Contracts, Termination, Repudiation and Rescission

[mystery1]

Re: Contracts, Termination, Repudiation and Rescission

Again if the court found the DN to be invalid the creditor could just re issue it is not ojnly PTs case but everyones experiancev as evidenced on this thread?

Peter
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The court does decide that the case cannot continue that is why it makes the creditor re issue its case?

peter

Amethyst posted evidence that in court a judge has in the past suspended court proceedings to allow a fresh default notice to be sent and then recommence proceedings when that wasn't rectified. As i read it she didn't say this was correct or incorrect.

Courts do get things wrong and that is why there are appeals. Late last year the supreme court ruled that courts had been deciding wrongly in repossession cases for decades. http://www.supremecourt.gov.uk/docs/...7_Judgment.pdf

M1

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

where i am perplexed is that everyone is now in agreement that if the agreement is not terminated then the creditor cannot enforce

so where, in the CPR and under what overriding objective- is it stated that a claimant can commence a claim which has no legal basis- and then have it "stayed" whilst he goes off to find one (a legal basis for the claim.that is) !!

The legal basis is that the debtor has not been paying their debt.

Because it is a consumer credit act regulated debt the creditor and the court must pay heed to the CCA. It is part of the argument and the court goes ahhh, you think they owe you money but its actually under the CCA and you havent done things right so you can't enforce at the moment, go and do it right so the debtor isnt prejudiced, and if the debtor still can't pay we'll have another look at it then.

Taking court action is not enforcement. It is simply a step to enforcement. The claim can be heard but judgment cannot be given until the correct steps have been taken.

Re: Contracts, Termination, Repudiation and Rescission

one "issue" would be that the creditor has placed adverse information on the debtors CRA files and whilst it remains- the debtor can hardly remedy a second DN and then act as if "the breach had never occurred" (s89) since his credit reputation has already been tarnished by the creditor wrongly seeking to attempt to terminate/wronlg demand repayment in full

was this ever brought to the judges attention?

usually that information would have been on the debtors file for many many months and so MUST have been prejudicial to the debtor




the overriding principles are pretty clear in that a claimant must have a cause of action (and must have the evidence to support that cause of action BEFORE he starts the action- as far as i am aware)

secondly, how long would it be before creditors were allowed to start "blank actions" against debtors and then "fill in the blanks later"

was an application made at the very outset by the debtor to have the claimants claim struck out as not having a cause of action - due to the invalid DN?

Again if the court found the DN to be invalid the creditor could just re issue it is not ojnly PTs case but everyones experiancev as evidenced on this thread?

Peter
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where i am perplexed is that everyone is now in agreement that if the agreement is not terminated then the creditor cannot enforce

so where, in the CPR and under what overriding objective- is it stated that a claimant can commence a claim which has no legal basis- and then have it "stayed" whilst he goes off to find one (a legal basis for the claim.that is) !!

The court does decide that the case cannot continue that is why it makes the creditor re issue its case?

peter

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

Hmmmm, thinking on Volvo's point. If the court ordered a valid DN be issued and it wasn't then the claim should be struck out for not complying with judges orders (unless v good explanation)...however if the court simply stayed the case to allow the parties to get their 'ducks in a row' (who bought that saying over here anyway !) and left them at liberty to apply to pick things up and amend POCs then I don't think it could be construed as an abuse of process if they didn't issue a valid DN. However a second invalid DN is unlikely to attract similar leniancy from the judge and it is likely to be struck for having no prospect of success, but statute wise I think they could continue reissuing until they got it right but they couldnt ever terminate and the debtor would have to not be prejudiced by their crapness (unlikely I think) for them to continue indefinately and still succeed in court.

The Harrison judgment does show it is an idea, even if just to be on the right side of the judge in court, to make what payments you can even if just token. I do though understand some people for whatever reason prefer to stop and force court action for enforcement to enable a payment plan to be set and terms for interest etc to be set in stone.

(VD I think it wasn't clear that you agreed that a DN be reissued and just wondered on the issue of second and third and fourth faulty DNs being reissued till they got it right (assuming I have read you correctly that is lol) )I think the truth of the matter is we don't know - it hasn't been tested in court as far as I know but we do know that cpr and case law shows non compliance with Judges orders for entering documentation can be cause for a strike)

where i am perplexed is that everyone is now in agreement that if the agreement is not terminated then the creditor cannot enforce

so where, in the CPR and under what overriding objective- is it stated that a claimant can commence a claim which has no legal basis- and then have it "stayed" whilst he goes off to find one (a legal basis for the claim.that is) !!

Re: Contracts, Termination, Repudiation and Rescission

quite right- they can bad notices can ONLY be remedied BEFORE the creditor terminates.

once he terminates and commences proceedings ( and i would argue that even if he did not formally terminate- the commencement of proceedings amounts to termination) - he is then serving proceedings without a "cause of action" since he is not yet "entitled" to claim sums not yet due.

I agree with amethyst in that the debtor should not be prejudiced by the creditors wrongful actions and that the defendant should submit a defence and make an application for the claim to be struck out on that basis. If i were the defendant i would also seek to ask the court to order the removal of adverse information from the CRA's files as to the invalid DN BEFORE the claimant can re serve a new DN by reference to s89

If the claimant does not do so then any subsequent DM would also be invalid since the debtor could not achieve the status that s89 offers him by remedying the new DN

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

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

I do not think that it needs to be any clearer really,

Enforcement cannot occur on the back of a bad notice.

The bad notice can be remedied.

The court has the power to stay proceedings as we all know anyway.

So i dont see where the issue is

one "issue" would be that the creditor has placed adverse information on the debtors CRA files and whilst it remains- the debtor can hardly remedy a second DN and then act as if "the breach had never occurred" (s89) since his credit reputation has already been tarnished by the creditor wrongly seeking to attempt to terminate/wronlg demand repayment in full

was this ever brought to the judges attention?

usually that information would have been on the debtors file for many many months and so MUST have been prejudicial to the debtor




the overriding principles are pretty clear in that a claimant must have a cause of action (and must have the evidence to support that cause of action BEFORE he starts the action- as far as i am aware)

secondly, how long would it be before creditors were allowed to start "blank actions" against debtors and then "fill in the blanks later"

was an application made at the very outset by the debtor to have the claimants claim struck out as not having a cause of action - due to the invalid DN?

Re: Contracts, Termination, Repudiation and Rescission

quite right- they can bad notices can ONLY be remedied BEFORE the creditor terminates.

once he terminates and commences proceedings ( and i would argue that even if he did not formally terminate- the commencement of proceedings amounts to termination) - he is then serving proceedings without a "cause of action" since he is not yet "entitled" to claim sums not yet due.

the defendant should submit a defence and make an application for the claim to be struck out on that basis.

whether a court is then prepared to allow a claimant to hold a claim in abeyance whilst he gets his facts right and a cause of action established-seems to be to be very doubtful since it would go against the overriding principles and would open a floodgate for creditors to start actions willy nilly and worry about supplying evidence for them later

I am well aware that some judges patently are against the LIP but i believe that any county court judge going down this road would be would be overruled on appeal (IMO)

But the courts do allow re issuance?



Peter

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

Well I think we have agreed that a DN can be reissued, if in court then the court would (and have) let them reissue the DN and go to default/termination etc again before picking the case back up, but if they still got it wrong we don't think a court would be so lenient and would strike them out and they'd have to fight their butts off to be allowed another go.

Have we ?

(maybe not then lol)

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

Bit of selectiuve quoting here me thinks.

It actually says:

"

• . However, bad notices can often be remedied by the service of good notices and I see no reason why that should not be so in respect of credit agreements."

In the English I learned and studied the word often does not mean always. We should be asking when does "often" apply in respect of default notices, and what are the criteria for deciding whether in any particicular set of circumstances it can be remedied.

I consider the issue of bad notices still very much alive and kicking.

Vdr

quite right- they can bad notices can ONLY be remedied BEFORE the creditor terminates.

once he terminates and commences proceedings ( and i would argue that even if he did not formally terminate- the commencement of proceedings amounts to termination) - he is then serving proceedings without a "cause of action" since he is not yet "entitled" to claim sums not yet due.

I agree with amethyst in that the debtor should not be prejudiced by the creditors wrongful actions and that the defendant should submit a defence and make an application for the claim to be struck out on that basis. If i were the defendant i would also seek to ask the court to order the removal of adverse information from the CRA's files as to the invalid DN BEFORE the claimant can re serve a new DN by reference to s89

If the claimant does not do so then any subsequent DM would also be invalid since the debtor could not achieve the status that s89 offers him by remedying the new DN

Re: Contracts, Termination, Repudiation and Rescission

postage time has always been relevant- and the date of service is what counts

the issue in this case was not that the creditor was suggesting that there should be no time allowance for postage.......he was simply trying to peddle the argument that he had sent it first class (2 days) and not second(4 days) and got found out lying

the beauty of the judgement (IMO) is that all LIPS should be quoting extracts of this judgement in their defences to counter the "holier than thou" arguments that creditors put forward as to how they cannot possible get things wrong

Yes i agree i think perhaps we should now start addressing DCAs/Creditors directly on their practices post defaultt.

Not saying we should ignore the more technicle aspects completely,but it does seem that judges are begining to listen to debtors genuine complaints about unfair treatment.

Peter
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no, we cant move on!!

it is all well and good a creditor seeking to abandon/discontinue or hold over proceedings to correct a bad DN

i'll bet you a £1 to a bucket of pig***** that a court would take a different view if the creditor ballsed up a second DN and came back for a third helping!!

Possibly

But since the debor would have to specify the reason the first default failed is it likely.

I ave never heard of it.

Perhaps someone on here has

Peter

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

If the termination existed then the notice would not be capable of remedy by issuance of a new DN on a terminated account. The termination would have had to have existed for the debtor to accept it.

The termination could not exist because the DN was defective so no unlawful termination no acceptance of same.

Any way i have read hese words so many times i can quote them from memory.

" the idea that a creditor can just keep re issuing an default, that he can just have another go at getting it right is frankly ludicrous".

I can look up the postings if you like there are enough of them.
Well turns out it isnt lujdicrous at all it never was.

Now cant we just move on.

Peter

no, we cant move on!!

it is all well and good a creditor seeking to abandon/discontinue or hold over proceedings to correct a bad DN

i'll bet you a £1 to a bucket of pig***** that a court would take a different view if the creditor ballsed up a second DN and came back for a third helping!!

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

The Judgment comes temptingly close to confirming that doesn't it.
It certainly implies that postage time is relevant - that may be enough in itself.

Thank you PT for posting the Judgment an interesting read and a good win rewarding the obvious amount of work put into the case.

postage time has always been relevant- and the date of service is what counts

the issue in this case was not that the creditor was suggesting that there should be no time allowance for postage.......he was simply trying to peddle the argument that he had sent it first class (2 days) and not second(4 days) and got found out lying

the beauty of the judgement (IMO) is that all LIPS should be quoting extracts of this judgement in their defences to counter the "holier than thou" arguments that creditors put forward as to how they cannot possible get things wrong

Re: Contracts, Termination, Repudiation and Rescission

Any chance the contributors can put their ego's away and actually try to discuss points and help others?
There are some questions we may never agree on but there is no need to drag the thread into the argumentative gutter, as has been done OTR.

Absolutely

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

Any chance the contributors can put their ego's away and actually try to discuss points and help others?
There are some questions we may never agree on but there is no need to drag the thread into the argumentative gutter, as has been done OTR.

With respect, that's what some of us have been trying to do.

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Any chance the contributors can put their ego's away and actually try to discuss points and help others?
There are some questions we may never agree on but there is no need to drag the thread into the argumentative gutter, as has been done OTR.