Contracts, Termination, Repudiation and Rescission

[toomanycalls]

Re: Contracts, Termination, Repudiation and Rescission

Sorry for the hijack but I could really do with a little input on my thread here

http://www.legalbeagles.info/forums/...t=26868&page=6

I have a defective DN, letter of termination, a court claim that is at AQ needed by Monday and think an application to strike out is the best plan but need all the advice I can get with putting the paperwork together.

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Unforunately Ame as you quoted the retrospective aspect of the 127(3) (BIS Consultation) in your post 620, this in itself is probably illegal even if it makes it onto the Statute Book for anyone in current dispute with CCA issues. What is being asked for there by the banks is in my view a serious disadvantage to the consumer.

It is a fundmental principle of the Lisbon Treaty (whether we like it as a treaty or not) that no European citizen can be disadvantaged by ANY retrospective law passed in ANY member state.

The protocols that our wonderful leaders had placed within that treaty to ensure (they thought) that they had control in appendix 26 or 27(the protocols appendices) if memory serves correctly say that the law prevailing in Poland and the UK (specifics please note) AT THE TIME OF SIGNING would prevail. This is double edged sword in our discussions because this alone precludes ANY legislation being brought to bear upon any of our current agreements which were current at the time of treaty signature.

One other thing, I have taken the time to read the Harrison judgment again and issue is taken with MBNA/Link over defective DNs and improper procedure of assignment. Might be worth a look. Its not a big judgement and a transcript perhaps woudl throw light, but we are cannot be party to that.

best regards
Garlok

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

As we all now agree (don't we?) that a creditor who terminates on the back of a faulty Dn loses the entitlement to enforce through the courts anything other than the genuine arrears due at the time of the Dn. Is it possible that we can agree a course of action, back it up with case law and reasoned argument in preparation for those who follow to use in a court room.

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

it seems to me that based on these perverse interpretations of the CCA- we would be better off with no CCA at all and borrow under common law principles!

You probably want to respond to the CCA consultations in that case - http://www.hm-treasury.gov.uk/d/cons...edit211210.pdf

Option 1 – Consumer credit is regulated under a new FSMA-style consumer credit rulebook by the CPMA. In order to maximise the benefits of an integrated regime and to ensure consistency across the CPMA‟s remit, the CCA would be repealed and consumer credit regulation would be moved to sit within the same regime as other retail financial services. The Government recognises the significant challenge of designing a proportionate and effective regime under this option, and this is discussed in more detail in Chapter 3.

.......
.........
The fast pace at which the UK credit market has developed in recent years, combined with the dynamic nature of product development, has not always been matched by changes to the legislative and regulatory framework. This may have contributed to problems where legislation has been slow to respond.27
........
........
27 For example, recent issues raised in respect of consumer credit legislation include Claims Management Companies‟ involvement with potential unenforceability of certain credit agreements

Consider that consultation alongside the responses to the BIS CCA consultation that 127(3) should be made retrospective etc etc that we published last week.

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

I will not detail the demolition of the posts I took because they need to be read and re-read as a whole to ascertain the exact kernel of his argument which shifts emphasis. This is a standard courtroom "trick" which has not been brought off very well, i.e thow up a whole smoke screen of spurious legal argument couched in legalese which may or may not have substance, in the hope that the "opposition" will flounder in counter argument. The real expertise, I am told, is being able to cut directly through this smokescreen to expose the real intent and substance of the argument if it had any in the first place.

I dont think we have given this point sufficient recognition.

If you cut through the disinformation and obfuscation, and get back to the DN, where it all started, the creditor, by issuing a defective DN, denied themselves the right to the benefits of the CCA.

What starts wrong can never be right.

Can it really be that simple?

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Yes, absolutely!

There seem to be a lot of questions that the OP does not answer.

The big one for me: how is it that the OC can "terminate" an agreement without entitlement, serve a new DN after trial and/or assignment while the agreement remains closed, claim that S88 describes the agreement as being "incapable of remedy" and expect all liabilities to be paid?

I would merely say that CCA reads simply, and that termination causes the creditor to lose entitlements. The OP is currently banging on OTR on PH's thread about the courts being there to impose the will of the banks; if true, then there is most definately no regulation of these contracts whatsoever. CCA becomes an utter travesty. I hope this is not the case.

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

For me there is only one question:

After a bad DN and a subsequent termination, is that termination ineffective or simply contrary to regulations? Is the agreement terminated or not?

Some say the termination has no affect and everything winds back to a pre (bad) DN time, others say the termination is effective but without the entitlement of s87.

if the termination is effective- but without the entitlement to s87 then because the termination was not lawful (according the the act) then by definition- if it is held to still be a termination- then it has to be an unlawful termination

seems now that judges are "mixing and matching" legistlation in the same case--one law for the creditor- and another for the consumer!

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

Even if it were accepted that the creditor could 'terminate' after a bad DN, that termination would also be bad (unlawful if you like) such that it represents a repudiation that the debtor can affirm quite properly and possibly sue for damages.

that has been my view- however PT and PB are of the opinion that the creditor in a CCA agreement cannot repudiate- or terminate outside of s87 even unlawfully (unlike every other contract in the land) and therefore the performing party then cannot elect

BUT the debtor in the same agreement can !

Pt has case law to back it up

PB has - well, what he has!!

The creditor apparently can even accidentally or deliberately mislead the consumer with false information and then use the innocent consumers response to terminate the agreement without the need of s87- with no fear of reprisal from the court and no fear of breaching OFT guidelines as to misleading consumers and getting them to take transactional decisions they would not otherwise take

hell, they can even LIE in a statutory instrument in order to achieve this aim~

they can rack up costs (contrary to the whole principle of the taylor reforms and the subsequent CPR and overriding objectives) - by deliberately witholding any copy of the credit agreement until the day in court........even provide several contradicting copies of an alleged agreement on the way just to confuse the consumer even further

they can fail to comply with s78 until "well into the trial"

and if they screw up and shouldn't actually have got to court in the first place- well, no matter..... they can remedy the DN which didn't allow them a cause of action whilst the judge halts the trial and then carry on when they have served a proper DN

now called me an old cynic- but that doesn't sound like an act for the protection of consumers to me ! how about you?

it seems to me that based on these perverse interpretations of the CCA- we would be better off with no CCA at all and borrow under common law principles!

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

For me there is only one question:

After a bad DN and a subsequent termination, is that termination ineffective or simply contrary to regulations? Is the agreement terminated or not?

Some say the termination has no affect and everything winds back to a pre (bad) DN time, others say the termination is effective but without the entitlement of s87.

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

Even if it were accepted that the creditor could 'terminate' after a bad DN, that termination would also be bad (unlawful if you like) such that it represents a repudiation that the debtor can affirm quite properly and possibly sue for damages.

Which is why there's a long, protracted debate OTR on Pumkinhead's thread.

But I do believe there is starting to be a consensus on a common sense approach, and a flawed judgement in an earlier case which needs revisiting and clarification.

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Peter, have you a comment on post 604 please?

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Thank you AC, LA and basa, you put your arguments better than I ever could. Well I have been away over the weekend and am just catching up. However, as I have an elderly relative who I do not meet as often as we would both wish as circumstance dictates, I sought opinion. He read for the bar but took a career in commerce instead, specialist area of expertise --- CONTRACT. I took screen dumps of some of the arguments presented here for proper opinion. (I am trying to persude him to come on LB for his own amusement and entertainment).

I am afraid the clear instruction to me was that I should NEVER act on the sequence of arguement provided by the OP in this case, and should I wish to do so then it is imperative that I obtain fullest corroboration of what he has said from a properly trained and practising professional who by definition is an officer of the court.

I will not detail the demolition of the posts I took because they need to be read and re-read as a whole to ascertain the exact kernel of his argument which shifts emphasis. This is a standard courtroom "trick" which has not been brought off very well, i.e thow up a whole smoke screen of spurious legal argument couched in legalese which may or may not have substance, in the hope that the "opposition" will flounder in counter argument. The real expertise, I am told, is being able to cut directly through this smokescreen to expose the real intent and substance of the argument if it had any in the first place.

I do note that some of you on here are very able to do that, please continue to do so for the sake of those less fortunate (if thats the right word in our circumstances) than ourselves.


The end expert opinion is good enough for me. Proof beyond reasonable doubt of my own simplisitic views on the subject.

END OF.

regards to all
Garlok

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

all we have left now to disagree over is the notion that the creditor- with all his financial and legal clout can either deliberately or accidentally terminate an agreement on the back of a DN which he himself (the creditor) might be unaware is not a valid termination..............and yet if the debtor accepts his "termination that isnt"- the debtor is then held to have terminated the agreement

this (not you) is total utter and complete poppycock- even if one judge has had a bad hair day

it is wrong by any stretch of the imagination, credulity, common sense or legal argument

plainly simply barmy

a debtor cannot be held to have accepted a termination which the act says is/was not really a termination, - since there was clearly no termination to accept!

a debtor acting in such a way is doing so in the genuine beleif that the creditor has unlawfully repudiated and is seeking to relieve himself of his own continuing obligations due to the creditors actions.

Even if it were accepted that the creditor could 'terminate' after a bad DN, that termination would also be bad (unlawful if you like) such that it represents a repudiation that the debtor can affirm quite properly and possibly sue for damages.

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

HI NOt really sure what you mean here DD

What ruling do you refer to?

Peter

you say that everything after the DN is enforcement

the judge in mcguffic disagreed and said that the TN and subsequent bringing of court proceedings was NOT enforcement- only actions LEADING UP TO enforcement

so in other points you raise you say to caggers "this is what has been ruled in court so accept it"

yet in the foregoing case- although the point was decided in court- you yourself do NOt accept the courts ruling and insist that everything post DN is enforcement

that make sense?

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

I think i must have said this a hundre times the creditor can terminate at any time he can demand early repayment at any time just look at any copy of the regs its in there.
he cannot howcer or more correctly a court cannot enforce that demand because of the restriction imposed on it by the CCA.


Read more at: Contracts, Termination, Repudiation and Rescission - Page 24 - Legal Beagles Consumer Forum

halleluhah-- agreement at last

i think where some folk were getting frustrated peter is that you made it sound sometimes when you said "the creditor can terminate at any time and demand repayment" that he could LEGALLY enforce his demand- the fact that he cannot means that the point is not really significant since presumably the creditor could demand that you stick your finger up your bum and whistle dixie ................if it is not a legally enforceable demand....who cares!!

now we have the full statement and you are right he can demand what the hell he likes- but without compliance with s87 he is impotent in enforcing a demand for earlier repayment

if he is terminating where there is no default under this mutual termination agreement- then despite terminating the agreement the creditor would still allow the debtor to discharge the current outstanding debt as per the normal terms of the agreement

(this from the horses(banks) mouth:_

[Bank] is a subscriber to the Lending Code and two of its key commitments are
to lend responsibly and to act sympathetically and positively when
considering a customer's financial difficulties. Where notice to terminate
the card agreement is given by the bank then the bank will generally give
time for any debt on the card account to be paid, for example allowing the
balance to be paid down on the same terms as under the card agreement.

the fact is that whilst they may state that they may "generally give time"- they know damn well that they cannot lawfully enforce immediate repayment since the debtor had done nothing wrong and would be SEVERELY prejudiced by the creditor who demanded repayment in full in these circumstance

therefore we have another "non argument" since if it is not a legally enforceable demand for payment in full- no cagger really gives a *****

all we have left now to disagree over is the notion that the creditor- with all his financial and legal clout can either deliberately or accidentally terminate an agreement on the back of a DN which he himself (the creditor) might be unaware is not a valid termination..............and yet if the debtor accepts his "termination that isnt"- the debtor is then held to have terminated the agreement

this (not you) is total utter and complete poppycock- even if one judge has had a bad hair day

it is wrong by any stretch of the imagination, credulity, common sense or legal argument

plainly simply barmy

a debtor cannot be held to have accepted a termination which the act says is/was not really a termination, - since there was clearly no termination to accept!

a debtor acting in such a way is doing so in the genuine beleif that the creditor has unlawfully repudiated and is seeking to relieve himself of his own continuing obligations due to the creditors actions.

The creditor- in serving the DN was legally obliged to convey "with precision" what the debtor had done wrong , and what he must do to put it right- so as to leave the debtor in no uncertainty.

therefore if the creditor whether by error, omission, carelessness, negligence or just plain stupidity- does not convey this information with precision (which i would suggest even forest gump would recognise that an invalid DN would not do) then the creditor has not complied with his obligations and has in fact given false information to the debtor which might cause him to make a transactional decision that he would otherwise not have made (enterprise act anybody)

so,, the proposition that the creditor with all his might can make a mistake and have it cancelled out- but then lead the debtor astray by leading him to make a transactional decision that he would not otherwise have taken (now where have we heard that before?) is totally against natural justice.


to take matters a stage further..... a creditor who, having been alerted to his invalid DN and therefore subsequent invalid termination- by the debtor - (even if that alert comes through the debtor mistkenly assuming and "accepting" an unlawful repudiation- would be obliged to re visit his paperwork and his actions and /or enter into discussion with the debtor as to why he believes this to be the case BEFORE continuing any action against the debtor and if he fails to do so (IMO) will leave himself wide open to the consequences of his actions not only in terms of costs but run the risk of being accused of misuse of the court process and i for one would definately use the decision in BOS v Robert Mitchell to highlight the creditors failings from the point at which he was alerted on points of law
IMO