Court claim issued by HSBC on a faulty DN & TN

[jumper999]

Re: Court claim issued by HSBC on a faulty DN & TN

Thanks LA,

Here is some info been reading this morning, guess it does not apply to me.

New banking code seeks greater consumer protection | Money | guardian.co.uk

[pt2537]

Re: Court claim issued by HSBC on a faulty DN & TN

As there has been no intent to breach the contract, the analogy of the car theft is therefore misleading; theft of a car requires intent.

LA

yes there must be actus reus and mens rea for an offence to be committed, im of course well aware of that.

The point which appears to be missed,is that cut the cake anyway you want, there IS a breach of contract which the bank is entitled to take action upon, whether that action is justified is another matter, and wheter there is an unfairness point is something for the trial jjudge on the day to decide

but simply saying no there isnt a breach of contract is nonsensicle in my opinion, that is the point i am making

[jumper999]

Re: Court claim issued by HSBC on a faulty DN & TN

Hi pt and thanks for your comments, I can see where you are coming from, a legal point of view as you know how things go down in court and what it feels like when the tables can turn.

In my defence all I can say is that yes I did according to HSBC breach my agreement, breach is a harsh word I would say but that is what the legal term is, correct?

At the time I breached my agreement I did not think that I was breaching, all I was hoping and believing that I was in genuine hardship and just needed a little time, not infinity, just to get my finances together. I never thought that HSBC would refuse my offer as I had read so much info on the national debtline, and cccs site and I did ring them and they advised that I should offer a token payment of a £1 a month.

I read in many places as this is unsecured debt and priority bills and loans, and mortgages must be paid first, I thought I would ask HSBC if they would accept lower payments for a while. My genuine problem was that British Gas sent me a bill after one year and it was huge, especially as the prices went up.

BG would not accept lower payments so I had to pay the minimum which was quite a lot, and I am still paying, thankfully there is not much left now.

There is a lot of advice that priority debts must be paid off first then unsecured debts, forums and advise centers all say the same thing that people can offer token payments on unsecured debts, that is all I did, and if what I did was wrong then all the information on the cccs and national debt line and forums is also wrong.

I have never denied not owing what I did, and have always taken my debt seriously. My credit file and banking history will show this............but maybe I am in the minority here, and one of the unfortunate ones.

I was in a position where I had no option where as HSBC did have the option, and they could have accepted my offer, I mean they did accept £1 with the FOS, which was much lower than what I was offering from day one.

Then again I did breach and now I await my sentencing, good job they don't do hanging anymore LOL!

[Guest]

Re: Court claim issued by HSBC on a faulty DN & TN

Godzilla

are you really that silly, that you have to make such comments?

If i believe a judgment is wrong, it doesnt matter, as the fact is, right or wrong the judgment is the judgment and we are stuck with it.

i am well aware of the comparability of the situations as well, yes i could have referred to the "manni investments" case and cross referred to it with regards to notices of assignments but i didnt and the point i was trying to make is that i believe you are seriously wrong.

I have been through Halsburys laws of England Contract Volume 9, Chitty on contract, White book, Blackstones civil Practice and of course the legal databases for research.

Unsurprisingly, i find nothing that supports your contentions

so, please provide an authority or reference for the contention that failing to pay is not a breach of contract


for the avoidance of doubt, no drooling or drivel will be accepted, just case authorities or reference materials which are authoritative in the UK

Hi

I find myself in the invidious positon of agreing with you 100% on this the problem is he is advising people to take this stuff into a court room. As we speak OTR.

Peter

[Godzilla]

Re: Court claim issued by HSBC on a faulty DN & TN

PT AND THE BARD

What on earth are you both on about? I have not stated that the op didn't breach the agreement!!!

Judgments can be challenged, you keep your heads buried in those books.

The Bard, are you stalking me?

Regards

Godzilla
------------------------------- merged -------------------------------
The principles that have been established over the centuries in the common law of contracts, that's what I am relying upon, are you saying those principles are drivel? PT and the Bard, blimey you sound like a little duo.

Regards

Godzilla

[Guest]

Re: Court claim issued by HSBC on a faulty DN & TN

PT AND THE BARD

What on earth are you both on about? I have not stated that the op didn't breach the agreement!!!

Judgments can be challenged, you keep your heads buried in those books.

The Bard, are you stalking me?

Regards

Godzilla
------------------------------- merged -------------------------------
The principles that have been established over the centuries in the common law of contracts, that's what I am relying upon, are you saying those principles are drivel? PT and the Bard, blimey you sound like a little duo.

Regards

Godzilla

Must admit to a strange fascination.

Me and PT a duo where have you been.

It is just that some facts are inescapable even if you dissagree about the details.

Petr

[Godzilla]

Re: Court claim issued by HSBC on a faulty DN & TN

I know where you have been the Bard, I see that you have also rubbished another case over on CAG that I have advised on, where do you get off claiming to the op that my advice is insane and that the op should only communicate with you in pm's on his case?

You state that you do not understand what I have written on that particular case, which as it turns out is also a repudiation of the agreement/contract by the creditor without just cause.

If you do not understand Mr Bard, then I rest my case.

Stop stalking me! and stop attempting to discredit me!

Regards

Godzilla

[Guest]

Re: Court claim issued by HSBC on a faulty DN & TN

I know where you have been the Bard, I see that you have also rubbished another case over on CAG that I have advised on, where do you get off claiming to the op that my advice is insane and that the op should only communicate with you in pm's on his case?

You state that you do not understand what I have written on that particular case, which as it turns out is also a repudiation of the agreement/contract by the creditor without just cause.

If you do not understand Mr Bard, then I rest my case.

Stop stalking me! and stop attempting to discredit me!

Regards

Godzilla

It isnt your case i am concerned about.

Peter

[WendyB]

Re: Court claim issued by HSBC on a faulty DN & TN

I've said it before and I am getting a bit fed up of repeating myself. This is not helping the OP in the slightest. If you disagree on points of law, then fine, it should be on here so the OP can decide which way to go.

But can you slug out the rest of it in private please. It's entertaining for a while, then, quite frankly, boring.

But it's nice to see PT and Peterbard agreeing for a change

[Godzilla]

Re: Court claim issued by HSBC on a faulty DN & TN

Hello again jumper

Well, as you know, your thread/case has become something of a battlefield, a clash of opinions. I fear that I must apologize to you jumper as it was never my intention to detract from the subject matter of your thread, not in the slightest was it ever my intention to have such a debate that would draw away from providing you with some sort or form of assistence and so I respectfully ask you to please accept my apology for any confusion or uncertainty that quite obviously has been caused to you.

I shall now set out to do what I intended to do when I first posted on your thread, or at least I am going to attempt to do that much for you.

I remain resolute in my position stating that you do have a defence against this action brought by HSBC.

This case of yours jumper is all about repudiation of the agreement/contract.

So the only real issue that needs to be determined by the Court before Judgment is awarded to either party is this:

Of the two parties in these proceedings, who is it that has repudiated the agreement/contract, that is the issue in your particular case.

So, the question to be asking first is, What is repudiation?

A party can terminate a contract at common law if the other party has repudiated (or renunciated) the contract. Repudiation refers to conduct that shows an intention not to be bound by the contract or to fulfill the contract only in a way that is substantially inconsistent with the party's obligations.

The test is whether the conduct of one party is such as to convey to a reasonable person repudiation either of the contract as a whole or of a fundamental obligation under it.

Repudiation entitles the innocent party to accept the repudiatory breach and bring the contract to an end (acceptance of the repudiation or 'recission') or to treat the contract as continuing (affirmation of the contract)

Acceptance of the repudiation by the innocent party entitles it to sue for damages suffered following the repudiatory breach.

The right to terminate a contract at common law for repudiation should be distinguished from the right to terminate for breach of an essential term (or condition) of the contract or a sufficiently serious breach of an intermediate (or innominate) term.

It is also important to consider whether the right to terminate at common law is excluded from the contract. The general presumption is that common law rights have been preserved and 'clear words are needed to rebut the presumption that a contracting party does not intend to abandon any remedies for breach of the contract arising by operation of law'.

Repudiation is not ascertained by an enquiry into the subjective state of mind of the party in default. It is to be found in the conduct, whether verbal or otherwise, of the party in default, which conveys to the other party the defaulting party's:

i) inability to perform the contract or promise; or

ii) its intention not to perform it; or

iii) its intention to fulfill it only in a manner substantially inconsistent with its obligations and not in any other way.

The touchstone here is, not the state of mind. There is no room to consider whether the party in breach held the honest belief that its action was justified by the contract. Therefore, the repudiator's state of mind is irrelevant. What matters is the character of the repudiator's conduct.

No doubt there are cases in which a party, by insisting on an incorrect interpretation of a contract, demonstrates an intention not to perform the contract according to its terms. But there are other cases in which a party, though asserting a wrong view of a contract even though it believes its view to be correct, is willing to perform the contract according to its tenor. Should an intention to repudiate the contract be attributed in both these instances?

For party A to merely assert, or argue for, a wrong interpretation of the contract will usually not be enough to justify party B drawing an inference of repudiation. The reason for this is that party A may be willing to perform the contract according to its tenor. It may be willing to recognize the error of its conduct once this is explained or to accept an authoritative view of the correct interpretation of the contract. In either event, an intention to repudiate the contract cannot be attributed to party A.

Thus the inference of repudiation should not readily be drawn where, for example:

i) party A makes 'contentious observations in the course of discussions or arguments'; or

ii) party A's conduct amounts to engaging in 'a bona fide dispute as to the true construction of a contract expressed in terms which are by no means clear'

The inference of repudiation can more readily be drawn when the interpretation relied on by party A is clearly or obviously untenable and party A:

i) acts (or threatens to act) unilaterally on the basis of the interpretation; or

ii) persists in the interpretation in the face of communications from party B pointing out the error.

Conclusion.

As a practical matter, contracting parties need to know what will - and will not - count as repudiatory conduct.

This grey area between patent repudiatory conduct and bona fide disputation of the construction of a contract is tricky to negotiate.

In helping to solve the conundrum of whether conduct demonstrates an intention to no longer be bound to the contract or whether conduct merely constitutes geuine disputation of the contract, parties should revert to the objective test of repudiation and consider what message the conduct actually conveys to the innocent party.

Finally, parties should be careful to note that if genuine disputation appears to be at issue, an innocent party should avoid reaching a hasty conclusion of repudiatory conduct. a notice purporting to rescind may constitute a repudiation in itself, thereby entitling the other party to accept the repudiation.

I hope that will help your case jumper.

Kind Regards

Godzilla

[WendyB]

Re: Court claim issued by HSBC on a faulty DN & TN

I hope it does, too. Can I just summarise, as a layman? Please feel free to correct, in layman's terms only please

A breach has occurred, this is not in question is it?
Jumper didn't intend to breach it,and tried to continue, but nonetheless a breach is what's happened.
But can it be construed as a repudiatory breach?
Who is repudiating whom?

So are you suggesting that Jumper defends as the (repudiated) breachee, or counterclaims(in effect) as the (repudiatory) breach -er? This is the part I don't get, although I have read the above about 27 times, it won't sink in, or it's not clear, one or the other but at this hour in the morning, who can tell?

And finally, is there any previous case law to support this defence (or attack, as the case may be, depending on which side of the fence it's looked at from. Wins or losses, either would be of use. I know there doesn't always have to have already been a precedent already set, but if there was then no doubt it would come in handy at this point. Whether we agree with the Judge's decisions in those cases or not, they have been made and currently stand, so our opinions as to the right or wrongness of them is neither here nor there.

Finally, another question which remains unanswered is the one asked by Jumper regarding possible costs to an LIP - tens, thousands, millions?

I know I have presented a very simplistic view, but I have called it as I see and understand it, which may or may not be right, or how others see it, but could well be how those of us less conversant with this complex area of law interpret it. And show that this whole area is a minefield and not for the fainthearted.

[ed.]

Re: Court claim issued by HSBC on a faulty DN & TN

In other words given jumper is being encouraged to go into court 'because they didn't 'really' breach the contract' is it possible Mr Zilla to have more than an intelligent overview that maybe they can use ie proper argument. Short of a fantastic screed that in no way helps them formulate a defence or gives them any idea whatsoever how to argue?

I said earlier on the thread are we going into unfair rels....no answer.

You agree there is no caselaw here. There is no indication of this amazing silver bullet of a document introduced. I like left field arguments....even I have no grasp on what the hell you are purporting is a dynamite argument that will win.

Simple facts, and I know you not from PT or Bard.....can we stop with the inane, childish, 5 yr old bitching to point score and make ourselves look more self important than we think we are when we look at ourselves as we exit the shower ever morning and ACTUALLY give clear information.

This is people's lives we are talking about. It's not a playground. He said, she said crap helps no one.

Mr Zilla, if your argument is right, you don't need to betray confidence, you can inform jumper how to handle the defence by giving argument details. PT to start with concerned me because of claims with 'judgement is not available yet' posts.

The aim of sites like this is not to 'big up' egos. It's to help normal people. If folks who want their ego rubbed cannot provide proof or details for their claims then frankly it's time they unplugged the keyboard.

If a member is advised as here that they should defend the claim because they have a good chance of winning, then the member advising that should put the defence where their mouth is and not play a self important game where others should fill in the blanks, where they then act like the victim because 'due to the lack of any information' they are asked to prove it.

It's childish, it's pathetic and frankly I don't give a flying Angela Knight if I'm considered out of order for saying this.

If people can't provide the help or the proof necessary to back up their claims, then team up with Basil....stop running the risk that those with less education in these matters will follow blindly given the risks they run.

There's a place for interpretation and left field ideas....on a thread that could change somebodies life for the worse if they follow a pie in the sky idea 'because it sounds good' is not the place FFS.

And yes I am annoyed the last 5 CCA matter threads I've dealt with have resulted in the poster bricking it because the advice they've been given over the years no longer washes.

Idealism and realism.....it's not our life, it's not our argument....it's somebody else. Do the best for them, that's the bottom line.

[pt2537]

Re: Court claim issued by HSBC on a faulty DN & TN

In other words given jumper is being encouraged to go into court 'because they didn't 'really' breach the contract' is it possible Mr Zilla to have more than an intelligent overview that maybe they can use ie proper argument. Short of a fantastic screed that in no way helps them formulate a defence or gives them any idea whatsoever how to argue?

I said earlier on the thread are we going into unfair rels....no answer.

You agree there is no caselaw here. There is no indication of this amazing silver bullet of a document introduced. I like left field arguments....even I have no grasp on what the hell you are purporting is a dynamite argument that will win.

Simple facts, and I know you not from PT or Bard.....can we stop with the inane, childish, 5 yr old bitching to point score and make ourselves look more self important than we think we are when we look at ourselves as we exit the shower ever morning and ACTUALLY give clear information.

This is people's lives we are talking about. It's not a playground. He said, she said crap helps no one.

Mr Zilla, if your argument is right, you don't need to betray confidence, you can inform jumper how to handle the defence by giving argument details. PT to start with concerned me because of claims with 'judgement is not available yet' posts.

The aim of sites like this is not to 'big up' egos. It's to help normal people. If folks who want their ego rubbed cannot provide proof or details for their claims then frankly it's time they unplugged the keyboard.

If a member is advised as here that they should defend the claim because they have a good chance of winning, then the member advising that should put the defence where their mouth is and not play a self important game where others should fill in the blanks, where they then act like the victim because 'due to the lack of any information' they are asked to prove it.

It's childish, it's pathetic and frankly I don't give a flying Angela Knight if I'm considered out of order for saying this.

If people can't provide the help or the proof necessary to back up their claims, then team up with Basil....stop running the risk that those with less education in these matters will follow blindly given the risks they run.

There's a place for interpretation and left field ideas....on a thread that could change somebodies life for the worse if they follow a pie in the sky idea 'because it sounds good' is not the place FFS.

And yes I am annoyed the last 5 CCA matter threads I've dealt with have resulted in the poster bricking it because the advice they've been given over the years no longer washes.

Idealism and realism.....it's not our life, it's not our argument....it's somebody else. Do the best for them, that's the bottom line.

ed.


Im not sure how to take that comment, i try to put forward my view on this topic and have taken time to carry out research on this point to see if i could find a slither of info which may assist.

I did not find anything.

Of course, one vital flaw is did jumper accept the repudiation? it seems not.

if you wish to rely upon repudiation, you must advise the party of this, you cannot act in a way which affirms the contract. Im slightly suspicious that this is what happened here.


I try to explain things in easy lay persons terms hence my analogy's if that caused offence then it was not intended to, i was merely trying to get the point across, you cannot come on here and start firing off that you have this golden nugget that will win the day and then not say what it is.


As for the comment about judgments not being available? what do you mean?

If you refer to the recent case where the hearing was the 30th sept and the judge reserved judgment til the 29th oct, then that judgment has been released exclusively to the site.


I shall keep my counsel on this subject, suffice to say, Jumper, if you want to run with this argument, good luck, but if Godzilla is suggesting there is a barrister involved, get a copy of counsels written opinion on the argument.

Law is all about applying the law to the individual facts of the case, what works for one maynot work for you

[Lord_Alcohol]

Re: Court claim issued by HSBC on a faulty DN & TN

On a slightly different tack having had my mind royally bent, would I be right in interpreting the issue of defective DNs (that do not offer the prescribed time) as being irrelevant after Brandon, as the judge found that "no prejudice" was suffered by the debtor?

If that simplistic interpretation is generally correct, and I think it is hence ed's remark about "bricking it" when years of comfortable assumption that one is right is thrown out of the window after Brandon, then is there mileage in finding that there was indeed prejudice caused by the defect in the DN?

The fact that the lender may not take action until after the prescribed time (not the stated time) doesn't really help a pro-active debtor attempting to put matters rights. He may have received instructions from the lender that the timescale is correct and that failure to abide by it will result in the dreaded next steps.

The debtor is also unaware of the apparent availability of additional time to remedy (ie, the difference in time between the date of the lender's next steps and the expiry date of the DN). If a court is saying that this extra time is available to the debtor to remedy, as the judge in Brandon implies, then that knowledge could dramatically alter the outcome of the situation. For example, the debtor would have more time to raise the money needed in any of a variety of ways (sale of assets, receipt of money owed from others, paid work, additional borrowing, etc).

I believe that the debtor does suffer prejudice where the time stated in a DN is deficient because it can have the effect of limiting the choices available to remedy the breach. Therefore, can an argument that prejudice is suffered 'get around' the Brandon judgement and allow a court to take a different view?

LA

[pt2537]

Re: Court claim issued by HSBC on a faulty DN & TN

LA

Brandon did not find that prejudice was necessary, HHJ Denyer found that there was no prejudice in failing to be given the 14 days and that was what he based his judgment on, wrongly,

There are protection mechanisms that could have been utilised, such as a time order, or an argument of unfairness, but there is no magic gem that is gonna pop up and write off this debt in my opinion, i just cant see it.


EDIT**

Also, i would add that each case turns on its own facts, if it is established that while the default notice shows less than 14 days, but you make no effort to remedy the breach, then you are unlikely to convince a judge that you have suffered prejudice of any kind.