Contracts, Termination, Repudiation and Rescission

[jumper999]

Re: Contracts, Termination, Repudiation and Rescission

Thank you peter I think I kinda understood that

Re: Contracts, Termination, Repudiation and Rescission

No, what im saying is, s87 is mutually exclusive to default circumstances

While a creditor can terminate in non default circumstances, the moment there is a breach he must follow the acts requirements.

If he doesnt he cannot terminate

That is what counsel for both parties agreed in the High Court

Yes agreed

Re: Contracts, Termination, Repudiation and Rescission

Hi peter what makes a default notice ineffective? I mean what would you advise makes a default notice ineffective please?

Hi
Section 88 sets out what is required for a notice to be effective.

Bassically it should give the debtor all the accurate information thats required to either remedy his breach, or if a remedy is not possible the full amount needed to pay off the loan and thus prevent enforcement in court.

There is no indication of any leeway as to the figures given or the amount of time(14 days) in which to do this, however recent judgements have said that minor errors in the sums quoted will not render the notice inafective. Also, the smount of time required is currently being callenged in court, the court is saying that if the 14 days ismisquoted that it does not matter as long as the actual enforcement gives the alloted time. In other woeds if the notice only gives 13 days then the notice will still be valid, this is the case at the moment but is being appeald

Peter

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Hi

Are you saying that an account cannot be terminated without a default notice?

I agree that a default termination is not valid if the notice is incorrect, and the enforcement cannot therefore be caried out.
But the option of contractural termination is always availabe to the creditor,this is confirmed in the new regulations where it states conrtractural treminations must recieve notice.

peter

No, what im saying is, s87 is mutually exclusive to default circumstances

While a creditor can terminate in non default circumstances, the moment there is a breach he must follow the acts requirements.

If he doesnt he cannot terminate

That is what counsel for both parties agreed in the High Court

Re: Contracts, Termination, Repudiation and Rescission

Hi peter what makes a default notice ineffective? I mean what would you advise makes a default notice ineffective please?

you cannot take the "next step" to quote Woodchester on the back of a bad notice

So there can be no termination on a bad notice

the statute sets out clear in plain English that the service of a default notice is a prerequisite to being able to terminate.

The High Court judgment is in favour of the debtor, trust me, very very much in favour

Hi

Are you saying that an account cannot be terminated without a default notice?

I agree that a default termination is not valid if the notice is incorrect, and the enforcement cannot therefore be caried out.
But the option of contractural termination is always availabe to the creditor,this is confirmed in the new regulations where it states conrtractural treminations must recieve notice.

peter

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Bumping to see if there is a date when this determination can be published?

in the hands of the judge.

Due to the application under the barrell rule,it will need considering before judgment can be handed down.

It should be around march i hope, the early part

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

Bumping to see if there is a date when this determination can be published?

[jumper999]

Re: Contracts, Termination, Repudiation and Rescission

Hi peter what makes a default notice ineffective? I mean what would you advise makes a default notice ineffective please?

Re: Contracts, Termination, Repudiation and Rescission

you cannot take the "next step" to quote Woodchester on the back of a bad notice

So there can be no termination on a bad notice

the statute sets out clear in plain English that the service of a default notice is a prerequisite to being able to terminate.

The High Court judgment is in favour of the debtor, trust me, very very much in favour

Hi

Yes indeed a default termination must be proceeded by an effective default note. however the agreement can be terminated at ay time if there is provision in the agrement for it(none default termination).

The key factor here is enforcement.

Peter

[toomanycalls]

Re: Contracts, Termination, Repudiation and Rescission

Great help PT and info. Just my opinion is that this recent win/judgment will be in favor of the debtor, if they are or in any current litigation with their creditor/lender.

What I do not know is what impact this judgment will have on all those debtors whom have had their agreements/contracts terminated on the back of bad notices. I am sure that you have banged your head against the wall enough times in replying to this question but a question that hangs over many of us including myself............that is why we look forward to seeing the outcome of this judgment.

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

I'm also very interested in this as I have a current claim against me with exactly this position. Defective default notice, letter stating termination and now claim gone in. What should be put as defence of this claim?

[jumper999]

Re: Contracts, Termination, Repudiation and Rescission

you cannot take the "next step" to quote Woodchester on the back of a bad notice

So there can be no termination on a bad notice

the statute sets out clear in plain English that the service of a default notice is a prerequisite to being able to terminate.

The High Court judgment is in favour of the debtor, trust me, very very much in favour

Great help PT and info. Just my opinion is that this recent win/judgment will be in favor of the debtor, if they are or in any current litigation with their creditor/lender.

What I do not know is what impact this judgment will have on all those debtors whom have had their agreements/contracts terminated on the back of bad notices. I am sure that you have banged your head against the wall enough times in replying to this question but a question that hangs over many of us including myself............that is why we look forward to seeing the outcome of this judgment.

Thanks for giving so many hope :tinysmile_kiss_t4:

[cadwallader]

Re: Contracts, Termination, Repudiation and Rescission

OK, thanks

C

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

So what does this mean where the creditor has advised termination following a bad default notice (and even sold on the debt)? It may be a couple of years down the line, so potentially the arrears may be huge and the debtor is in a far worse position in trying to remedy as may have to fund a significant number of missed payments to remedy the arrears now owing.

Seems this High Court ruling is more bad news for debtors or am I missing something?

you cannot take the "next step" to quote Woodchester on the back of a bad notice

So there can be no termination on a bad notice

the statute sets out clear in plain English that the service of a default notice is a prerequisite to being able to terminate.

The High Court judgment is in favour of the debtor, trust me, very very much in favour

[cadwallader]

Re: Contracts, Termination, Repudiation and Rescission

So what does this mean where the creditor has advised termination following a bad default notice (and even sold on the debt)? It may be a couple of years down the line, so potentially the arrears may be huge and the debtor is in a far worse position in trying to remedy as may have to fund a significant number of missed payments to remedy the arrears now owing.

Seems this High Court ruling is more bad news for debtors or am I missing something?

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Hi

This is more interesting.
I see no reason why an account cannot be terminated , if the agreement embodies a term allowing it.
I also see no reason why an account cannot be transferred to another party, terminated or not, indeeed they frequently are.

The question is can the agreement be enforced and liablitiies under it recovered.

The answer is, no they cannot for that to happen there needs to be a default and the notice giving time to remedy, as per statute.

Contry to some oppinion an agreement can be terminated at any time if the contract says it can the creditor can even demand payment, he cannot however enforce that demand.

The reason the creditor can unilaterally terminate an agreement is because the debtor gives him permission to when he signs the agrement which contains that facility in its terms.

Peter

The High Court has ruled that you cannot terminate( which is enforcement per mcguffick) if the default notice is bad.

If it is bad it must be remedied first, and afford the debtor the time to remedy the breach