Woodchester V Swain (default) Debate

[gwenlillian]

Re: Woodchester V Swain (default) Debate

so I'm reading the regs saying; "the creditor shall allow to the debtor under a regulated consumer credit agreement a rebate at least equal to that calculated in accordance with the following provisions.....whenever early settlement takes place, that is to say whenever, under S. 94 of the Act, on refinancing, on breach of the agreement, or for any other reason, the indebtedness of the debtor is discharged or becomes payable before the time fixed by the agreement, or any sum becomes payable by him before the time so fixed" so if the default notice gives sums up to the date of its issue but is attached to a court claim for the whole sum, plus goods, plus costs, plus interest and in theory, I would have to pay all that before the end of the contract, although I realise that one might say what contract, if they have terminated, but, if the default notice is faulty then the termination does not apply so the contract currently, in my view, is still 'live' but in arrears, the only remaining matter for me then is the breach of other regs in the sale of the product, the broker secret commission and the non-disclosure of total charge for credit on insurance. Eeek.

[miliitant]

Re: Woodchester V Swain (default) Debate

if the default notice is faulty then the termination does not apply so the contract currently, in my view, is still 'live' but in arrears,

that is how i see it :beagle:

[Guest]

Re: Woodchester V Swain (default) Debate

Hi
Yes it says the debtor may require rebate.

In order to require a rebate the debtor has to repay the total amount due under the agreement, section 94 refers to early settlement.

You cannot ask for a rebate until you have paid the agreement in full. this is why it is called rebate.

D

[Guest]

Re: Woodchester V Swain (default) Debate

so I'm reading the regs saying; "the creditor shall allow to the debtor under a regulated consumer credit agreement a rebate at least equal to that calculated in accordance with the following provisions.....whenever early settlement takes place, that is to say whenever, under S. 94 of the Act, on refinancing, on breach of the agreement, or for any other reason, the indebtedness of the debtor is discharged or becomes payable before the time fixed by the agreement, or any sum becomes payable by him before the time so fixed" so if the default notice gives sums up to the date of its issue but is attached to a court claim for the whole sum, plus goods, plus costs, plus interest and in theory, I would have to pay all that before the end of the contract, although I realise that one might say what contract, if they have terminated, but, if the default notice is faulty then the termination does not apply so the contract currently, in my view, is still 'live' but in arrears, the only remaining matter for me then is the breach of other regs in the sale of the product, the broker secret commission and the non-disclosure of total charge for credit on insurance. Eeek.

So did the judge say that the case was discontinued because the agreement had not been correctly terminated?

D

[gwenlillian]

Re: Woodchester V Swain (default) Debate

hi - yes we discussed it at the hearing and the judge was clear that the notice was defective so I guess he was giving them another chance to get it right - the actual order says: On hearing the defendant and the solicitor for the claimant this matter be adjourned generally with liberty to restore. It doesnt mention the notice but sure the notes in the court must do.

[Guest]

Re: Woodchester V Swain (default) Debate

if they are asking for sums not yet due then they will be wanting to terminate the agreement.

if that is they case the debtor needs to be given a termination figure with any due interest rebate etc as it stands at the moment

No they do not have to give a "termination figure" they can demand the full balance due on the contract.(look up repudiatory breach of contract)

This is the figure that will be presented at court representing the liabilities due under the contract.
No rebate will be included in this figure and the court will award the full amount should they decide to enforce:beagle:

D

[Guest]

Re: Woodchester V Swain (default) Debate

hi - yes we discussed it at the hearing and the judge was clear that the notice was defective so I guess he was giving them another chance to get it right - the actual order says: On hearing the defendant and the solicitor for the claimant this matter be adjourned generally with liberty to restore. It doesnt mention the notice but sure the notes in the court must do.

Right so the case has not been discontinued and the creditor will be allowed to re present a corrected DN.

As i have said this has happened before, you can site abuse of process in that the requirements of section 87 have not been met prior to the proceedings commencing, but i am guessing that the judge will be wanting to settle the case without having to discontinue, does the notice mention a CPR protocol.
D

[Guest]

Re: Woodchester V Swain (default) Debate

Yes i think there is a court order on here somewhere posted by amethyst where a case had been stayed whilst a corrected default was was issued, the case hasn't been discontinued so no permission under 38.7 is required.

D

http://www.legalbeagles.info/forums/...ght=rescission

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D

[jax50]

Re: Woodchester V Swain (default) Debate

just as an aside on procedures...If the OC or DCA is bringing a debt case and the defendant knows the DN is faulty, on more than one count...when does this get revealed to the Complainant....before the court case, half way through...at the end as a trump card ? I know nothing of procedures as you can see...