Contracts, Termination, Repudiation and Rescission

Re: Contracts, Termination, Repudiation and Rescission

From the ICO Technical Guidance for lenders;

31. The date of default recorded on the file should be the date on which a decision to file a default becomes effective according to the criteria discussed in paragraphs 9 to 16. If a notice of intention to file a default is served (see paragraphs 32 to 37), the default date should be the date the notice becomes effective. When a default is filed after a genuine and agreed variation in payment schedule has broken down, it should record the date of that breakdown subject to the conditions described in paragraph 21.

32. Lenders should tell their customers about filing information with a credit reference agency as part of the account opening procedure, in line with the requirements of the ‘fair processing code’4. This explanation will not normally refer explicitly to defaults and will often be distant from the events which cause them. Therefore we strongly recommend that a notice of the intention to file a default should be served. Many lenders now subscribe to trade association codes of practice which require this. This practice helps the transparency of the credit reference process and may even prompt payment, so avoiding the need to file a default at all.

33. Notices to comply with Sections 13.7 of the Banking Code5 and 7.5 of the Lending Code6 should provide adequate warning. A notice of intention to file a default can be sent with a formal default notice served under Section 87 of the Consumer Credit Act 1974. Where lenders are not required to issue these notices, they can send an intention to file a default through a final demand, letter or relevant account statement, which should make clear not only the intention to file but also the date of the intended default. The date should allow the customer enough time to respond properly. Lenders who have to provide a notice of intention to file a default under a relevant code of practice should be aware that not complying with the code may be taken into account in any assessment of the fairness of their processing.

There is therefore a separate default entity that goes beyond regular payment history; the required notice of intention to file this default record is often incorporated into the DN; therefore, if the DN is bad then the notice of intention to file the default must also be bad, otherwise it (recording of the default) cannot be avoided (which is not the intention of the notice warning of the intent to file the default).

Let's also remember that the default record will show the balance owed at the date of default (ie, not before the DN's remedy date), and therefore the debtor has had the entire credit industry told that he defaulted on that amount, which may not only be inaccurate but also unlawful and certainly unfair (if the ICO guidelines and DPA principles 1 and 4 are to be believed).

HTH

As i said in my orriginal post can be sent with.
see above

Many thanks
Petr
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Hi
sorry re above also mentions the notice given by the banking code not the CCA i think i mentioned that also what a clever boy i am

SorryHumble muscle not working again:beagle:

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Think i should point out here that a dn has nothing to do with an entry on your credit report valid or not.
This has been confirmed on here many times.

The default on your credit file depends entirely on the creditor and your record of payments.Even if the dn was renedied it would make no odds.

Peter

From the ICO Technical Guidance for lenders;

31. The date of default recorded on the file should be the date on which a decision to file a default becomes effective according to the criteria discussed in paragraphs 9 to 16. If a notice of intention to file a default is served (see paragraphs 32 to 37), the default date should be the date the notice becomes effective. When a default is filed after a genuine and agreed variation in payment schedule has broken down, it should record the date of that breakdown subject to the conditions described in paragraph 21.

32. Lenders should tell their customers about filing information with a credit reference agency as part of the account opening procedure, in line with the requirements of the ‘fair processing code’4. This explanation will not normally refer explicitly to defaults and will often be distant from the events which cause them. Therefore we strongly recommend that a notice of the intention to file a default should be served. Many lenders now subscribe to trade association codes of practice which require this. This practice helps the transparency of the credit reference process and may even prompt payment, so avoiding the need to file a default at all.

33. Notices to comply with Sections 13.7 of the Banking Code5 and 7.5 of the Lending Code6 should provide adequate warning. A notice of intention to file a default can be sent with a formal default notice served under Section 87 of the Consumer Credit Act 1974. Where lenders are not required to issue these notices, they can send an intention to file a default through a final demand, letter or relevant account statement, which should make clear not only the intention to file but also the date of the intended default. The date should allow the customer enough time to respond properly. Lenders who have to provide a notice of intention to file a default under a relevant code of practice should be aware that not complying with the code may be taken into account in any assessment of the fairness of their processing.

There is therefore a separate default entity that goes beyond regular payment history; the required notice of intention to file this default record is often incorporated into the DN; therefore, if the DN is bad then the notice of intention to file the default must also be bad, otherwise it (recording of the default) cannot be avoided (which is not the intention of the notice warning of the intent to file the default).

Let's also remember that the default record will show the balance owed at the date of default (ie, not before the DN's remedy date), and therefore the debtor has had the entire credit industry told that he defaulted on that amount, which may not only be inaccurate but also unlawful and certainly unfair (if the ICO guidelines and DPA principles 1 and 4 are to be believed).

HTH

Re: Contracts, Termination, Repudiation and Rescission

well section 173(3) for example allows a debtor to allow enforcement where an order of the Court would be required by the creditor.

It is entirely right that the Debtor can exercise his right to cancel the agreement at any time even where there is a breach,

Correct me if i am wrong but i think what is meant is the creditor cannot termiate on a faulty DN because he is not entitled to.

I think that he could however terminate if there was a contractural right to do so.
If this was the case he could terminate at any time whether this would substitute for the default termination or not is a question that really needs answering.
It seems that it did in brandon, i would have said it couldnt.
In either case it is irrelevant from the point of view of accepting the unlawful termination because it would not be unlawful.

Peter
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I still have a problem with the word often, which has not been explained to my satisfaction.

In plain English, often is not always, therefore there must be some criteria agaist which it can be judged whether a particular instance fits into the no its only often and in this case it isnt camp, or the yes its the often camp and in this case it is.

But I do agree the creditor can, maybe.

Vdr

Hi

I think that any one would hesitate at using the word always in any situation.

Peter

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Also I ahve said as pt says

every case will stand or fall on its own merits.

I believe it is our job to find a proper basis for those merits.

regards
Garlok

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

well section 173(3) for example allows a debtor to allow enforcement where an order of the Court would be required by the creditor.

It is entirely right that the Debtor can exercise his right to cancel the agreement at any time even where there is a breach,

Hello Paul.

I'm not a lawyer, but I'm not thick either, but I cant see how your reply answers my question.

Is it the debtor or creditor who cannot terminate when the notice is valid?

Thank you

Vdr

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Well done pt. Have I not been making this call for a proper discussion on finding a way forward? Exploring the avenues that may be of use?

As you know I do not have to do my fighting, as referred directly to me in one of peterbard' recent posts, I did what I could. When we felt we had reached the end of our knowledge and recognise our own limitations, we went to REAL EXPERTS whom you know.

Much of their advice, information and actions on a day to day basis is in direct contravention to much which has been advocated here, a la Carey all over the net. So I do not dabble in wishful thinking, I can report on facts on the ground as they relate to our cases where I am able.

best regards
Garlok
ex cag refugeee

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

So i think the Harrison judgment clears up the creditor can re issue a notice,

I still have a problem with the word often, which has not been explained to my satisfaction.

In plain English, often is not always, therefore there must be some criteria agaist which it can be judged whether a particular instance fits into the no its only often and in this case it isnt camp, or the yes its the often camp and in this case it is.

But I do agree the creditor can, maybe.

Vdr

Re: Contracts, Termination, Repudiation and Rescission

yes Ame, but only as diddydicky says before they have attempted to terminate with a demand for the full amount. which as we all know occurs on a regular basis. I will PM you on the very specifics of our cases if you like. As I said previously, a lay person is really being misled by the OC once this defective paperwork comes into existance. he or she is not usuallly a legal expert and in my view is entitled under the Act's tersm to asssume that the agreement is terminated. Their only fate they are led to believe is the courtroom and as has been advocated on another forum debtors prison.

We are not all QCs.

regards
Garlok

Unfortunately there is nothing in the act that prevents them from demanding full payment any time they want, they would have a problem enforcing that demand and i agree that it is unfair but there are guidlines you can throw at them, i know it doesnt seem like much but thats just the way it is.

Peter

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Paul, fact 2 who is the he who cannot terminate? Debtor or creditor?

well section 173(3) for example allows a debtor to allow enforcement where an order of the Court would be required by the creditor.

It is entirely right that the Debtor can exercise his right to cancel the agreement at any time even where there is a breach,

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

Paul, fact 2 who is the he who cannot terminate? Debtor or creditor?

can we not stick to the issues in hand

FACT a lender must issue a valid default notice if the Debtor is in breach of a regulated agreement before he can terminate the agreement.

FACT if the notice is valid he cannot terminate the agreement

FACT a lender can reissue a Default notice

I would suggest the same rules would apply to defaults as would apply to s78 in that a court cannot grant judgment where there is non compliance but the court may exercise its CMC powers under CPR 3 and stay proceedings and give directions

Maybe the court ought to dismiss the claim or maybe the court could grant judgment for the arrears only

There are a lot of variables that come into play, it wholly depends on each case, the facts etc. What happens in case A may not happen is case B

So i think the Harrison judgment clears up the creditor can re issue a notice,

What we now need to consider is what arguments are available to the Defendant to argue against a stay, against the creditor being allowed to reissue the notice in these proceedings etc.

Re: Contracts, Termination, Repudiation and Rescission

And is it not still true that a creditor has to issue a valid DN to avail itself of the right to enforce through the court.

Or has that gone away.

In the good old days when all relevant paperwork was to be filed with a claim, this would never have happened as court staf would have picked it up.

As usual the financial industry got an inch and took the whole 10 miles (or is it yards?)

It should be noted that in the good old days they would have just enforced the agrement without any time to remedy

Peter

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

can we not stick to the issues in hand

FACT a lender must issue a valid default notice if the Debtor is in breach of a regulated agreement before he can terminate the agreement.

FACT if the notice is valid he cannot terminate the agreement

FACT a lender can reissue a Default notice

I would suggest the same rules would apply to defaults as would apply to s78 in that a court cannot grant judgment where there is non compliance but the court may exercise its CMC powers under CPR 3 and stay proceedings and give directions

Maybe the court ought to dismiss the claim or maybe the court could grant judgment for the arrears only

There are a lot of variables that come into play, it wholly depends on each case, the facts etc. What happens in case A may not happen is case B

So i think the Harrison judgment clears up the creditor can re issue a notice,

What we now need to consider is what arguments are available to the Defendant to argue against a stay, against the creditor being allowed to reissue the notice in these proceedings etc.

Re: Contracts, Termination, Repudiation and Rescission

[quote=diddydicky;201106]

Fact i am affraid

Read the previos posts on the subject.
I thought yhou had got your head arounfd this.
Anyway a notice of default issued by the credtortr is not the same as a default notice they can be sent on the same notice but do not have to be.
Notices of defaujlt usually give 28 days to remedy as per banking code guidlines.

The, "as never happend" section of section 89 refers to the statute it is of course within the statute.

It does not compell the creditor to reoppen your account re write your satements or refund any default charges on your account, i would wish it were otherwise.

Not good sarting your answer with rubbish is it as you once pointed out to me.

I think you should read Goks post on being humble

Peter
Peter[/QUOTE


well , as two other posters have testified- they consider it is yourself that changes threads from discussion to personal insults- and then you have a happy knack of convining the mods that it is every one else that is out of step rather than yourself-

you succesfully got me thrown off the other site - having yet again started the ball rolling - so i presume that you obviously have some sort of "influence" over there

lets hope your influence is not as great here

i will CONTINUE to argue my corner and unlike yourself have NEVER personally insulted anyone who did not insult me first.

Ps the contents of your post were (IMO) rubbish....which is why i described them as such

it seems you have a penchant for turning other peoples opinions on the content of your postings -- into personal attacks when they are no such thing-

It is quite clear from your posts that you "do not like it" when other people will not cow tow to your opinion and you opnel;y regard them as fools or idiots if they do not see your point of view - as you have said many many times- no one on the forum is legally qualified including yourself- so please just make your points and allow others to make theirs without them having to change their opinion on your say so

rant over

I notice you say my comments were rubish but you dont elaberate.
You are, i can see perfectly comfortable with people dissagreing with you, hence your attitude here.

Look make you a deal fresh start no personnel stuff just the facts OK

Peter

Re: Contracts, Termination, Repudiation and Rescission

how many cases can you quote where a court has allowed a claimant with an invalid DN to stay the case whilst he re issues a valid dn ?

courts get things wrong- especially county courts....that's why there is an appeal system
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and that is where i would (still) argue the point in court that issuance of proceedings IS enforcement- in fact the termination letter is "enforcement" - it says so in the DN which is written as prescribed by parliament and refers to the TN being "further enforcement- which by definition makes the DN itself "enforcement"

why does everyone gets their knickers in a twist over one looney judge trying to say that a TN and issuance does not constitute enforcement - his decision needs to be challenged properly

Not just this judgement i am affraid lots and lots of examples do you have one to the contry. As for the deffintiion of enforcement i think it has been done hasnt it, in the case quoted already quoted.NObody is getting their knicckers in a twist here except maybe you, some of us new all this already years ago.

Issuing a DN is not enforcement i could get several authorities on this for you appart from the one posted earlier but i know it would do no good.
Peter
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[quote=volvodriver;201115]Ame

I refer you to the discussioons we had by PM yesterday.

If you read what DD said, what Garlock said, and what I said and trace the source of the problem, and address it, trust me, all of the unpleasantness will go.

Ypu are tarring lots of folk with the same brush again, and its not on.

Vdr[/quote
You chose to make this personnel i do not . I am sure of my ground on the facts if you have facts to prove your case lets see them.

Peter
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It also has to be remembered that it is the OC that is the "sophisicated, upright pillar of society financial institution" who has access and the pockets for the best legal brains in the country----- NOT US.

Hence we have a fundamental human right and I won't hit you with the Lisbon Treaty here (yet!) to assume that the creditor has got it right. If he has not got it right then he deserves frankly anything that that gets thrown at him.

I am with diddydicky all the way on this. And we should be finding a way to counter all of this argument which is stacking against us. Remember the legal principle of every case must stand or fall on its own merits. The DN argument is only part of what should be a comprehensive defence.

I also was kicked off CAG by the way for the same reasons.

regards
Garlok

If you are going to fight you have to do it with correct information not unproven theories and wishful thinking

peter

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

Oh yes, and I have to say personal insults are coming from all sides and I know you have all had your differences on CAG and might have issues with some of the mods over there, but PLEASE try leaving it over there...start fresh here. We're actually quite nice people lol.

Ame

I refer you to the discussioons we had by PM yesterday.

If you read what DD said, what Garlock said, and what I said and trace the source of the problem, and address it, trust me, all of the unpleasantness will go.

Ypu are tarring lots of folk with the same brush again, and its not on.

Vdr