Contracts, Termination, Repudiation and Rescission

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

Vdr,
I think they are trying to tell you guys to play nicely, remember what Donkey said happened to him

Maybe get my questions answered now if all the troops venture back over here

I agree, and I dont mind if they force ALL the guys on there to play nicely.

Trouble is there seems to be some rules for 99.99% of posters, and other rules for the remainder.

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Vdr,
I think they are trying to tell you guys to play nicely, remember what Donkey said happened to him

Maybe get my questions answered now if all the troops venture back over here

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

I got banned OTR for daring to question the site team.

Are they real or what?

No notification, no right of appeal.

AND PumpinHeads thread has been taken down.

Just hope they now moderate the posts which need moderation.

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

I'll get back to you NAB

regards Garlok

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Hi Garlok
Is it possible for you to ask your solicitor (or the relative who read for the bar) for their opinion, esp with regard to acceptance

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Sorry NAB and Vd I can't give you any legal argument on this. The Harrison judgment goes some way towards clarification. However I can only repeat that at a time when everyone on CAG was saying "write and accept terminations made on the back of defective DNs", I was INSTRUCTED by our solicitors NOT to do so.

All of the armchair lawyers over there at the time jumped all over me, stating that our solicitors were wrong and they were leading me into trouble. Here we have the debate which is inconclusive again. Until a "lead" case is brought before the mercantile court this uncertainty will continue.

But have another read of Harrison, I found it a bit enlightening actually.

regards
Garlok

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

Having read pages of argument, I believe that the debt is repayable.
However, the creditor must obey the law in issuing a correct Dn/Tn if he is to become entitled to have the courts enforce on his behalf.
If these acts are not perfomed correctly it is impossible for the creditor to use the court system.

The debate centres on can the debtor elect to accept a faulty termination and can the creditor reissue on an agreement he has terminated (although not in CCA law)?

I assume the courts are used to decide these issues, lawyers use the law to try to influence the judge to find in their favour. Lip's tend to use more logic and common sense.

I think if this debate is to be settled there needs to be a court case so that a judge can decide - the positions have been debated endlessly without result / agreement.

I admit having a vested interest in the outcome, I have accepted repudiation therefore may have put myself in a difficult position. There are others like me.
I would also add that when I received the Dn & Tn I was in no doubt that my agreement had concluded.
My creditor has told me they will call in the DCA's, and they have.
My creditor has told me they will take action & I am sure they will.
So far logic tells me that my creditor knows what he is doing.
Having written & told him his Dn is pants he writes back & tells me it is not.
Eventually we go to court.
I stand in front of the judge & say 'the creditor cannot enforce as his Dn is pants, I even told him so'
Suposedly the judge throws the case out, allows my costs (because the case should not have been brought) and the creditor is allowed to reissue his Dn.
He will follow this with a contracted termination or a Tn (if I still fail to perform).


My challenge is the termination.
There are rules about how to make a CCA compliant termination which then allow the creditor to become entitled. However when the creditor terminates incorrectly then he must lose the right to become entitled, I believe this is common ground. What is not common ground is how the creitor can terminate (he did do this even though in regard to the CCA he was not compliant) and issue a compliant Dn on an agreement that he himself has terminated.
Surely an action that has been taken cannot be undone so easily?

Are there any case, in statue, where a contracted party has to continue on a course of action which they have been forced on to in error (as the creditor has)?

As I say, the creditor is entitled to his money back, he has just lost the ability to use the court system to collect / enforce on his behalf. This then means he can call in the services of a DCA, he can write with demands and he can report to the CRAs. I just struggle to see how he has become entitled to the assistance of the courts.

You points exactly mirror the post I have just made on PHs thread OTR.

I look forward to some LEGAL argument to disprove your contention.

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Hi pt,

I think the problem for me and many others is that despite your very laudable wins (and those of our own solicitors and others) based on the tried and tested arguments is that many of these tried and tested arguments have been dissected to death on forums such as these and LIPs have gone to court and lost on these arguments (not a criticism-- an observation). Much IMHO due to the "armchair lawyer" approach of some users of these sites. Hence we see a seeking of other methods in isolation with which to combat these perceived losses.

A classic example of this was of course the Carey collection of cases. I have even seen it stated that Waksman has actually changed the Statute Law, which of course he cannot do. I do note that Harrison has not seen the same attention by these users.

Since day one of our battles I have always assumed that a fairly comprehensive defence would have to be put together which had several strong points in it including as you know in "Harrison" the issue of a defective DN etc. I don't see it at all as magic solution in isolation. But I can understand perhaps the level of interest in it as more and more seek the golden bullet as it is perceived s78 et al has gone away for the LIP.

best regards
Garlok.

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Having read pages of argument, I believe that the debt is repayable.
However, the creditor must obey the law in issuing a correct Dn/Tn if he is to become entitled to have the courts enforce on his behalf.
If these acts are not perfomed correctly it is impossible for the creditor to use the court system.

The debate centres on can the debtor elect to accept a faulty termination and can the creditor reissue on an agreement he has terminated (although not in CCA law)?

I assume the courts are used to decide these issues, lawyers use the law to try to influence the judge to find in their favour. Lip's tend to use more logic and common sense.

I think if this debate is to be settled there needs to be a court case so that a judge can decide - the positions have been debated endlessly without result / agreement.

I admit having a vested interest in the outcome, I have accepted repudiation therefore may have put myself in a difficult position. There are others like me.
I would also add that when I received the Dn & Tn I was in no doubt that my agreement had concluded.
My creditor has told me they will call in the DCA's, and they have.
My creditor has told me they will take action & I am sure they will.
So far logic tells me that my creditor knows what he is doing.
Having written & told him his Dn is pants he writes back & tells me it is not.
Eventually we go to court.
I stand in front of the judge & say 'the creditor cannot enforce as his Dn is pants, I even told him so'
Suposedly the judge throws the case out, allows my costs (because the case should not have been brought) and the creditor is allowed to reissue his Dn.
He will follow this with a contracted termination or a Tn (if I still fail to perform).


My challenge is the termination.
There are rules about how to make a CCA compliant termination which then allow the creditor to become entitled. However when the creditor terminates incorrectly then he must lose the right to become entitled, I believe this is common ground. What is not common ground is how the creitor can terminate (he did do this even though in regard to the CCA he was not compliant) and issue a compliant Dn on an agreement that he himself has terminated.
Surely an action that has been taken cannot be undone so easily?

Are there any case, in statue, where a contracted party has to continue on a course of action which they have been forced on to in error (as the creditor has)?

As I say, the creditor is entitled to his money back, he has just lost the ability to use the court system to collect / enforce on his behalf. This then means he can call in the services of a DCA, he can write with demands and he can report to the CRAs. I just struggle to see how he has become entitled to the assistance of the courts.

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Thanks PT - this is exactly what we see, but the problem for the debtor at the time is that he will either be clueless (re CCA) and give up/enter into an arrangement/be sued for the balance, or he will look at the regs and realise that the creditor has made a mistake.

In the latter case, he may even speak to the creditor and advise him of his mistake, and request a temporary arrangement to get things back on track. However, he may also find that the creditor is uninterested and insists that the DN is good and that termination will follow. It is here that the problem arises; what should the debtor do? He does not remedy, as he knows the DN is bad and the creditor will not budge, and he sees that the agreement is subsequently terminated (against the regs he agreed to).

At this point he is even more confused; can the creditor actually do this? It was only a temporary blip that caused the breach, why is the creditor so eager to get to court? As the debtor knows that the creditor is in error, he writes to say that he accepts that the agreement is ended in order to discuss liabilities because, as far as the regs go, they only appear to be the arrears.

IMHO it cannot matter whether the debtor "accepts" this termination or not; the fact remains that it was the creditor who decided that the agreement was ended, and the only error made by the debtor was to fail to insist on continuing to make contractual payments (difficult when the facility is withdrawn by the creditor, who is jumping up and down demanding the balance).

So, to me, it seems puzzling why this is not called "repudiation", because it appears that the creditor no longer wishes the agreement to continue and it has been ended without observing the regs. This fact is augmented where the creditor is advised (in strong terms) of his mistake, with a view to rectifying it, but refuses to budge.

It would be helpful to understand why this view is wrong and what reasons the courts use to tell both parties that the agreement isn't "repudiated".

TIA

Withdrawing credit facility is not an enforcement step, s87 clearly says this

I cannot see how the creditor can be the person who repudiates, i dont follow that argument when it is the debtor who fails to pay the contractual instalments.

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

i think the one thing that is being missed, is we keep winning in the Courts using tried and tested arguments which we have developed along the way

Point being , i dont see anyone winning with these repudiation arguments, but what i do see, is people losing over and over

I would love for someone to put a case in front of me that shows me my view is wrong, but it just hasnt happened.

Thanks PT - this is exactly what we see, but the problem for the debtor at the time is that he will either be clueless (re CCA) and give up/enter into an arrangement/be sued for the balance, or he will look at the regs and realise that the creditor has made a mistake.

In the latter case, he may even speak to the creditor and advise him of his mistake, and request a temporary arrangement to get things back on track. However, he may also find that the creditor is uninterested and insists that the DN is good and that termination will follow. It is here that the problem arises; what should the debtor do? He does not remedy, as he knows the DN is bad and the creditor will not budge, and he sees that the agreement is subsequently terminated (against the regs he agreed to).

At this point he is even more confused; can the creditor actually do this? It was only a temporary blip that caused the breach, why is the creditor so eager to get to court? As the debtor knows that the creditor is in error, he writes to say that he accepts that the agreement is ended in order to discuss liabilities because, as far as the regs go, they only appear to be the arrears.

IMHO it cannot matter whether the debtor "accepts" this termination or not; the fact remains that it was the creditor who decided that the agreement was ended, and the only error made by the debtor was to fail to insist on continuing to make contractual payments (difficult when the facility is withdrawn by the creditor, who is jumping up and down demanding the balance).

So, to me, it seems puzzling why this is not called "repudiation", because it appears that the creditor no longer wishes the agreement to continue and it has been ended without observing the regs. This fact is augmented where the creditor is advised (in strong terms) of his mistake, with a view to rectifying it, but refuses to budge.

It would be helpful to understand why this view is wrong and what reasons the courts use to tell both parties that the agreement isn't "repudiated".

TIA

[toomanycalls]

Re: Contracts, Termination, Repudiation and Rescission

what are the two parties positions after a bad DN and TN?

How about an unfair relationship.

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

i think the one thing that is being missed, is we keep winning in the Courts using tried and tested arguments which we have developed along the way

Point being , i dont see anyone winning with these repudiation arguments, but what i do see, is people losing over and over

I would love for someone to put a case in front of me that shows me my view is wrong, but it just hasnt happened.

I sort of agree. I personally don't think the rescission/repudiation argument is of much use since, on reflection, I am not even sure you can apply common law rules to regulated agreements.

What I think is more important to sort out it what are the two parties positions after a bad DN and TN?

e.g. what constitutes 'entitlement' and 'enforcement' and can a creditor rectify a bad notice?

[Angry Cat]

Re: Contracts, Termination, Repudiation and Rescission

i think the one thing that is being missed, is we keep winning in the Courts using tried and tested arguments which we have developed along the way

Point being , i dont see anyone winning with these repudiation arguments, but what i do see, is people losing over and over

I would love for someone to put a case in front of me that shows me my view is wrong, but it just hasnt happened.

Tried and tested arguments...:beagle:

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

i think the one thing that is being missed, is we keep winning in the Courts using tried and tested arguments which we have developed along the way

Point being , i dont see anyone winning with these repudiation arguments, but what i do see, is people losing over and over

I would love for someone to put a case in front of me that shows me my view is wrong, but it just hasnt happened.