Contracts, Termination, Repudiation and Rescission

[Angry Cat]

Re: Contracts, Termination, Repudiation and Rescission

with respect, and its not often i get angry, but that comment is BULLSh!T

Mr Harrison's experiences were quite accurately described by HHJ Chambers

I saw the call log, Link did not just call 18 times, and also id point out that at a time when his mother was seriously ill in hospital after a heart attack, MBNA never let up on his and when he pointed out the fact he was waiting for a call from the hospital when he was home inbetween his visits to his mother, then MBNA resorted to using withheld numbers which was the same as the hospital, keith pleaded with them to stop as he didnt want to miss an urgent call if his mum had deteriorated. MBNA refused to stop calling


Keiths circumstances are well up there with the worst of them, i would have thought that you would realise that given the fact that a High Court judge was sooo scathing in his judgment, i mean its not often that we get a judge of the High Court hammering a bank

I sympathise totally with Mr. Harrison.
At one point, I was receiving 20 calls a day: automated dialler system.
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well i did get a little annoyed, and i would simply say, to describe keiths situation as a "Horror" story does not do it justice.

But you are right its not all set out in the judgment, and its why we are doing an interview with the BBC in a weeks time to give the full picture

Excellent!

Re: Contracts, Termination, Repudiation and Rescission

No.

This is a crucial point where peter has changed stance to suit his argument.

He repeatedly states a terminated agreement is still an agreement and would thus still be regulated and subject to the provisions of the Act. Then he agrees with you that a contractually terminated agreement suddenly becomes an unregulated agreement subject to common contract law.

The clauses in an agreement which peter maintains allow a creditor to contractually terminate are written into a regulated agreement which is also supposed to comply with the provisions of the Act.

I wonder how contractual termination stacks up against 140A when there are adequate provisions already within the Act to not require unilateral termination i.e. deferment or restriction.

Nope never changed anything yhou just do not understand i am affraid.
A terminate agrement is a terminated agreement , no matter if it is a contractural termiantion or a temrination after breach. In either case the terms of the agrement no longer apply that is why it is called terminated.
This doe not mean that it is not still an agreement.

The differnce between the two types of agrement as i have tried repeatedly to point out is what liabilities can be claimed post termination.
This is crucial in contract law because some of these liabilities may be pre estimated or future losses which would not be claimable on a contractural termiantoin. but would be on a termination after repudiation as in a default.

A termintaion after default in a cca regulated agrement is part of the enforcement process it will have include within it details of the liabilities due under the enforcement.
The DN could not be reissued if this termination stood because the details of the claim wold be incorrect. Fortunately this does not apply because as we have said the termiation after the defective DN is not a valid action.

Peter
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Maybe.

The point, however, is that S87(1) prevents entitlement to the balance where the DN is bad. So you may owe the money but the lender cannot get it.

Moreover, the lender had already told the debtor that the agreement is ended. As far as he's concerned, it's dead. And that is probably a view held by the lender too.

The agreement becomes an "account", into which the lender wants his money to be paid. This account is not an agreement. It has no agreed provisions and is not regulated by the Act.

So the court is enforceing an account

would that be breach of an account?

Interesting
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Right I think it's reality time.

I would like you to remember the following whenever you think about using your repudiation by creditor argument.
I will put this in bold so you can commit it to memory
At no time is a creditor contractually obliged to offer or issue credit under a consumer credit agreement, any more than the customer is contractually obliged to receive that credit.
The only contractual obligation that exists on such an agreement is that of the debtors obligation to repay the loan.
Creditors have rights debtors have obligations

Nowhere in the act or in any terms and conditions will you see the phrase "should the creditor commit a breach by failing to provide credit" ,it is absurd, how can he repudiate the agreement by failing to lend you money.
Peter

[jumper999]

Re: Contracts, Termination, Repudiation and Rescission

well i did get a little annoyed, and i would simply say, to describe keiths situation as a "Horror" story does not do it justice.

But you are right its not all set out in the judgment, and its why we are doing an interview with the BBC in a weeks time to give the full picture

Great something else to look forward too , will you be on there PT?

Re: Contracts, Termination, Repudiation and Rescission

The liabilities that the contract entitles the creditor prior to termination? As per S87?

Sorry according to you ther is no contract it has been terminated? i think you just proved my point


Yes, very true. What I meant was that the provisions of the agreement no longer matter (such as monthly payments, access to credit, etc) because the creditor has withdrawn them by his termination.

NO the agrement was terminated becuae of the default of the debtor


Sure, but the agreement was that the loan was regulated and that the creditor would observe those regs. But he didn't. He ended the agreement without observing those regs. Yet the regs say that he is not entitled to take his various actions...


The point to make here is what is the point of regulation if the creditor ignores the regulations? If you have regulations but do not allow the debtor to use them for protection, again, what is the point of them?

He doesnt

They are not always right, as you know.

No but we have to live with their decisions even when we consider they are wrong

But there can not be any enforcement where the DN is bad. They can enforce where the the regs are observed, but have problems otherwise.

Yes by george hes got it


The Pumpkinhead judgement also shows that contracts can be terminated without following the regs, and that this issue is perhaps more to do with entitlements than anything else.

NOpe it shows that the agrement can be billaterally terminate he mearly gave the creditor the oppertunity to do so and then of course claim liabilities due


Well, maybe, although I am not sure what the real point is. There is no conclusive judgement anywhere. In fact, we have various judgements that contradict.

One thing they all agree with is that the arguments for repudiation ar not proven or indeed even seriously considered

This is a complete nightmare for me and I think many others. The regs seem so clear, yet much of this discussion concerns means of allowing the creditor to avoid his obligations, sometimes in an almost unbelievably convoluted manner.


Not really. I see Durkin, Brandon, PT's and Pumpkinhead's judgements, all with totally different outcomes. There is no consistency in any of this, hence the endless debate.

Then you co not see clearly
:tinysmile_hmm_t2:

See above

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Sorry PT. But the exact problems caused to Mr H are not in the judgement - just that he received numerous telephone calls. I'm just going on what you've given us.

Yes, completely agree that this is unusual hence my (and others) surprise that the counterclaim was partly dismissed on the basis of excessive telephone calls.

In my case I've had DCAs actually banging on the door, in addition to their mock "court papers", threats and, of course, the endless phone calls over a period much much longer than Mr H's. Which is why I made my comment, for which I apologise if it has caused offence (which it clearly has).

well i did get a little annoyed, and i would simply say, to describe keiths situation as a "Horror" story does not do it justice.

But you are right its not all set out in the judgment, and its why we are doing an interview with the BBC in a weeks time to give the full picture

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

with respect, and its not often i get angry, but that comment is BULLSh!T

Mr Harrison's experiences were quite accurately described by HHJ Chambers

I saw the call log, Link did not just call 18 times, and also id point out that at a time when his mother was seriously ill in hospital after a heart attack, MBNA never let up on his and when he pointed out the fact he was waiting for a call from the hospital when he was home inbetween his visits to his mother, then MBNA resorted to using withheld numbers which was the same as the hospital, keith pleaded with them to stop as he didnt want to miss an urgent call if his mum had deteriorated. MBNA refused to stop calling


Keiths circumstances are well up there with the worst of them, i would have thought that you would realise that given the fact that a High Court judge was sooo scathing in his judgment, i mean its not often that we get a judge of the High Court hammering a bank

Sorry PT. But the exact problems caused to Mr H are not in the judgement - just that he received numerous telephone calls. I'm just going on what you've given us.

Yes, completely agree that this is unusual hence my (and others) surprise that the counterclaim was partly dismissed on the basis of excessive telephone calls.

In my case I've had DCAs actually banging on the door, in addition to their mock "court papers", threats and, of course, the endless phone calls over a period much much longer than Mr H's. Which is why I made my comment, for which I apologise if it has caused offence (which it clearly has).

Re: Contracts, Termination, Repudiation and Rescission

Hmm - I though you just said that even a terminated agreement is still an agreement and thus unavoidably regulated.

I also seem to recall that no one could avoid the Act.

NOpe never said any such thing.

A terminated agrement is terminated agrement it is not a voided agrement.
It is still an agrement.
I know it is a difficult concept but it is true neverthe less.

Peter

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Mr Harrison's experiences are a picnic compared to the stress I (and I think many others) have been through over the past 2 years.

with respect, and its not often i get angry, but that comment is BULLSh!T

Mr Harrison's experiences were quite accurately described by HHJ Chambers

I saw the call log, Link did not just call 18 times, and also id point out that at a time when his mother was seriously ill in hospital after a heart attack, MBNA never let up on his and when he pointed out the fact he was waiting for a call from the hospital when he was home inbetween his visits to his mother, then MBNA resorted to using withheld numbers which was the same as the hospital, keith pleaded with them to stop as he didnt want to miss an urgent call if his mum had deteriorated. MBNA refused to stop calling


Keiths circumstances are well up there with the worst of them, i would have thought that you would realise that given the fact that a High Court judge was sooo scathing in his judgment, i mean its not often that we get a judge of the High Court hammering a bank

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Yes LA, ours has been a very long three and a half years now with a telephone log of 800 or so calls including over 100 over one weekend and 80 over the next, and not one shred of a legal document in sight.

Plus 15 DCAs and 2 solicitors practices later.

regards
Garlok

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

I don't want to throw a spanner in the works, but there has been no consideration yet of Judge Chambers comments in Mold Courts. It would seem that a number of phone calls is unreasonable i.e. his words "torture", which means harassment, duress, enforcement etc and consequently ordered MBNA to write off the debt in its entirety and the "contract" "agreement" whatever declared unenforeceable! i.e. no enduring contract (big C or little c), no enduring debt!

regards
Garlok

I guess this is a S140 issue and to me is the best bit about the judgement. Mr Harrison's experiences are a picnic compared to the stress I (and I think many others) have been through over the past 2 years.

I agree that discussion of this might be very worthwhile.

Interestingly, S140 would also apply to non-regulated agreements....it might be that this judgement might offer a way for some of us to find equitable settlements to ongoing disputes (regulated or not), rather than go to court.

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Hi
If there is no agreement between the parties when an agrement is terminated then what exactly is it the court enforces.

The liabilities that the contract entitles the creditor prior to termination? As per S87?

NO the agrement is not dead it is terminate the contract is no longer under an Agrement.
THer is still however an agrememnt between the two parties,always will be untill the agrement can be rescinde by the liabilities being seetled.

Yes, very true. What I meant was that the provisions of the agreement no longer matter (such as monthly payments, access to credit, etc) because the creditor has withdrawn them by his termination.

"An account is not an agreement"

Ok what is an account two parties one who has loaned money the other who owes it with an oligation to repay.
An agreement .

Sure, but the agreement was that the loan was regulated and that the creditor would observe those regs. But he didn't. He ended the agreement without observing those regs. Yet the regs say that he is not entitled to take his various actions...

The point to make here is what is the point of regulation if the creditor ignores the regulations? If you have regulations but do not allow the debtor to use them for protection, again, what is the point of them?

The court refers to enforcing the agremnt this is after termination are they wrong?

They are not always right, as you know.

But there can not be any enforcement where the DN is bad. They can enforce where the the regs are observed, but have problems otherwise.

The Pumpkinhead judgement also shows that contracts can be terminated without following the regs, and that this issue is perhaps more to do with entitlements than anything else.

As usual you are trying to deflect from the reall point. That is that this technique does not work.
Not only does it not work but it is dangerous, as illustrated by Pumpkin heads post above.

Well, maybe, although I am not sure what the real point is. There is no conclusive judgement anywhere. In fact, we have various judgements that contradict.

This is a complete nightmare for me and I think many others. The regs seem so clear, yet much of this discussion concerns means of allowing the creditor to avoid his obligations, sometimes in an almost unbelievably convoluted manner.

Now it is clear that you do not understand why this is, but surely you must see the proof within the varios actions that have been made under this and the subsequent damaging failures.

Not really. I see Durkin, Brandon, PT's and Pumpkinhead's judgements, all with totally different outcomes. There is no consistency in any of this, hence the endless debate.

:tinysmile_hmm_t2:

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

There was simply no need for that. Peter's agreement to my post was sufficient for us to move on. So... shall we move on?

No.

This is a crucial point where peter has changed stance to suit his argument.

He repeatedly states a terminated agreement is still an agreement and would thus still be regulated and subject to the provisions of the Act. Then he agrees with you that a contractually terminated agreement suddenly becomes an unregulated agreement subject to common contract law.

The clauses in an agreement which peter maintains allow a creditor to contractually terminate are written into a regulated agreement which is also supposed to comply with the provisions of the Act.

I wonder how contractual termination stacks up against 140A when there are adequate provisions already within the Act to not require unilateral termination i.e. deferment or restriction.

Re: Contracts, Termination, Repudiation and Rescission

What a "Spot On" post at 548 DD!!!!
regards
Garlok

I concur. Wise thoughts DD.

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

What a "Spot On" post at 548 DD!!!!
regards
Garlok

Re: Contracts, Termination, Repudiation and Rescission

Sadly the judge for all his extensive waffle was wrong, because there was an existing HoL judgment which spelt out exactly what unenforceable means:


'Orakpo Respondent v Manson Investments Ltd HL [1978] AC 95'

Flaux was bound by this decision but chose to ignore it.

His decision on enforcement was based on a concession made by counsel, which IMHO was wrongly made.

HTH

Dad

Flaux is a plum, he thinks he is above the bloody law most the time. We really need a strong appeal to rip his last few fiasco judgments apart.

I have no time for him, he is so pro-banks it's unreal, bet he also has a posh house, a posh mistress (rentboy whatever) and a posh accent! I have no time for the guy. He may as well quit and join Barclays as their chief litigation officer!