Default Notices - Updated Information!

[jon1965]

Re: Default Notices - Updated Information!

I am being thick again....it doesn't comply ....but the cca is enforcable. What does that mean to me in real terms?

[Never-In-Doubt]

Re: Default Notices - Updated Information!

Doesn't matter if the cca is enforceable as s.87/s.88 relate to defaulting the account. Harrison v Link mate

[Never-In-Doubt]

Re: Default Notices - Updated Information!

See this and post 2 ---> allaboutFORUMS

[jon1965]

Re: Default Notices - Updated Information!

So to clarify
Although my Vanquis CCA is enforceable the DN is flawed. Therefore I just wait for them to issue proceedings and defend it with your help. (you had better not go anywhere or i will kill you)
I take it I do not tell them it is flawed or they could put it right?

[Never-In-Doubt]

Re: Default Notices - Updated Information!

I'm not suggesting anything like that. I was only explaining the problems mate.

What you do us up to you but if they served that as their DN I'd expect Paul would refer to various case law should he get appointed.

Lots of ifs n buts

[jon1965]

Re: Default Notices - Updated Information!

Ok cheers Niddy. I will just have to see how it pans out and how I am feeling at the time.
Just out of interest, do you know if you can get legal aid for this sort of thing...and does Paul do legal aid work

[Never-In-Doubt]

Re: Default Notices - Updated Information!

No mate. It's civil - no legal aid.

Stop worrying so much

[jon1965]

Re: Default Notices - Updated Information!

Yes Dad

[jon1965]

Re: Default Notices - Updated Information!

Ok another question has arisen about default notices.
If a creditor sends you a faulty DN then carries out the actions specifies i.e registered a default/possibly terminated the account can they then at a later stage reissue a compliant DN in order to enforce the debt?

[alangee]

Re: Default Notices - Updated Information!

I am pretty sure the answer to that is "yes".

Alan

[jon1965]

Re: Default Notices - Updated Information!

Another good reason for never telling them how they have cocked up

[Paul.]

Re: Default Notices - Updated Information!

Dodgy DNs are only relevant if they go to court, otherwise they don't affect the UE process so we tend not mention them untill they've served court papers. In that case they are discussed behind closed doors.

nearly correct, but dont forget cases of Hire Purchase, where they can repo without court order but need a default first

[jon1965]

Re: Default Notices - Updated Information!

Thank you just clarifies the point for me. Personally I think it's totally unfair that they can produce a faulty DN and then go and place a marker on your credit file and terminate your agreement then say oops here is a real one .
But hey ho

[jon1965]

Re: Default Notices - Updated Information!

Sorry guys another what if question about default notices.

If you have a fixed term loan of say 120 months and midway through they issue a default notice that is faulty and terminate etc could that still be used if they took you to court at say month 121 so after the end of the fixed term loan.

The reason I ask is that one of my loans is potentially enforceable but the DN is crap so if they waited till the end of the loan period before action would that devalue the power of the faulty DN

[transformer999]

Re: Default Notices - Updated Information!

Hi Niddy I hope it is alright to post up this info....


Consumer Credit Act default notices

Consumer Credit Act default notices - Lexology



Ian Karl Robert Brandon v American Express Services Europe Limited [2011] EWCA Civ 1187

What?
On 25th October 2011, the Court of Appeal handed down judgment in Ian Karl Robert Brandon v American Express Services Europe Limited. The Court’s decision perpetuates the current uncertainty about what action a lender can or should take if it discovers that a default notice served by a lender on a borrower pursuant to s. 87(1) Consumer Credit Act 1974 is defective.


Regulatory background
Under the provisions of the Consumer Credit Act 1974, (as amended, the “CCA”) if a creditor wants to take certain steps to enforce a CCA regulated credit or hire agreement, the creditor can only do so provided that he has fi rst served on the debtor a default notice in the prescribed form. The steps which a creditor cannot take without fi rst having served a compliant default notice on the debtor are listed at s.87 CCA and include termination of the regulated agreement; demanding accelerated payment of sums payable under the agreement; and the recovery of goods.


In order to be compliant, the default notice must be in the prescribed form pursuant to s.88 (2) CCA and must clearly set out the debtor’s breach of the agreement and the steps which the debtor should take to cure his breach. Crucially, the debtor must be allowed at least 14 clear days in which to remedy his default before the creditor becomes entitled to take enforcement action.


Facts of the matter
Mr Brandon was in arrears under his credit card agreement with American Express Services Europe Limited (“Amex”). Amex served on Mr Brandon a default notice and then, when Mr Brandon failed to remedy his default, Amex pursued him for the full outstanding balance owed under his credit card agreement.


Amex applied for and obtained summary judgment against Mr Brandon following a hearing before Deputy District Judge Gisby at Bristol County Court on 5th June 2009. Mr Brandon appealed the summary judgment on the basis that, amongst other things, the s.87 default notice served on him by Amex was defective. The notice did not allow him the statutorily prescribed 14 clear days in which to cure his default. Mr Brandon argued that accordingly, Amex was not entitled to enforce the credit card agreement against him.


At a hearing on 25th May 2010 before HHJ Denyer sitting as a judge of the High Court at Bristol County Court, Mr Brandon’s appeal against summary judgment was dismissed. HHJ Denyer noted that Mr Brandon did not deny that he owed Amex money. HHJ Denyer also noted that no enforcement action was taken against Mr Brandon within 14 days of the date of the default notice. HHJ Denyer concluded that to the extent the s.87 default notice served on Mr Brandon was defective due to the nature of the defects and the prejudice caused to Mr Brandon as a result of such defects was de minimis. Judgment in favour of Amex was upheld.


In a hearing on 12th and 13th July 2011, the Court of Appeal reversed this decision. Noting the threshold test for summary judgment at Part 24 CPR, the Court held unanimously that Mr Brandon did indeed have a real prospect of success with his defence based on the invalidity of the notice. The Amex case based on default was, in the view of the Court, untenable. The default notice on its true construction did not give Mr Brandon the requisite 14 clear days in which to remedy his breach. A failure to comply with the time period provided by statute could not be overlooked as de minimis. If the default notice had not or might not have allowed the minimum statutory period for Mr Brandon to remedy his default then it was at least realistically arguable that such a defect in the notice could not be dismissed as de minimis, both as to the nature of the defect and the prejudice caused thereby.


Amex had also sought to advance arguments that it was in any event entitled to terminate the credit card agreement with Mr Brandon pursuant to a contractual provision in the credit card agreement itself and thus, did not need to serve a s.87 default notice on Mr Brandon in order to terminate the agreement. However, the Court held that Amex could not avail itself of this route to termination.


Impact for creditors
The decision in Brandon is a rare item of bad news for creditors. The rules as to the form and content of CCA default notices are not straightforward, yet service of a compliant default notice is a pre– requisite of a successful action against a debtor where the creditor is seeking a remedy listed at s.87(1) CCA. Defective notices are widespread and until the judgment in Brandon, many creditors took comfort from the judgment by HHJ Denyer that a defective notice was not fatal to any claim against a debtor provided that the creditor could demonstrate that the defect was de minimis and/or otherwise that no prejudice was caused to the debtor as a result of the defect.


The judgment in Brandon has essentially put the situation back to square one. The Court of Appeal did not make any decisions on the substantive law; it simply held that Mr Brandon had a real prospect of success. As to the merits of his argument regarding the defective notice, that will be for the Court to decide in due course.