Contracts, Termination, Repudiation and Rescission

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

I understand you have enlightened me that common law remedies are not possibel, ie repudiation/ recession
The point was, I told them the Dn was faulty in my letter accepting, in fact one bank wrote back & said ballcocks, our Dn is fine

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Excellent thinking chaps
It shows that god debate can lead us forward
Hopefullt PT's judgement will give hard evidence to support this stance
I have some 'agreements' where I have accepted their recession, in doing so I have pointed out that the Dn is faulty. I suggest the longer the situation continues after acceptaence (or the warning that the Dn is faulty), the more letters and phone calls, the more chance I have of putting this kind of argument forward
Let us not forget, as a debtor I am supposedly NOT financially astute, a bank on the other hand is most definitely financially astute & once warned if they continue on this path how close to contempt is that???

just a pointer

Common law remedies arent available with the CCA unless provided for by the CCA.

This was the decision in the Appeal court in Arrow Global (Appellants) v Devlin (Respondent )

Also R vs Kettering Magistrates Court ex parte Motor insurers bureaux

Devlin dealt with restituiton and the doctrine of mistake, both of which were held not to be available as s170 expressly provided that only remedies within the act were available.

Common law can never defeat statute.

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Excellent thinking chaps
It shows that god debate can lead us forward
Hopefullt PT's judgement will give hard evidence to support this stance
I have some 'agreements' where I have accepted their recession, in doing so I have pointed out that the Dn is faulty. I suggest the longer the situation continues after acceptaence (or the warning that the Dn is faulty), the more letters and phone calls, the more chance I have of putting this kind of argument forward
Let us not forget, as a debtor I am supposedly NOT financially astute, a bank on the other hand is most definitely financially astute & once warned if they continue on this path how close to contempt is that???

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

And wouldn't that be nice...

well, id suggest it would be.

Given that you may have a liability of a few thousand pounds, if the creditor can recover the arrears , and the court erases your liability, id call that a good result really

Of course, the Court also does have the power to order you to pay the outstanding balance, but to remove the default under the s140 powers and id be sure that most would prefer to lose the debt if it were a choice between the two

[toomanycalls]

Re: Contracts, Termination, Repudiation and Rescission

or the court can simply discharge you from the debt and call it quits.

And wouldn't that be nice...

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

...and let's not forget the issue of compensation.

The OC has taken you to court without the merest shred of entitlement. He's committed an offence under Reg 5 of the 2008 CPRs (and I would also say Reg 7), by misleading you over his entitlement to do so, and mis-stating his entitlement to end your contract. All misleading business practices. Reg 7 is aggression; I would say taking you to court is aggressive.

The costs you've incurred might include losses due to spending time dealing with the matter; losses caused by being unable to obtain cheap (or any) credit; losses caused by having to sell assets at a big loss as you cannot obtain an overdraft; losses due to seeking professional advice; any losses caused by the embarrassment of having adverse data (the default) marked on your CRF (in my case, I cannot get a bank account with a chequebook); and so on.

S13 of DPA allows for compensation where the data recorded causes damage to an individual; it may have been that the DN could never be complied with due to some serious defect, meaning that the default should never have been recorded as it breaches the ICO rules and is inaccurate, unfair and unlawful (Principles 1, 2 and 4 of DPA).

As the court has considerable scope to award in your favour (S140), it could be worth coming up with a compensation package to pass to the OC when agreeing a f&f. It might be that he owes you!

or the court can simply discharge you from the debt and call it quits

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

...and let's not forget the issue of compensation.

The OC has taken you to court without the merest shred of entitlement. He's committed an offence under Reg 5 of the 2008 CPRs (and I would also say Reg 7), by misleading you over his entitlement to do so, and mis-stating his entitlement to end your contract. All misleading business practices. Reg 7 is aggression; I would say taking you to court is aggressive.

The costs you've incurred might include losses due to spending time dealing with the matter; losses caused by being unable to obtain cheap (or any) credit; losses caused by having to sell assets at a big loss as you cannot obtain an overdraft; losses due to seeking professional advice; any losses caused by the embarrassment of having adverse data (the default) marked on your CRF (in my case, I cannot get a bank account with a chequebook); and so on.

S13 of DPA allows for compensation where the data recorded causes damage to an individual; it may have been that the DN could never be complied with due to some serious defect, meaning that the default should never have been recorded as it breaches the ICO rules and is inaccurate, unfair and unlawful (Principles 1, 2 and 4 of DPA).

As the court has considerable scope to award in your favour (S140), it could be worth coming up with a compensation package to pass to the OC when agreeing a f&f. It might be that he owes you!

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Maybe
The OC issues on a bad Dn
You let him get you to court
Bounce him on the faulty Dn, maybe get him to swear that he did send you a compliant Dn - It makes his othe evidence look poor also
On the way out you offer a F&F, over time, to suit you

I think most OC's might be up for this
They have claimed tax relief last year on the loss
This year they are iproving profits so by coming to an agreement on money that is already written off it's all bunce for them

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

...although PT has already put us on to S129 and the possibility that a time-order might do the trick; eg, bad DN served followed by 2 years of nastiness and a day in court, where the judge makes a time order for the debtor for the original arrears, after which the contract carries on.

I suppose that might be a bit like a "payment holiday", of 2 years in this case.

Of course, the OC was a total s**t in the intervening period, and S140 might allow for compensation for the trashed credit file and all the stress.

There again, would the OC want to run the risk of reinstating the contract? He may be minded to walk away from it all, given the drubbing he's just had in court.

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

LA
I believe you may have missed a point that Pt made
The OC cannot terminate on the back of a faulty Dn therefore I suggest he is saying by ommission that the contract endures
He has also stated that the arrears due are what is required to correct the default situation at the point in time the Dn is issued (ie 2 yrs worth in my example)
Maybe FallenAngel has hope in the argument about an assigned debt which I broached earlier in the thread
However we have a date from Pt now so then we can start to read and learn our fate...

Yes, you're right Biker, have just been trying to understand what happens when the judge tells both sides that the agreement endures.

I'll just have to be patient...

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

LA
I believe you may have missed a point that Pt made
The OC cannot terminate on the back of a faulty Dn therefore I suggest he is saying by ommission that the contract endures
He has also stated that the arrears due are what is required to correct the default situation at the point in time the Dn is issued (ie 2 yrs worth in my example)
Maybe FallenAngel has hope in the argument about an assigned debt which I broached earlier in the thread
However we have a date from Pt now so then we can start to read and learn our fate...

[toomanycalls]

Re: Contracts, Termination, Repudiation and Rescission

Excellent....

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

That's this month then PT?

correct

[toomanycalls]

Re: Contracts, Termination, Repudiation and Rescission

but we will have a formal judgment on the 28th to go and disect

Read more at: Contracts, Termination, Repudiation and Rescission - Page 7 - Legal Beagles Consumer Forum

That's this month then PT?

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

have to be honest, reading this my head is spinning and I feel like throwing up lol.

Slightly concerned as went to court on back on faulty DN and T N, lender did a no show, DJ struck their claim out. They are saying that they admit DN was crap and are about to reissue me with one.

Have to say, despite TN I made seceral trips to bank and they refused me making payments to the account and have assigned the debt.

So frankly head spinning. As worried now as to what I will have to pay as how on earth can I find that level of money after a year and not through my own fault, yes admittedly I missed 2 payments, made one, dn was served, made another termination and assignment followed.

Since DJ threw out claim I have made no more payments, but how can I when they would not accept them and sold the debt.

i sincerely hope this Judgement puts all this into perspective and quickly so i know how to proceed,

And I hope PT gets some news soon.

As i said, each case turns on its own facts really

but we will have a formal judgment on the 28th to go and disect