Contracts, Termination, Repudiation and Rescission

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

I think, and just my thoughts, is that the enforcement in court shouldnt be allowed on the back of a faulty DN, it means the agreement is not terminated, any charges, interest etc charged since should be removed and you should be able to remedy the original arrears with a new, correct DN, and the agreement continue as if the period between faulty DN and when it is accepted as faulty, didn't happen. If that continues then to default a new DN is issued and the chance to remedy starts over, which may then lead to enforcement action.

Not so sure about damages (costs for defending / hassle by DCAs / credit file etc stuff) for that period.

To me, that sounds reasonable. It also sounds like it would be beneficial to the defendant as they may well be in a position to continue the agreement now as circumstance may have improved, and avoid a CCJ and mucked up credit file ? IT also gives them another opportunity to sort out the debt in other ways, like a DMP etc. which they may not have considered/been able to do previously.

Spot on


Peter

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

Hi this is particularly important,as mentioned earlier, when goods are in the debtors possesion under the agreement.

There are several documented cases(in fact I was involved in one myself) where the creditor had recovered goods when the DN had not provided for the correct time for remedy.

The debtors solicitors were able to comence proceedings for conversion,the reason being that because the default was ineffective the agreement had not been terminated, so the goods were stll the property of the debtor under the agreement.

A DN can be used effectively if it is used as it is intended to be used.

Peter

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Hi Ame,

I think in general I can agree with what you are saying, that may be the strategy. However, I did put forward the Common Law-Contract argument, having again asked the direct question of a family member who read for the bar but took up commerce instead. In Contract Law should there be a breach for example by a creditor in our collective cases which reaches "to the heart" of an agreement/contract and breaches of Statute Law are such, it is a principle that both parties should be returned to the position they were in BEFORE the breached contract came into existence, i.e. no loss or gain by either party. Therefore theoretically applying this principle the only debt that ever existed on a credit card is that of the actual purchases/cash withdrawals etc. All charges and interest being benefits under the said alleged breached contract to which the alleged creditor is no longer entitled. Hence much hot calculators in getting monies returned to alleged debtors as the creditors are not entitled to benefit in any way from the breached contract.

I won't go further in this as it gets much more complex and I admit to not understanding all of it. However I was howled down with emphatic statments of CCA LAW is different, yet an in depth examination of the posts above shows that representation is being made on behalf of the creditor in that he is entitled to the full benefits under CCA Law, the debtor is not entilted to any of the protections, and also the crditor is entitled to his benefits under the common Law of Contract yet again the debtor being the villain of the peace is not entitled to the provisions for his protection provided here either.

None of these arguments makes any logical sense at all. Whilst Francis Bennion (author of CCA1974) has said that the Act should NOT be used as a debt avoidance tool, quite rightly he also said that should a creditor, usually a large sophisticated financial institution with acces to the best legal brains get it wrong then it is perfectly correct that the creditor should forfeit ALL rights and benefits due to him should he get it wrong.

best regards
Garlok

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

I have accepted the creditors right to reissue a Dn, whilst I may not agree the law says it is allowed.
I have tried to investigate the point of the Tn on the back of a faulty Dn

If I walk down the street & a man punches me on the nose, it hurts
The law says he is not able to punch me on the nose
He may have mitigating circumstances - I slept with his wife/ stole his car/ my dog fouled his garden
but the fact remains he is not allowed to hit me & I am still in pain

Because the event has happened I have leave to do something about it
Surely there must be a course of action available to the receipient of such faulty notices.

I have not said the debt is not owing, just that maybe the creditor loses some / all his rights to use the courts to collect

Yes he looses his rights to enforce until a corrected document is issued and the stsatutory period for remedy has passed.

Peter

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

Hi Ame,

I think in general I can agree with what you are saying, that may be the strategy. However, I did put forward the Common Law-Contract argument, having again asked the direct question of a family who read for the bar but took up commerce instead. In Contract Law should there be a breach for example by a creditor in our collective cases which reaches "to the heart" of an agreement/contract and breaches of Statute Law are such, it is a principle that both parties should be returned to the position they were in BEFORE the breached contract came into existence, i.e. no loss or gain by either party. Therefore theoretically applying this principle the only debt that ever existed on a credit card is that of the actual purchases/cash withdrawals etc. All charges and interest being benefits under the said alleged breached contract to which the alleged creditor is no longer entitled. Hence much hot calculators in getting monies returned to alleged debtors as the creditors are not entitled to benefit in any way from the breached contract.

I won't go further in this as it gets much more complex and I admit to not understanding all of it. However I was howled down with emphatic statments of CCA LAW is different, yet an in depth examination of the posts above shows that representation is being made on behalf of the creditor in that he is entitled to the full benefits under CCA Law, the debtor is not entilted to any of the protections, and also the crditor is entitled to his benefits under the common Law of Contract yet again the debtor being the villain of the peace is not entitled to the provisions for his protection provided here either.

None of these arguments makes any logical sense at all. Whilst Francis Bennion (author of CCA1974) has said that the Act should be used as a debt avoidance tool, quite rightly he also said that should a creditor, usually a large sophisticated financial institution with acces to the best legal brains get it wrong then it is perfectly correct that the creditor should forfeit ALL rights and benefits due to him should he get it wrong.

best regards
Garlok

Think you meant shouldn't rather than should on the Francis Bennion bit

I agree with you, and when we were beginning looking at the CCA and working our strategy out and I believe Curlybens original guide on here, that was exactly what we were working towards. There have been a number of cases with faulty or non existent CCA's that possibly could have obtained a complete write off, but we have always come down on the ''moral'' side of the issue in that the lack of agreement actually rather than makes the money/credit etc a gift, makes it a ''normal'' debt which should be repaid but without the creditor having the benefit of the extra interest/charges etc as they werent entitled to charge them without valid agreement. We believe strongly in fairness, and creditors do act unfairly, we want things back on an even keel, where the protections remain in place for consumers who are treated unfairly. Sadly this protection does seem to be being eroded by fights for what I see a little as unjust enrichment on the debtors side.

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

Hi Ame,

I think in general I can agree with what you are saying, that may be the strategy. However, I did put forward the Common Law-Contract argument, having again asked the direct question of a family member who read for the bar but took up commerce instead. In Contract Law should there be a breach for example by a creditor in our collective cases which reaches "to the heart" of an agreement/contract and breaches of Statute Law are such, it is a principle that both parties should be returned to the position they were in BEFORE the breached contract came into existence, i.e. no loss or gain by either party. Therefore theoretically applying this principle the only debt that ever existed on a credit card is that of the actual purchases/cash withdrawals etc. All charges and interest being benefits under the said alleged breached contract to which the alleged creditor is no longer entitled. Hence much hot calculators in getting monies returned to alleged debtors as the creditors are not entitled to benefit in any way from the breached contract.

I won't go further in this as it gets much more complex and I admit to not understanding all of it. However I was howled down with emphatic statments of CCA LAW is different, yet an in depth examination of the posts above shows that representation is being made on behalf of the creditor in that he is entitled to the full benefits under CCA Law, the debtor is not entilted to any of the protections, and also the crditor is entitled to his benefits under the common Law of Contract yet again the debtor being the villain of the peace is not entitled to the provisions for his protection provided here either.

None of these arguments makes any logical sense at all. Whilst Francis Bennion (author of CCA1974) has said that the Act should be used as a debt avoidance tool, quite rightly he also said that should a creditor, usually a large sophisticated financial institution with acces to the best legal brains get it wrong then it is perfectly correct that the creditor should forfeit ALL rights and benefits due to him should he get it wrong.

best regards
Garlok

The problem is that this accepting termination would not work in common law either, because it was the debtor that initially defaulted and repudiated the agement.
If the CCA were not there the creditor would accept this repudiation, terminate and enforce.

Peter

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

The problem with the analogy Peter is that Polygamy is a crime and punishable at law by fine or imprisonment. So it isn't really a very good analogy as in the case of a faulty DN there is (apparantly) no crime and no punishment.

This is why most people find it so hard to swallow a law that has no sanction for breaking it.

and which argument IMo should be used every time the matter is raised in a county court

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

Hi
Seems to be a lot of different issues her not quite sure what exactly you consider to be ludicrous.

That the crditor can termiate an agrement?

That the creditor can make an entry with a CRA if thedebtor defaults?

If a mistake is made surely there are provisions to rectify them by either regulatory or more legitimate legal means.

As you said in a post earlier in this thread a DN is mearly a notice why whoud it not be reissued, as long as the stutory period is given with the correct information.

I think that you will find that section 87 was an act of parliament.

Also just to mention if you read the Crowther reposrt (as i have all six hudrred pages,how sad am i) You will see that this act was not only enacted to protect debtors but also creditors.
Yes thats right it ensures that as long as they stick to the rules then they will be a ble to enforce their agrements and get there money. Just a point

Peter

the word ludicrious appears at the end of the sentence to which it refers........i am not English expert but even a child knows what the word is referring to


i did not say earlier in the thread (or at any time at all) that a DN was "simply a notice" - i said that a notice of default was "simply a notice"

how exactly can a defamation be "corrected"- once the words are uttered or comitted to print, impugning a persons honesty or character- the genie cannot simply be put back in the bottle.

once the debtors credit files are trashed - the defamation cannot be corrected a year later by the creditor simply removing the reference- the damage is already done.

the debtor- having unlawfully lost his card borrowing facility- then has to make alternative arrangements- which by definition would be more costly- due in part to the OC wrongful recording of adverse information on the debtors credit file

i think that LA summed the matter up succinctly

"how can you have a law for which there is no penalty if you break it"

nowhere in the English legal system (IMO) would you find authority for such a ludicrous suggestion
------------------------------- merged -------------------------------

I have this annalogy before and this really is a bad one.
Firstly there is a sanction he cannot enforce for a further period that is the one , the only one available.
Seconldly and more importantlyif the action of termination was punishable by some legal sanction other than this how would any creditor ever get to court?
It is for the judge to decide if the DN the subsequent termination are lawful, and the enforcemant can take place are you suggesting the creditor should be penalised for taking a debtor to court when he has defaulted his agrement, i dont think that will wash in the real world.
Peter

you keep missing out the word "UNLAWFUL" before "termination" in your posts-

ONE word but a whole WORLD of difference to the point being made


your last sentence

Yes thats right it ensures that as long as they stick to the rules then they will be a ble to enforce their agrements and get there money. Just a point


is all revealing.........what part of "they have not stuck to the rules" is difficult to understand?... if there is no sanction for them "not sticking to the rules"- then why are "the rules" there?
Read more at: Contracts, Termination, Repudiation and Rescission - Page 9 - Legal Beagles Consumer Forum

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

I haven't managed to find these cases which I presume are on CAG ? Do we have any links or are they in private areas ?

You know I tend to go on the safer and proven ways of dealing with creditors and probably to others frustration a bit, I've never quite understood why a faulty DN should mean a written off debt and have never seen case law to back up why it should so have never pushed those type of arguments on here. I don't mind trail blazing at all, but with your OWN risk / money /health / relationships at stake rather than people who have come to the forums looking for help. If you have a belief in an argument then YOU take it all the way first rather than push others to test it for you. (and by YOU I just mean individuals in general not PT lol, just incase that reads completely wrong)

I havent read the massive dodgy DN threads over on CAG enough to see if there is a proper legal basis for the argument but I assume if that is where it developed the case law will have been picked over on those threads??

surfaceagent X20 won his case on the faulty DN argument- got to keep the car and a substantial financial sum as i recall!!

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

the word ludicrious appears at the end of the sentence to which it refers........i am not English expert but even a child knows what the word is referring to


i did not say earlier in the thread (or at any time at all) that a DN was "simply a notice" - i said that a notice of default was "simply a notice"

how exactly can a defamation be "corrected"- once the words are uttered or comitted to print, impugning a persons honesty or character- the genie cannot simply be put back in the bottle.

once the debtors credit files are trashed - the defamation cannot be corrected a year later by the creditor simply removing the reference- the damage is already done.

SoRry dont understand the CRAvwill record the record of paymentin any case irrespective of the DN if the record is incorrect then your argument is with the CRA or the creditor giving incorrect information nothing to do with the issuance of a dn fault or otheerwise
the debtor- having unlawfully lost his card borrowing facility- then has to make alternative arrangements- which by definition would be more costly- due in part to the OC wrongful recording of adverse information on the debtors credit file


So the only alternitive is for the creditor to keep offerring credit on a defauled account?
i think that LA summed the matter up succinctly

"how can you have a law for which there is no penalty if you break it"

There is a penalty for issuing afaulty default the creditor cannot enforce until a correct one is issued

This is the legal system, it is not for mr yto find authority it is not i who is putting forward the proposition
------------------------------- it is the only remedy allowed under the act

nowhere in the English legal system (IMO) would you find authority for such a ludicrous suggestion
merged -------------------------------


you keep missing out the word "UNLAWFUL" before "termination" in your posts-

ONE word but a whole WORLD of difference to the point being made


your last sentence

Yes thats right it ensures that as long as they stick to the rules then they will be a ble to enforce their agrements and get there money. Just a point


is all revealing.........what part of "they have not stuck to the rules" is difficult to understand?... if there is no sanction for them "not sticking to the rules"- then why are "the rules" there?
Read more at: Contracts, Termination, Repudiation and Rescission - Page 9 - Legal Beagles Consumer Forum

This is desending into personal abuse these points have been covered many times before they have no merit

peter
------------------------------- merged -------------------------------

surfaceagent X20 won his case on the faulty DN argument- got to keep the car and a substantial financial sum as i recall!!

You recall incorrectly

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Yes he looses his rights to enforce until a corrected document is issued and the stsatutory period for remedy has passed.

Peter

Peter
There must be more to it than this
A mere time delay is no penalty or sanction to the creditor as the interest (& default ?) charges continue to accrue. Let us not forget the creditor lends money to the debtor and makes money by charging interest as it is repaid.
When drawing up the agreement the creditor understands that sometimes debtors maybe a little late paying so a charging system is included in the agreement. The CCA recognises this and allows it (within limits), it also recognises that some debtors will default and provides a mechanism to accomodate this.
It seems the CCA does not accomodate a notice puporting to be something which it is not, but also according to your argument it does support this faulty notice as it does not mention it nor the possibility that a faulty notice could be sent (perhaps in error, perhaps on purpose)
This would be the unlawful termination which I tried to raise earlier
I agree, at the time of the faulty Dn I was in default
I then receive the Tn because I did nothing to rectify
You say in law that the Tn does not count as the Dn was faulty but it has still happened!
I am trying to find out what effect this action has.

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Apologies Ame with my post. My typing is awful at times. I did realise after posting and have edited as required.

I can understand too the moral stance, I do not agree with its over use as many of us only went to law in the first place because of the AMORAL stances of creditors when trying as honest decent people to sort out our own problems.

WE DID NOT FOMENT AND CAUSE THE CURRENT FINANCIAL CRISIS, that has caused irrepairable harm to hundreds of thousands of peoples lives, in general it was banker greed, failure of proper regulation, i.e. the very people who are now trying to adopt the moral high ground on these issues. The Law is the Law, either we all obey it or none of us obey it. That is real fairness.

rant over
regards
garlok

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

surfaceagent X20 won his case on the faulty DN argument- got to keep the car and a substantial financial sum as i recall!!

I do believe Phil actually said that they dropped it on the steps of the Court rather than it being judicially decided though

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

No Ame,
Unfortunately the very real threads on this subject over there also degenerated into slanging matches sadly between supposed very knowledgeable people. One was generally the source.

However, a member also on here diddydicky, who did an awful lot of work on this subject did have some success I believe with defective DN's as part of one of his own cases. Are you around DD?

What is factual professional legal advice on this subject on a more practical level is:-

Check the DN , does it say s87(1)? Is it correct in detail? If account in dispute as ours were/are, Do nothing. File carefully with envelope, log exact date of arrival.
Wait for the demand for full amount outstanding. File carefully with envelope. Do nothing, do NOT respond with an acceptance letter at all, log exact date of arrival.

Ignore any charges/interest added to any of the accounts in dispute, by anyone (DCAs etc) they will be recovered during any action brought against us by the creditor.

I have my own suppositions as to why this is but you have asked for facts rather than assumptions and suppositions. I have to trust what our soliciotrs do and say and those were the instructions. Nothing more nothing less. Undoubtedly I will find out should our OC go to court which they have been invited to do (18months ago now)

best regards
Garlok.

yes i did get a discontinuance on one - although i must add that this particular DN demanded the entire balance of the account (including sums not yet due) to remedy the DN which as i understand is an entirely different kettle of fish to cases that are alleged to have already been decided

I also believe that no court has made a definitive decision in a case where a creditor has terminated before the time for remedy has expired. ( in brandon the creditor did not terminate until 3 weeks later- even though the DN did not give 14 days)

I have two creditors who not only did not give 14 days but then terminated before their own incorrect deadline!!

i have one creditor who sent a DN which was a day short- but included a diatribe about the funds having to be cleared into their account by the 13th day- and that this meant that paying into a branch had to be done at least 4 working days prior and by cheque had to be received 7 days prior- in order for the cheque to be cleared into their account

this effectively reduced the DN remedy time (taking weekends as well) to around 3-4 days- and as it was attached to and formed part of their DN - i argued that the DN was woefully short AND not in the prescribed form

again this argument has clearly pursuaded the creditor to abandon any further action

these are successes based on DN arguments and it is completly immaterial to me that they were won outside of court rather than in.

these (to me) are successes - the fact that they were not won in court is irrelevant to me

i have never argued that PB or PT 's arguments are incorrect- simply that the arguments is still worth making- especially with other arguments and/or especially in small claims where the debtors liability for legal fees is limited.

often- putting a strong argument to the creditor pre trial is enough to dissuade them - not always i know- and as time goes by and more case law is presented it gets more difficult-

BUT not al DN arguments are doomed and those cases referred to have not ruled on every facet of a faulty DN

Indeed i believe the judge ion brandon commented that if the creditor had indeed terminated short of time- he may have taken a different view.


PB says it is the debtor that has first repudiated if one or two payments are missed .....and isn't the creditor entitled to his money if you have missed a couple of payments

i say NO

credit cards- in particular are charged at astronomical rates and the business model allows for and incorporates occassional "defaults" on the part of the debtor and these are clearly "de minimus" events- if they were not de minimus then sects 87-89 would not exists for correcting them .

[leclerc]

Re: Contracts, Termination, Repudiation and Rescission

I do believe Phil actually said that they dropped it on the steps of the Court rather than it being judicially decided though

A Tale of a Dodgy DN

The above post I think is what you're both referring to.