Contracts, Termination, Repudiation and Rescission

[ed.]

Re: Contracts, Termination, Repudiation and Rescission

Sorry folks, are we really basing everything on such technicalities.

If consumers act in such a petulant way, can we blame Judges now for considering CCA claims as a means of removing liability on ridiculous points?

Where is the unfairness, where is the brow beating?

The DN is wrong, not enough days, states the wrong figure, states the wrong address, etc

Come on.

YES there has to be recourse in claimants not paying enough attention, dragging people to court when they can;t even cross their T's and dot their 'I's etc but to think on it's own such an error removes the entitlement to the debt.

Sorry don't agree. Behaviour like that should limit liability, not extinguish it.

We are getting bogged down in pointlessness.

If a creditor makes a material breach they should only be entitled to their risk which is the principle sum...no interest, no charges etc...

A paperwork error irrespective of a 100 or 100,000 loan is what gives us a bad name.

We all want to fight, we all want to address the unfairness....but what is wrong with the moral offer?

On errors, repay the principle sum loaned?

I appreciate this isn't probably the right thread for this, but I've had enough.

As an amatuer I'm good at left field arguments, I'm running them. Won them, some ongoing.

But really deny an entire debt, even the principle sum, over what could be a misprint? And a daft technicality?

It's these cases who **** us all.

If you've had the money, repay the money. If the agreement is wrong, argue about the interest, argue about charges....but pay the principle - it' the moral and ethical thing to do.

I await flaming and PM's.....but I don't care, I've done this since 2007 and whilst people bang on about CMC's all I am actually seeing is more people jumping on the bandwagon for no good reason and the real people who need the protection are being buggered by those with the money to try and take advantage.

Those it doesn't apply to will not feel offended....those who feel offended, kind of prove my point.

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

If a traffic light is on green, I can go forward without penalty
If the traffic light is on red I risk causing a crash
If there is a crash it will be held to be soley my fault & I face the penalty, no matter how severe - I took the wrong action at the wrong time.

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Ed - the unfairness in my cases is: (a) a DN that demanded twice the arrears and an OC that would not accept his mistake at any cost; and (b) a DN that offered almost no period for remedy (and another OC who refused to accept his mistake) when my circumstances were rapidly improving and I could have fixed the problem.

In both cases, the OC was utterly insistent on demanding everything. There was (is) no prospect of anything other than payment of the balance or court.

You seem to be of the view that this is perfectly acceptable, and that my (and our) quibbles are based on technicalities. You would also, I assume, regard Woodchester as a technicality and the wrong judgement? After all, that was based on a minor slip of the pen in the DN.

When the OC plays hardball and it is not possible to pay the balance in one hit, what exactly would you do? Like many, I look for anything I can use to defend myself. PT has announced a judgement that may help, but he cannot reveal the facts yet; as many of us are dealing with litigious OCs now, we are merely trying to uncover possibilities.

As for the moral question that you raise, in both my terminated credit card agreements I paid more in than I took out and the OC made additional money in the fees he charges his merchants for use of the cards.

I just do not accept that this is "petulance". The "unfarness" is, surely, obvious? Denying the debt is merely a side-effect of the OC's actions; had both of mine acted within the bounds of the regs and a little more reasonably, I would not have to be posting here and winding you up!


Rant over...carry on...

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Basa - there is still not really anything in PT's comments that is clearly stating that the agreement endures, apart from your bit in bold where he suggests that it does.

I would just say that the 'debt' can only be the arrears once it gets to court, and that is what must be paid (as per Woodchester).

We are at court, remember, not the long period of angry letter-writing beforehand; at court, the OC has stated that he terminated the agreement and that the mechanism was a faulty DN. He had no entitlement to do this. Therefore, if he now wants the balance, what does he do?

I have no idea if he would be able to get the time order needed to ensure that the DN could ultimately be complied with (or not) at the hearing; S129 uses the word "just", and as the case is brought to court on a different matter I do not see how this (a time order) could be granted. I could be wrong and have asked PT for some S129 cases.

Another alternative would be to serve a new DN, showing the new breach as those missed payments between the original breach and today's date (ie, the date of the trial). But that cannot work, because the OC has already told the debtor that the agreement is terminated and the facility for monthly payments has been removed. Therefore the new arrears is a fait accompli and the debtor would, I think, have grounds for defending this under S140.

So I simply cannot see how, once it gets to court, the OC can then go on to claim the balance, unless he obtains the explicit permission of the debtor to reinstate the contract.

[Shepherdess]

Re: Contracts, Termination, Repudiation and Rescission

Just to throw another ingredient into the mix..
Assuming a materially faulty DN is issued (no de minimis issues..lets say only 3 days to remedy for example), the debtor has no chance of raising the arrears in such a short timescale and the creditor subsequently terminates the account. The debtor is informed that the account is terminated, the full balance is demanded, the default is recorded at the CRA's and the creditor sends numerous letters threatening legal action, charging orders and bailiffs.

Doesn't CPUTR 2008 (sections 5 & 6) offer some protection here?
The creditor hasn't issued a compliant DN therefore has no right to send all the subsequent notices and information, which would seriously mislead the debtor as to their rights and the state of the account.

OK CPUTR transgressions don't render an agreement unenforceable, but wouldn't a complaint and the prospect of possible criminal sanctions deter the creditor from either taking this to court in the first place, or, reissuing another claim if the first failed on a DN issue.
Simply stating that the termination is not effective may be a legal issue, but the real issue of the treatment and effect on the debtor in the aftermath of the creditors *maladministration are real, will influence his decisions, and cannot be magically erased, especially if much time has passed in the interim.

*Exactly how hard is it to calculate the correct period to state on the Default Notice? Mistakes are not a typo, they are administrative errors with legal consequences, the same as mis-stated interest or miscalculated balances, surely?

Just exploring all the options....:tinysmile_grin_t:

Shepherdess

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

Where is the unfairness, where is the brow beating?

Well for me the unfairness is creditors charging me between 20 and 30% interest such that I can no longer pay enough to significantly reduce my indebtedness.

Especially where the BoE base rate has been 0.5% for nearly 2 years and the banks lend to one another at not much more.

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Just to throw another ingredient into the mix..
Assuming a materially faulty DN is issued (no de minimis issues..lets say only 3 days to remedy for example), the debtor has no chance of raising the arrears in such a short timescale and the creditor subsequently terminates the account. The debtor is informed that the account is terminated, the full balance is demanded, the default is recorded at the CRA's and the creditor sends numerous letters threatening legal action, charging orders and bailiffs.

Doesn't CPUTR 2008 (sections 5 & 6) offer some protection here?
The creditor hasn't issued a compliant DN therefore has no right to send all the subsequent notices and information, which would seriously mislead the debtor as to their rights and the state of the account.

OK CPUTR transgressions don't render an agreement unenforceable, but wouldn't a complaint and the prospect of possible criminal sanctions deter the creditor from either taking this to court in the first place, or, reissuing another claim if the first failed on a DN issue.
Simply stating that the termination is not effective may be a legal issue, but the real issue of the treatment and effect on the debtor in the aftermath of the creditors *maladministration are real, will influence his decisions, and cannot be magically erased, especially if much time has passed in the interim.

*Exactly how hard is it to calculate the correct period to state on the Default Notice? Mistakes are not a typo, they are administrative errors with legal consequences, just as mis-stated interest or miscalculated balances, surely?

Just exploring all the options....:tinysmile_grin_t:

Shepherdess

I completely agree with this.

The 08 CPRs are there to "protect" consumers from being misled (Reg 5) and suffering from agression (Reg 7), so while the CPRs cannot be used by private individuals I would think they would "support" a S140 defence.

And yes, it is very simple to get a DN right. They are extremely basic notices. But why is it that creditors keep getting them wrong, when they must be aware of the potential consequences? Could it be that they do not really want the breach to be remedied, and prefer to cast adrift a wayward debtor and seek the balance in court?

I think Shepherdess's point about the reality of the situation is key; the contract may endure in a legal sense, but the reality is that the debtor has been comprehensively misled by the OC, to the extent that he believes he is being sued for the full amount and may prefer instead to enter into a very long repayment arrangement. How many former bank customers are now paying off balances on contracts that should not have been terminated, I wonder?

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

If the Dn were faulty ie 3 days to pay the creditor could not remortgage within that period to raise the full balance

Therefore he gives up

If the law had been to give 14 days to repay, with a further 14 before action commenced then statue would reflect this

[ed.]

Re: Contracts, Termination, Repudiation and Rescission

LA - as said probably the wrong thread but seems apt as it's total recission etc and left field options that the Act doesn't allow - I was just ranting generally because I'm fed up of chancers ruining the protection for all by citing and trying to prove the tiniest error in effect means they should be able to reclaim anything already paid.

I've read my post, I didn't put that into proper context, so I apologise.

In your case, no I don't discount Woody - how could I? - I think it's the perfect remedy. The remedy and protection for you IS THERE and exists already. They made the mistake, not only can it be challenged on the basis of unfairness through behaviour, but caselaw exists showing the remedy for their actions fullstop.

You can demostrate you have already repaid the principle, you aren't doing a complete unenforceability, your liability is now simply the arrears through their behaviour.

What's wrong with that?

Again, sorry if it didn't come across, I'm on about the Rankine element, the bandwagon jumpers who want out of it all.

As for creditors who expect payment in one go...to paraphrase a recent letter to a TSB 3rd party:

Even if I could afford to meet that kind of repayment, I wouldn't on principle because unlike your client, I'm not able to beg to the Government for a windfall to cover my mismanagement just cause it might suit you.

Basa - on the other hand have you ever been charged an interest rate at minimum payment that would ever see you repay the balance? We all fall into the minimum payment trap, that in itself I don't find unfair. Hiking rates I do, but a belief that we can pay the minimum and continue spending isn't unfair, it's our own error....and I say that as somebody who only paid the minimum.

It's the ridiculous debt attitude we now have in this country, and that applies to the Gov aswell as I remember Clarke talking about it - as long as you can maintain interest payments, the level of debt is irrelevant.

We've become a debt dependent nation, we don't save for things anymore, we take the easy option...that's not unfairness from a creditor because we lapped it up. We should've known better, but we didn't...and I completely include myself in that.

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

Basa - on the other hand have you ever been charged an interest rate at minimum payment that would ever see you repay the balance? We all fall into the minimum payment trap, that in itself I don't find unfair. Hiking rates I do, but a belief that we can pay the minimum and continue spending isn't unfair, it's our own error....and I say that as somebody who only paid the minimum.

What happens is that you spend up to a level on the card where you can repay the minimum plus a reasonable amount to bring the balance down. Then the creditor hikes up the interest and your income remains static such that those same repayments are now the minimum level and repay very little balance. The trap is that you are used to using that credit ('cos your disposable income is spent paying the debt) and now can't reduce that debt adequately.

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

ask yourself, how does a credit card issuer provide funding?

they do so on the bond markets, by securitisation.

Now, the rates you pay are governed by this process,

so the courts will not, and did not in the recent case, take the view that the raising of rates is unreasonable, due to the fact that there was a need to raise further funds for credit, and to do that required raising rates

[toomanycalls]

Re: Contracts, Termination, Repudiation and Rescission

LA said

So perhaps the phrase "the OC cannot terminate on the back of a bad DN" merely means that he cannot do this and expect the benefit of S87(1) (entitlement to the balance or goods)?

The point being that it is not the bad DN that is relied upon, but the fact that the OC terminates without entitlement.

Just a thought...could be complete rubbish of course...

I don't think that's rubbish, I think that's the key point if proceedings have started.

[Shepherdess]

Re: Contracts, Termination, Repudiation and Rescission

Too true, Basa!
Or, as in the case of my Littlewoods card which I was carefully keeping within my affordable minimum repayment limits (despite unrequested hikes of my credit limit) when suddenly (shortly into the credit crunch) they kindly wrote and said
"In order to help you (??!!) repay your credit balance we have increased your minimum repayments to 6%"
(Double what it was, taking my monthly repayments from £90 to £180).

And, together with an unexpected major drop in income, there ensued the usual late payment fees (so the credit limit plummeted) then overlimit fees until I sent for a copy of the CCA to see if they had the right to do all this.

Sadly, a CCA never arrived (unsuprisingly since I genuinely never signed anything..it was an offshoot of a catalogue account).
Not had a single word from them in 2 years since I requested it and the account isn't even listed on my credit record.
Morally, I don't feel I owe them anything.

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

Too true, Basa!
Or, as in the case of my Littlewoods card which I was carefully keeping within my affordable minimum repayment limits (despite unrequested hikes of my credit limit) when suddenly (shortly into the credit crunch) they kindly wrote and said
"In order to help you (??!!) repay your credit balance we have increased your minimum repayments to 6%"
(Double what it was, taking my monthly repayments from £90 to £180).

And, together with an unexpected major drop in income, there ensued the usual late payment fees (so the credit limit plummeted) then overlimit fees until I sent for a copy of the CCA to see if they had the right to do all this.

Sadly, a CCA never arrived (unsuprisingly since I genuinely never signed anything..it was an offshoot of a catalogue account).
Not had a single word from them in 2 years since I requested it and the account isn't even listed on my credit record.
Morally, I don't feel I owe them anything.

You're not my wife incognito are you??!! :tinysmile_kiss_t4:

What you describe is EXACTLY my OH situation except perhaps I am suing the catalogue for return of interest charged unlawfully!!

(A little foolish perhaps, but it is giving me valuable insight & experience of how the system works).

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

Sorry folks, are we really basing everything on such technicalities.

If consumers act in such a petulant way, can we blame Judges now for considering CCA claims as a means of removing liability on ridiculous points?

Where is the unfairness, where is the brow beating?

The DN is wrong, not enough days, states the wrong figure, states the wrong address, etc

Come on.

YES there has to be recourse in claimants not paying enough attention, dragging people to court when they can;t even cross their T's and dot their 'I's etc but to think on it's own such an error removes the entitlement to the debt.

Sorry don't agree. Behaviour like that should limit liability, not extinguish it.

We are getting bogged down in pointlessness.

If a creditor makes a material breach they should only be entitled to their risk which is the principle sum...no interest, no charges etc...

A paperwork error irrespective of a 100 or 100,000 loan is what gives us a bad name.

We all want to fight, we all want to address the unfairness....but what is wrong with the moral offer?

On errors, repay the principle sum loaned?

I appreciate this isn't probably the right thread for this, but I've had enough.

As an amatuer I'm good at left field arguments, I'm running them. Won them, some ongoing.

But really deny an entire debt, even the principle sum, over what could be a misprint? And a daft technicality?

It's these cases who **** us all.

If you've had the money, repay the money. If the agreement is wrong, argue about the interest, argue about charges....but pay the principle - it' the moral and ethical thing to do.

I await flaming and PM's.....but I don't care, I've done this since 2007 and whilst people bang on about CMC's all I am actually seeing is more people jumping on the bandwagon for no good reason and the real people who need the protection are being buggered by those with the money to try and take advantage.

Those it doesn't apply to will not feel offended....those who feel offended, kind of prove my point.

do you SERIOUSLY believe, that if a creditor serves a valid DN- and the consumer pays the amount demanded in the DN a week later than the remedy date.......that the creditor will play the "moral " role and say "ok a week late- but thats OK!!"


i DON'T THINK SO!!

what the creditor WIll say is "thanks for the payment....but sorry old son- we already terminated- we were just about to write to you"


if a creditor sold PPI to a self employed person - or as in the case of my wife- who worked for a govt department and whose work benefits for sickness and reduncancy exceeded those available under the policy............that the creditor would act "morally" and repay the premiums plus interest?

what planet do you live on!

whats good for the goose...................