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

[pt2537]

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

The 1974 Act provides you cannot contract out of the protections of the act

sadly, some lower courts dont follow this, and some creditors do not take any notice of the same provisions

Hopefully the High Court will clear this up shortly

[diddydicky]

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

as far as the unfair relationship (brandon) goes- i have never beleived that it is right that a separate clause in a CCA regulated agreement could override the requirements of the CCa since- as Lord Alcohol says- it would clearly circumvent the CCA which was not intended

rather, in my opinion - the right to terminate an agreement other than in default circumstances and if mentioned in an agreement IMO means that if the creditor terminates under this clause rather than due to a default- then the balance outstanding is still payable by monthly instalments and not forthwith.

hopefully the brandon ruling will be overturned as it is clearly perverse

- the more so when the creditor starts a default action under s87(1) and then seeks to switch to another clause in the agreement when he sees that he is likely to fail............

and they have the cheek to say that LIP's use "technicalities" to avoid their obligations!!

[diddydicky]

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

the ability to offset arrears on one account with another is pretty standard with banks and is nothing to do with DN's ect- they can do it anytime.

the DN argument looks pretty good- save for the fact that you apparently "paid the arrears"- which might have complicated things a bit!

i dont know how you worked out what the arrears were- and if you did so in response to the mis stated amount on the DN- the creditor might argue that although it made a mistake in the amount it claimed in the DN - you were knowledgeable enough to work out that the figure in the DN was an error and that you then worked out that you were required only to pay the arrears in order to remedy the DN and that is what you did.- its a bit devils advocate and i dont know if that argument on their behalf would wash!

[toomanycalls]

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

Another thing for the pot.

Having paid the arrears the end of March, I then wrote to the bank with income and expenditure sheets requesting reduced payments as we were in financial difficulty. After initially turning me down and me phoning to urge them to reconsider, they reluctantly agreed to accept my offer for three months with a veiw to review my circumstances then. Towards that three month period I wrote to them again with an increased offer as circumstance were better. This went ignored and the termination notice turned up.

I wrote again with the offer. They replied they would only accept the full monthly payment or proceedings would commence.

Six weeks later in August, a second termination letter arrived followed the next day by second default notice. This time it had the correct arrears but the date to rectify was the original rectify date in March, 5 months prior to the issue of the notice. Now this is not the DN that they stated on the POC but clearly there systems are wrong.
------------------------------- merged -------------------------------

UTTCR 1999 Regulation 5;

So unless you specifically negotiated this term (payment of all amounts on default), S87 must therefore apply for the OC to avoid falling foul of UTCCR and S140.

More ammunition for the unfair relationship...

[Lord_Alcohol]

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

UTTCR 1999 Regulation 5;

(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.

(5) Schedule 2 to these Regulations contains an indicative and non-exhaustive list of the terms which may be regarded as unfair.

So unless you specifically negotiated this term (payment of all amounts on default), S87 must therefore apply for the OC to avoid falling foul of UTCCR and S140.

[Lord_Alcohol]

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

So your bank believes that his T&Cs take precedence over CCA? I think not.

My own view is that CCA will always take precedence, otherwise there is no point in "regulation". Ie, the OC could override the provisions in CCA by making up his own and getting you to agree to them.

The OC may believe you have agreed to allow him to claim all sums on default, but the reality is that this is a regulated agreement and so S87 must apply.

Your bank doesn't have a leg to stand on, unless I am wholly wrong and contractual terms override statute.

[toomanycalls]

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

1. Is your loan regulated?

Yes the loan is regulated by the CCA1974, taken out in 2008.

2. Do your terms and conditions provide for the actions the OC has taken?

The terms do say

3. Right To Demand Earlier Payment
If any amount payable by you is overdue for more than fourteen 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 youshall, if we so demand by written notice, immediately pay us the amount required to settle your loan. If you have fallen behind with your payments we may pass information about what you oweus to a credit reference agency. CRA's record this information which may be seen by other companies you may apply to for a loan or credit and this may affrect your ability to get credit

But isn't this contrary to the CCA 1974 in as far as the DN regs need to be complied with?

With regard to the frozen account, it does that they are allowed to do so which I accept but doing so before the DN has truely expired must surely be the beginning of an unfair relationship. They want me to settle the DN but freeze my account to stop me paying them...

[Lord_Alcohol]

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

TMC

Couple of questions;

1. Is your loan regulated?

2. Do your terms and conditions provide for the actions the OC has taken?

If the respective answers are "yes" and "no", then it would seem that the bank has made a mistake. There is no entitlement to demand sums not yet due in a default notice served under S87(1) because the whole point of the DN process is to allow the defaulter to remedy "as though the breach had never occurred" (S89).

Had you complied with the DN, the loan would have been repaid in full.

The bank bringing the claim to court seems to me to be bizarre - surely any judge would dismiss this as having no basis in law?

My view (FWIW - not a great deal) re your defence is that it should just respond to the POC, with the meat of your case in the WS.

As for your current account, your T&Cs may allow for this. My Halifax CC did, and they helped themselves to my CA.

I don't know if there is any need for S140 as it seems your defence has to succeed, based on the grossly defective DN. Could it be argued, however, that bringing the claim to court on this basis represents a bias in the OC's favour? Eg, he uses his considerable resources to erroneously bring a former customer to court when he has no entitlement, presumably in an attempt to reach a settlement of some description?

Just a few thoughts...HIH

[toomanycalls]

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

How much detail to I need to go into with this defence, do I need to quote the CCA section 87, 88, form for default notices 1983, practice direction for time of service as well as detailing the events following the default notice.

Just found another letter saying they would remove the overdraught facility from my joint account sent 6th March, whilst I can appreciate the requirement to reduce the risk of exposue from someone in default, talk about hitting you with everything at once.

[toomanycalls]

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

Been going through my paperwork trying to put the defence together.

The default notice was dated 4th Mar 2010, action required pay "total balance" by 18th March.

March 4th was a Thursday so even if they used first class post (I don't have the envelope) then date of service would be Monday 8th March. Date to rectify should have been the 22nd March by my reckoning.

March 19th the bank wrote to me to inform me that they had frozen my bank account (my current account was with the same bank). Surely this has got to fall under the unfair relationships if nothing else as they have taken enforcement action before the true date to rectify?