Contracts, Termination, Repudiation and Rescission

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

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.

Firstly i find it best to accept my limitations i would encourage you to do the same. the answer is no, the termination of a credit agrement can NEVER be unlawful. Read my previous posts. they may enlighten they may confuse either way i assure you they are accurate.


I am but a mere man in the street, the kind of guy the CCA was meant to protect.

AGreed

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.

Probaby because you defaulted does this not seem reasonable to you

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.

No the default and termination notices will give you a clue

Can you answer the question I asked?
Is the Tn unlawful?

No Again the creditor can terminate a credit agrement at any time with previodly seven days notice currently two months notice but the termination after a default does not exist if the defalt is defective
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.

What i said above
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.

Correct
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?

NO he looses the right to enforce untill he provides a compliant notice it is all in the CCA, the arrears thing is a missconseption based on a missinterpretation of the Woodchester verdict .This i went to great pains to explain in my analysis of the case earlier in this thread.

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.

No really

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.

A number of actionable and defendable breaches bhy the creditor what has that to do with what we are discussing
A
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

Seems to be you indulging in the rhetorc matey but again what has this to do with the matter under discussion

Thougtht i would have another go at it i know i am wasting my time but hey hope springs eternal
Peter

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Hi Paul, thanks for the input
I am aware the courts may have differing views from the individual
Sometimes you will come across people who don't have any money to pay for legal advice
It may not be their fault
Sometimes they may have sought legal advice, they may be told their agreement is not enforceable then their solicitors ditch them shortly before it gets messy but is too late for the debtor to go back.

I take exception to the way peter has phrased his answers, we are all trying to find the answers, it can be done in a civil way.

You have the benifit of legal training but I am sure would be first to admit that you have things to learn
I do not have such training therefore I have more to learn

If the creditor has obeyed the law he has the protection of the law & may ask it to enforce on his behalf
Where he fails to do this he surely loses the right to have the courts do his dirty work for him
This does not mean the debt disappears, it just prevents the creditor from using the court system

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Peter, where have I been anything other than civil?

Argue with me when I know the answer and I will stand my ground.
On this range of subjects I do not know the answers so pose questions
Please forgive me if I try to use arguments aganst your position, it is merely what will happen in court hence why I ask.

I shall refrain from posting my questions as I have obviously offended you.

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

I have had to remove a couple of posts from this thread as we just can't have important and useful, intelligent discussions on such intricate legal issues destroyed by contributers resorting to name calling. I think everyone has made some very good points and I hope the judgment due to be published today does resolve the status of invalid DN's.

In my view and I am by no means well read or knowledgeable on the subject if a faulty DN is issued whatever happens after should be wiped and the debtor returned to the exact position he would have been in had the default notice never been issued. This means the contract was not terminated and only the arrears are due - that meaning the arrears to date not up to the point of the DN, additional charges/interest from the post DN refunded, and from this point the contract continues as before the DN. If the debtor then defaults and the creditor issues a new DN then the debtor has a renewed opportunity to remedy under the correct terms before the creditor may terminate, correctly. That's just how I see it.

Can we please continue the discussion in a sensible manner as there has been quite a lot of surmisation going on across various forums and seemingly a number of people elsewhere have gone down a route with repudiation arguments which some believe to be incorrect and it seems the judgment will show to be incorrect. Those people will need assistance sorting their cases out.

Thanks guys xx


(p.s apologies VD you posted while I was mid type and moderating a couple of posts so have done yours too as it seems out of context without the preceeding post)

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

(p.s apologies VD you posted while I was mid type and moderating a couple of posts so have done yours too as it seems out of context without the preceeding post)

Shame, it was witty and to the point, probably too much so. But good moderation involves more thn just removing the off-topic and insulting stuff. You might find that will go away if you're tough on posts, and tough on the causes of posts.

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

I think the problem is Ame, i cannot find one case won on legal argument on this point of law.

People get notice of discontinuance and think the dodgy default did it, but who knows, maybe not, the point is that the cases on this point that have gone to trial, seem to have all ended in defeat.

i cannot find one case with a reasoned judgment that says the opposite.

The same applies with the arguements we run on our cases RE s78, i can show a number of judgments ( and have done so) where we did win, now i would be grateful to anyone who supports this repudiation idea, to show me a judgment that confirms this is the case

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

I also think good moderation especially on a forum such as this allows discussion from both sides of the fence to develop even if it does become argumentative, so long as it is respectful argument (which this has moved away from in parts particularly last evening hence the removal of a couple of posts and a couple of communications off the public boards). Without argument no conclusion can be drawn and if we all agreed the world would be a very boring place. Challenges need to be raised and discussed and we also need the other (safer?easier?more realistic?) view point to temper others enthusiasm for where there may be meritless challenges. I also think good moderation recognises the difference between trolls and frustration and understands that not everyone can put their thoughts into the written word as well as others.

Site Issues would be the best place to discuss this kind of topic though and keep this thread for the contracts, termination, repudiation and recission discussion.

Is everyone chomping at the bit for this judgment to be published today then?, I think this is the busiest I've seen this thread lol.

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

I think the problem is Ame, i cannot find one case won on legal argument on this point of law.

People get notice of discontinuance and think the dodgy default did it, but who knows, maybe not, the point is that the cases on this point that have gone to trial, seem to have all ended in defeat.

i cannot find one case with a reasoned judgment that says the opposite.

The same applies with the arguements we run on our cases RE s78, i can show a number of judgments ( and have done so) where we did win, now i would be grateful to anyone who supports this repudiation idea, to show me a judgment that confirms this is the case

I haven't managed to find these cases which I presume are on CAG ? Do we have any links or are they in private areas ?

You know I tend to go on the safer and proven ways of dealing with creditors and probably to others frustration a bit, I've never quite understood why a faulty DN should mean a written off debt and have never seen case law to back up why it should so have never pushed those type of arguments on here. I don't mind trail blazing at all, but with your OWN risk / money /health / relationships at stake rather than people who have come to the forums looking for help. If you have a belief in an argument then YOU take it all the way first rather than push others to test it for you. (and by YOU I just mean individuals in general not PT lol, just incase that reads completely wrong)

I havent read the massive dodgy DN threads over on CAG enough to see if there is a proper legal basis for the argument but I assume if that is where it developed the case law will have been picked over on those threads??

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

I haven't managed to find these cases which I presume are on CAG ? Do we have any links or are they in private areas ?

You know I tend to go on the safer and proven ways of dealing with creditors and probably to others frustration a bit, I've never quite understood why a faulty DN should mean a written off debt and have never seen case law to back up why it should so have never pushed those type of arguments on here. I don't mind trail blazing at all, but with your OWN risk / money /health / relationships at stake rather than people who have come to the forums looking for help. If you have a belief in an argument then YOU take it all the way first rather than push others to test it for you. (and by YOU I just mean individuals in general not PT lol, just incase that reads completely wrong)

I havent read the massive dodgy DN threads over on CAG enough to see if there is a proper legal basis for the argument but I assume if that is where it developed the case law will have been picked over on those threads??

No there is no case law also ther is no reason why there should be the theory is fundementally flawed

http://www.consumeractiongroup.co.uk...-issues/page13

Moreover it is dangerouse this person accepted the repudiastion and the judge ruled against him despite the fact that the notice may have been defective, because he terminated the agreement himself when he accepted it.
Had he not the judge may well have discontinued and the creditor would have had to issue a new notice.
Peter

Peter

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

No Ame,
Unfortunately the very real threads on this subject over there also degenerated into slanging matches sadly between supposed very knowledgeable people. One was generally the source.

However, a member also on here diddydicky, who did an awful lot of work on this subject did have some success I believe with defective DN's as part of one of his own cases. Are you around DD?

What is factual professional legal advice on this subject on a more practical level is:-

Check the DN , does it say s87(1)? Is it correct in detail? If account in dispute as ours were/are, Do nothing. File carefully with envelope, log exact date of arrival.
Wait for the demand for full amount outstanding. File carefully with envelope. Do nothing, do NOT respond with an acceptance letter at all, log exact date of arrival.

Ignore any charges/interest added to any of the accounts in dispute, by anyone (DCAs etc) they will be recovered during any action brought against us by the creditor.

I have my own suppositions as to why this is but you have asked for facts rather than assumptions and suppositions. I have to trust what our soliciotrs do and say and those were the instructions. Nothing more nothing less. Undoubtedly I will find out should our OC go to court which they have been invited to do (18months ago now)

best regards
Garlok.

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

I have accepted the creditors right to reissue a Dn, whilst I may not agree the law says it is allowed.
I have tried to investigate the point of the Tn on the back of a faulty Dn

If I walk down the street & a man punches me on the nose, it hurts
The law says he is not able to punch me on the nose
He may have mitigating circumstances - I slept with his wife/ stole his car/ my dog fouled his garden
but the fact remains he is not allowed to hit me & I am still in pain

Because the event has happened I have leave to do something about it
Surely there must be a course of action available to the receipient of such faulty notices.

I have not said the debt is not owing, just that maybe the creditor loses some / all his rights to use the courts to collect

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

The common law aspect of it is interesting. Didn't a judgment come out from PT's firm not so long back that confirmed common law wasn't appplicable in CCA cases ? Though think that was only in certain situations. I've never understood the repudiation argument fully though so I don't know if it takes you out of the CCA into common law or not (basics I know!)

I haven't read the whole case so don't know in what way the DN was defective, but as with any faulty DN I think I'd go with the faulty, should put me back in the position I would have been in etc argument to get it discontinued as enforcement not available at that time argument first then try sorting the actual debt out (payment plan etc) from that point to avoid the CCJ and costs etc and they can reissue the DN properly if need be.

You know Brandon's case, if he does get the 14 days part his way on appeal I assume it only returns the debt to where it would have been pre DN (arrears due, remedy available etc) or is he arguing it should be written off because off the fault ?

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

oo everyone posted (well NAB and Garlok anyway).

I can understand the professional advice Garlok, as then I assume in defence they will argue the DN was faulty return you to the position pre DN and allow you to rememdy and the agreement to continue ? and I also assume that once case law is published on the faulty DN issues a few of these no contact cases will be bought back forwards by the creditors, as we all know creditors don't like to go into court with any risk of a precedent being set against them. Thats based on what happened after Carey etc. Too many assumptions there I am aware but I am seriously not up on this subject at all as it has never really been of a great consequence to me. The few cases I have seen on here the faulty DN has been argued, it has been reissued and the debt sorted by other means. I leave the high level risky stuff to the professionals (and you guys )

I am looking forwards to reading this judgment when it is released though.

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

I have accepted the creditors right to reissue a Dn, whilst I may not agree the law says it is allowed.
I have tried to investigate the point of the Tn on the back of a faulty Dn

If I walk down the street & a man punches me on the nose, it hurts
The law says he is not able to punch me on the nose
He may have mitigating circumstances - I slept with his wife/ stole his car/ my dog fouled his garden
but the fact remains he is not allowed to hit me & I am still in pain

Because the event has happened I have leave to do something about it
Surely there must be a course of action available to the receipient of such faulty notices.

I have not said the debt is not owing, just that maybe the creditor loses some / all his rights to use the courts to collect

I think, and just my thoughts, is that the enforcement in court shouldnt be allowed on the back of a faulty DN, it means the agreement is not terminated, any charges, interest etc charged since should be removed and you should be able to remedy the original arrears with a new, correct DN, and the agreement continue as if the period between faulty DN and when it is accepted as faulty, didn't happen. If that continues then to default a new DN is issued and the chance to remedy starts over, which may then lead to enforcement action.

Not so sure about damages (costs for defending / hassle by DCAs / credit file etc stuff) for that period.

To me, that sounds reasonable. It also sounds like it would be beneficial to the defendant as they may well be in a position to continue the agreement now as circumstance may have improved, and avoid a CCJ and mucked up credit file ? IT also gives them another opportunity to sort out the debt in other ways, like a DMP etc. which they may not have considered/been able to do previously.

[fallenangel]

Re: Contracts, Termination, Repudiation and Rescission

i for one will just be glad of some clarification. Speculation is all well and good. But frankly, the suspense is killing me.