Contracts, Termination, Repudiation and Rescission

[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

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

[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

[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.

[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....

[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

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

[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

This is why I was asking
But if you can't accumulate on a terminated agreement, surely you can't default a terminated agreement...

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

This is why I was asking
But if you can't accumulate on a terminated agreement, surely you can't default a terminated agreement...

Yes, exactly. Which is why, IMHO, all that can be claimed in a 2nd DN is the original arrears.

The DN would show the same breach as before, not a new one.

But I don't see how the creditor would ever do this; he must resurrect the contract as it was before and somehow circumvent ss 89 and 140. I just don't see this happening.

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Another thought
if the OC litigates on the back of a faulty Dn
You notice on the court steps that the Dn is faulty
Can you claim costs
Because he will have to reissue & give 14 days so you pocket the costs
Then wave 2 fingers or rectify the corrected Dn, whichever you prefer
------------------------------- merged -------------------------------

I just don't see this happening.

I also find it unlikely but we are being told it is possible
------------------------------- merged -------------------------------
How about
OC issues bad Dn
Finds he has a pain in the ass as a debtor
Sells (assigns) the debt to a DCA
DCA issues
Can there still be a new Dn?

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

I don't see a new DN being served, because there was only one breach. If a 2nd DN is served, it can only show that original breach, whoever owns the debt.

I know PT has said that a creditor can get a S129 time order, but again the DN would show the original arrears and nothing else.

Remember that the creditor has terminated and therefore the concept of further arrears is somewhat mind-bending. If the court tells both parties that the contract actually endures, then I still don't see how that changes anything because the creditor has neverthess told the debtor it's all over and monthly payments are no longer an option, which leaves the doors open to S140.

I remain convinced that the creditor is, as was my quail this lunchtime, stuffed (but without the gravy).

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

But most DCAs can't give credit.
if they issue a new Dn & the creditor rectifies then we have an agreement which means they are offering credit - maybe without a license??

And the costs from failed litigation would be handy too

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

But most DCAs can't give credit.
if they issue a new Dn & the creditor rectifies then we have an agreement which means they are offering credit - maybe without a license??

And the costs from failed litigation would be handy too

Ah yes, I get it. I suppose that once the debt is properly assigned but is "uncollectable", then that's that. Well spotted Biker!

I like the idea of costs - presumably these would be actual "damages", or costs incurred due to the OC's blunder?

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

re costs
if I KNEW (sorry guessed correctly) that the Dn was faulty, maybe I would have troule finding it. I might engae the most expensive firm of barristers to defend the action
I might then find the faulty Dn the night before court.
I believe it is the defendants right to use whatever firm of solicitors he sees fit to travel to the court to defend him

Re assignments
if not correctly assigned then other problems ensue

Either way difficult for the default to have 'never occurred'
------------------------------- merged -------------------------------
The OC can't count, his Dn states 12 days, the Dn is faulty
He says to the judge, sorry M'lud, it's a mistake, I will reissue

According to PT mistakes are not allowed, tthey are not catered for in the act