Contracts, Termination, Repudiation and Rescission

[Shepherdess]

Re: Contracts, Termination, Repudiation and Rescission

So, they've issued a back dated correction???? FFS
Beggars belief. So somehow you can transport back in time and, with the benefit of the newly corrected timescale, make payment of the arrears?

LOL. Wonder what they'd do if you sent them a cheque for the arrears, backdated to the dn date. (From an account no longer active..."well the money was in at the time..." )

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Can I ask which Bank? maybe RBS?

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

I would be very careful with the wording when you have a POC to respond to Basa, I would come from the angle ' a compliant Dn was never served', they will then swear that one was & you can refute this with copies of both. That way you discredit all other evidence they present.
IMO

That's why I've asked them if the *copy* DN complies with the 'Copies Regs' and CPUTR !

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

I would be very careful with the wording when you have a POC to respond to Basa, I would come from the angle ' a compliant Dn was never served', they will then swear that one was & you can refute this with copies of both. That way you discredit all other evidence they present.
IMO

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

By my own admission I have accepted a repudiation based on a faulty Dn
I have a written reply saying our Dn is fine
If it would assist the debate I am happy to post both documents

Snap !!!!

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

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

By my own admission I have accepted a repudiation based on a faulty Dn
I have a written reply saying our Dn is fine
If it would assist the debate I am happy to post both documents

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

probably right, but if the legal arguments had been honed further, she may have achieved a better result overall no matter what judge it was before

Harrison has successfully been used to defeat claims in their entirety on the back of bad default notices

spot on IMO

i also think it would be useful to quote harrison when the claimant quotes amex v brandon

harrison (unless i am mistaken) was not in the least interested in WHEN the creditor did actually terminate- merely that it clearly did not give the debtor sufficient time to remedy

which IMO shoots down the idea that the debtor should be able to second guess when receiving a DN - when the creditor really intends to terminate
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Where did the assertion come from, that a defective DN "...can be remedied"? It seems to me that all the procedural and legal pointers we're getting lead us to the conclusion that while one statute may allow the DN to be remedied, so many other things stand in the way of doing so that it is effectively impossible?

The debtor is hardly going to write to the creditor (prior to litigation) and say "I say, old chap, that's not a valid DN, would you please correct it" now is he?! So the DN is assumed by the creditor to be valid - the creditor litigates when no mitigating/rectifying action is taken by the debtor - and suddenly "remedying" the DN is downright bloody difficult if not impossible due to the other protection the debtor has re: enforcement and so on.

Seems to me, that once there's a defective DN, if the debtor plays his cards right then the most likely outcome is a writing off of the entire matter...?

from memory i believe that a repudiation can be unrepudiated, and a mistake corrected- if it is done before the other party is prejudiced in any way

thus a creditor serving an invalid DN - then realising or having his mistake brought to his attention- could re serve a fresh and valid notice before taking any further action on it


However, it is (IMO) also useful pre litigation if the debtor has brought the invalid default notice and/or any point of law to the creditors attention since he can use BOS v robert mitchell in respect of costs

there is IMO no requirement on the debtor to do the creditors job for him and alert him to his mistakes so that he can amend his claim against you to make it compliant.

however i personally find that i can alert creditors to their failings by including this in correspondence to the creditor without them being smart enought to realise the significance (until it is too late) they just do not read long letters - they read the first paragraph, file it then send out another threatogram

creditors are in any event arrogant and they train their staff to believe they are 100% invincible and to ignore anything the debtor says about their activities being unawful (silly billy's)

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

sorry. was responding to threads as i read them

slapped wrist

[StoneLaughter]

Re: Contracts, Termination, Repudiation and Rescission

Where did the assertion come from, that a defective DN "...can be remedied"? It seems to me that all the procedural and legal pointers we're getting lead us to the conclusion that while one statute may allow the DN to be remedied, so many other things stand in the way of doing so that it is effectively impossible?

The debtor is hardly going to write to the creditor (prior to litigation) and say "I say, old chap, that's not a valid DN, would you please correct it" now is he?! So the DN is assumed by the creditor to be valid - the creditor litigates when no mitigating/rectifying action is taken by the debtor - and suddenly "remedying" the DN is downright bloody difficult if not impossible due to the other protection the debtor has re: enforcement and so on.

Seems to me, that once there's a defective DN, if the debtor plays his cards right then the most likely outcome is a writing off of the entire matter...?

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

Hi pt,

I think the problem for me and many others is that despite your very laudable wins (and those of our own solicitors and others) based on the tried and tested arguments is that many of these tried and tested arguments have been dissected to death on forums such as these and LIPs have gone to court and lost on these arguments (not a criticism-- an observation). Much IMHO due to the "armchair lawyer" approach of some users of these sites. Hence we see a seeking of other methods in isolation with which to combat these perceived losses.

A classic example of this was of course the Carey collection of cases. I have even seen it stated that Waksman has actually changed the Statute Law, which of course he cannot do. I do note that Harrison has not seen the same attention by these users.

Since day one of our battles I have always assumed that a fairly comprehensive defence would have to be put together which had several strong points in it including as you know in "Harrison" the issue of a defective DN etc. I don't see it at all as magic solution in isolation. But I can understand perhaps the level of interest in it as more and more seek the golden bullet as it is perceived s78 et al has gone away for the LIP.

best regards
Garlok.

failure to comply with s77/9 is still very much alive IMO
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Just read you guys last posts, Yep I am another refugee who was banned for standing my ground against a troublemaker and then the site team when they backed him and not the good guys.

We are all here (or there) to learn and share, a lot of us under real stress and one bad apple soon ruins the barrel.


Garlok

there HAS to be "hold" or other influence in respect of the one troublemaker you refer to- otherwise they are insisting that the whole regiment is out of step except the sergeant major!


personally i hold the theory that the other site "has it in" for PT and that the "other guy" is their main weapon of choice against him

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

Suposedly the judge throws the case out, allows my costs (because the case should not have been brought) and the creditor is allowed to reissue his Dn.
He will follow this with a contracted termination or a Tn (if I still fail to perform).


Read more at: Contracts, Termination, Repudiation and Rescission - Page 26 - Legal Beagles Consumer Forum


i doubt he will- if you submitted a defence to the first abortive claim- the creditor would be using the SAME facts for the second case and the court would not allow this

the creditor may argue that as the DN in the first case was missing/invalid- that the new case is therefore brought on different facts since he is now submitting a valid DN ....it is not

the creditor in any event in the first trial, claimed that his first DN was valid ( he can hardly admit that he brought an action on an invalid DN)

therefore the idea that the production of a valid DN alters the basis/facts upon which the second case is brought would be rather fanciful

secondly a VALID DN was evidence that the creditor was obliged to submit to support the first trial and the court (IMO) would not give leave to commence a second claim on the basis that what should have been part of the original claim is now being produced The second claim would be based on same facts

namely:-

debtor defaults. DN served, debtor fails to remedy, TN served, proceedings served.

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

PH thread OTR closed at the request of the OP.

That's a win for someone then

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

Withdrawing credit facility is not an enforcement step, s87 clearly says this

I cannot see how the creditor can be the person who repudiates, i dont follow that argument when it is the debtor who fails to pay the contractual instalments.

you will find (as i have) that when the creditor terminates and you attempt to continue to send him monthly payments (as you don't believe his termination is lawful) that he will neither bank, nor acknowledge receipt of the payments

if the creditor refusing to accept monthly payments from the consumer is not a repudiation- then what is!

The problem is that there is often a LONg time between the original defective DN and the matter coming to court-

after discontinuing/being struck out/having his case dismissed- the creditor then agrees that in fact the agreement was not terminated

trouble is- he has been acting as if it is for a long time- the idea that the debtor has not been prejudiced would therefore be very far fetched- not least being his credit reputation having been impugned by the creditor in the meantime

[dad]

Re: Contracts, Termination, Repudiation and Rescission

Quote:
Originally Posted by pt2537
Withdrawing credit facility is not an enforcement step, s87 clearly says this


PT,

I just want to tease this out a bit more because it came up for me and I had a discussion with Professor Goode about this point. It is the difference between s87(1)(d) and s87(2):

Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—
...
(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred

and s 87(2)

Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective.

In the scenario where you have a £100 overdraft limit and the balance is minus £75.
Then without a default notice, on a breach, the bank can reduce the overdraft from £100 to £75 as that is restriction or deferrment of a right to draw credit. But if they want to reduce the overdraft limit below the drawn £75 then that is termination of an existing right and is not permitted under s87(2). To do so requires compliance with s87(1)(d).

HTH

Dad

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Maybe when the N1 arrives, if the debtor has accepted, it would be wise to file whatever defence is appropriate and a counterclaim for the same sum as the claim.
By filing a defence it helps preclude further action if the creditor discontinues and the appearance of such a counterclaim would indicate the debtors willingness to argure their position