Contracts, Termination, Repudiation and Rescission

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

It's no surprise many of us thought that our contracts had been terminated - because that's what the likes of RBS, Lloyds, Halifax and other leading (trusted?) financial institutions told us! In official documentation!

So please take it easy Peter. You cannot possibly pour scorn on those of us that have taken the bank at its word.

As for this...

are you suggesting the creditor should be penalised for taking a debtor to court when he has defaulted his agrement, i dont think that will wash in the real world

...surely the debtor has defaulted after expiry of the DN, but if the DN cannot be accommodated (eg, the balance is required for remedy, not the arrears), then the default becomes a fait accompli. So yes, I would say that the creditor should be penalised for not following prescribed procedures, otherwise creditors will be going berserk and demanding their money at the drop of a hat (and not as per contract or regulations).

(I say this using the ICO definition of default (ie, the position when the contract is passed fixing, which is when the breach is not remedied in the prescribed time)).

Anyway, fair play to you Peter - you always insisted that the contracts endure, and a few of us couldn't believe it (especially as the OC had told us it was game over).

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

i think most of us do understand "the concept",

what we DONT understand is that an act which is supposed to be for the PROTECTIOn of the consumer seems to allow the creditor to terminate an agreement- to give the impression to the debtor that it has been terminated properly and then months- often maybe a year later and AFTER the creditor has trashed the consumers credit files - realise- often not until trial- that in fact he mistakenly terminated.. and then seems able ad infinitem tocarry on re serving as many DN's until he happens to get one right

that the consumer has not been disadvantaged (not that this was a requirement in parliaments mind at the time of drafting the act) by the creditors actions is ludicrous.

Hi
Seems to be a lot of different issues her not quite sure what exactly you consider to be ludicrous.

That the crditor can termiate an agrement?

That the creditor can make an entry with a CRA if thedebtor defaults?

If a mistake is made surely there are provisions to rectify them by either regulatory or more legitimate legal means.

As you said in a post earlier in this thread a DN is mearly a notice why whoud it not be reissued, as long as the stutory period is given with the correct information.

I think that you will find that section 87 was an act of parliament.

Also just to mention if you read the Crowther reposrt (as i have all six hudrred pages,how sad am i) You will see that this act was not only enacted to protect debtors but also creditors.
Yes thats right it ensures that as long as they stick to the rules then they will be a ble to enforce their agrements and get there money. Just a point

Peter

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

If this is the case (and we think it is) then service of a new DN may raise the following questions;

1. Was the earlier mistake an offence under the 2008 CPRs at Reg 5 (misleading business practices) or was it just an honest mistake?

As Pt said that would be a matter for the regulator

1. Was activity following the mistake an offence under the 2008 CPRs at Reg 7 (aggressive business practices) or was collection/recovery/action an unfortunate side-effect of the earlier honest mistake?

Dont think trying to collect a debt by issuing a notice even if defective could be classed as this any way answer above applies

1. Does the period between the bad DN and the good DN fall under S140? Ie, did the OC abuse his position to introduce bias in the relationship in his favour and, if so, what are the risks that a court would discharge the debtor from the debt?

NO

1. Does service of a new DN following a long period of aggressive (but erroneous) recovery action provide grounds for compensation under S140?

No if the debt recovery is overly aggressive then the Anti harrasment legilsation is the way to go

1. Has the 1998 DPA been breached where the bad DN prevents remedy, opening up a claim for compensation under S13 of that Act?

HOw would the DPA be breached they are usually informed of performance of payment, unless they have registered a judgement and that is unlikely

1. Does the OC want the contract to be reopened to a former customer who he has already marked with the CRAs as a bad risk? If he does, is there a risk that the OC falls foul of the OFT's irresponsible lending rules?

Dont udnerstand this the creditor would not want to reopen if the customer defaulted why shoud he?

1. Is it actually possible to restore the relationship to how it was, or will the debtor (now customer again) forever worry that the OC will repeat his various mistakes?

Why should the creditor want to, sorry not with you are you saying the debtor did not miss payments?

1. Were goods repossessed? If so, how is the debtor to be compensated for unlawful seizure?

As PT says the debtor could take action for convertion(theft). The reason is quite interesting. It is because the agrement would not have been termiated,it could not be on the back of a defective DN, therefore the goods where still the property of the debtors.

I'm sure there are other questions for the OC to consider, so it may not be as easy for him as some might think (unless there has been little/no activity between bad DN and good).

Had a few minutes

Peter

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

So now we have financial bigamy to confuse us even more.

That's about as clear as the mud on Weston-Super-Mare beach at midnight when there's no moon or cloud.

Sorry dont get the analogy, mud whats that got to do with anything.
I think you are just trying to confuse:beagle:

Peter

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Peter

1. Would breaches (offences?) under CPUT support a S140 defence?
2. Why do you say that S140 would not apply to the period between bad DN and good, during which the OC has caused huge problems?
3. The DPA could be breached if the notice of intention to record the default is contained within the DN (as a separate 28-day warning), but the breach cannot be cured because the DN is faulty (eg, by demanding the balance). The recording of the default cannot be avoided, whereas had the DN been good then it could have been (am talking about the default record, not the payment history).
4. To serve a new DN the contract must be open, because the debtor has an opportunity to remedy and continue as before. If the contract is not re-opened, and the debtor remedies, what then? How does S89 apply if no contract is open on service of a new DN?
5. Similarly, if the contract endures and the breach is remedied in the second DN, what sort of relationship is it between OC and debtor? An uncomfortable one I would think.

TIA

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

It seems to me that if the OC serves a new DN but has no interest in re-opening the contract in order to provide for S89 (setting matters back to how they were as though the breach never occurred), he will require a new type of DN (not the S87 variety) because he will be unable to comply with the 1983 Consumer Credit (Enforcement, Default and Termination Notices) Regulations;

IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH

So this rules out a S87 DN because he will thereafter be unable to do anything more than claim the original arrears.

If his second DN claims "arrears" up to the current date, then it is automatically incorrect because the "arrears" are not arrears, which can only form when payments are missed (remember that the OC has removed entitlement to make regular payments).

Peter has said that the contract is closed ("why would the creditor re-open a contract after the debtor defaulted"), but how is this? He had no entitlement to close it, so it must still be open. And it needs to be open in order to serve a new DN, and it has to stay open after remedy in order to be a S87 DN.

So I do not have a clue what happens if a new DN is served, and I suspect neither does anyone apart from our esteemed PT....


------------------------------- merged -------------------------------
...plus of course the OC is in breach of contract by refusing contractual payments...

This isn't getting too surreal is it?

[Ihaterbs]

Re: Contracts, Termination, Repudiation and Rescission

It seems to me that if the OC serves a new DN but has no interest in re-opening the contract in order to provide for S89 (setting matters back to how they were as though the breach never occurred), he will require a new type of DN (not the S87 variety) because he will be unable to comply with the 1983 Consumer Credit (Enforcement, Default and Termination Notices) Regulations;

IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH

So this rules out a S87 DN because he will thereafter be unable to do anything more than claim the original arrears.

If his second DN claims "arrears" up to the current date, then it is automatically incorrect because the "arrears" are not arrears, which can only form when payments are missed (remember that the OC has removed entitlement to make regular payments).

Peter has said that the contract is closed ("why would the creditor re-open a contract after the debtor defaulted"), but how is this? He had no entitlement to close it, so it must still be open. And it needs to be open in order to serve a new DN, and it has to stay open after remedy in order to be a S87 DN.

So I do not have a clue what happens if a new DN is served, and I suspect neither does anyone apart from our esteemed PT....


------------------------------- merged -------------------------------
...plus of course the OC is in breach of contract by refusing contractual payments...

This isn't getting too surreal is it?

The contract doesn't end until the relationship is satisfied.

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

The analogy was that an action can actually be taken but deemed in law not to be, as the termination after an ineffective default.

It wasn't meant to be a factual comment. Anyway it obviously did not work for you.

Peter

It's not that I don't understand your arguments, I do. I do however resent the implication (however subtle) that I cannot follow simple arguments.

It is more I don't understand the effect of your arguments on the law. I follow that with a defective DN a creditor cannot 'take the next step' i.e. terminate the agreement and demand sums previously not due (i.e. the full outstanding balance).

However we are faced with the situation where the termination is deemed not to have been effective, i.e. the agreement endures up to date. However the creditor has most definitely stated by word and action that the agreement is no more. The creditor understands this, as does the debtor. The credit facility has been withdrawn and the debtor has made no scheduled repayments.

This to me is a paradox, the agreement endures but neither party is active in its operation.

How can this be cured? By the creditor inviting the debtor to reaffirm the agreement, I don't think so.

Hopefully tomorrows publication of pt's High court case will make everything clear. But I doubt it will be what anyone expects or hopes for!

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

I have this annalogy before and this really is a bad one.
Firstly there is a sanction he cannot enforce for a further period that is the one , the only one available.
Seconldly and more importantlyif the action of termination was punishable by some legal sanction other than this how would any creditor ever get to court?
It is for the judge to decide if the DN the subsequent termination are lawful, and the enforcemant can take place are you suggesting the creditor should be penalised for taking a debtor to court when he has defaulted his agrement, i dont think that will wash in the real world.
Peter

Peterbard, re your post 210

You may not like my analogy, but I used it to try to illustrate my point. Nothing more.
The act of termination is not punishable, however the act may not make provision for unlawful conduct.
I was suggesting that the termination on the back of a faulty Dn was possibly unlawful.
I see you have failed to answer my question, how am I supposed to learn and elevate my education to your level without reading, questioning and understanding.
I am but a mere man in the street, the kind of guy the CCA was meant to protect.

I have received a non-comliant DN
The OC has terminated on the back of this
I suspect that the creditor sent these notices because he wanted his money & he did not want to do business with me any longer.

It appears the man in the street is now meant to have a law degree to be able to know that the agreement is in fact still open & live.

Can you answer the question I asked?
Is the Tn unlawful?
You state that it is for the judge to decide, let's examine that.

In the contract there is provision for ending the agreement with notice, on both sides.
In the CCA there is provision for terminating the agreement in a default situation. Parliment thought it was so important to ensure the consumers rights that legislation was introduced to clearly indicate to a creditor what he must do to entitle him to use the courts to enforce.
If the creditor does not perform in accordance with the act does he lose the right to use the courts to enforce or maybe he loses the right to enforce anything more than lawful arrears?

You also comment, it will not wash in the real world. It suggests I am looking for nothing more than a technical defence to avoid my debts.

There are OC's who provide 2 differing versions of an application form in response to a S77 request. They then fail to provide the original in court- in contradiction of CPR rules- using a third version of an application form to litigate with.
This is on the back of a faulty Dn, subsequent Tn. No letter before action. No documents in reply to CPR requests.
Oh, and whilst the agreement was live they fail to word default sum notices in accordance with the relevant law and overcharge on late payment fees.

I miss 2 payments & the roof falls in
I go into a debt management program, pay my money every month, then I find the debt management company does not pay my creditors....
I approach a leading firm of solicitors who say they are a bit busy to help me.

I get the defaults, I get the CRF reports, I go to court & get stuffed because I can't afford other legal representation
I get to pay my debts and get the grief

That is how it washes in the real world Peter

So instead of prevocative rhetoric lets have some constuctive comments which are designed to help others

[Angry Cat]

Re: Contracts, Termination, Repudiation and Rescission

:

Hopefully tomorrows publication of pt's High court case will make everything clear. But I doubt it will be what anyone expects or hopes for!

I suspect, a mixed bag of covert practice(s)

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

hi
For the answers to legitimate questions raised above see earlier postsin this thread, in LAs thread before that, in the default thread over the way before that.
Same questios same answers.
For the proof of the truth if those responses see the half dosen cases that are currently or have already gone bcelly up recently over there.
.

LA i have answered each of your points many time you are either inable or unwilling to understand so i urge you to try this aproach as soon as possible then perhaps you will learn about its effictacy.

Peter

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Poor answers Peter, I hoped for better
You state the Tn did not happen, in law, therefore it has no effect
How is the uneducated debtor to know this

It has to have an effect, I just am not aware of the legalities of the effect - that's why I asked.

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

It's not that I don't understand your arguments, I do. I do however resent the implication (however subtle) that I cannot follow simple arguments.

It is more I don't understand the effect of your arguments on the law. I follow that with a defective DN a creditor cannot 'take the next step' i.e. terminate the agreement and demand sums previously not due (i.e. the full outstanding balance).

However we are faced with the situation where the termination is deemed not to have been effective, i.e. the agreement endures up to date. However the creditor has most definitely stated by word and action that the agreement is no more. The creditor understands this, as does the debtor. The credit facility has been withdrawn and the debtor has made no scheduled repayments.

This to me is a paradox, the agreement endures but neither party is active in its operation.

How can this be cured? By the creditor inviting the debtor to reaffirm the agreement, I don't think so.

Hopefully tomorrows publication of pt's High court case will make everything clear. But I doubt it will be what anyone expects or hopes for!

Simple the affirned by thing is another red herring it means nothing, of course the creditor believes the termination is legitimate when he issues it, but no matterwhat he believes in law it is not. It is not an offence in any sense of the term i could say something about intent but the truth us it really does not matter it is not an issue.

Peter
------------------------------- merged -------------------------------
You knw i really thought all this nonsense had died a natural death at least it seems we are now down to just a few missguided individuals.
peter
------------------------------- merged -------------------------------

Poor answers Peter, I hoped for better
You state the Tn did not happen, in law, therefore it has no effect
How is the uneducated debtor to know this

It has to have an effect, I just am not aware of the legalities of the effect - that's why I asked.

Wy would he need to know this it makes no diference if he knows it or not,
THe main thing iks , is the default comliant if i os the court will enforce if not then the crediotr will have to issue another one why would the uneducated person have to know the technicalities?

Peter

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

When it makes a difference in the debtors actions it is neccessary for him to know if the Tn has any effect.
I, like others, believed the creditor when he said the agreement was terminated.
If I thought the agreement endured I would have tried alternative courses of action to placate the creditor and might have been able to reach a F&F.
As it stands, the debtor has now got himself deeper in the mire, based on the documentation provided by the creditor

I am not a misguided individual
I am lacking in knowledge, I don't believe that to be a crime

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

When it makes a difference in the debtors actions it is neccessary for him to know if the Tn has any effect.
I, like others, believed the creditor when he said the agreement was terminated.
If I thought the agreement endured I would have tried alternative courses of action to placate the creditor and might have been able to reach a F&F.
As it stands, the debtor has now got himself deeper in the mire, based on the documentation provided by the creditor

I am not a misguided individual
I am lacking in knowledge, I don't believe that to be a crime

It is a nightmare, i grant you that,

The problem we all face is that the current position can change on the back of a Court judgment

Just look at the R vs R case in 1992 concerning marital rape, what we thought the law was, actually wasnt, as the House of Lords confirmed.

The difficulty is that the courts will say to you, when you suggest you would have done things different if you had known, that you ought to have sought legal advice on your position.

This is the problem.

I am hoping that the case out tomorrow, will show the approach the Courts will take, and what the Courts will act upon etc