Contracts, Termination, Repudiation and Rescission

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

PT & LA you both are talking about the damages caused by the CRA report, caused by a faulty Dn (in this scenareo)

Nobody has told me what the correct figure would be on the second Dn
I ask specifically so that the arguments can be probed not to cause trouble

With regard to the CRA reporting, if the creditor reports a default that is not technically correct what are the penalties?
lets face it the unsophisticated borrower is not supposed to know the ins and outs of the law, hence PT has a job....

As far as a 2nd DN is concerned, I cannot see how the figure could be anything other than the arrears before the contract was terminated. You cannot accumulate arrears on a terminated contract; the benefit of regular payments is withdrawn by the creditor, so he is only able (I think!) to claim either the original (correct) arrears or (if the DN is good) the balance.

I don't know what the penalties are for incorrect reporting, but would seriously like to know!
------------------------------- merged -------------------------------

When I received a DN from the bank in my other thread it was due to a second late payment. My CRF just shows two late payments at that time. This then continues as three late payments and then four as the account got further into arrears. It was only at the sixth payment that a default was registered.

I think the rule is that a notice must be sent to the debtor 28 days before the default is recorded, unless I'm mistaken.

The idea is, as with a S87 DN, you have an opportunity to sort it out.

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

I had a case
I went to a firm of solicitors, showed them the bad Dn
They told me I had not got enough to argue with
Surely they should have said, argue the Dn is bad it will reset the clock

[toomanycalls]

Re: Contracts, Termination, Repudiation and Rescission

When I received a DN from the bank in my other thread it was due to a second late payment. My CRF just shows two late payments at that time. This then continues as three late payments and then four as the account got further into arrears. It was only at the sixth payment that a default was registered.

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

PT & LA you both are talking about the damages caused by the CRA report, caused by a faulty Dn (in this scenareo)

Nobody has told me what the correct figure would be on the second Dn
I ask specifically so that the arguments can be probed not to cause trouble

With regard to the CRA reporting, if the creditor reports a default that is not technically correct what are the penalties?
lets face it the unsophisticated borrower is not supposed to know the ins and outs of the law, hence PT has a job....

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

We need to be careful in blurring the Default notice and the Default on the credit file

They are not one in the same

Hmm..but they are connected, surely?

The ICO requires a 28-day notice to be given to the debtor. The creditor bundles it up with his DN, and this is what we see generally; a S87(1) DN that includes the 28-day notice that the default will be recorded with the CRAs if the breach is not remedied.

But...the debtor cannot remedy the breach because the creditor has unlawfully demanded the balance, so the default is recorded.

It seems to me to be nitpicking to seperate the two issues when, had the creditor supplied a good DN that carried the default notice, the debtor may have been able to avoid it. In other words, the debtor has no possibility of preventing the default being recorded where there is a serious error in the DN.

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Hi Ed
it's good to talk theese things through, I believe in debate.

So the original Dn is for £10k, the arrears are in fact £500
2 years later, after a lot of letters
A corrected Dn appears with £500 to rectify, and a cheque for the incorrect CRF reporting that has caused damaged to you in the meanwhile

Oh look, it's Santa

We need to be careful in blurring the Default notice and the Default on the credit file

They are not one in the same

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Hi Ed
it's good to talk theese things through, I believe in debate.

So the original Dn is for £10k, the arrears are in fact £500
2 years later, after a lot of letters
A corrected Dn appears with £500 to rectify, and a cheque for the incorrect CRF reporting that has caused damaged to you in the meanwhile

Oh look, it's Santa

[ed.]

Re: Contracts, Termination, Repudiation and Rescission

Biker - no problems, as said I'll happily apologise for any misunderstanding based on my comments. The brain isn't always in gear with the fingers when I ramble and nobody learns anything unless there's a good debate - it's how I learnt what I know. lol

In my opinion, if on receipt of a bad DN the consumer won't argue Woody, then as said the account is froze until the correct DN is supplied...therein the customer can/or cannot rectify the breach.

A is what should happen, if it doesn't - that's rise to argument.

Refinancing is the extreme, but I see where you're coming from.

As said CRF is another argument though - and the DPA specifies unfair prejudice which should be used - S10 is a herring in my opinion. Overall that makes for a S140 argument based on behaviour and actions undertaken which show even if a breach is rectified, it clearly under the Act cannot be if CRF data remains.

PT has a very good point.

Until he quotes McGuffick because that is enforcement and in no way represents prejudice or DN application in the circs quoted.

Because in the circs quoted it's inaccurate default, not failing to pay, and it's default by a dodgy DN which freezes action. Same as a failed S77-79 request.

This is where McGuffick fell down because it was a useless chancer case and quite frankly those involved should've spent longer playing with themselves as opposed to making life harder for consumers who needed that protection.

Justice (sic) Flaux is not on my Xmas card list.

But then I can't totally blame him for the retarded argument advanced. We already had Brown saying enforcment is only gaining judgement....it was just wrong, wrong , wrong with McGuffick.

And like the technical chancers I object to, you wouldn't believe the answers I've received from creditors (well actually you probably would) who quote McGuffick despite me laying out real DPA arguments.

It's why I don't like technical chancers lol

DN breach, it's rectified, correct my CRF then....no....why....McGuffick....*****

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Just as an aside to the main point under discussion.
I thought the Dn was a chance for the debtor to rectify as though the Default had never happened, this does not class CRA reporting as enforcement either

If the creditor has 2 or more chances at a Dn when does the creditor have his chancess with his credit file?

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

ok, I will accept CRA reporting after a mere 2 missed payments, now how much aare the arrears?

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Hi Pt
Thanks for the input. I see your argument with regard to insolvency. However it is possible that a debtor has assets, friends he may borrow from etc so refinance may be possible.

The point under discussion was merely to decide what arrears would be on the correct Dn when issued and the likely consequences to both debtor & creditor

There must also be a an argument of the damaged credit file

I do not consider that either reporting to the CRAs or the related activities referred to in (i) and (ii) come anywhere near amounting to enforcement if activities (iii) to (vi) are not enforcement. These activities are concerned with reporting to CRAs or other third parties and are not even steps taken prior to enforcement such as threatening proceedings would be. Even if one accepted (which for reasons given earlier in this judgment I do not) the claimant's somewhat pejorative categorisation of reporting to CRAs as being motivated by the desire to pressurise the claimant into paying the outstanding balance, at its highest that is an attempt by indirect means to persuade the claimant to pay. If demanding payment directly or through a third party does not amount to enforcement, it is difficult to see how such indirect means could do so, even if the claimant were right as to the relevant motive of the bank.

from McGuffick,

and i expect the Court would not take the view that the trashed credit file where a debtor failed to maintain his payments, is unfair on the debtor

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Hi Pt
Thanks for the input. I see your argument with regard to insolvency. However it is possible that a debtor has assets, friends he may borrow from etc so refinance may be possible.

The point under discussion was merely to decide what arrears would be on the correct Dn when issued and the likely consequences to both debtor & creditor

There must also be a an argument of the damaged credit file

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Hi Ed


If the debtor had not Cra reported you may have been able to take out a loan at a sensible rate, remortgaged or refinanced in some way to pay the entire balance. As your credit file is now trashed you cannot.
Are you sure, the default never happened now?

But this is something of a red herring

If the Debtor is unable to pay his debts when they fall due, then there is an argument (from an Insolvency barrister i know ) that they are essentially bankrupt

Also, i dont follow how a debtor who cannot make payments can then be expecting another organisation to then refinance them. Surely, unless im missing the point, they wont be able to pay the new company or the old one.

And if they can pay, then they should seek a time order or an order under s140 allowing more time to pay

There was a case where the court did just that, lowered the payments, extended the term, discharged the arrears, according to the case report. That was the Bentley vs Blemain case

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Hi Ed
Thanks for the comments
I was not trying to imply anybody was trying to avoid or look for technicalities, I am merely encouraging debate.

I asked what amount would be the arrears in your scenario, after reading your reply I understand your position to be

OC issues faulty Dn (real arrears lets say £500 (2*£250 payments)) for £10k
Debtor does nothing
2 years later after much letter writing
OC issues correct Dn for £500
Debtor
a) Pays £500 & creditor says great, glad to have you back as a money making machine (sorry- customer) we will carry on as though the default never happened
b) As above but OC says you are a bad payer so we will terminate on notice. Debtor then has to pay at contractual payments
Or
c) Debtor does nothing & gets a day out in court

a) Should happen but never will
b) May be legally correct but how does that equate to carrying on as though the default had never happened
c) Is the most likely because the debtor has other creditors who can write 14 days & count arrears properly

If the debtor had not Cra reported you may have been able to take out a loan at a sensible rate, remortgaged or refinanced in some way to pay the entire balance. As your credit file is now trashed you cannot.
Are you sure, the default never happened now?

[ed.]

Re: Contracts, Termination, Repudiation and Rescission

Basa, hence the size of the increase I'd look at as a material change to the contract, allowing you to argue for a freeze of interest, a termination, simply leaving the balance.

Doesn't require left field unenforceability arguments, it's a strict fairness issue based on the fact you've been put at a clear disadvantage therefore the appropriate action is a freeze on the account owing to unconscionable interest rises but you pay the balance prior to the rise and never use it again.

I'd look at it from that direction rather than anything else chap.

Sorry if I've come across wrong, didn't mean to, what I'm trying to say is looking for flaws all the time in many ways makes the situation worse, sometimes it's easier to approach it from a different angle and get it under control rather than looking for technicalities.

And I completely agree on the last bit, society and the government have encouraged debt on an unmanageable scale. It's fine when things are going well, but it bites when they don't...that's never considered with regulations being relaxed because the Treasury does so well out of it and it's plebs like us who pay for it when it goes tits up.

Interest rates are going to go up simply because of inflation, but that doesn't take into account inflation wouldn't be so high if there were proper regulation of utilities and the profits they make, supermarkets and the profits they make and even down to petrol which the Gov creams money from.

The focus is maintaining tax income, which is the wrong way of looking at it...the angle should always be how to put more money in the pockets of families, not how to maintain the Treasury receipts.

Until that changes we'll be permanently shafted.

Mr Biker - no the debtor wins in my world, the debtor just doesn't rely on spurious technicalities in an attempt to avoid their obligations.

You might think that's a subtle, maybe a cruel difference....but it's a difference nontheless and whilst I love attempting left field arguments in communications and have often been accused of inventing my own law by my particular spin, there's a difference between taking the risk yourself, and then in a thread like this potentially encouraging other people who don't grasp the law as well into doing something daft that would make their situation worse.

You're missing the trick in your comment that because I said a debtor should have 14 clear days to rectify any breach. If the Creditor cannot get the DN correct, then the clear 14 days doesn't start until they can - moreover you can then look at a faulty DN only giving rise to the arrears as per Woody.

Failing that, as you reference your cases, you've had 2 years to save the required figure to rectify the breach, and if necessary you can then based on their DN error demand all interest and charges refunded incurred prior to that point, once you settle the correct DN should one ever be supplied and then the agreement continues.

If the DN is faulty and you don't push for arrears are due only, then the correct arrears for a DN fix become the arrears at the point as they should've been. Until the DN is correct the account is froze and you have to argue such.

You can take it either way...I don't see a faulty DN as being unfair in itself...one example of multiple failures by a creditor yes, but enough to claim no balance is now owed at all as per this thread...no chance.

Again apologies if I wasn't clear enough, hopefully the above let's you know where I'm coming from. If somebody isn't prepared to go to court on a faulty DN and argue Woody to it's fullest, then the next argument is the 14 days doesn't start until the DN is correct.

This is where Brandon? fell down in my opinion, it wasn't argued that a creditor could get the DN wrong and the rectify, but that the 14 days (irrespective of whether the breach could be remedied in that time) didn't start until the DN was correct.

Long week, if I've got my caselaw wrong forgive me!

Dicky - I disagree we should be both moral and act in accordance with the strict terms....ie if you have an agreement that is irredeemably unenforceable the offer to settle the principle borrowed (unless already repaid) should be made.

I accept a lot won't agree with me on that, but that's my standpoint and always has been.

Again maybe I haven't come over right because I was talking generally in one of my time of the month rants lol, and didn't mean to pick out or offend anyone, because those who irk me such as the Rankine's are removed from the folks on here.

I completely agree the creditors don't act morally or in accordance with the CCA. If they did, I wouldn't be here or on other sites and I wouldn't be as passionate/angry/mental (pick your own) as I am.

I just don't want people to drop to their level is all.

lol, I apologise for the wife comment, that didn't come over as intended chap. So I'll take the virtual slap there. I was trying to make the point that some are jumping on the bandwagon for personal gain, where no unfairness exists and in doing so it actually erodes the protection that should be automatically applied to those who were clearly treated wrong.

I know a chap who worked in a claims department and in the early days, they used to simply repay PPI claims even without basis just to save on the cost of dealing with them and looking at them back when it was new as a customer service exercise. So people who jumped on the press bandwagon and never deserved a repayment helped create the case now where creditors are fighting tooth and nail EVEN when it's clear cut that the customer was ripped off.

I didn't make myself clear, so I'm big enough to apologise.

BUT I stand by my point that if the creditor does act properly, the DN etc is correct, and the debtor makes no attempt to organise a rectification that is not unfair.

Other than that, I'm a Brummie mate, apparently we are thick as they come lol

But yeah, we should always do the moral thing or we become that which we despise. If you disagree, fair enough, I don't.

In your example in my opinion the consumer, let alone the solicitor, should've paid more attention. The solicitor fouled up, therefore it's actionable...the consumer should always read what they sign.

Whether you assume this is me being 'perfect' again or not, and believe me, my debt proves I'm not, long before I found sites like this, long before I heard of bank charges outside of getting a few and so on, I had the bank who likes to say 'bail me out' attempt to sell me buildings and contents insurance on a council house. They knew it was a council house because they tried to sell this insurance product whilst I was moving into it and meeting them for a slight increase in my OD and a consolidation loan.

I knew enough in my financial naivety to leave the insurance as a quote only so I could check with my dad. I walked out however with a grand increase in my OD, and a 9K loan - I was very low paid self employed at the point.

I didn't catch most of it, but I caught the insurance...

Make of that what you will given what I've said.

LA - unfairness and discriminatory....chase that, not unenforceability is my point. And for your second post, thank you - you get where I'm coming from here but I don't agree as far as no going back....it's then a different argument about prejudice on CRF's.