Contracts, Termination, Repudiation and Rescission

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Any new DN would have to show the original arrears, which you've already paid.

A DN showing new "arrears" post termination just makes no sense, unless you have agreed to have the ag reinstated. Again, "arrears" just means missed contractual payments; no arrears can accumulate post termination because the concept of "missed payments" no longer applies (the OC has removed the facility to pay monthly).

If that doesn't wash, then think about what is written on the DN. These are issued when the contractual payments are not paid, and for no other reason. The arrears can only accumulate, therefore, where there is a facility to make contractual payments (ie, the contract is live). They can't accumulate where the contract is dead and the facility to make monthly payments is removed.

You would be unable to breach your agreement (the trigger for the DN), because it is already breached and terminated. So the OC would have to fabricate the breach at the same time as reinstating the contract in order to serve a new DN.

He cannot just terminate the agreement as some think, because the termination is on breach and he must follow specific steps before claiming his money. However, I suppose he could write to say it was all a bit mistake, your account is now up-to-date, adverse data is removed from the CRAs and then, a fortight later, he sends a non-breach TN followed by a demand for the balance.

I wouldn't put anything passed our finance industry...

[toomanycalls]

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.

This is surely now a case of only the arrears actually due at the time of the DN are recoverable now by the creditor, if they sell the account it should only be worth the arrears.

[fallenangel]

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.

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

How did you get on with the court Paul? Any hope of a publication soon?

no joy yet, the guy who is handling the file is on public counter and the judge on annual leave.

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

How did you get on with the court Paul? Any hope of a publication soon?

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Thanks for the views Pt
It's good to see this thread discussing matters in a civil way without degnerating as others have
It helps to practice my mooting

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Creditor issues faulty Dn
Debtor cannot rectify the conditions set out in the faulty Dn
Accepts repudiation by telling the creditor, and stating his Dn is pants
Creditor wriets back & says my Dn is fine pay up
Eventually we get to the courthouse
Judge says Dn is pants
Do I get extra costs because I told the creditor his Dn stank?

That depends on what the judge says further on the subject.

If he rules that the creditor may enforce, then you would need to make submissions on the point of costs.

It ought to lower the costs against you , nbut that is not definite as the judge has discretion on costs

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Creditor issues faulty Dn
Debtor cannot rectify the conditions set out in the faulty Dn
Accepts repudiation by telling the creditor, and stating his Dn is pants
Creditor wriets back & says my Dn is fine pay up
Eventually we get to the courthouse
Judge says Dn is pants
Do I get extra costs because I told the creditor his Dn stank?

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

If the contract endures, can I still spend on my card if I still have available balance?
Sorry, no I can't - they asked me to return the card when they terminated.
So,out of this enduring contract I get:
They ability to use the creditors money - no longer
They ability to make monthly payments of my choice - no longer
A nice shiney flexible friend - no longer.

The 1974 act expressly allows a creditor to withdraw credit and this is not considered part of the termination process. S87 sets this out.

But a default notice is a notice of being in default and occurs when you are two or more payments in arrears, in fact I'm sure you are supposed to be sent one on the second month. It is not that a default is being registered on your credit file, in fact its probably just that the account has late payments at this stage. That default marker might happen later but is not directly connected to the default notice

Read more at: Legal Beagles Consumer Forum - Reply to Topic

now then

you are running into a problem here, if you are correct, when does limitation run from?

you see some lenders have argued that limitation runs from when they chose it issue a default notice, which is wrong, but the thing is, the creditor has no duty to issue a default notice after the second late payment and if he chooses not to, then he can still register the fact you have failed to make your payments on time.

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

All the DNs I've seen contain the 28-day warning (required by the ICO) that the default will be recorded with the CRAs if the breach is not remedied.

I think that "being in default" is a lot different to the default marker placed on your CRF, which should only happen if the breach is not remedied as per the DN.

It's worth reading the ICO guidelines on defaults;

http://www.ico.gov.uk/upload/documen...3%20%20doc.pdf

So you've defaulted, but it can be remedied, and the default marker is only placed on your file if you do not remedy.

Note that the notice warning of the default being recorded is carried within the DN, hence the connection between the two. The OC uses the DN as the vehicle for delivering the ICO warning of default.

See para 33 in the ICO doc...

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

If the contract endures, can I still spend on my card if I still have available balance?
Sorry, no I can't - they asked me to return the card when they terminated.
So,out of this enduring contract I get:
They ability to use the creditors money - no longer
They ability to make monthly payments of my choice - no longer
A nice shiney flexible friend - no longer.
Hmm
However I do get
The postman as a friend for life as my post kept him in a job all through the recession
A thank you card from BT for all the extra phone calls
My shares in Experian go up
My wife who works for a DCA is able to support me
Loss of sleep
Stress
The threat of debtors prison.

The bank
Claims a loss on the unrecoverable debt
Causes a worldwide financial breakdown
gets bailed out by the government
Banker gets his bonus
Bank gets their money in the end
Pays less than 3% tax on the money the government gave me from the taxes you pay
Banker gets his bonus

I know what profession I will follow in the next life.


If the law says the Dn must be accurate to allow the Creditor to terminate
How is the unsophisticated debtor to know that the Dn is faulty & the Tn is ballcocks.
Are we all to be trainned solicitors
There apears to be no penalty for the bank who can't count to 14 or correctly work out the arrears

[toomanycalls]

Re: Contracts, Termination, Repudiation and Rescission

There are additional problems for the creditor. To serve a new DN with new arrears, he must remove the original default from the CRAs. In the eyes of the ICO, a default is an irredeemable breakdown in the relationship and the first step in recovery. Yet a new DN implies that there is not yet that breakdown, therefore the original recording of the default was wrong.

But a default notice is a notice of being in default and occurs when you are two or more payments in arrears, in fact I'm sure you are supposed to be sent one on the second month. It is not that a default is being registered on your credit file, in fact its probably just that the account has late payments at this stage. That default marker might happen later but is not directly connected to the default notice.

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

The creditor would, at some stage, have to change tack and claim the contract endures in order to serve a new DN showing new arrears.

How does he do this? He may already have stated in his POC that the contract was terminated, and has certainly made it known to the debtor that it was so. At some stage he would need to tell the debtor that he made a mistake, serve a new DN and off we go.

While I can see this happening early in events (eg, shortly after the original bad DN was served), I don't see this happening a year or two down the road after all the nastiness has taken place and/or when both sides are at court. The debtor surely only has to claim that being told there are new arrears when they were unavoidable (because the creditor withdrew the facility for monthly payments) is unfair (S140)?

There are additional problems for the creditor. To serve a new DN with new arrears, he must remove the original default from the CRAs. In the eyes of the ICO, a default is an irredeemable breakdown in the relationship and the first step in recovery. Yet a new DN implies that there is not yet that breakdown, therefore the original recording of the default was wrong.

Additionally, as Biker has pointed out, if the debt has been assigned, what happens then? Can the assignee (who may be a mere DCA) issue a DN with the possibility that it can be dealt with by the debtor and the contract reinstated? I would say no, because the contract is truly over unless the OC is forced to take the debt back and re-issue the contract.

My view, FWIW, is that issuing a new DN showing the "arrears" between the first and the current date is hugely problematic for a creditor, for the reasons above. It may also embroil him in a S140 battle.

As PT has shown, if a new DN is received and it looks bad for the debtor, then he can request a S129 time order on the first DN, pay the original arrears, demand the contract is reinstated and claim compensation for the intervening aggro. At that point, the creditor may decide to give up.

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

the creditor cannot simply put the "original" arrears on a second DN- since the whole basis for his argument that he can issue a second DN is that his termination of the agreement was not in fact a termination (due to the faulty DN) and that the agreement endured

he must therefore demand the whole of the arrears outstanding on an (alleged) enduring agreement at the time he issues the second DN

failing which- the debtor cannot remedy and treat the agreement as if the breach had never occurred (s89)


however, in his termination letter- the creditor told the debtor that monthly payments were no longer acceptable and that the debtor must pay in full right away.

The creditor is therefore seeking to persuade the court that the debtor has breached the agreement by being XXX months in arrears when the reality is (if the creditors argument is to be believed) that the agreement endured and the creditor- who is now claiming that the debtor is in breach- actually himself instigated an amendment to the agreement whereby monthly payments were no longer required from the debtor.

you have to be either a "thick" judge or motivated by some other "agenda" not to see the difficulty the creditor has got himself into

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

I can't wait to see the judgement that you refer to in post 16 Pt, it will be interesting to put into context

it shouldnt be long now

I will be speaking to the Court in the morning, to see where we are at now.

Once i have the judgment in the final form i will be seeking to have it on BAILII and like the Kotecha case i will post it on here