Contracts, Termination, Repudiation and Rescission

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

Hi
Seems to be a lot of different issues her not quite sure what exactly you consider to be ludicrous.

That the crditor can termiate an agrement?

That the creditor can make an entry with a CRA if thedebtor defaults?

If a mistake is made surely there are provisions to rectify them by either regulatory or more legitimate legal means.

As you said in a post earlier in this thread a DN is mearly a notice why whoud it not be reissued, as long as the stutory period is given with the correct information.

I think that you will find that section 87 was an act of parliament.

Also just to mention if you read the Crowther reposrt (as i have all six hudrred pages,how sad am i) You will see that this act was not only enacted to protect debtors but also creditors.
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

Peter

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.

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

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"

nowhere in the English legal system (IMO) would you find authority for such a ludicrous suggestion
------------------------------- merged -------------------------------

I have this annalogy before and this really is a bad one.
Firstly there is a sanction he cannot enforce for a further period that is the one , the only one available.
Seconldly and more importantlyif the action of termination was punishable by some legal sanction other than this how would any creditor ever get to court?
It is for the judge to decide if the DN the subsequent termination are lawful, and the enforcemant can take place are you suggesting the creditor should be penalised for taking a debtor to court when he has defaulted his agrement, i dont think that will wash in the real world.
Peter

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

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

The problem with the analogy Peter is that Polygamy is a crime and punishable at law by fine or imprisonment. So it isn't really a very good analogy as in the case of a faulty DN there is (apparantly) no crime and no punishment.

This is why most people find it so hard to swallow a law that has no sanction for breaking it.

and which argument IMo should be used every time the matter is raised in a county court

Re: Contracts, Termination, Repudiation and Rescission

Hi Ame,

I think in general I can agree with what you are saying, that may be the strategy. However, I did put forward the Common Law-Contract argument, having again asked the direct question of a family member who read for the bar but took up commerce instead. In Contract Law should there be a breach for example by a creditor in our collective cases which reaches "to the heart" of an agreement/contract and breaches of Statute Law are such, it is a principle that both parties should be returned to the position they were in BEFORE the breached contract came into existence, i.e. no loss or gain by either party. Therefore theoretically applying this principle the only debt that ever existed on a credit card is that of the actual purchases/cash withdrawals etc. All charges and interest being benefits under the said alleged breached contract to which the alleged creditor is no longer entitled. Hence much hot calculators in getting monies returned to alleged debtors as the creditors are not entitled to benefit in any way from the breached contract.

I won't go further in this as it gets much more complex and I admit to not understanding all of it. However I was howled down with emphatic statments of CCA LAW is different, yet an in depth examination of the posts above shows that representation is being made on behalf of the creditor in that he is entitled to the full benefits under CCA Law, the debtor is not entilted to any of the protections, and also the crditor is entitled to his benefits under the common Law of Contract yet again the debtor being the villain of the peace is not entitled to the provisions for his protection provided here either.

None of these arguments makes any logical sense at all. Whilst Francis Bennion (author of CCA1974) has said that the Act should be used as a debt avoidance tool, quite rightly he also said that should a creditor, usually a large sophisticated financial institution with acces to the best legal brains get it wrong then it is perfectly correct that the creditor should forfeit ALL rights and benefits due to him should he get it wrong.

best regards
Garlok

The problem is that this accepting termination would not work in common law either, because it was the debtor that initially defaulted and repudiated the agement.
If the CCA were not there the creditor would accept this repudiation, terminate and enforce.

Peter

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

Hi Ame,

I think in general I can agree with what you are saying, that may be the strategy. However, I did put forward the Common Law-Contract argument, having again asked the direct question of a family who read for the bar but took up commerce instead. In Contract Law should there be a breach for example by a creditor in our collective cases which reaches "to the heart" of an agreement/contract and breaches of Statute Law are such, it is a principle that both parties should be returned to the position they were in BEFORE the breached contract came into existence, i.e. no loss or gain by either party. Therefore theoretically applying this principle the only debt that ever existed on a credit card is that of the actual purchases/cash withdrawals etc. All charges and interest being benefits under the said alleged breached contract to which the alleged creditor is no longer entitled. Hence much hot calculators in getting monies returned to alleged debtors as the creditors are not entitled to benefit in any way from the breached contract.

I won't go further in this as it gets much more complex and I admit to not understanding all of it. However I was howled down with emphatic statments of CCA LAW is different, yet an in depth examination of the posts above shows that representation is being made on behalf of the creditor in that he is entitled to the full benefits under CCA Law, the debtor is not entilted to any of the protections, and also the crditor is entitled to his benefits under the common Law of Contract yet again the debtor being the villain of the peace is not entitled to the provisions for his protection provided here either.

None of these arguments makes any logical sense at all. Whilst Francis Bennion (author of CCA1974) has said that the Act should be used as a debt avoidance tool, quite rightly he also said that should a creditor, usually a large sophisticated financial institution with acces to the best legal brains get it wrong then it is perfectly correct that the creditor should forfeit ALL rights and benefits due to him should he get it wrong.

best regards
Garlok

Think you meant shouldn't rather than should on the Francis Bennion bit

I agree with you, and when we were beginning looking at the CCA and working our strategy out and I believe Curlybens original guide on here, that was exactly what we were working towards. There have been a number of cases with faulty or non existent CCA's that possibly could have obtained a complete write off, but we have always come down on the ''moral'' side of the issue in that the lack of agreement actually rather than makes the money/credit etc a gift, makes it a ''normal'' debt which should be repaid but without the creditor having the benefit of the extra interest/charges etc as they werent entitled to charge them without valid agreement. We believe strongly in fairness, and creditors do act unfairly, we want things back on an even keel, where the protections remain in place for consumers who are treated unfairly. Sadly this protection does seem to be being eroded by fights for what I see a little as unjust enrichment on the debtors side.

Re: Contracts, Termination, Repudiation and Rescission

I have accepted the creditors right to reissue a Dn, whilst I may not agree the law says it is allowed.
I have tried to investigate the point of the Tn on the back of a faulty Dn

If I walk down the street & a man punches me on the nose, it hurts
The law says he is not able to punch me on the nose
He may have mitigating circumstances - I slept with his wife/ stole his car/ my dog fouled his garden
but the fact remains he is not allowed to hit me & I am still in pain

Because the event has happened I have leave to do something about it
Surely there must be a course of action available to the receipient of such faulty notices.

I have not said the debt is not owing, just that maybe the creditor loses some / all his rights to use the courts to collect

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

Peter

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Hi Ame,

I think in general I can agree with what you are saying, that may be the strategy. However, I did put forward the Common Law-Contract argument, having again asked the direct question of a family member who read for the bar but took up commerce instead. In Contract Law should there be a breach for example by a creditor in our collective cases which reaches "to the heart" of an agreement/contract and breaches of Statute Law are such, it is a principle that both parties should be returned to the position they were in BEFORE the breached contract came into existence, i.e. no loss or gain by either party. Therefore theoretically applying this principle the only debt that ever existed on a credit card is that of the actual purchases/cash withdrawals etc. All charges and interest being benefits under the said alleged breached contract to which the alleged creditor is no longer entitled. Hence much hot calculators in getting monies returned to alleged debtors as the creditors are not entitled to benefit in any way from the breached contract.

I won't go further in this as it gets much more complex and I admit to not understanding all of it. However I was howled down with emphatic statments of CCA LAW is different, yet an in depth examination of the posts above shows that representation is being made on behalf of the creditor in that he is entitled to the full benefits under CCA Law, the debtor is not entilted to any of the protections, and also the crditor is entitled to his benefits under the common Law of Contract yet again the debtor being the villain of the peace is not entitled to the provisions for his protection provided here either.

None of these arguments makes any logical sense at all. Whilst Francis Bennion (author of CCA1974) has said that the Act should NOT be used as a debt avoidance tool, quite rightly he also said that should a creditor, usually a large sophisticated financial institution with acces to the best legal brains get it wrong then it is perfectly correct that the creditor should forfeit ALL rights and benefits due to him should he get it wrong.

best regards
Garlok

Re: Contracts, Termination, Repudiation and Rescission

Hi this is particularly important,as mentioned earlier, when goods are in the debtors possesion under the agreement.

There are several documented cases(in fact I was involved in one myself) where the creditor had recovered goods when the DN had not provided for the correct time for remedy.

The debtors solicitors were able to comence proceedings for conversion,the reason being that because the default was ineffective the agreement had not been terminated, so the goods were stll the property of the debtor under the agreement.

A DN can be used effectively if it is used as it is intended to be used.

Peter

Re: Contracts, Termination, Repudiation and Rescission

I think, and just my thoughts, is that the enforcement in court shouldnt be allowed on the back of a faulty DN, it means the agreement is not terminated, any charges, interest etc charged since should be removed and you should be able to remedy the original arrears with a new, correct DN, and the agreement continue as if the period between faulty DN and when it is accepted as faulty, didn't happen. If that continues then to default a new DN is issued and the chance to remedy starts over, which may then lead to enforcement action.

Not so sure about damages (costs for defending / hassle by DCAs / credit file etc stuff) for that period.

To me, that sounds reasonable. It also sounds like it would be beneficial to the defendant as they may well be in a position to continue the agreement now as circumstance may have improved, and avoid a CCJ and mucked up credit file ? IT also gives them another opportunity to sort out the debt in other ways, like a DMP etc. which they may not have considered/been able to do previously.

Spot on


Peter

[fallenangel]

Re: Contracts, Termination, Repudiation and Rescission

i for one will just be glad of some clarification. Speculation is all well and good. But frankly, the suspense is killing me.

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

I have accepted the creditors right to reissue a Dn, whilst I may not agree the law says it is allowed.
I have tried to investigate the point of the Tn on the back of a faulty Dn

If I walk down the street & a man punches me on the nose, it hurts
The law says he is not able to punch me on the nose
He may have mitigating circumstances - I slept with his wife/ stole his car/ my dog fouled his garden
but the fact remains he is not allowed to hit me & I am still in pain

Because the event has happened I have leave to do something about it
Surely there must be a course of action available to the receipient of such faulty notices.

I have not said the debt is not owing, just that maybe the creditor loses some / all his rights to use the courts to collect

I think, and just my thoughts, is that the enforcement in court shouldnt be allowed on the back of a faulty DN, it means the agreement is not terminated, any charges, interest etc charged since should be removed and you should be able to remedy the original arrears with a new, correct DN, and the agreement continue as if the period between faulty DN and when it is accepted as faulty, didn't happen. If that continues then to default a new DN is issued and the chance to remedy starts over, which may then lead to enforcement action.

Not so sure about damages (costs for defending / hassle by DCAs / credit file etc stuff) for that period.

To me, that sounds reasonable. It also sounds like it would be beneficial to the defendant as they may well be in a position to continue the agreement now as circumstance may have improved, and avoid a CCJ and mucked up credit file ? IT also gives them another opportunity to sort out the debt in other ways, like a DMP etc. which they may not have considered/been able to do previously.

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

oo everyone posted (well NAB and Garlok anyway).

I can understand the professional advice Garlok, as then I assume in defence they will argue the DN was faulty return you to the position pre DN and allow you to rememdy and the agreement to continue ? and I also assume that once case law is published on the faulty DN issues a few of these no contact cases will be bought back forwards by the creditors, as we all know creditors don't like to go into court with any risk of a precedent being set against them. Thats based on what happened after Carey etc. Too many assumptions there I am aware but I am seriously not up on this subject at all as it has never really been of a great consequence to me. The few cases I have seen on here the faulty DN has been argued, it has been reissued and the debt sorted by other means. I leave the high level risky stuff to the professionals (and you guys )

I am looking forwards to reading this judgment when it is released though.

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

The common law aspect of it is interesting. Didn't a judgment come out from PT's firm not so long back that confirmed common law wasn't appplicable in CCA cases ? Though think that was only in certain situations. I've never understood the repudiation argument fully though so I don't know if it takes you out of the CCA into common law or not (basics I know!)

I haven't read the whole case so don't know in what way the DN was defective, but as with any faulty DN I think I'd go with the faulty, should put me back in the position I would have been in etc argument to get it discontinued as enforcement not available at that time argument first then try sorting the actual debt out (payment plan etc) from that point to avoid the CCJ and costs etc and they can reissue the DN properly if need be.

You know Brandon's case, if he does get the 14 days part his way on appeal I assume it only returns the debt to where it would have been pre DN (arrears due, remedy available etc) or is he arguing it should be written off because off the fault ?

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

I have accepted the creditors right to reissue a Dn, whilst I may not agree the law says it is allowed.
I have tried to investigate the point of the Tn on the back of a faulty Dn

If I walk down the street & a man punches me on the nose, it hurts
The law says he is not able to punch me on the nose
He may have mitigating circumstances - I slept with his wife/ stole his car/ my dog fouled his garden
but the fact remains he is not allowed to hit me & I am still in pain

Because the event has happened I have leave to do something about it
Surely there must be a course of action available to the receipient of such faulty notices.

I have not said the debt is not owing, just that maybe the creditor loses some / all his rights to use the courts to collect

[Garlok]

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.

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??

No there is no case law also ther is no reason why there should be the theory is fundementally flawed

http://www.consumeractiongroup.co.uk...-issues/page13

Moreover it is dangerouse this person accepted the repudiastion and the judge ruled against him despite the fact that the notice may have been defective, because he terminated the agreement himself when he accepted it.
Had he not the judge may well have discontinued and the creditor would have had to issue a new notice.
Peter

Peter