Advice on this Default Notice.

[basa48]

Re: Advice on this Default Notice.

I personally think far too much is made of dates on DNs. It was ruled (forget the case) that even a few days discrepancy was de minimis. In any case even in Carey (I think) HJ Waksman said a defective DN can be corrected.

You need a LOT more than a defective DN to prevent a claim (IMO).

It does get a lot more complicated if a debt is sold after a defective DN. IMO the 'sold debt' is just for the arrears in that case, because the original lender was prevented taking the 'next step' (i.e. claiming sums not yet due) until a valid DN is issued. I believe that 'right' (or in this case lack of right) is passed on to the assignee.

[miliitant]

Re: Advice on this Default Notice.

i believe brandon ruled de minimis was not effective in regards to default notices

and as brandon is post carey/wakesman, brandon takes precedence

the creditor is now held to the letter now in relation to the default and termination regs

de minimis does not apply with default notices

stand to be corrected though

what wakesman ment was that their was nothing stopping the creditor withdrawing a claim, rectifying a default notice, then issue a new claim

you cant terminate on a defective default notice

[labman]

Re: Advice on this Default Notice.

i believe brandon ruled de minimis was not effective in regards to default notices

and as brandon is post carey/wakesman, brandon takes precedence

the creditor is now held to the letter now in relation to the default and termination regs

de minimis does not apply with default notices

stand to be corrected though

what wakesman ment was that their was nothing stopping the creditor withdrawing a claim, rectifying a default notice, then issue a new claim

you cant terminate on a defective default notice

With regards to Waksman, I thought this was to do with s78 copy requests isn't it? I'm not sure it specifically deals with DN's.

As for Brandon, "the court gave no other ruling other than it was 'realistically arguable' that it was not de minimis and, as such, summary judgment had been entered incorrectly. If the matter had proceeded to trial and the de minimis argument had been raised as a matter of law, then perhaps the outcome would be different. This is particularly so in the context of a situation where a Defendant does not have any means to pay the debt anyway and, as such, whether he received 14 days or 40 days to remedy the breach is of little consequence." (http://www.lpc-law.co.uk/lpc_law_leg...e.php?lu=32897)

This would seem to indicate to me that the 'de minimis' aspect was only in terms of this particular set of cirumstances.
I, too, stand to be corrected as case law really is not my area, it's just bits I've picked up reading around. :beagle:

[basa48]

Re: Advice on this Default Notice.

This would seem to indicate to me that the 'de minimis' aspect was only in terms of this particular set of circumstances.
:beagle:

I agree (to a point) but it is just this set of circumstances that a lot of people are looking at. A few too few days to remedy and the debtor looking for the enforcement (claim) to be kicked out.

Well it may be kicked out or suspended just long enough for the creditor to issue a good DN, but that is probably all you'll achieve.

Some judges may even look at the debtors intent or ability to pay after the remedy date and the time taken for the creditors further action in making a claim.

[labman]

Re: Advice on this Default Notice.

Totally agree Basa.

[basa48]

Re: Advice on this Default Notice.

Going back to the OPs original query, it appears he received a good DN giving adequate time to remedy and for arrears only. Once the remedy date given has passed without remedy the lender is free to pursue his claim for the full amount outstanding. That really is the whole point of a DN to make way for further action.

Letters from DCAs demanding money in the intervening time are of little consequence since these are not regarded as 'enforcement' action and do not affect the validity of the DN or subsequent claim.

[labman]

Re: Advice on this Default Notice.

Yep, spot on!

[miliitant]

Re: Advice on this Default Notice.

http://www.lpc-law.co.uk/lpc_law_leg...e.php?lu=32897