Contracts, Termination, Repudiation and Rescission

[toomanycalls]

Re: Contracts, Termination, Repudiation and Rescission

Interesting post Garlock. When I SARed a number of my accounts some of the screen prints seemed to show payments made to the account from inception and purchases/transfers separate to charges and interest. Alomost to support that theory or maybe so that they know their true liability when they discharge/sell on an account.

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Hi basa,

Re your post above no. 679. I have argued this before and have always been "shouted down" shall we say on the basis that "CCA law is different from the Common Law of Contract" and that "Contract" can never apply in CCA disputes. But something has to govern the circumstances of a "non-agreement" ??????

Whether I actually agree is irrelevant really, the point remains to be proved. However it IS an established principle of the Common Law of Contract that should a contract be breached so that it is legally declared void, in my humble view, exactly what happens when a CCA dispute arises and the agreement is found defective, then Common Law requires that the parties to that void agreement/contract are returned to the exact position that they were in prior to the existance/inception of the flawed contract, i.e that there should be no benefit, gain or loss by EITHER party.

Therefore any CC agreement which has any maturity to it would have to be looked at right back to the date of its inception, all purchases and cash withdrawals would have to be paid for but there can be no gain on behalf of the alleged creditor, he has no right to the interest and charges he has collected on the way nor is he entitled to the income he has generated from the collection of such charges and interest. You then get into a similar scenario of statutory interest and interest in restitution as is often discussed on these forums about crdit card charges.

I think you would find in most cases of a mature "agreement", it is in fact the alleged debtor who is owed monies from the creditor.

Some points to ponder if you enter the minefield of Contract Law and I suspect why the banks try to steer clear at every turn.

regards
Garlok

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

certainly the more faults the better, for sure

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Is a 'compound' defence more the correct way to go?
i.e.
Faults with agreement
Faults with Dn / Termination
Faults with assignement
Behaviour of creditor / DCA
Maybe counterclaim

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

One of the risks with this argument of repudiation and affirmation/election is that as I understand it (and I stress I am no expert in common law) that if it is shown there is no longer a formal contract between parties then common law comes into play.

Common law tends to operate on the issues of fairness & reasonableness and I would expect a judge to consider that if a debtor has borrowed money then it should be repaid.

The only real areas for argument would be how much and how quickly.

A long time ago I successfully argued the lack of a proper contract with an estate agent. The judge simply said that therefore we owed the agents reasonable expenses (which funnily enough worked out almost the same amount as the state agent's argued fee amount !!!)

[toomanycalls]

Re: Contracts, Termination, Repudiation and Rescission

i think they actually did eventually conform to their s78 obligations- the judge merely criticised the fact that not until well into the trial

i am SURE the DN did for them

I'm glad about that, much better for my case then, thanks for clarifying.

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

The only thing I wonder being in the situation myself is that if it was the DN or the s78 breach that caused them to back down in your case. Its my opinion that either one would be sufficient.

i think they actually did eventually conform to their s78 obligations- the judge merely criticised the fact that not until well into the trial

i am SURE the DN did for them

[toomanycalls]

Re: Contracts, Termination, Repudiation and Rescission

you are quite right.......and whilst i accept that there appears to have been no success yet in this area.............i still do not believe (especially when - as you say - the fault has been pointed out to the creditor and he has the opportunity to correct it) that the argument for the debtors right to consider the creditors actions as UR and make an election cannot be succesfully made in court

We are talking in this instance of a creditor deliberately and wilfully not only refusing to perform- but arrogantly dismissing the representation of the debtor as to this fact.

I have not won on this issue in court per se- but the fact that the creditor discontinued in the face of this lodged defence would seem to me to be a clear indication of the creditor being uncomfortable with having to continue in these circumstances

i suspect that the reason this has never been resolved to the debtors advantage in court- is that creditors have backed down as in my case rather that proceed

of course these go unreported

The only thing I wonder being in the situation myself is that if it was the DN or the s78 breach that caused them to back down in your case. Its my opinion that either one would be sufficient.

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

you are quite right.......and whilst i accept that there appears to have been no success yet in this area.............i still do not believe (especially when - as you say - the fault has been pointed out to the creditor and he has the opportunity to correct it) that the argument for the debtors right to consider the creditors actions as UR and make an election cannot be succesfully made in court

We are talking in this instance of a creditor deliberately and wilfully not only refusing to perform- but arrogantly dismissing the representation of the debtor as to this fact.

I have not won on this issue in court per se- but the fact that the creditor discontinued in the face of this lodged defence would seem to me to be a clear indication of the creditor being uncomfortable with having to continue in these circumstances

i suspect that the reason this has never been resolved to the debtors advantage in court- is that creditors have backed down as in my case rather that proceed

of course these go unreported

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

As diddydicky said:-
"therefore his decision is made-even on day one of receving the DN-
he may even have taken legal advice on this as suggested in the notice accompanying the DN"

And as is the case of our experience the legal advice was to do nothing, do not respond to it, it is defective. File carefully and let them eventually hoist themselves on their own petard.

regards
Garlok

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

therefore when the debtor receives the DN- he makes a judgement as to whether it is valid or invalid

if he sees that it is invalid and does not allow him sufficient time to remedy- and knows that a bad DN means that enforcement cannot take place- then he makes this decision AT THAT TIME not to remedy what is a Bad DN

Yes, and this decision may be influenced by the creditor's position before the DN expires; the creditor, on receiving a query from the debtor about the DN's compliance, insists that his notice is correct (when clearly it is not). The debtor cannot agree to the DN, because he signed up to all the regs under CCA (he was told by the creditor how important this was!) and, as the notice does not comply with the regs, he cannot accept it.

I have two DNs, both significantly non-compliant, and for both I advised the creditors of their mistake before expiry of the notice. Both creditors refused to issue new ones and went on to terminate the contracts. IMHO, this is the repudiation - the creditor had no interest at all in continuing with the contract, even when advised of his mistake over the DN and presented with an offer to remedy the contractual breach within prescribed timescales.

As Garlok suggested earlier, it appears that the creditor decides to terminate long before the Act prescribes. Service of DNs for many creditors merely pays lip-service to regulations that do not interest them.

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

This had crossed my mind !!! And also Shepherdess' comments.

I can sort of see them trying to explain to a judge how I am supposed to pay arrears before a date well over 12 months ago, or explain how a 'copy' is so totally different!!

I'm now wondering if they dare re-issue a compliant one with a new remedy date?

lets hope they used the "doctored one" with their POC!

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

that is otherwise called a deception- if i am not mistaken! especially if presented in support of a POC

This had crossed my mind !!! And also Shepherdess' comments.

I can sort of see them trying to explain to a judge how I am supposed to pay arrears before a date well over 12 months ago, or explain how a 'copy' is so totally different!!

I'm now wondering if they dare re-issue a compliant one with a new remedy date?

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

In the brandon case- one hopes that in appeal the argument will be used that a DN is either valid or invalid when it is served- now backed up by the harrison judgement

therefore when the debtor receives the DN- he makes a judgement as to whether it is valid or invalid

if he sees that it is invalid and does not allow him sufficient time to remedy- and knows that a bad DN means that enforcement cannot take place- then he makes this decision AT THAT TIME not to remedy what is a Bad DN

therefore his decision is made- even on day one of receving the DN-
he may even have taken legal advice on this as suggested in the notice accompanying the DN

how therefore can the judge in Amex v Brandon rule


a/ that the debtor (especially if CAB or a lawyer have told him that the DN is invalid and enforcement cannot follow-) should neverthless have remedied what was an invalid DN

b/ rule that a creditor can in effect "correct a bad DN" by simply extending the time that he had previously told the debtor within the DN - that he had to remedy the DN


What the judge was saying in effect was " the creditor can issue a bad DN- and even if he gives just one day to remedy- can rectify his mistake by then not terminating for another 3 weeks or more!

thanks to the harrison judgement i think Brandon is going to be on to a winner!

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

Snap !!!!

Oh ... and recently a 'copy' one with the same dates (i.e. over 12 months ago), but strangely now compliant !!

that is otherwise called a deception- if i am not mistaken! especially if presented in support of a POC