Service of new default notices

[basa48]

Re: Service of new default notices

Must be different T&C's? Mine is a 2004 version. Clause 15 in mine is all about liability.

But it's a continual source of puzzlement how a creditor can terminate, or say it can terminate, an agreement, but at the same time saying it will continue until all unpaid amounts are repaid. So I guess if you do have a terminated agreement and a clause like yours Basa, then all amounts must have been repaid if it is in fact ended.

That is yet, I believe, to be tested in court.

However in my case the point is moot. Egg 'ended' my agreement in Jan 2008 (along with thousands of other Egg card holders). I've not paid a penny since.

Also, recently Barclaycard bought a lorry load of Egg accounts, but they never told me. However recently Marlin have chased me for this Barclaycard debt. Obviously I advised them I have never had a Barclaycard and asked for the CCA. That was in March and I've heard nothing since.

[SeeThumb]

Re: Service of new default notices

But it's a continual source of puzzlement how a creditor can terminate, or say it can terminate, an agreement, but at the same time saying it will continue until all unpaid amounts are repaid.

Simple explanation is that in a contractual termination the agreement states that the money must be paid before the agreement is ended because if they, the creditor, ended it before the money had been paid as per the agreement (within 30 days) they would have gifted the debtor the outstanding amount. In the absence of an agreement, there is no recourse for repayment. However, by the wording of the agreement, non payment within the thirty days would constitute breach and justify a DN and enforcement. It assumes compliance, and relies on CCA74 for recourse in the event of breach, e.g. non-compliance with the obligation to clear the balance within the designated timescale.

As discussed elsewhere on numerous occasions, a creditor can only amend a dodgy default notice if it was issued incorrectly but for a valid reason. If they issue it for no good reason, without the debtor having breached, they have to stand by their actions because, by dint of holding a credit license, they guarantee to only issue such with due diligence and may not argue that they acted without such care; it would be an admission to a breach of fair trading and dereliction of duty, which is as strong a justification for fundamental breach as any other that may be put before a court. A simple mistake of an i not being dotted or due time not being allowed can be remedied quite reasonably and quite justifiably. A fundamental breach such as terminating the agreement due to lack of care and resulting in unnecessary threats to the debtor (as contained in a DN or demand for early payment including interest) may, quite reasonably, not be undone; unless they can get the consent of the injured party (the debtor), and even then it would require a new signed agreement given that the agreement no longer existed.

If you have breached, they can get you, and rightly so. If you have not, they must stand by their actions and the consequences thereof.

[jax50]

Re: Service of new default notices

A DN can be issued for either or both of missing payments and/or being over the credit limit, the amounts quoted on the DN must be clear and accurate and the time allowed to remedy must be as per the regulations.

Grey areas though surround where a) the payments arrears have been addressed by agreeing to reduced payments (by the creditor) while the account remains 'undefaulted'...until such time as the creditor states the reduced payment period is over. b) The over credit limit amount was only over limit due to 'unfair' charges applied to the account balance by the creditor, subsequently agreed as unfair and refunded in full some years later..taking the account back under the credit limit.

Add to this not enough days to rectify given on the eventual Default Notice, and you have a 'situation'.

If the breach only occurs via the failure to satisfy a Default Notice, then presumably if the DN was wrong in several respects (as described above) then the subsequent breach of it was incorrect ?

if that is correct (and I'm asking), then where does that leave the debtor/creditor relationship ?

[Lord_Alcohol]

Re: Service of new default notices

I've been informed by a barrister that termination following a defective DN = a failure to perform the agreement (as it was not ended). It is therefore a repudiatory breach and can be accepted by the debtor, leaving the balance repayable.

A subsequent DN would be an admission of the repudiatory breach.

There can be no accumulation of "arrears" unless notices are served under s.86.

Options open to the debtor are to sue for contractual breach (but losses must be shown) but it seems that harassment could be a good option too.

[jax50]

Re: Service of new default notices

AM not sure I totally follow all that...

I understand what you say about repudiatory breach, but which balance is repayable...the full amount ?

I don't see any 'advantage' to the debtor in accepting the breach if the amount is still payable...

What do you mean by 'accumulation' of arrears ?

What 'losses' did you have in mind under contractual breach...and what do you mean by harassment being an option too (or was that tongue in cheek ?)

[Lord_Alcohol]

Re: Service of new default notices

AM not sure I totally follow all that...

I understand what you say about repudiatory breach, but which balance is repayable...the full amount ?

Yes, although you can always insist that the DN is re-issued, the arrears paid and the agreement continue as before. Would need a willing creditor though but this is probably the "correct" outcome.

I don't see any 'advantage' to the debtor in accepting the breach if the amount is still payable...

It can remove the debtor from payment of contractual interest which, under a credit card agreement, can be significant

What do you mean by 'accumulation' of arrears ?

A creditor might say that arrears have accumulated from service of a defective DN to service of a corrected DN because the agreement wasn't terminated. Unless s.86 is observed, arrears are not payable. It's an argument to use when the creditor demands interest for this period.

What 'losses' did you have in mind under contractual breach...and what do you mean by harassment being an option too (or was that tongue in cheek ?)

Losses caused by the creditor's activities, which may include your legal fees (trips to solicitor, time off to go to CAB, letter writing, etc); no, if the creditor has given you a hard time after the defective DN then the Protection of Harassment Act is a possibility, esecially if you have asked the creditor not to harass you; compensation under DPA s.13, although difficult.

HTH