Contracts, Termination, Repudiation and Rescission

[Angry Cat]

Re: Contracts, Termination, Repudiation and Rescission

The faulty DN prevents the court ruling on the case until it is rectified ?

The Creditor/Claimant, would have to cease proceedings:beagle:

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Ithink i do, it is because of your perspective.

The creditor is trying to enfoece, if the debtor is in breach he is entitled to do so.
Agreed but he must do so correctly - otherwise he can enforce by sending the boys around with the baseball bats.

As protection the act says he must comply with section 87 if he does not he cannot take the next step.Agreed. The next step being enforcement. There is a path to enforcement, compliant DN, TN etc. The fact remains I have a piece of paper that states we no longer have an agreement

Termunation is just part of that enforcement would you say that he was breaking the law by commencing enforcement procedigs in court? He has acted incorrectly and not in accordance with the law if the Dn is faulty

That would be for the judge to decide. I believed the judge based his opinion on the law, enacted by parliment

Peter

I don't know the answers Peter, in a lot of ways I am playing advocate as I am in this unfortunate position, and yes I have accepted their repudiatin based on arguments I read on forums. It may be that I am grasping at straws to try to shore up my position, as yet I do not know.
But Pt's judgement should be with us soon, maybe that will clear the waters

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

Wasn't taking court action ruled to be only a step to enforcement not actual enforcement. The faulty DN prevents the court ruling on the case until it is rectified ?

Re: Contracts, Termination, Repudiation and Rescission

I did read your earlier post.
I understood from it that in a loan agreement, i.e. for a vehicle if the car was repossesed on the basis of a faulty Dn then Tn there is an argument for theft
However we were all discussing a credit card agreement where it is money that changes hands not goods.
The fact remains that the Terminaton has occurred (like the punch on the nose in my analogy), you state the law allows this because the DN which the termination was based on was faulty.
I really have difficulty with this, it may be right & true, but I find it difficult.

You argue the action may have no legal standing because it follows another incorrect act, or two wrongs make another opportunity to make it right..

Surely you can see my dilema, you like me may not be able to explain it, there is no shame in that

Ithink i do, it is because of your perspective.

The creditor is trying to enfoece, if the debtor is in breach he is entitled to do so.

As protection the act says he must comply with section 87 if he does not he cannot take the next step. The next step being enforcement.

Termunation is just part of that enforcement would you say that he was breaking the law by commencing enforcement procedigs in court?

That would be for the judge to decide.

Peter
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yes you are correct and i stand corrected..although i consider this a victory....and again it was due to X20 putting his case properly to the creditor and clearly they had no stomach for the fight in court!!
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no personal abuse was made or intended- but you seem to want the moderators to come to your aid when you are found out mis quoting what others have said in order to make your arguments ..i was simply pointing out that you tend to use mis information and mis quoted statements to justify your arguments and it surely is right that those are corrected

Not proven was it

Address the issues not me if you are able

peter

Re: Contracts, Termination, Repudiation and Rescission

PB says it is the debtor that has first repudiated if one or two payments are missed .....and isn't the creditor entitled to his money if you have missed a couple of payments

i say NO

credit cards- in particular are charged at astronomical rates and the business model allows for and incorporates occassional "defaults" on the part of the debtor and these are clearly "de minimus" events- if they were not de minimus then sects 87-89 would not exists for correcting them .[/quote]

Again no one is aying that default notices and the protection they provide under the act is inefective, just that the repudiation arguent does not hold water.

Creditors dont usually issue defaults on just a couple of missed payments do they? I think the judge may question this irrespctive of the default.

As for the bit about creditors making profit,well yes they do, i do not think a deffence based on the creditor can afford it has a lot of chance.

Peter

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

I did read your earlier post.
I understood from it that in a loan agreement, i.e. for a vehicle if the car was repossesed on the basis of a faulty Dn then Tn there is an argument for theft
However we were all discussing a credit card agreement where it is money that changes hands not goods.
The fact remains that the Terminaton has occurred (like the punch on the nose in my analogy), you state the law allows this because the DN which the termination was based on was faulty.
I really have difficulty with this, it may be right & true, but I find it difficult.

You argue the action may have no legal standing because it follows another incorrect act, or two wrongs make another opportunity to make it right..

Surely you can see my dilema, you like me may not be able to explain it, there is no shame in that

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

I do believe Phil actually said that they dropped it on the steps of the Court rather than it being judicially decided though

yes you are correct and i stand corrected..although i consider this a victory....and again it was due to X20 putting his case properly to the creditor and clearly they had no stomach for the fight in court!!
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This is desending into personal abuse these points have been covered many times before they have no merit

peter
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You recall incorrectly

no personal abuse was made or intended- but you seem to want the moderators to come to your aid when you are found out mis quoting what others have said in order to make your arguments ..i was simply pointing out that you tend to use mis information and mis quoted statements to justify your arguments and it surely is right that those are corrected

Re: Contracts, Termination, Repudiation and Rescission

Peter
There must be more to it than this
A mere time delay is no penalty or sanction to the creditor as the interest (& default ?) charges continue to accrue. Let us not forget the creditor lends money to the debtor and makes money by charging interest as it is repaid.
When drawing up the agreement the creditor understands that sometimes debtors maybe a little late paying so a charging system is included in the agreement. The CCA recognises this and allows it (within limits), it also recognises that some debtors will default and provides a mechanism to accomodate this.
It seems the CCA does not accomodate a notice puporting to be something which it is not, but also according to your argument it does support this faulty notice as it does not mention it nor the possibility that a faulty notice could be sent (perhaps in error, perhaps on purpose)
This would be the unlawful termination which I tried to raise earlier
I agree, at the time of the faulty Dn I was in default
I then receive the Tn because I did nothing to rectify
You say in law that the Tn does not count as the Dn was faulty but it has still happened!
I am trying to find out what effect this action has.

As i attempted to demonstate earlier with my little story things can actually happen but not be acknowledged in law becaus the action had no legal entitlement. Reaad my previos post about goods under an agreement.The effect of this can be benificial to the debtor.

peter

[leclerc]

Re: Contracts, Termination, Repudiation and Rescission

I do believe Phil actually said that they dropped it on the steps of the Court rather than it being judicially decided though

A Tale of a Dodgy DN

The above post I think is what you're both referring to.

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

No Ame,
Unfortunately the very real threads on this subject over there also degenerated into slanging matches sadly between supposed very knowledgeable people. One was generally the source.

However, a member also on here diddydicky, who did an awful lot of work on this subject did have some success I believe with defective DN's as part of one of his own cases. Are you around DD?

What is factual professional legal advice on this subject on a more practical level is:-

Check the DN , does it say s87(1)? Is it correct in detail? If account in dispute as ours were/are, Do nothing. File carefully with envelope, log exact date of arrival.
Wait for the demand for full amount outstanding. File carefully with envelope. Do nothing, do NOT respond with an acceptance letter at all, log exact date of arrival.

Ignore any charges/interest added to any of the accounts in dispute, by anyone (DCAs etc) they will be recovered during any action brought against us by the creditor.

I have my own suppositions as to why this is but you have asked for facts rather than assumptions and suppositions. I have to trust what our soliciotrs do and say and those were the instructions. Nothing more nothing less. Undoubtedly I will find out should our OC go to court which they have been invited to do (18months ago now)

best regards
Garlok.

yes i did get a discontinuance on one - although i must add that this particular DN demanded the entire balance of the account (including sums not yet due) to remedy the DN which as i understand is an entirely different kettle of fish to cases that are alleged to have already been decided

I also believe that no court has made a definitive decision in a case where a creditor has terminated before the time for remedy has expired. ( in brandon the creditor did not terminate until 3 weeks later- even though the DN did not give 14 days)

I have two creditors who not only did not give 14 days but then terminated before their own incorrect deadline!!

i have one creditor who sent a DN which was a day short- but included a diatribe about the funds having to be cleared into their account by the 13th day- and that this meant that paying into a branch had to be done at least 4 working days prior and by cheque had to be received 7 days prior- in order for the cheque to be cleared into their account

this effectively reduced the DN remedy time (taking weekends as well) to around 3-4 days- and as it was attached to and formed part of their DN - i argued that the DN was woefully short AND not in the prescribed form

again this argument has clearly pursuaded the creditor to abandon any further action

these are successes based on DN arguments and it is completly immaterial to me that they were won outside of court rather than in.

these (to me) are successes - the fact that they were not won in court is irrelevant to me

i have never argued that PB or PT 's arguments are incorrect- simply that the arguments is still worth making- especially with other arguments and/or especially in small claims where the debtors liability for legal fees is limited.

often- putting a strong argument to the creditor pre trial is enough to dissuade them - not always i know- and as time goes by and more case law is presented it gets more difficult-

BUT not al DN arguments are doomed and those cases referred to have not ruled on every facet of a faulty DN

Indeed i believe the judge ion brandon commented that if the creditor had indeed terminated short of time- he may have taken a different view.


PB says it is the debtor that has first repudiated if one or two payments are missed .....and isn't the creditor entitled to his money if you have missed a couple of payments

i say NO

credit cards- in particular are charged at astronomical rates and the business model allows for and incorporates occassional "defaults" on the part of the debtor and these are clearly "de minimus" events- if they were not de minimus then sects 87-89 would not exists for correcting them .

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

surfaceagent X20 won his case on the faulty DN argument- got to keep the car and a substantial financial sum as i recall!!

I do believe Phil actually said that they dropped it on the steps of the Court rather than it being judicially decided though

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Apologies Ame with my post. My typing is awful at times. I did realise after posting and have edited as required.

I can understand too the moral stance, I do not agree with its over use as many of us only went to law in the first place because of the AMORAL stances of creditors when trying as honest decent people to sort out our own problems.

WE DID NOT FOMENT AND CAUSE THE CURRENT FINANCIAL CRISIS, that has caused irrepairable harm to hundreds of thousands of peoples lives, in general it was banker greed, failure of proper regulation, i.e. the very people who are now trying to adopt the moral high ground on these issues. The Law is the Law, either we all obey it or none of us obey it. That is real fairness.

rant over
regards
garlok

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Yes he looses his rights to enforce until a corrected document is issued and the stsatutory period for remedy has passed.

Peter

Peter
There must be more to it than this
A mere time delay is no penalty or sanction to the creditor as the interest (& default ?) charges continue to accrue. Let us not forget the creditor lends money to the debtor and makes money by charging interest as it is repaid.
When drawing up the agreement the creditor understands that sometimes debtors maybe a little late paying so a charging system is included in the agreement. The CCA recognises this and allows it (within limits), it also recognises that some debtors will default and provides a mechanism to accomodate this.
It seems the CCA does not accomodate a notice puporting to be something which it is not, but also according to your argument it does support this faulty notice as it does not mention it nor the possibility that a faulty notice could be sent (perhaps in error, perhaps on purpose)
This would be the unlawful termination which I tried to raise earlier
I agree, at the time of the faulty Dn I was in default
I then receive the Tn because I did nothing to rectify
You say in law that the Tn does not count as the Dn was faulty but it has still happened!
I am trying to find out what effect this action has.

Re: Contracts, Termination, Repudiation and Rescission

the word ludicrious appears at the end of the sentence to which it refers........i am not English expert but even a child knows what the word is referring to


i did not say earlier in the thread (or at any time at all) that a DN was "simply a notice" - i said that a notice of default was "simply a notice"

how exactly can a defamation be "corrected"- once the words are uttered or comitted to print, impugning a persons honesty or character- the genie cannot simply be put back in the bottle.

once the debtors credit files are trashed - the defamation cannot be corrected a year later by the creditor simply removing the reference- the damage is already done.

SoRry dont understand the CRAvwill record the record of paymentin any case irrespective of the DN if the record is incorrect then your argument is with the CRA or the creditor giving incorrect information nothing to do with the issuance of a dn fault or otheerwise
the debtor- having unlawfully lost his card borrowing facility- then has to make alternative arrangements- which by definition would be more costly- due in part to the OC wrongful recording of adverse information on the debtors credit file


So the only alternitive is for the creditor to keep offerring credit on a defauled account?
i think that LA summed the matter up succinctly

"how can you have a law for which there is no penalty if you break it"

There is a penalty for issuing afaulty default the creditor cannot enforce until a correct one is issued

This is the legal system, it is not for mr yto find authority it is not i who is putting forward the proposition
------------------------------- it is the only remedy allowed under the act

nowhere in the English legal system (IMO) would you find authority for such a ludicrous suggestion
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you keep missing out the word "UNLAWFUL" before "termination" in your posts-

ONE word but a whole WORLD of difference to the point being made


your last sentence

Yes thats right it ensures that as long as they stick to the rules then they will be a ble to enforce their agrements and get there money. Just a point


is all revealing.........what part of "they have not stuck to the rules" is difficult to understand?... if there is no sanction for them "not sticking to the rules"- then why are "the rules" there?
Read more at: Contracts, Termination, Repudiation and Rescission - Page 9 - Legal Beagles Consumer Forum

This is desending into personal abuse these points have been covered many times before they have no merit

peter
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surfaceagent X20 won his case on the faulty DN argument- got to keep the car and a substantial financial sum as i recall!!

You recall incorrectly

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

I haven't managed to find these cases which I presume are on CAG ? Do we have any links or are they in private areas ?

You know I tend to go on the safer and proven ways of dealing with creditors and probably to others frustration a bit, I've never quite understood why a faulty DN should mean a written off debt and have never seen case law to back up why it should so have never pushed those type of arguments on here. I don't mind trail blazing at all, but with your OWN risk / money /health / relationships at stake rather than people who have come to the forums looking for help. If you have a belief in an argument then YOU take it all the way first rather than push others to test it for you. (and by YOU I just mean individuals in general not PT lol, just incase that reads completely wrong)

I havent read the massive dodgy DN threads over on CAG enough to see if there is a proper legal basis for the argument but I assume if that is where it developed the case law will have been picked over on those threads??

surfaceagent X20 won his case on the faulty DN argument- got to keep the car and a substantial financial sum as i recall!!