Contracts, Termination, Repudiation and Rescission

Re: Contracts, Termination, Repudiation and Rescission

Hi

Yes it was an exceptional judgement, not just because it settles the reissue of default issue( well we all new that really didn’t we).
But mainly because of the way the judge went after MBNA for their despicable treatment of the debtor.
I think this really does open a whole new can of worms as a previous poster said. Perhaps we can now start looking directly at the amount of harm creditors/ DCAs cause by their practices, and maybe start using these, instead of trying to find technical defects in agreements.
I have seen one or two postings already commenting on MBNA are suddenly being more accommodating with offers of reduced payments coincidence? Maybe.

Well done to all involved
Peter

[ncf355]

Re: Contracts, Termination, Repudiation and Rescission

Just seen this at 2230 with several rum n cokes down, and it isnt the drink that's giving a warm feeling

Very nice ruling, especially with the debtor being the claimant

Good work PT

[buster1967]

Re: Contracts, Termination, Repudiation and Rescission

Hi pt thanks for posting this.
Yet more questions! If you have had a recent CCJ when there were insufficient days for the remedy of the DN, would this judgement be grounds to apply for a set aside? DN issued on 10 April with remedy before 17th. Commented on and ignored by DJ (During 7 day for remedy period)
Sorry if this is a stupid question, but I am ever the optimist!
Thank you


Read more at: Harrison v Link (MBNA) Feb 2011 - Legal Beagles Consumer Forum

Very interesting though, it opens a whole can of worms,
Surely If its not valid its not valid and enforcement based upon it unlawfull , surely the creditors cant have it every which way .

Im hoping Brandon will clarify it once and for all, what can and cant be done on the back of a dodgy DN, and when re issue can be done etc



Bx

[fluffystuff]

Re: Contracts, Termination, Repudiation and Rescission

Harrisons Judge was a specialist Mercantile court judge who has background in CCA cases

:amen:

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Link, were not "the creditor" at the time that the ineffective DN was served!

Very true AC, but as the debt was assigned to Link would they then have to assign it back to MBNA in order for the latter to serve the new DN?

(Yet another hurdle for all parties to overcome in order to get this second DN to the debtor).

[cymruambyth]

Re: Contracts, Termination, Repudiation and Rescission

Hi pt thanks for posting this.
Yet more questions! If you have had a recent CCJ when there were insufficient days for the remedy of the DN, would this judgement be grounds to apply for a set aside? DN issued on 10 April with remedy before 17th. Commented on and ignored by DJ (During 7 day for remedy period)
Sorry if this is a stupid question, but I am ever the optimist!
Thank you


Read more at: Harrison v Link (MBNA) Feb 2011 - Legal Beagles Consumer Forum

[Ihaterbs]

Re: Contracts, Termination, Repudiation and Rescission

was the dn bad on two issues?

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

I'm glad the Judge didn't get 'securitisation' either

He attributes the interest element to the requirements of “securitisation”. Quite what that means I do not know.

[buster1967]

Re: Contracts, Termination, Repudiation and Rescission

I assume you mean this in context of the Harrison ruling?

If so, my client was the Claimant, we sued Link not the other way around.

The trouble arises out of the fact that we had to amend the pleadings, as we were seeking an injunction to declare non compliance with s78 and then contrary to the written correspondence the Defendat counterclaimed out of the blue so we had a CMC and agreed to bring all the issues into play and thus amended the pleadings accordingly

Sorry guys I mean in the Brandon DN case,
They issued a DN that didnt allow enough days after service, but the judge ruled that as they never took enforcement action till way after 14 days the it was ok,?
Thats the bit im confused about,

If the creditor was not lawfully entitled to start the action in the first place without a a valid dn, how can Brandon loose at appeal? surely they will have to re issue a new DN and start again,? shouldnt really mattter what happened after the dn was issued, the fact it was an invalid DN should win hands down shouldnt it?

B x

[Angry Cat]

Re: Contracts, Termination, Repudiation and Rescission

Okay, I have read the judgement once and will read again.

I found the claimants retention of documents most interesting;
it is something that I have always done.

And yes, I keep everything letters, docs. flyers and envelopes.

Nice to know that there are others like me; homes full of lever arch files and archive boxes.

[Angry Cat]

Re: Contracts, Termination, Repudiation and Rescission

Link, were not "the creditor" at the time that the ineffective DN was served!

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

PT

This is truly helpful - many thanks.

Am I right to think there was no issue of enduring contracts because MBNA had failed to send out T&Cs at the outset, so there was no enforceable agreement?

I guess this might be about right as the judge makes the comment that enforcement cannot happen where a DN is bad but that the DN can be rectified. Had there been an actual agreement that was enforceable, then would the court have told Link to just produce a new one?

Sorry PT, am worried that my untrained eye is missing the key points...

[Angry Cat]

Re: Contracts, Termination, Repudiation and Rescission

"Cumulatively and damningly is what I find to be the way that MBNA and the Defendant (Link Financial) went about recovering their debt"

"An inability to comply with section 78 can be no excuse for conduct of which it must be supposed the sole purpose must have been to make the Claimants life so difficult that he would come to heel. I cannot think that in a society that is otherwise so sensitive of a consumer's position this conduct should be countenanced."

Nice to know that HHJ Chambers QC, had the measure of both Link Financial and the Delaware Cowboys!

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

If they issued a bad dn, how did the claimant win, as he shouldnt have been able to start enforcement action on the back on a bad DN,

I assume you mean this in context of the Harrison ruling?

If so, my client was the Claimant, we sued Link not the other way around.

The trouble arises out of the fact that we had to amend the pleadings, as we were seeking an injunction to declare non compliance with s78 and then contrary to the written correspondence the Defendat counterclaimed out of the blue so we had a CMC and agreed to bring all the issues into play and thus amended the pleadings accordingly

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Buster

The claimant was the debtor, not the creditor.