Contracts, Termination, Repudiation and Rescission

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

I think the problem is Ame, i cannot find one case won on legal argument on this point of law.

People get notice of discontinuance and think the dodgy default did it, but who knows, maybe not, the point is that the cases on this point that have gone to trial, seem to have all ended in defeat.

i cannot find one case with a reasoned judgment that says the opposite.

The same applies with the arguements we run on our cases RE s78, i can show a number of judgments ( and have done so) where we did win, now i would be grateful to anyone who supports this repudiation idea, to show me a judgment that confirms this is the case

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??

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

I also think good moderation especially on a forum such as this allows discussion from both sides of the fence to develop even if it does become argumentative, so long as it is respectful argument (which this has moved away from in parts particularly last evening hence the removal of a couple of posts and a couple of communications off the public boards). Without argument no conclusion can be drawn and if we all agreed the world would be a very boring place. Challenges need to be raised and discussed and we also need the other (safer?easier?more realistic?) view point to temper others enthusiasm for where there may be meritless challenges. I also think good moderation recognises the difference between trolls and frustration and understands that not everyone can put their thoughts into the written word as well as others.

Site Issues would be the best place to discuss this kind of topic though and keep this thread for the contracts, termination, repudiation and recission discussion.

Is everyone chomping at the bit for this judgment to be published today then?, I think this is the busiest I've seen this thread lol.

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

I think the problem is Ame, i cannot find one case won on legal argument on this point of law.

People get notice of discontinuance and think the dodgy default did it, but who knows, maybe not, the point is that the cases on this point that have gone to trial, seem to have all ended in defeat.

i cannot find one case with a reasoned judgment that says the opposite.

The same applies with the arguements we run on our cases RE s78, i can show a number of judgments ( and have done so) where we did win, now i would be grateful to anyone who supports this repudiation idea, to show me a judgment that confirms this is the case

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

(p.s apologies VD you posted while I was mid type and moderating a couple of posts so have done yours too as it seems out of context without the preceeding post)

Shame, it was witty and to the point, probably too much so. But good moderation involves more thn just removing the off-topic and insulting stuff. You might find that will go away if you're tough on posts, and tough on the causes of posts.

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

I have had to remove a couple of posts from this thread as we just can't have important and useful, intelligent discussions on such intricate legal issues destroyed by contributers resorting to name calling. I think everyone has made some very good points and I hope the judgment due to be published today does resolve the status of invalid DN's.

In my view and I am by no means well read or knowledgeable on the subject if a faulty DN is issued whatever happens after should be wiped and the debtor returned to the exact position he would have been in had the default notice never been issued. This means the contract was not terminated and only the arrears are due - that meaning the arrears to date not up to the point of the DN, additional charges/interest from the post DN refunded, and from this point the contract continues as before the DN. If the debtor then defaults and the creditor issues a new DN then the debtor has a renewed opportunity to remedy under the correct terms before the creditor may terminate, correctly. That's just how I see it.

Can we please continue the discussion in a sensible manner as there has been quite a lot of surmisation going on across various forums and seemingly a number of people elsewhere have gone down a route with repudiation arguments which some believe to be incorrect and it seems the judgment will show to be incorrect. Those people will need assistance sorting their cases out.

Thanks guys xx


(p.s apologies VD you posted while I was mid type and moderating a couple of posts so have done yours too as it seems out of context without the preceeding post)

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Peter, where have I been anything other than civil?

Argue with me when I know the answer and I will stand my ground.
On this range of subjects I do not know the answers so pose questions
Please forgive me if I try to use arguments aganst your position, it is merely what will happen in court hence why I ask.

I shall refrain from posting my questions as I have obviously offended you.

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Hi Paul, thanks for the input
I am aware the courts may have differing views from the individual
Sometimes you will come across people who don't have any money to pay for legal advice
It may not be their fault
Sometimes they may have sought legal advice, they may be told their agreement is not enforceable then their solicitors ditch them shortly before it gets messy but is too late for the debtor to go back.

I take exception to the way peter has phrased his answers, we are all trying to find the answers, it can be done in a civil way.

You have the benifit of legal training but I am sure would be first to admit that you have things to learn
I do not have such training therefore I have more to learn

If the creditor has obeyed the law he has the protection of the law & may ask it to enforce on his behalf
Where he fails to do this he surely loses the right to have the courts do his dirty work for him
This does not mean the debt disappears, it just prevents the creditor from using the court system

Re: Contracts, Termination, Repudiation and Rescission

Peterbard, re your post 210

You may not like my analogy, but I used it to try to illustrate my point. Nothing more.
The act of termination is not punishable, however the act may not make provision for unlawful conduct.
I was suggesting that the termination on the back of a faulty Dn was possibly unlawful.
I see you have failed to answer my question, how am I supposed to learn and elevate my education to your level without reading, questioning and understanding.

Firstly i find it best to accept my limitations i would encourage you to do the same. the answer is no, the termination of a credit agrement can NEVER be unlawful. Read my previous posts. they may enlighten they may confuse either way i assure you they are accurate.


I am but a mere man in the street, the kind of guy the CCA was meant to protect.

AGreed

I have received a non-comliant DN
The OC has terminated on the back of this
I suspect that the creditor sent these notices because he wanted his money & he did not want to do business with me any longer.

Probaby because you defaulted does this not seem reasonable to you

It appears the man in the street is now meant to have a law degree to be able to know that the agreement is in fact still open & live.

No the default and termination notices will give you a clue

Can you answer the question I asked?
Is the Tn unlawful?

No Again the creditor can terminate a credit agrement at any time with previodly seven days notice currently two months notice but the termination after a default does not exist if the defalt is defective
You state that it is for the judge to decide, let's examine that.

In the contract there is provision for ending the agreement with notice, on both sides.

What i said above
In the CCA there is provision for terminating the agreement in a default situation. Parliment thought it was so important to ensure the consumers rights that legislation was introduced to clearly indicate to a creditor what he must do to entitle him to use the courts to enforce.

Correct
If the creditor does not perform in accordance with the act does he lose the right to use the courts to enforce or maybe he loses the right to enforce anything more than lawful arrears?

NO he looses the right to enforce untill he provides a compliant notice it is all in the CCA, the arrears thing is a missconseption based on a missinterpretation of the Woodchester verdict .This i went to great pains to explain in my analysis of the case earlier in this thread.

You also comment, it will not wash in the real world. It suggests I am looking for nothing more than a technical defence to avoid my debts.

No really

There are OC's who provide 2 differing versions of an application form in response to a S77 request. They then fail to provide the original in court- in contradiction of CPR rules- using a third version of an application form to litigate with.
This is on the back of a faulty Dn, subsequent Tn. No letter before action. No documents in reply to CPR requests.
Oh, and whilst the agreement was live they fail to word default sum notices in accordance with the relevant law and overcharge on late payment fees.

A number of actionable and defendable breaches bhy the creditor what has that to do with what we are discussing
A
I miss 2 payments & the roof falls in
I go into a debt management program, pay my money every month, then I find the debt management company does not pay my creditors....
I approach a leading firm of solicitors who say they are a bit busy to help me.

I get the defaults, I get the CRF reports, I go to court & get stuffed because I can't afford other legal representation
I get to pay my debts and get the grief

That is how it washes in the real world Peter

So instead of prevocative rhetoric lets have some constuctive comments which
are designed to help others

Seems to be you indulging in the rhetorc matey but again what has this to do with the matter under discussion

Thougtht i would have another go at it i know i am wasting my time but hey hope springs eternal
Peter

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

When it makes a difference in the debtors actions it is neccessary for him to know if the Tn has any effect.
I, like others, believed the creditor when he said the agreement was terminated.
If I thought the agreement endured I would have tried alternative courses of action to placate the creditor and might have been able to reach a F&F.
As it stands, the debtor has now got himself deeper in the mire, based on the documentation provided by the creditor

I am not a misguided individual
I am lacking in knowledge, I don't believe that to be a crime

It is a nightmare, i grant you that,

The problem we all face is that the current position can change on the back of a Court judgment

Just look at the R vs R case in 1992 concerning marital rape, what we thought the law was, actually wasnt, as the House of Lords confirmed.

The difficulty is that the courts will say to you, when you suggest you would have done things different if you had known, that you ought to have sought legal advice on your position.

This is the problem.

I am hoping that the case out tomorrow, will show the approach the Courts will take, and what the Courts will act upon etc

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

When it makes a difference in the debtors actions it is neccessary for him to know if the Tn has any effect.
I, like others, believed the creditor when he said the agreement was terminated.
If I thought the agreement endured I would have tried alternative courses of action to placate the creditor and might have been able to reach a F&F.
As it stands, the debtor has now got himself deeper in the mire, based on the documentation provided by the creditor

I am not a misguided individual
I am lacking in knowledge, I don't believe that to be a crime

Re: Contracts, Termination, Repudiation and Rescission

It's not that I don't understand your arguments, I do. I do however resent the implication (however subtle) that I cannot follow simple arguments.

It is more I don't understand the effect of your arguments on the law. I follow that with a defective DN a creditor cannot 'take the next step' i.e. terminate the agreement and demand sums previously not due (i.e. the full outstanding balance).

However we are faced with the situation where the termination is deemed not to have been effective, i.e. the agreement endures up to date. However the creditor has most definitely stated by word and action that the agreement is no more. The creditor understands this, as does the debtor. The credit facility has been withdrawn and the debtor has made no scheduled repayments.

This to me is a paradox, the agreement endures but neither party is active in its operation.

How can this be cured? By the creditor inviting the debtor to reaffirm the agreement, I don't think so.

Hopefully tomorrows publication of pt's High court case will make everything clear. But I doubt it will be what anyone expects or hopes for!

Simple the affirned by thing is another red herring it means nothing, of course the creditor believes the termination is legitimate when he issues it, but no matterwhat he believes in law it is not. It is not an offence in any sense of the term i could say something about intent but the truth us it really does not matter it is not an issue.

Peter
------------------------------- merged -------------------------------
You knw i really thought all this nonsense had died a natural death at least it seems we are now down to just a few missguided individuals.
peter
------------------------------- merged -------------------------------

Poor answers Peter, I hoped for better
You state the Tn did not happen, in law, therefore it has no effect
How is the uneducated debtor to know this

It has to have an effect, I just am not aware of the legalities of the effect - that's why I asked.

Wy would he need to know this it makes no diference if he knows it or not,
THe main thing iks , is the default comliant if i os the court will enforce if not then the crediotr will have to issue another one why would the uneducated person have to know the technicalities?

Peter

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Poor answers Peter, I hoped for better
You state the Tn did not happen, in law, therefore it has no effect
How is the uneducated debtor to know this

It has to have an effect, I just am not aware of the legalities of the effect - that's why I asked.

Re: Contracts, Termination, Repudiation and Rescission

hi
For the answers to legitimate questions raised above see earlier postsin this thread, in LAs thread before that, in the default thread over the way before that.
Same questios same answers.
For the proof of the truth if those responses see the half dosen cases that are currently or have already gone bcelly up recently over there.
.

LA i have answered each of your points many time you are either inable or unwilling to understand so i urge you to try this aproach as soon as possible then perhaps you will learn about its effictacy.

Peter

[Angry Cat]

Re: Contracts, Termination, Repudiation and Rescission

:

Hopefully tomorrows publication of pt's High court case will make everything clear. But I doubt it will be what anyone expects or hopes for!

I suspect, a mixed bag of covert practice(s)

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

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

Peterbard, re your post 210

You may not like my analogy, but I used it to try to illustrate my point. Nothing more.
The act of termination is not punishable, however the act may not make provision for unlawful conduct.
I was suggesting that the termination on the back of a faulty Dn was possibly unlawful.
I see you have failed to answer my question, how am I supposed to learn and elevate my education to your level without reading, questioning and understanding.
I am but a mere man in the street, the kind of guy the CCA was meant to protect.

I have received a non-comliant DN
The OC has terminated on the back of this
I suspect that the creditor sent these notices because he wanted his money & he did not want to do business with me any longer.

It appears the man in the street is now meant to have a law degree to be able to know that the agreement is in fact still open & live.

Can you answer the question I asked?
Is the Tn unlawful?
You state that it is for the judge to decide, let's examine that.

In the contract there is provision for ending the agreement with notice, on both sides.
In the CCA there is provision for terminating the agreement in a default situation. Parliment thought it was so important to ensure the consumers rights that legislation was introduced to clearly indicate to a creditor what he must do to entitle him to use the courts to enforce.
If the creditor does not perform in accordance with the act does he lose the right to use the courts to enforce or maybe he loses the right to enforce anything more than lawful arrears?

You also comment, it will not wash in the real world. It suggests I am looking for nothing more than a technical defence to avoid my debts.

There are OC's who provide 2 differing versions of an application form in response to a S77 request. They then fail to provide the original in court- in contradiction of CPR rules- using a third version of an application form to litigate with.
This is on the back of a faulty Dn, subsequent Tn. No letter before action. No documents in reply to CPR requests.
Oh, and whilst the agreement was live they fail to word default sum notices in accordance with the relevant law and overcharge on late payment fees.

I miss 2 payments & the roof falls in
I go into a debt management program, pay my money every month, then I find the debt management company does not pay my creditors....
I approach a leading firm of solicitors who say they are a bit busy to help me.

I get the defaults, I get the CRF reports, I go to court & get stuffed because I can't afford other legal representation
I get to pay my debts and get the grief

That is how it washes in the real world Peter

So instead of prevocative rhetoric lets have some constuctive comments which are designed to help others