Contracts, Termination, Repudiation and Rescission

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Mr Harrison's experiences are a picnic compared to the stress I (and I think many others) have been through over the past 2 years.

with respect, and its not often i get angry, but that comment is BULLSh!T

Mr Harrison's experiences were quite accurately described by HHJ Chambers

I saw the call log, Link did not just call 18 times, and also id point out that at a time when his mother was seriously ill in hospital after a heart attack, MBNA never let up on his and when he pointed out the fact he was waiting for a call from the hospital when he was home inbetween his visits to his mother, then MBNA resorted to using withheld numbers which was the same as the hospital, keith pleaded with them to stop as he didnt want to miss an urgent call if his mum had deteriorated. MBNA refused to stop calling


Keiths circumstances are well up there with the worst of them, i would have thought that you would realise that given the fact that a High Court judge was sooo scathing in his judgment, i mean its not often that we get a judge of the High Court hammering a bank

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

Hmm - I though you just said that even a terminated agreement is still an agreement and thus unavoidably regulated.

I also seem to recall that no one could avoid the Act.

NOpe never said any such thing.

A terminated agrement is terminated agrement it is not a voided agrement.
It is still an agrement.
I know it is a difficult concept but it is true neverthe less.

Peter

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

with respect, and its not often i get angry, but that comment is BULLSh!T

Mr Harrison's experiences were quite accurately described by HHJ Chambers

I saw the call log, Link did not just call 18 times, and also id point out that at a time when his mother was seriously ill in hospital after a heart attack, MBNA never let up on his and when he pointed out the fact he was waiting for a call from the hospital when he was home inbetween his visits to his mother, then MBNA resorted to using withheld numbers which was the same as the hospital, keith pleaded with them to stop as he didnt want to miss an urgent call if his mum had deteriorated. MBNA refused to stop calling


Keiths circumstances are well up there with the worst of them, i would have thought that you would realise that given the fact that a High Court judge was sooo scathing in his judgment, i mean its not often that we get a judge of the High Court hammering a bank

Sorry PT. But the exact problems caused to Mr H are not in the judgement - just that he received numerous telephone calls. I'm just going on what you've given us.

Yes, completely agree that this is unusual hence my (and others) surprise that the counterclaim was partly dismissed on the basis of excessive telephone calls.

In my case I've had DCAs actually banging on the door, in addition to their mock "court papers", threats and, of course, the endless phone calls over a period much much longer than Mr H's. Which is why I made my comment, for which I apologise if it has caused offence (which it clearly has).

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Sorry PT. But the exact problems caused to Mr H are not in the judgement - just that he received numerous telephone calls. I'm just going on what you've given us.

Yes, completely agree that this is unusual hence my (and others) surprise that the counterclaim was partly dismissed on the basis of excessive telephone calls.

In my case I've had DCAs actually banging on the door, in addition to their mock "court papers", threats and, of course, the endless phone calls over a period much much longer than Mr H's. Which is why I made my comment, for which I apologise if it has caused offence (which it clearly has).

well i did get a little annoyed, and i would simply say, to describe keiths situation as a "Horror" story does not do it justice.

But you are right its not all set out in the judgment, and its why we are doing an interview with the BBC in a weeks time to give the full picture

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

The liabilities that the contract entitles the creditor prior to termination? As per S87?

Sorry according to you ther is no contract it has been terminated? i think you just proved my point


Yes, very true. What I meant was that the provisions of the agreement no longer matter (such as monthly payments, access to credit, etc) because the creditor has withdrawn them by his termination.

NO the agrement was terminated becuae of the default of the debtor


Sure, but the agreement was that the loan was regulated and that the creditor would observe those regs. But he didn't. He ended the agreement without observing those regs. Yet the regs say that he is not entitled to take his various actions...


The point to make here is what is the point of regulation if the creditor ignores the regulations? If you have regulations but do not allow the debtor to use them for protection, again, what is the point of them?

He doesnt

They are not always right, as you know.

No but we have to live with their decisions even when we consider they are wrong

But there can not be any enforcement where the DN is bad. They can enforce where the the regs are observed, but have problems otherwise.

Yes by george hes got it


The Pumpkinhead judgement also shows that contracts can be terminated without following the regs, and that this issue is perhaps more to do with entitlements than anything else.

NOpe it shows that the agrement can be billaterally terminate he mearly gave the creditor the oppertunity to do so and then of course claim liabilities due


Well, maybe, although I am not sure what the real point is. There is no conclusive judgement anywhere. In fact, we have various judgements that contradict.

One thing they all agree with is that the arguments for repudiation ar not proven or indeed even seriously considered

This is a complete nightmare for me and I think many others. The regs seem so clear, yet much of this discussion concerns means of allowing the creditor to avoid his obligations, sometimes in an almost unbelievably convoluted manner.


Not really. I see Durkin, Brandon, PT's and Pumpkinhead's judgements, all with totally different outcomes. There is no consistency in any of this, hence the endless debate.

Then you co not see clearly
:tinysmile_hmm_t2:

See above

[jumper999]

Re: Contracts, Termination, Repudiation and Rescission

well i did get a little annoyed, and i would simply say, to describe keiths situation as a "Horror" story does not do it justice.

But you are right its not all set out in the judgment, and its why we are doing an interview with the BBC in a weeks time to give the full picture

Great something else to look forward too , will you be on there PT?

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

No.

This is a crucial point where peter has changed stance to suit his argument.

He repeatedly states a terminated agreement is still an agreement and would thus still be regulated and subject to the provisions of the Act. Then he agrees with you that a contractually terminated agreement suddenly becomes an unregulated agreement subject to common contract law.

The clauses in an agreement which peter maintains allow a creditor to contractually terminate are written into a regulated agreement which is also supposed to comply with the provisions of the Act.

I wonder how contractual termination stacks up against 140A when there are adequate provisions already within the Act to not require unilateral termination i.e. deferment or restriction.

Nope never changed anything yhou just do not understand i am affraid.
A terminate agrement is a terminated agreement , no matter if it is a contractural termiantion or a temrination after breach. In either case the terms of the agrement no longer apply that is why it is called terminated.
This doe not mean that it is not still an agreement.

The differnce between the two types of agrement as i have tried repeatedly to point out is what liabilities can be claimed post termination.
This is crucial in contract law because some of these liabilities may be pre estimated or future losses which would not be claimable on a contractural termiantoin. but would be on a termination after repudiation as in a default.

A termintaion after default in a cca regulated agrement is part of the enforcement process it will have include within it details of the liabilities due under the enforcement.
The DN could not be reissued if this termination stood because the details of the claim wold be incorrect. Fortunately this does not apply because as we have said the termiation after the defective DN is not a valid action.

Peter
------------------------------- merged -------------------------------

Maybe.

The point, however, is that S87(1) prevents entitlement to the balance where the DN is bad. So you may owe the money but the lender cannot get it.

Moreover, the lender had already told the debtor that the agreement is ended. As far as he's concerned, it's dead. And that is probably a view held by the lender too.

The agreement becomes an "account", into which the lender wants his money to be paid. This account is not an agreement. It has no agreed provisions and is not regulated by the Act.

So the court is enforceing an account

would that be breach of an account?

Interesting
------------------------------- merged -------------------------------
Right I think it's reality time.

I would like you to remember the following whenever you think about using your repudiation by creditor argument.
I will put this in bold so you can commit it to memory
At no time is a creditor contractually obliged to offer or issue credit under a consumer credit agreement, any more than the customer is contractually obliged to receive that credit.
The only contractual obligation that exists on such an agreement is that of the debtors obligation to repay the loan.
Creditors have rights debtors have obligations

Nowhere in the act or in any terms and conditions will you see the phrase "should the creditor commit a breach by failing to provide credit" ,it is absurd, how can he repudiate the agreement by failing to lend you money.
Peter

[Angry Cat]

Re: Contracts, Termination, Repudiation and Rescission

with respect, and its not often i get angry, but that comment is BULLSh!T

Mr Harrison's experiences were quite accurately described by HHJ Chambers

I saw the call log, Link did not just call 18 times, and also id point out that at a time when his mother was seriously ill in hospital after a heart attack, MBNA never let up on his and when he pointed out the fact he was waiting for a call from the hospital when he was home inbetween his visits to his mother, then MBNA resorted to using withheld numbers which was the same as the hospital, keith pleaded with them to stop as he didnt want to miss an urgent call if his mum had deteriorated. MBNA refused to stop calling


Keiths circumstances are well up there with the worst of them, i would have thought that you would realise that given the fact that a High Court judge was sooo scathing in his judgment, i mean its not often that we get a judge of the High Court hammering a bank

I sympathise totally with Mr. Harrison.
At one point, I was receiving 20 calls a day: automated dialler system.
------------------------------- merged -------------------------------

well i did get a little annoyed, and i would simply say, to describe keiths situation as a "Horror" story does not do it justice.

But you are right its not all set out in the judgment, and its why we are doing an interview with the BBC in a weeks time to give the full picture

Excellent!

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

So the court is enforceing an account

would that be breach of an account?

Interesting

Semantics Peter.

The contract runs. There is a breach. The creditor terminates without following the regs. It ends up in court.

The agreement is dead in the sense that none of it's contractual provisions apply, but it was a regulated agreement and liabilities accrued while regulated. For example, I have a letter from the Halifax which tells me that my CC ag was terminated and there is now an account which remains open.

We know that the creditor should not have terminated on a bad DN but he did anyway. S87(1)(b) tells us that he is unable to claim the balance without following the regs. We are all agreed on that, yes?

To serve a new DN at this point (in court or shortly after), there needs to be a live agreement with the previous contractual provisions re-enabled, otherwise the 1983 Enforcement Notices regs make no sense whatsoever. Now, I may be wrong about this (and I know you will correct me in forthright terms!), but looking at the 1983 regs it is seriously difficult to understand how all the requirements contained therein can apply to a contract whose provisions have been disabled and which will continue to remain disabled even if the debtor remedies.

However, the creditor has told the debtor that the contract is ended. The debtor may or may not have agreed. But what liabilities are in question? Contractually, it is every penny of the sum loaned with interest. But as the contract was regulated but was terminated outside of the regs (the bad DN), the creditor is apparently unable to claim sums falling due in the future (S87(1)(b)). Therefore his claim can only be those contractual payments due before the contract was terminated.

The Pumpkinhead judgement tells us that both parties can agree to terminate a regulated contract on breach when, miraculously for the creditor, all the provisions of the Act disappear. To me, this is bizarre.

The Harrison judgement says that a new DN could have been served, implying that the contract endured, but this is not exactly clear.

The Durkin judgement agreed that a regulated contract could be ended on breach by the creditor, although admittedly for completely different reasons than those discussed here.

So my point is that, while the status of a contract following termination may be clear to you, it is not clear to me and does not seem to be especially clear to others. This is simply because there does not appear to be any definitive judgement either way.

[Angry Cat]

Re: Contracts, Termination, Repudiation and Rescission

MBNA/Link Financial, pursuing irredeemably unenforcable credit agreement(s), whilst in default of Section 78.

And, these covert/bad business practice continues...
Link Financial, use every dirty trick in the book in order to intimidate, embarass; bring the consumer to heel.

HHJ Chambers QC, is absolutely correct in his view:
such conduct should no be allowed in society!

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

No.

The clauses in an agreement which peter maintains allow a creditor to contractually terminate are written into a regulated agreement which is also supposed to comply with the provisions of the Act.

.

HI

In a further attempt to explain

No the contractural termination of an agrement is not regulated by the act, with respect that is the whole point.
There is nothing in the act that says the contractural termiantion canot take place therefore it can

The crediotr can terminate any time he wants, he can demand full and immediate repayment any time he wants, can he enforce given that enforcemnt is regulated udner the act no he cannot.

Faux said demanding payment is not enforcement.

High Court decides on legality of referring information to credit reference agencies and clarifies meaning of ‘enforcement’ in relation to consumer credit agreements



Yesterday, the Commercial Court gave judgment in the case of Phillip McGuffick v The Royal Bank of Scotland Plc. This was a case referred from Judge Halbert in the Chester County Court with the aim of providing guidance on issues surrounding the meaning of enforcement in the context of the Consumer Credit Act 1974 (“CCA”).
The case succeeded in clarifying many of the issues relating to this area of law and this Judgment will be invaluable to all lenders who are currently dealing with challenges to the enforceability of credit agreements.
Effect of unenforceability and what constitutes enforcement?
Mr Justice Flaux reached the conclusion that unenforceability does not mean that the rights of the parties under a credit agreement were never acquired or are extinguished. Rights under an agreement continue but cannot be enforced.
The Court also determined that bringing legal proceeding is only a step taken with a view to enforcement and not actually enforcement. Consequently, steps naturally taken prior to the commencement of proceedings, including demanding payment and threatening legal action, cannot be enforcement.
For these reasons, the Court decided that reporting to the credit reference agencies or passing on information about credit agreements or the conduct of accounts does not “come anywhere near amounting to enforcement”.

The Court therefore decided that the following activities would not constitute enforcement:

• reporting or threatening to report information about the conduct of a credit agreement to a credit reference agency
• passing on, or threatening to pass on, personal data in respect of a credit agreement
• demanding payment from a debtor
  
• issuing a default notice
• threatening legal action
• bringing legal proceedings.

Notice in this list there is no mention of termination.

Petr

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

HI

In a further attempt to explain

No the contractural termination of an agrement is not regulated by the act, with respect that is the whole point.
There is nothing in the act that says the contractural termiantion canot take place therefore it can

The crediotr can terminate any time he wants, he can demand full and immediate repayment any time he wants, can he enforce given that enforcemnt is regulated udner the act no he cannot.

Eh?

Just because something is not in the Act surely doesn't mean it is allowed?

S8 describes regulated agreements. There is no separation of contract. Both parties merely agree to a single (regulated) agreement.

I would also say that the creditor may not terminate when he wants (on breach); he must follow the regs, surely?

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

Semantics Peter.

The contract runs. There is a breach. The creditor terminates without following the regs. It ends up in court.

The agreement is dead in the sense that none of it's contractual provisions apply, but it was a regulated agreement and liabilities accrued while regulated. For example, I have a letter from the Halifax which tells me that my CC ag was terminated and there is now an account which remains open.

We know that the creditor should not have terminated on a bad DN but he did anyway. S87(1)(b) tells us that he is unable to claim the balance without following the regs. We are all agreed on that, yes?

To serve a new DN at this point (in court or shortly after), there needs to be a live agreement with the previous contractual provisions re-enabled, otherwise the 1983 Enforcement Notices regs make no sense whatsoever. Now, I may be wrong about this (and I know you will correct me in forthright terms!), but looking at the 1983 regs it is seriously difficult to understand how all the requirements contained therein can apply to a contract whose provisions have been disabled and which will continue to remain disabled even if the debtor remedies.

However, the creditor has told the debtor that the contract is ended. The debtor may or may not have agreed. But what liabilities are in question? Contractually, it is every penny of the sum loaned with interest. But as the contract was regulated but was terminated outside of the regs (the bad DN), the creditor is apparently unable to claim sums falling due in the future (S87(1)(b)). Therefore his claim can only be those contractual payments due before the contract was terminated.

The Pumpkinhead judgement tells us that both parties can agree to terminate a regulated contract on breach when, miraculously for the creditor, all the provisions of the Act disappear. To me, this is bizarre.

The Harrison judgement says that a new DN could have been served, implying that the contract endured, but this is not exactly clear.

The Durkin judgement agreed that a regulated contract could be ended on breach by the creditor, although admittedly for completely different reasons than those discussed here.

So my point is that, while the status of a contract following termination may be clear to you, it is not clear to me and does not seem to be especially clear to others. This is simply because there does not appear to be any definitive judgement either way.

It really is not that complicated.A teminated agrement still exists as a terminated agrement, and will continue to do so for as long as liabilities exist under it. Once those are disposed of the agrement is ended.
The terms of the agreement are simply the method that the liabilities are discharged,if those terms are "terminated" then the liabilites become immediatly due as in Pumpkinheads case.

Peter

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

Eh?

Just because something is not in the Act surely doesn't mean it is allowed?

S8 describes regulated agreements. There is no separation of contract. Both parties merely agree to a single (regulated) agreement.

I would also say that the creditor may not terminate when he wants (on breach); he must follow the regs, surely?

Yes i am affraid it does this is a basic feature of statute it regulates.
In the case of a commertial credit agreement it regulates the contract.

If there is something within the contract that the act does not refer to then as you say it is allowed. Unless of course it is prohibited under some other statute.

If the only things allowed to be in a contract wher those listed in statute it would be a very long list dont you think

Peter

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Ah, yes, I see what you mean. Thanks.