Contracts, Termination, Repudiation and Rescission

[pt2537]

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).

no no no no

The Debtor may apply for the time order, not the Claimant, thats the point im angling at

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Understand the debtor may apply for more time to pay Pt
Are we correct in assuming the arrears must be the original arrears ( in this example £500) to then make the second Dn as it should have appeared in the first place
What excuse can the OC use if mistakes are not allowed?

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Understand the debtor may apply for more time to pay Pt
Are we correct in assuming the arrears must be the original arrears ( in this example £500) to then make the second Dn as it should have appeared in the first place
What excuse can the OC use if mistakes are not allowed?

I think each case must turn on its own facts,

Also it must be noted that the law is an ever changing vessel which may one day lead to XXX Conclusion and YYY the next.

There have been a number of judgments handed down which have impacted on the landscape,

The default notice must accurately state the nature of the breach and what must be done at that point in time to remedy the breach,

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

If the OC demands more than he entitled to
He then issues & CRA reports
His actions are little more than blackmail

It's like sending the boys around with baseball bats, as they leave they say sorry, wrong guy

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

I think each case must turn on its own facts,

Also it must be noted that the law is an ever changing vessel which may one day lead to XXX Conclusion and YYY the next.

There have been a number of judgments handed down which have impacted on the landscape,

The default notice must accurately state the nature of the breach and what must be done at that point in time to remedy the breach,

So if a new Dn is issued, it is acceptable to have 2 years worth of arrears?

Therefore,
Default occurs
Faulty Dn issued
Many letters
Many late payment fees
5 1/2 years later
correct Dn issued
litigation
a further 6 years CRA reporting

They will write on my coffin 'debtor, do not allow in unless paid in advance'

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

So if a new Dn is issued, it is acceptable to have 2 years worth of arrears?

Therefore,
Default occurs
Faulty Dn issued
Many letters
Many late payment fees
5 1/2 years later
correct Dn issued
litigation
a further 6 years CRA reporting

They will write on my coffin 'debtor, do not allow in unless paid in advance'

well

In these circumstances, if you havent paid for 2 years then yes you have two years of arrears

In the second part of the scenario then you may well have argument over the fact that there is an unfairness, but really, i do not see how anyone can moan if they are sued when they havent paid the debt that they ought to have been paying.

Personally, i have never been one to run the Defective default argument on its own, it has no legs imho, however, it can help with a wider issue but like i said each case turns on its own facts, you need to look at the overall conduct of the creditor and debtor.

There may be an arugment to say, hold on a minute, the 700 telephone calls, the defective notice, the threats of this and that while i was trying to negotiate and resolve the matter are materially unfair

But like i said, each case turns on its own facts,

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

In these circumstances, if you havent paid for 2 years then yes you have two years of arrears

when the OC says the contract is terminated? Arrears are missed payments; the OC has withdrawn the facility to make payments.

In the second part of the scenario then you may well have argument over the fact that there is an unfairness, but really, i do not see how anyone can moan if they are sued when they havent paid the debt that they ought to have been paying.

Isn't the point that the debtor merely seeks his entitlement under S87/88? He's had problems, he wants to put things right, but the OC has terminated and demands the balance using what you previously termed a bad DN (which gave him no entitlement to terminate - but he did anyway!).

Personally, i have never been one to run the Defective default argument on its own, it has no legs imho, however, it can help with a wider issue but like i said each case turns on its own facts, you need to look at the overall conduct of the creditor and debtor.

There may be an arugment to say, hold on a minute, the 700 telephone calls, the defective notice, the threats of this and that while i was trying to negotiate and resolve the matter are materially unfair

But like i said, each case turns on its own facts,

S140?

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

I can't wait to see the judgement that you refer to in post 16 Pt, it will be interesting to put into context

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

I can't wait to see the judgement that you refer to in post 16 Pt, it will be interesting to put into context

it shouldnt be long now

I will be speaking to the Court in the morning, to see where we are at now.

Once i have the judgment in the final form i will be seeking to have it on BAILII and like the Kotecha case i will post it on here

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

the creditor cannot simply put the "original" arrears on a second DN- since the whole basis for his argument that he can issue a second DN is that his termination of the agreement was not in fact a termination (due to the faulty DN) and that the agreement endured

he must therefore demand the whole of the arrears outstanding on an (alleged) enduring agreement at the time he issues the second DN

failing which- the debtor cannot remedy and treat the agreement as if the breach had never occurred (s89)


however, in his termination letter- the creditor told the debtor that monthly payments were no longer acceptable and that the debtor must pay in full right away.

The creditor is therefore seeking to persuade the court that the debtor has breached the agreement by being XXX months in arrears when the reality is (if the creditors argument is to be believed) that the agreement endured and the creditor- who is now claiming that the debtor is in breach- actually himself instigated an amendment to the agreement whereby monthly payments were no longer required from the debtor.

you have to be either a "thick" judge or motivated by some other "agenda" not to see the difficulty the creditor has got himself into

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

The creditor would, at some stage, have to change tack and claim the contract endures in order to serve a new DN showing new arrears.

How does he do this? He may already have stated in his POC that the contract was terminated, and has certainly made it known to the debtor that it was so. At some stage he would need to tell the debtor that he made a mistake, serve a new DN and off we go.

While I can see this happening early in events (eg, shortly after the original bad DN was served), I don't see this happening a year or two down the road after all the nastiness has taken place and/or when both sides are at court. The debtor surely only has to claim that being told there are new arrears when they were unavoidable (because the creditor withdrew the facility for monthly payments) is unfair (S140)?

There are additional problems for the creditor. To serve a new DN with new arrears, he must remove the original default from the CRAs. In the eyes of the ICO, a default is an irredeemable breakdown in the relationship and the first step in recovery. Yet a new DN implies that there is not yet that breakdown, therefore the original recording of the default was wrong.

Additionally, as Biker has pointed out, if the debt has been assigned, what happens then? Can the assignee (who may be a mere DCA) issue a DN with the possibility that it can be dealt with by the debtor and the contract reinstated? I would say no, because the contract is truly over unless the OC is forced to take the debt back and re-issue the contract.

My view, FWIW, is that issuing a new DN showing the "arrears" between the first and the current date is hugely problematic for a creditor, for the reasons above. It may also embroil him in a S140 battle.

As PT has shown, if a new DN is received and it looks bad for the debtor, then he can request a S129 time order on the first DN, pay the original arrears, demand the contract is reinstated and claim compensation for the intervening aggro. At that point, the creditor may decide to give up.

[toomanycalls]

Re: Contracts, Termination, Repudiation and Rescission

There are additional problems for the creditor. To serve a new DN with new arrears, he must remove the original default from the CRAs. In the eyes of the ICO, a default is an irredeemable breakdown in the relationship and the first step in recovery. Yet a new DN implies that there is not yet that breakdown, therefore the original recording of the default was wrong.

But a default notice is a notice of being in default and occurs when you are two or more payments in arrears, in fact I'm sure you are supposed to be sent one on the second month. It is not that a default is being registered on your credit file, in fact its probably just that the account has late payments at this stage. That default marker might happen later but is not directly connected to the default notice.

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

If the contract endures, can I still spend on my card if I still have available balance?
Sorry, no I can't - they asked me to return the card when they terminated.
So,out of this enduring contract I get:
They ability to use the creditors money - no longer
They ability to make monthly payments of my choice - no longer
A nice shiney flexible friend - no longer.
Hmm
However I do get
The postman as a friend for life as my post kept him in a job all through the recession
A thank you card from BT for all the extra phone calls
My shares in Experian go up
My wife who works for a DCA is able to support me
Loss of sleep
Stress
The threat of debtors prison.

The bank
Claims a loss on the unrecoverable debt
Causes a worldwide financial breakdown
gets bailed out by the government
Banker gets his bonus
Bank gets their money in the end
Pays less than 3% tax on the money the government gave me from the taxes you pay
Banker gets his bonus

I know what profession I will follow in the next life.


If the law says the Dn must be accurate to allow the Creditor to terminate
How is the unsophisticated debtor to know that the Dn is faulty & the Tn is ballcocks.
Are we all to be trainned solicitors
There apears to be no penalty for the bank who can't count to 14 or correctly work out the arrears

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

All the DNs I've seen contain the 28-day warning (required by the ICO) that the default will be recorded with the CRAs if the breach is not remedied.

I think that "being in default" is a lot different to the default marker placed on your CRF, which should only happen if the breach is not remedied as per the DN.

It's worth reading the ICO guidelines on defaults;

http://www.ico.gov.uk/upload/documen...3%20%20doc.pdf

So you've defaulted, but it can be remedied, and the default marker is only placed on your file if you do not remedy.

Note that the notice warning of the default being recorded is carried within the DN, hence the connection between the two. The OC uses the DN as the vehicle for delivering the ICO warning of default.

See para 33 in the ICO doc...

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

If the contract endures, can I still spend on my card if I still have available balance?
Sorry, no I can't - they asked me to return the card when they terminated.
So,out of this enduring contract I get:
They ability to use the creditors money - no longer
They ability to make monthly payments of my choice - no longer
A nice shiney flexible friend - no longer.

The 1974 act expressly allows a creditor to withdraw credit and this is not considered part of the termination process. S87 sets this out.

But a default notice is a notice of being in default and occurs when you are two or more payments in arrears, in fact I'm sure you are supposed to be sent one on the second month. It is not that a default is being registered on your credit file, in fact its probably just that the account has late payments at this stage. That default marker might happen later but is not directly connected to the default notice

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

now then

you are running into a problem here, if you are correct, when does limitation run from?

you see some lenders have argued that limitation runs from when they chose it issue a default notice, which is wrong, but the thing is, the creditor has no duty to issue a default notice after the second late payment and if he chooses not to, then he can still register the fact you have failed to make your payments on time.