Contracts, Termination, Repudiation and Rescission

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Maybe
The OC issues on a bad Dn
You let him get you to court
Bounce him on the faulty Dn, maybe get him to swear that he did send you a compliant Dn - It makes his othe evidence look poor also
On the way out you offer a F&F, over time, to suit you

I think most OC's might be up for this
They have claimed tax relief last year on the loss
This year they are iproving profits so by coming to an agreement on money that is already written off it's all bunce for them

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

...and let's not forget the issue of compensation.

The OC has taken you to court without the merest shred of entitlement. He's committed an offence under Reg 5 of the 2008 CPRs (and I would also say Reg 7), by misleading you over his entitlement to do so, and mis-stating his entitlement to end your contract. All misleading business practices. Reg 7 is aggression; I would say taking you to court is aggressive.

The costs you've incurred might include losses due to spending time dealing with the matter; losses caused by being unable to obtain cheap (or any) credit; losses caused by having to sell assets at a big loss as you cannot obtain an overdraft; losses due to seeking professional advice; any losses caused by the embarrassment of having adverse data (the default) marked on your CRF (in my case, I cannot get a bank account with a chequebook); and so on.

S13 of DPA allows for compensation where the data recorded causes damage to an individual; it may have been that the DN could never be complied with due to some serious defect, meaning that the default should never have been recorded as it breaches the ICO rules and is inaccurate, unfair and unlawful (Principles 1, 2 and 4 of DPA).

As the court has considerable scope to award in your favour (S140), it could be worth coming up with a compensation package to pass to the OC when agreeing a f&f. It might be that he owes you!

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

...and let's not forget the issue of compensation.

The OC has taken you to court without the merest shred of entitlement. He's committed an offence under Reg 5 of the 2008 CPRs (and I would also say Reg 7), by misleading you over his entitlement to do so, and mis-stating his entitlement to end your contract. All misleading business practices. Reg 7 is aggression; I would say taking you to court is aggressive.

The costs you've incurred might include losses due to spending time dealing with the matter; losses caused by being unable to obtain cheap (or any) credit; losses caused by having to sell assets at a big loss as you cannot obtain an overdraft; losses due to seeking professional advice; any losses caused by the embarrassment of having adverse data (the default) marked on your CRF (in my case, I cannot get a bank account with a chequebook); and so on.

S13 of DPA allows for compensation where the data recorded causes damage to an individual; it may have been that the DN could never be complied with due to some serious defect, meaning that the default should never have been recorded as it breaches the ICO rules and is inaccurate, unfair and unlawful (Principles 1, 2 and 4 of DPA).

As the court has considerable scope to award in your favour (S140), it could be worth coming up with a compensation package to pass to the OC when agreeing a f&f. It might be that he owes you!

or the court can simply discharge you from the debt and call it quits

[toomanycalls]

Re: Contracts, Termination, Repudiation and Rescission

or the court can simply discharge you from the debt and call it quits.

And wouldn't that be nice...

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

And wouldn't that be nice...

well, id suggest it would be.

Given that you may have a liability of a few thousand pounds, if the creditor can recover the arrears , and the court erases your liability, id call that a good result really

Of course, the Court also does have the power to order you to pay the outstanding balance, but to remove the default under the s140 powers and id be sure that most would prefer to lose the debt if it were a choice between the two

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Excellent thinking chaps
It shows that god debate can lead us forward
Hopefullt PT's judgement will give hard evidence to support this stance
I have some 'agreements' where I have accepted their recession, in doing so I have pointed out that the Dn is faulty. I suggest the longer the situation continues after acceptaence (or the warning that the Dn is faulty), the more letters and phone calls, the more chance I have of putting this kind of argument forward
Let us not forget, as a debtor I am supposedly NOT financially astute, a bank on the other hand is most definitely financially astute & once warned if they continue on this path how close to contempt is that???

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Excellent thinking chaps
It shows that god debate can lead us forward
Hopefullt PT's judgement will give hard evidence to support this stance
I have some 'agreements' where I have accepted their recession, in doing so I have pointed out that the Dn is faulty. I suggest the longer the situation continues after acceptaence (or the warning that the Dn is faulty), the more letters and phone calls, the more chance I have of putting this kind of argument forward
Let us not forget, as a debtor I am supposedly NOT financially astute, a bank on the other hand is most definitely financially astute & once warned if they continue on this path how close to contempt is that???

just a pointer

Common law remedies arent available with the CCA unless provided for by the CCA.

This was the decision in the Appeal court in Arrow Global (Appellants) v Devlin (Respondent )

Also R vs Kettering Magistrates Court ex parte Motor insurers bureaux

Devlin dealt with restituiton and the doctrine of mistake, both of which were held not to be available as s170 expressly provided that only remedies within the act were available.

Common law can never defeat statute.

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

I understand you have enlightened me that common law remedies are not possibel, ie repudiation/ recession
The point was, I told them the Dn was faulty in my letter accepting, in fact one bank wrote back & said ballcocks, our Dn is fine

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

I understand you have enlightened me that common law remedies are not possibel, ie repudiation/ recession
The point was, I told them the Dn was faulty in my letter accepting, in fact one bank wrote back & said ballcocks, our Dn is fine

but, that is a matter for the judge to decide at the end of the day, isnt it,

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

I am unsure as to the meaning of contempt, my definition may not align with the court
For instance I hold many DCA's in contempt, in fact my ex wife as well...

But not sure if continuing along a path when it has been pointed out it is wrong constitues contempt
I do think though if I kept interjecting in court, the judge would warn me.
If I continued, he may call it contempt then he may let me have an hour in the cells to think about my actions ..

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

Hi
I would like again to challenge the percieved view of the Woodchester case in relation to the creditor’s repudiation, and authority that only the arrears are due on an invalid notice. I know it has been going on for some time on here but I just cannot see it. Never could
As far as I can see the pleadings, in the case they where in two parts the recovery of the arrears, which was also the amount to remedy and the sum amounting to the future loss of income under the agreement.
The arrears where admitted but the amount was in question.
Also in question was if the breach by the debtor was a repudiatory breach under common law
(mentioned in the report as item 4)this was not ruled on because the judgement on the invalid notice settled the question.
This is important is because, if the breach was contractual(not repuiatory) then the estimate of future losses would be a penalty and not recoverable under common law.
This is in essence what happened when the default notice was judged to be defective, obviously the arrears which where actual liabilities were payable but the future earnings were not.
This was a hire agreement.
If it were a loan the total amount would be due and payable, if the default is defective then the creditor can just re issue the default for the corrected amount of arrears, but the full balance still owes whatever happens.
Actual liabilities under a contract cannot just disappear. This would contravene the creditors human rights an any way the act will not allow such a sanction.
In woodchester the appellant was found not to owe future costs under the agreement, and the arrears only were due.
Unless the debtor continued to hire no further actual costs would accrue, the creditor cannot claim further repudiation because the account would be up to date. This would not be the case with a loan as there would still be a balance of liabilities on the agreement.
If of course the creditor remedies the breach then he is entitled to continue repaying those liabilities as per the contract
Peter

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

A simple approach, sorry i don't know the case law inside out,

If the Act is not followed to the letter, the arrears are all that is enforceable through the courts. The balance is still owing but the options are limited as to how collection occurs

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

But a default notice is a notice of being in default and occurs when you are two or more payments in arrears, in fact I'm sure you are supposed to be sent one on the second month. It is not that a default is being registered on your credit file, in fact its probably just that the account has late payments at this stage. That default marker might happen later but is not directly connected to the default notice.

i think you may be confusing between a default notice (unders s87(1) -and which the creditor may serve when he wants to) and a notice of default-

[toomanycalls]

Re: Contracts, Termination, Repudiation and Rescission

i think you may be confusing between a default notice (unders s87(1) -and which the creditor may serve when he wants to) and a notice of default-

I think I am, can you expand on that a bit, I thought a default notice or notice of default was the same thing? The default on the credit file is separate and unrelated.

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

LA
I believe you may have missed a point that Pt made
The OC cannot terminate on the back of a faulty Dn therefore I suggest he is saying by ommission that the contract endures
He has also stated that the arrears due are what is required to correct the default situation at the point in time the Dn is issued (ie 2 yrs worth in my example)
Maybe FallenAngel has hope in the argument about an assigned debt which I broached earlier in the thread
However we have a date from Pt now so then we can start to read and learn our fate...

looking at the creditors "termination" from a different aspect (and using the amex v brandon school of "changing the term on which one is suing on when it is clear you are losing scenario).........

the creditor (for whatever reason- and lets agree that if even HE does not realise he is acting unlawfully- the debtor cannot be deemed to know) sends a letter to the debtor terminating the agreement

the debtor responds accepting the creditors termination...


so, the creditor has just in effect "varied the agreement"- which he is entitled to do under the terms of the agreement

i believe under most agreements the debtor then has the option of accepting the variation to the terms of the agreement or of declining and ending the agreement


so- in this case the debtor says okay dokay i accept the variation- the agreement is terminated

two parties to the agreement both in agreement to terminate the agreement!!


(ps i still believe there is mileage in the unlawful repudiation route - where the performing party has a duty to mitigate his losses and may - at the receipt of the creditors termination of the agreement and withdrawal of the credit facility- have now forced the performing party to borrow money from his aunt/uncle/butcher /baker in order to finance that which he was previously expecting to finance using the now unlawfully terminated credit agreement

no prejudice to the debtor ......my ar*e