Contracts, Termination, Repudiation and Rescission

[Shepherdess]

Re: Contracts, Termination, Repudiation and Rescission

I'm sure you're right on that too Pt. :tinysmile_grin_t:
The fat lady hasn't sung yet though and now that the case has achieved such a high profile the hope is that further ideas for damage limitation and the best way forward for PH will be forthcoming.

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Just to confuse matters more, the judge in PH's case OTR did NOT consider that repudiation wasn't possible. In fact he indicated that sueing the creditor for damages would be possible.
Interestingly enough, although there has been virulent critiscism aimed by certain parties on the advice given in this case, PH has actually come off better than if she hadn't accepted the termination.
Her choices were limited. She was cynically painted into a corner by the creditor in that they asked her to confirm if she considered the account at an end, or if it endured, in which case they stated they would issue a new DN.
By sticking to her principles at least PH now only has to pay Statutory Interest rather than the (higher) contractual. Plus has the judges nod that she could claim damages for breach. Small victory I know, and not the outcome hoped for, but a better result than NOT accepting the TN and allowing them to reissue a DN would have obtained with this particular judge.
I believe if this case had been put before 4 different judges she would have had 4 different outcomes :sad:

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

[Shepherdess]

Re: Contracts, Termination, Repudiation and Rescission

Just to confuse matters more, the judge in PH's case OTR did NOT consider that repudiation wasn't possible. In fact he indicated that sueing the creditor for damages would be possible.
Interestingly enough, although there has been virulent critiscism aimed by certain parties on the advice given in this case, PH has actually come off better than if she hadn't accepted the termination.
Her choices were limited. She was cynically painted into a corner by the creditor in that they asked her to confirm if she considered the account at an end, or if it endured, in which case they stated they would issue a new DN.
By sticking to her principles at least PH now only has to pay Statutory Interest rather than the (higher) contractual. Plus has the judges nod that she could claim damages for breach. Small victory I know, and not the outcome hoped for, but a better result than NOT accepting the TN and allowing them to reissue a DN would have obtained with this particular judge.
I believe if this case had been put before 4 different judges she would have had 4 different outcomes :sad:

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

The other thing that came up was about actually the termination of the agreement/contract occurs. I know this is going to cause a bit of contention, but termination in the best defined sense may have occurred long before a DN has been issued.

I think that this is the true heart of the matter.

I have a view that it is too expensive for a creditor to fully comply with Part VII of the Act. Allowing the debtor the benefits of S88/S89 requires staff and internal procedures that may not be "cost effective". It may be more beneficial for the creditor to simply sidestep the intention of Part VII and consider the contract already terminated; in that case, he merely needs to sell the debt or proceed directly to court. The last thing he probably wants is to follow the process set out in the Act.

The proof of this is everywhere;

• DNs that cannot be complied with (and which also demand that credit cards are destroyed or returned)
• Creditors that refuse to revise their DN even when shown their mistake by the debtor
• Default markers applied to credit files before the expiry of the notice
• The difficulty of getting the OC to agree to a temporary payment plan

None of the above would happen if the creditor hadn't already made his mind up.

Further "proof" materialises in the unassailable fact that the default notice itself (the precursor to termination) is one of the simplest notices imagineable; all that is required is;

• A description of the breach
• A date by which the breach must be remedied
• The actions that will be taken if it isn't

But why is it that banks fail to get this technically trivial document wrong? Is it perhaps because they are simply looking for a court order to get their money, having already written the debtor off as a risk?

Perhaps cynical, but look at the recent behaviour of the banks in general. Even Mervyn King might agree;

http://news.bbc.co.uk/today/hi/today...00/9415586.stm

All this guff about termination from PB and others - the simple fact remains that the creditor terminated (in his TN and various subsequent activities) following a defective DN, an action he had no entitlement to, and the legal arguments that the contract endures is, to my mind, just smoke and mirrors and has nothing to do with reality.

The puzzle, of course, is that these contracts were regulated, yet the creditor seems exempt from their provisions, with courts (and some posters) finding increasingly bizarre and tortuous ways of skipping over the regs.

I therefore agree with Garlok; even with PT's help, the bigger questions remain and this will certainly rumble on...

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

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

I have never thought otherwise PT and am not sure why you have said this in reply to my post.

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

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.

The creditor terminates the contract but the debtor has never said he wants this. He is just behind with payments.

Failure to pay may not necessarily mean repudiation; it may just mean the poor sod has lost his job or his wife's died. I would think that debtor repudiation is probably the last thing to occur to someone who has defaulted on a loan.

I think you confuse a refusal to honour agreed obligations with an inability to honour agreed obligations; two very different concepts. The former is repudiation and the latter is not.

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Sorry I couldn't be of more help N-A-B. It might just be me but the further I dig the more questions I seem to throw up and never get a conclusive answer to any of them

best regards
Garlok

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Garlok
I thank you for taking the time to try to research this issue with the means at your disposal.
It would appear that there is no real answer to the questions, we still only have opinions.

Interesting line of thought about the phone calls though.
From memory I have only received such calls after the issue of a faulty Dn

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Hi N-A-B,

Well I have asked the question and I think I am even more confused than I was before. The twisted logic of it all makes me angry as plain language and commonsense seem to have flown the coup completely.

Anyway I was pointed to a case from last month as being the latest take by the courts and the simplest way of expalining the situation. It appears that a debtor defendant had accepted the termination in writing which had been issued on the back of a defective DN. The creditor claimant also accepted that the DN was defective. Judge held that the defendant had in fact herself terminated the agreement and refused to "perform" her obligations under an agreement which was otherwise unenforceable hence he found for the claimant. She had brought the judgment upon herself. This apparently is on the basis that the Creditor cannot terminate on the back of a defective DN, well known for a long time amongst the legal fraternity. NOT amongst all of the little guy battlers like ourselves said I, most forums were and have been advising quite the opposite.

This case description rang loads of bells with me and in fact it is on this very thread or one very much like it. It is within one of peterbard's posts number 513. I now have to ask myself whether the issuing of defective DNs is a deliberate act by creditors to trap people into making a fatal error. I would have done so had I not been instructed NOT to do so. Barclaycard via Mercers must have issued thousands of the darned things.

The conversation went on to speculate on the possibility that in reality the terms "termination", "repudiation", "recission" are not totally understood or specified in an accurately defined way, neither are there any ground rules as to what may or may not be unlawful in this respect. The courts under duress from creditors seem to have given creditors carte blanche almost.

The other thing that came up was about actually the termination of the agreement/contract occurs. I know this is going to cause a bit of contention, but termination in the best defined sense may have occurred long before a DN has been issued. As simply as I can for my own befuddled mind, the converstaion went something like:-

"Did you receive any phone calls directly from the collections people of the OC, not inhouse companies, dormant companies or dcas?"
"yes"
" were the figures demanded correct?"
"no"
"what was demanded from you?"
" the payment for the current month (which in our own case had already been paid) plus an addtional sum which amounted to the following month's payment on a statement which had not been issued nor was due"
"fine, they demanded monies not yet due then?"
"yes"
"it has to be contended therefore that the OC has signalled to you that he has brought to an end the agreement he claims to have in place"
"never thought of it that way"
" this has been done completely outside of the statutory and regulatory regime under which he must operate and you are not compelled to accept his unlawful actions".
"OK where now?"
"as the sole raison d'etre of the agreement is to extend financial credit to you, this may be an irredeemable breach, it reaches to the "very heart of the agreement", it is history and cannot be withdrawn or changed"

It went on I'm afraid and ran into common law AND I still did not get conclusive answers I feel. Merits of the case on the day seems to be the thing. Until there is a defintive case in the courts which goes to a higher court then I am now convinced this will rumble on and on.

best regards
Garlok.

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

From post 630

My challenge is the termination.
There are rules about how to make a CCA compliant termination which then allow the creditor to become entitled. However when the creditor terminates incorrectly then he must lose the right to become entitled, I believe this is common ground. What is not common ground is how the creitor can terminate (he did do this even though in regard to the CCA he was not compliant) and issue a compliant Dn on an agreement that he himself has terminated.
Surely an action that has been taken cannot be undone so easily?

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

I'll be good from now on

I accept your default notice is genuine, and note the penalty of my non compliance.

My dogs use lamp posts, dont want to go there!

Vdr

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Ok Ame, slapped wrist accepted.

regards
Garlok

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

Do you guys want a seperate thread about the CAG stuff as opposed to the topics being discussed on the thread ? If not s'ok for now just don't want this one going off track too far, if yey then I'll move these last few posts to Lamppost.

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

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

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

I know, I was watching.
I did not post over there as I am in this to learn not fight.