i agree ...but the point is he said something along the lines of "in many cases it may be possible" - he did not say that it would be in ANY event

further, and importantly he did not define WHEN he thought the creditor could and could not do so!
------------------------------- merged -------------------------------

Well, often, what would my view be on that,

Well here goes,

A bad notice can be remedied at any point prior to proceedings.

A bad notice can be remedied during proceedings, as the arrears remain payable thus the cause of action remains and is not extinguished by the defective notice

A bad notice cannot be remedied at trial or within 14 days of trial without leave of the court to allow the matter to be stayed

One point on this, if the arrears are paid then that would leave the Claimant needing to discontinue and pay the debtors costs of the action as he would have no cause of action

So that is how i see it, and i was actually the file handler on Harrison, and was in court to hear judge chambers reasoning, so i speak from my own knowledge of this matter which gives us this judgment


Those are just my view, but i am aware of a number of cases where the courts albeit county court, have followed those lines.

Also if the matter is at trial, then one must also consider the issue of estoppal as the Claimant cannot restart a claim on the back of a defeat using the same facts

can you clarify one point

you say that if the debtor remedies the DN then the claimant would be liable for his costs

how would this work- since presumably the trial would be many months/A year or more AFTER the date at which the DN demanded payment of arrears?

surely the creditor would argue that he should not be penalised in costs simply because the debtor paid up at the court steps! when he could have avoided the claimants costs by paying up earlier

[Pumpytums]

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

"A bad notice cannot be remedied at trial or within 14 days of trial without leave of the court to allow the matter to be stayed

One point on this, if the arrears are paid then that would leave the Claimant needing to discontinue and pay the debtors costs of the action as he would have no cause of action"



Hi DD,
I think what PT was getting at if a creditor goes to court for enforcement and the DN is proven to be defective. The Claimant can then request a stay issue a new DN. After 14days they could then request the stay is removed and off they go again. However if the Defendant pays the arrears on the new DN (providing its correct) the Claimant would be left with no right of action the DN is satisfied.

Problem is if you then don't keep up payments on the agreement the Claimant could then issue a new DN and off we go again.

"A bad notice can be remedied during proceedings, as the arrears remain payable thus the cause of action remains and is not extinguished by the defective notice"


Another thing if proceedings are issued (I assume this is pre allocation) I don't under stand how a new DN can be issued at this stage. As the POC would be wrong, as they cannot claim the full balance until the DN expires.

Does PT mean that technically they could claim the arrears at court but not the full balance? But if you cough up then again the DN would be satisfied hence no cause of action.

I'm confused again.

Pumpytums

[diddydicky]

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

"A bad notice cannot be remedied at trial or within 14 days of trial without leave of the court to allow the matter to be stayed

One point on this, if the arrears are paid then that would leave the Claimant needing to discontinue and pay the debtors costs of the action as he would have no cause of action"



Hi DD,
I think what PT was getting at if a creditor goes to court for enforcement and the DN is proven to be defective. The Claimant can then request a stay issue a new DN. After 14days they could then request the stay is removed and off they go again. However if the Defendant pays the arrears on the new DN (providing its correct) the Claimant would be left with no right of action the DN is satisfied.

Problem is if you then don't keep up payments on the agreement the Claimant could then issue a new DN and off we go again.

"A bad notice can be remedied during proceedings, as the arrears remain payable thus the cause of action remains and is not extinguished by the defective notice"


Another thing if proceedings are issued (I assume this is pre allocation) I don't under stand how a new DN can be issued at this stage. As the POC would be wrong, as they cannot claim the full balance until the DN expires.

Does PT mean that technically they could claim the arrears at court but not the full balance? But if you cough up then again the DN would be satisfied hence no cause of action.

I'm confused again.

Pumpytums

thanks yes i take your point

problem being (back to square one) WHAT amount do they put in the new DN if they alter it at court(or 14 days before)? if they put the ORIGINAL amount of arrears- then the payment of those arrears by the debtor would not satisfy s89 and bring the situation back to the status quo (as if the breach had never occurred ) because

a/ By then the creditor would have trashed the debtors CRA files

b/ The "terminated " agreement- if it is now to be stated was never terminated and was still alive - would then have many more months arrears -(the time in between the creditor terminating on the back of the faulty DN and the court hearing would be VERY many months .......... so the debtor could not bring the situation back to a point as if the breach had never occurred..by paying the amount claimed in the DN .....since he would still be (very) many months in arrears and therefore still in breach of the agreement



alternatively- if the creditor alters the amount in the new DN to reflect the old arrears PLUS the arrears accrued to the court date - then his claim that the debtor was in breach of the agreement ( with respect to the arrears built up since the original faulty termination would be an untruth - since if the creditor did not terminate the agreement- then at least he certainly "amended" the terms of the agreement (which the debtor did not disagreee to) when he told the debtor that monthly payments were no longer acceptable and that he must pay immediately in full............

if, in the case of puympytums- the court held that pumpytums had voluntarily terminated the agreement then a court- to be even handed- would also find that in this case the CREDITOR voluntarily gave up the right/cancelled the term of the agreement requiring the debtor to make monthly payments-

since pumpytums could not reverse her decision- without the creditors agreement- then how, in this case could the creditor reverse THEIR decision without the agreement of the debtor

the result being that if the debtor accepts the creditors proposal to alter/deleter a term of the agreement- then it would need the debtors consent for the creditor to re instate it

if the debtor refuses- how else is the agreement ever to be enforceable by means of a DN - since the debtor would never be in breach of any term or condition requiring him/her to make monthly repayments

[Pumpytums]

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

Thats a good point, you receive a DN it tells you the amount due is X and after 14days the full balance will become due. You generally take this as correct, especially if you receive a termination notice or letter demanding the full balance.

Currys= debtor
Vogue driver = creditor

Its like going to Currys putting your Range Rover vogue through the window at 5am to get your IPAD2 early, that was pre-payed for then complaining when you get done for burglary. An IPAD2 technically did belong to you but you jumped the gun and tried to get it early you were mistaken 5am should have been 5pm. I'm sure Currys would let you off? Would the defence well I thought it was the right time and as they were not open I sought my own solution to get is wash? How about if an employee of Currys was outside telling you the time was wrong but you carried on?

I find it make things much clearer to put things into daft situations gives a different spin on it.

We saw this term in the CCA in Pumpkins thread cant remember which one now as the thread went bye bye which basically said providing both the creditor and debtor agree,terms can be changed/added inside an agreement which makes sense.

With regards to the arrears changing generally in my experience once they send a DN no more arrears notices are sent so they cannot add any more or in fact charge any more interest as per S86D Failure to give notice of sums in arrears. Technically they can argue that the full balance is now due but it's not if the DN is invalid. But they have said on their termination notice/ letter "from monkeys are us LTD" that it is. And as you said DD the creditor has taken away the debtors right to pay monthly instalments which I assume you have accepted.

If you actually paid the arrears would they not now need your permission to add a term back in that allows monthly payments after they terminated? Seems right. If you failed to pay said arrears they would be quite within their rights to demand them via enforcement but not the full balance.

So we are not talking about the dreaded UR thing it's more the debtor accepts that their right to make monthly payments has been removed.

very interesting

The thing that needs to be said is if a creditor trashes your CRF it can have catastrophic consequences to the debtor. Want that highly paid job working for the MOD, Financial sector, accountancy law, management the list goes on forget it. Want a new lease on an apartment, a new mortgage, a phone contract and this will amaze you pay for you bus/train pass by directdebit probably not. So pretty much your life is screwed for 6 years you are stuck as you are. How much is a big D worth on your CRF I would say potentially negative £120,000+. Makes you think doesn't it.

Pumpytums

[mystery1]

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

Agree with most of that. However with your crf you didn't pay so if the info is accurate then they are within their rights (perhaps obligations) to report it.

Many of us are past caring about the crf though as it is beyond repair and the 5/6 years credit free will do us good.

M1

[Algee]

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

mystery

The creditor can report non-payments, but how can he get away with giving you a Default status following the issue of an invalid DN?

I have informed one of my OC's that their DN was invalid. They say they will re-issue, so I asked them what they intend to do about the trashing my file for the past 4 years. Their reply, so far, is to offer me £200, which I have rejected.

My point is that they are fully aware that they have slipped up, and to repair the damage could cost them a lot in damages.

Alan