s.89 - what does it mean?

[patrol30]

Re: s.89 - what does it mean?

One last question, while its still in the original lenders in house collectors if i offer a small payment to stop any legal action what happens to this money. Does it come off the arrears total so in effect i am paying off the arrears or can they claim it went into the sums due. This all assumes that the original lender will get ****ed off with token payments and sell the debt on.

[patrol30]

Re: s.89 - what does it mean?

sorry another question.

One of the default notices only gives 14 days from the date of the letter and 10 days from when i received the letter so is invalid.

The second one was ok for time giving 19 day but their in house collectors demanded FULL payment 1 week into the DN time limit so is this invalid?

[teaboy2]

Re: s.89 - what does it mean?

sorry another question.

One of the default notices only gives 14 days from the date of the letter and 10 days from when i received the letter so is invalid.

The second one was ok for time giving 19 day but their in house collectors demanded FULL payment 1 week into the DN time limit so is this invalid?

Did the second DN ask for full payment and do you have a copy of the a dated letter demanding full payment whilst still within the 14 days to remedy?

[patrol30]

Re: s.89 - what does it mean?

Hi teaboy2,

sorry they should be round the other way if i take date order i just never seen the older one until later.

The first default dated 20th October demands payment before 10th November BUT final demand came in on a letter dated 5th November. I was thinking that although they gave me more than 14 days this was not required but even if you work it out using the statutory 14 days the demand was still too soon unless postage of the second letter is taken into account. The fact that they state 10th November as far as i am concerned is the legal notice period.

The second default notice asks for only the arrears but the date on the letter is 09 November demanding payment before 23/11/12.

[patrol30]

Re: s.89 - what does it mean?

Maybe i have misunderstood something, does this change anything.

The second default notice is correct except for a few issues with the bold letters etc but basically ok. BUT they demanded full payment during the notice period via their in house collectors which they claim is independent, so does this amount to the same as a defective default notice. If not what is the legal procedure regarding this breech?

Thanks

[patrol30]

Re: s.89 - what does it mean?

While that point is on my mind i remember seeing a case where the bank argued that it had the right to terminate an agreement at ant time but the judge ruled that if they followed the Default Notice route then the other route was not an option, can anyone remember this case?

[teaboy2]

Re: s.89 - what does it mean?

Hi teaboy2,

sorry they should be round the other way if i take date order i just never seen the older one until later.

The first default dated 20th October demands payment before 10th November BUT final demand came in on a letter dated 5th November. I was thinking that although they gave me more than 14 days this was not required but even if you work it out using the statutory 14 days the demand was still too soon unless postage of the second letter is taken into account. The fact that they state 10th November as far as i am concerned is the legal notice period.

The second default notice asks for only the arrears but the date on the letter is 09 November demanding payment before 23/11/12.

Then the second DN is invalid too as they should give you 2 working days postage, As saturday and sunday are not working days then the first day of pastage is the 12th second is the 13th meaning date of service is the 14th. So its 14 days from the date of service, which gives you to the 28th November to remedy the DN

[jax50]

Re: s.89 - what does it mean?

That is, I guess if they can prove it was posted 1st class, otherwise you can add another 2 days as 2nd class is 4 days...and I believe they have to 'prove' it went 1st class...So assuming letter is dated Wednesday the 1st...4 days for delivery (excl sat/sun) takes you to Tuesday the 7th...then 14 consecutive clear days takes you from the 8th to the 21st...so they should give you until the 21st in this example..

[patrol30]

Re: s.89 - what does it mean?

Thanks for the advice, its pretty clear that the second DN is void, that's the relief as that's 75% of the bulk debt.

But i am getting conflicting views on the first one, some are saying they can make any demands they want during the default period. My understanding is they should give you the full period(that they set in my case over 14 days) to clear the default and not demand full payment even if it comes from their in house collectors?

But my other question is is the postage of the final demand taken into account for example.

DN dated 20th October (assume second class delivery for both letters) 26th is first clear day so need to pay before the 9th.

Now Demand dated 5th November(so before DN expiry but i have not received it yet) but assume the second class post as previously and i would receive it on the 9th.

So what is the legal stance is it the date on the Demand or the date plus postage.

[jax50]

Re: s.89 - what does it mean?

A question about Default Notices..The ICO issue guidelines on this, and as regards to when they are issued and when a CRA default should be made. From what I read there should be 3 missed payments prior to a DN being made, and that a CRA entry should be advised within 6 months. I was in a rescheduled payment plan when a DN was issued (no missed payments)..and then it was 2 years before this default was advised to a CRA.

[basa48]

Re: s.89 - what does it mean?

Thanks for the advice, its pretty clear that the second DN is void, that's the relief as that's 75% of the bulk debt.

But i am getting conflicting views on the first one, some are saying they can make any demands they want during the default period. My understanding is they should give you the full period(that they set in my case over 14 days) to clear the default and not demand full payment even if it comes from their in house collectors?

But my other question is is the postage of the final demand taken into account for example.

DN dated 20th October (assume second class delivery for both letters) 26th is first clear day so need to pay before the 9th.

Now Demand dated 5th November(so before DN expiry but i have not received it yet) but assume the second class post as previously and i would receive it on the 9th.

So what is the legal stance is it the date on the Demand or the date plus postage.

OK I'm not about to start calculating notice days accounting for postage, but the Regs specify a DN should allow 14 days from the date of 'service' for remedy. The service date is agreed to be 2 days from the date of posting. So even if it takes 5 days to arrive it is assumed to have arrived after 2 days. Therefore the remedy date cannot be less than 16 days (14 statutory days + 2 postage days) after the date on the notice.

OK so now that 14 days is the minimum period allowed, they can allow more if they want, but IMO they cannot take enforcement action until the stated remedy date has passed. They can write and demand earlier payment, but that is not enforcement (although it could be harassment).

Edit: That is why you should always keep the envelope a DN comes in, so you could show the court that a lender dated a DN 'x' date but didn't post it until 'x' + 'y' days later (thus reducing the available remedy time).

I have to say that unless a DN is grossly defective (e.g. for the full outstanding debt) and is severely prejudicial to the debtor, any attempts to avoid enforcement citing defective DNs will probably fail as being de-minimis.

[jax50]

Re: s.89 - what does it mean?

OK I'm not about to start calculating notice days accounting for postage, but the Regs specify a DN should allow 14 days from the date of 'service' for remedy. The service date is agreed to be 2 days from the date of posting. So even if it takes 5 days to arrive it is assumed to have arrived after 2 days. Therefore the remedy date cannot be less than 16 days (14 statutory days + 2 postage days) after the date on the notice.

OK so now that 14 days is the minimum period allowed, they can allow more if they want, but IMO they cannot take enforcement action until the stated remedy date has passed. They can write and demand earlier payment, but that is not enforcement (although it could be harassment).

Edit: That is why you should always keep the envelope a DN comes in, so you could show the court that a lender dated a DN 'x' date but didn't post it until 'x' + 'y' days later (thus reducing the available remedy time).

I have to say that unless a DN is grossly defective (e.g. for the full outstanding debt) and is severely prejudicial to the debtor, any attempts to avoid enforcement citing defective DNs will probably fail as being de-minimis.

Just to confirm delivery assumed in 2 days is where 1st class is proved, otherwise it's 4 days for delivery..then the next day is day 1 of the 14.

[Lord_Alcohol]

Re: s.89 - what does it mean?

While that point is on my mind i remember seeing a case where the bank argued that it had the right to terminate an agreement at ant time but the judge ruled that if they followed the Default Notice route then the other route was not an option, can anyone remember this case?

This was Brandon.

http://www.bailii.org/cgi-bin/markup...method=boolean

Para 37 is the one to look at.

The point being that a creditor cannot enforce via a duff DN, so all he has to do is restart proceedings following a s.98 notice, assuming there is contractual provision, or re-issue a s.87 DN.

But getting back to the thrust of the thread, what should happen if the DN is satisfied but the agreement remains in limbo? Is the creditor in breach? Does s.170 actually apply?

jax, the ICO guidelines are just that - banks do not have to follow them, they are not regulations. The ICO prepared their default guidelines I believe in order to interpret "fairness" for the purposes of the DPA, so it would be up to the borrower to claim it was unfair to record a default and then to argue the case.

This may be futile. It seems to me that lenders do not care about resolving problems even in long-term agreements. Once a few payments are missed then it seems that the debtor is terminally stuffed, regulations or not.

LA

[Lord_Alcohol]

Re: s.89 - what does it mean?

I have to say that unless a DN is grossly defective (e.g. for the full outstanding debt) and is severely prejudicial to the debtor, any attempts to avoid enforcement citing defective DNs will probably fail as being de-minimis.

Have to agree Basa, although the regs do say that a DN must comply with s.88 rather than ought to.

If there is a smallish glitch with a DN then I suppose the debtor can request a time order, pay the arrears and so benefit from a form of payment holiday. But presumably the creditor will just look at s.98/s.98A afterwards and contractually terminate the agreement or, worse, restrict credit and scoop contractual interest while the capital amount slowly reduces.

It might therefore be better, depending on circumstances and the type of agreement, to accept a termination by cancelling the agreement (if allowed) and only repaying a compensated balance once any default marker is removed. The difference between the balance and compensation closes with time, of course, and the latter may eventually exceed the former.

By itself I doubt a duff DN will do more than avoid enforcement. We need to look at the bigger picture and keep the contract itself in mind.

LA

[patrol30]

Re: s.89 - what does it mean?

So basically what we are saying is the DN is not worth the paper it's wrote on.