Contracts, Termination, Repudiation and Rescission

[jumper999]

Re: Contracts, Termination, Repudiation and Rescission

That judgement really does bring a great big smile to my face
Thank you ,PT!

ALWAYS KEEP COPIES OF ALL PAPERWORK; ENVELOPES INCLUDED [Emphasis Added]

Well advised but IF only we knew, if only.........................

[Angry Cat]

Re: Contracts, Termination, Repudiation and Rescission

That judgement really does bring a great big smile to my face
Thank you ,PT!

ALWAYS KEEP COPIES OF ALL PAPERWORK; ENVELOPES INCLUDED [Emphasis Added]

[jumper999]

Re: Contracts, Termination, Repudiation and Rescission

Nice comments towards the end.

First question, is it now case law that service by post DNs must include the postage time in the remedy date ? or am I reading far too much into that ?

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That is I think one of thee most important questions that a lot will want to know. The judgment posted is 15 pages long and by the time I finish reading and absorbing it I think I'll need to go to spec savers :tung:

So the DN must allow time for delivery and for those who have not got the envelopes the DN's came in?

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

did i miss something?



he seems to have decided to "punish" the defendant in costs for waiting until half way through to proceedings to comply with s78

he has given us good information to dis credit MBNA insistence that they "always get their ducks in a row"

but precious little on the DN argument? ( or did i blink and miss it?)

it would be very interesting(useful) if the claimant could tell us what methods he used to show MBNA as untruthful in their postage methods

The notice of enforcement was a statutory pre-condition of enforcement. It was a bad notice and enforcement cannot be attempted in dependence upon it. 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.

I think that is the important part.

[Angry Cat]

Re: Contracts, Termination, Repudiation and Rescission

You can say that again AME

Thank goodness for that!

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Thanks for posting Pt, can you give an idiots guide to the salient points please, I for one would not wish to misinterperate

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

did i miss something?



he seems to have decided to "punish" the defendant in costs for waiting until half way through to proceedings to comply with s78

he has given us good information to dis credit MBNA insistence that they "always get their ducks in a row"

but precious little on the DN argument? ( or did i blink and miss it?)

it would be very interesting(useful) if the claimant could tell us what methods he used to show MBNA as untruthful in their postage methods

[gh2008]

Re: Contracts, Termination, Repudiation and Rescission

Nice comments towards the end.

First question, is it now case law that service by post DNs must include the postage time in the remedy date ? or am I reading far too much into that ?

[/FONT]

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.

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Nice comments towards the end.

First question, is it now case law that service by post DNs must include the postage time in the remedy date ? or am I reading far too much into that ?

[/font]

lol yeah a few nice comments i thought,

But the importance of keeping the envelopes etc cannot be more clear following this case.

We were able to use the orange Royal Mail Barcode to show when that letter entered the royal mail system, the address sent to, etc. Without the envelope it may have been harder to win on

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

Nice comments towards the end.

First question, is it now case law that service by post DNs must include the postage time in the remedy date ? or am I reading far too much into that ?

Thus subsequent investigation contradicted a hitherto firmly held position of the Defendant that the notice had gone by a suitable post and was served in time. It was not. It was issued and sent by second class post on 3 October 2008 arriving (as was to be expected) on 9 October 2008 and was stated to expire on 21 October 2008. Given the date of delivery, the expiry date should have been 23 October 2008. The notice was bad.

[jumper999]

Re: Contracts, Termination, Repudiation and Rescission

Thank goodness for that :kiss:

You can say that again AME

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

Thank goodness for that :kiss:

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Here it is

The judgment which was handed down in open Court today before HHJ Chambers QC

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

the argument is sound ...up to a point and is common sense but........

the point at which the creditor realised his "mistake" is likely to be a year down the road from the original DN= by which time the debtor CLEARLY has been severely prejudiced by the creditors bad references placed on the debtors CRA files- and as a result all manner of consequences could flow (his other existing creditors- on seeing the information may well impose restrictions on his accounts/borrowing)

he may have been refused further finance facilities because of it (one could argue that it would be a sound strategy for a consumer in such a situation to immediately make an application for credit to another creditor when the adverse appears on his credit files- in order to show prejudice by the creditors actions)

it is very likely (because some of us DO advocate pointing out the errors of the creditors actions by warning the creditor of his mistake but the creditor(as is usual) denies any suggestion that the DN or subsequent TN is invalid

(this in itself is sufficient IMO as per BOS v Robert mitchell to have an seriously adverse effect on costs for the creditor) AND may get a rebuke from the judge if the creditor continues the court action

the debtor- wrongly denied of the benefits of the agreement- now has to find alternative finance (and if indeed available- probably at much higher interest rates due to the adverse information).

he may also have to spend money on consulting solicitors or lawyers as to his position ( and which the creditor advised him to do in a leaflet contained with the faulty DN)

there are a myriad of circumstances in which the consumer is bound to be prejudiced by the creditors actions in such cases not least of which is the damage to his reputation caused by the creditors comments on his CRA files, which once done- cannot simply be rectified by removing the comments a year after the event

Crossed posts again, but yes I agree with you...all directly related issues should be taken into account....if the debtor continued under the illusion the DN was valid and couldnt rectify under the terms they wrote in the invalid DN and thus ended up in ****e because of it, and had the DN been valid they would have remedied (and were able to) then compensation/damages etc would be arguable.

(again it's just my view on what would be fair)

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

Pretty much yes.

I do think that the faulty DN, if it caused the debtor to act differently than a valid DN would have. should be the point where everything should be flipped back to though and any interest/charges etc removed and the agreement continued as if nothing happened. That would be a sanction on the creditor as they would lose that period of interest etc as well as the right to enforce the agreement without a further non remedy.

Much like the lines of PPI refunds really, the refund puts the debtor back in the position they would have been in had the PPI not been sold to them...so the refund, interest for the bank having held their money erroneously and if it had a detrimental affect on other areas directly related compensation/damages etc for that.

I'm sure theres something in the CCA about not being entitled to charge interest etc due under the agreement during the period of default of supplying the copy agreement - and I think I am vaguely applying that over. I can have a look later to see which parts I am thinking of unless you know them off the top of your head.

I think that would be a better argument (fairness wise) to take forwards than complete write off of any remaining debt.

But as I have said previously thats just my view.