Contracts, Termination, Repudiation and Rescission

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

Peter
There must be more to it than this
A mere time delay is no penalty or sanction to the creditor as the interest (& default ?) charges continue to accrue. Let us not forget the creditor lends money to the debtor and makes money by charging interest as it is repaid.
When drawing up the agreement the creditor understands that sometimes debtors maybe a little late paying so a charging system is included in the agreement. The CCA recognises this and allows it (within limits), it also recognises that some debtors will default and provides a mechanism to accomodate this.
It seems the CCA does not accomodate a notice puporting to be something which it is not, but also according to your argument it does support this faulty notice as it does not mention it nor the possibility that a faulty notice could be sent (perhaps in error, perhaps on purpose)
This would be the unlawful termination which I tried to raise earlier
I agree, at the time of the faulty Dn I was in default
I then receive the Tn because I did nothing to rectify
You say in law that the Tn does not count as the Dn was faulty but it has still happened!
I am trying to find out what effect this action has.

As i attempted to demonstate earlier with my little story things can actually happen but not be acknowledged in law becaus the action had no legal entitlement. Reaad my previos post about goods under an agreement.The effect of this can be benificial to the debtor.

peter

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

I do believe Phil actually said that they dropped it on the steps of the Court rather than it being judicially decided though

yes you are correct and i stand corrected..although i consider this a victory....and again it was due to X20 putting his case properly to the creditor and clearly they had no stomach for the fight in court!!
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This is desending into personal abuse these points have been covered many times before they have no merit

peter
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You recall incorrectly

no personal abuse was made or intended- but you seem to want the moderators to come to your aid when you are found out mis quoting what others have said in order to make your arguments ..i was simply pointing out that you tend to use mis information and mis quoted statements to justify your arguments and it surely is right that those are corrected

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

I did read your earlier post.
I understood from it that in a loan agreement, i.e. for a vehicle if the car was repossesed on the basis of a faulty Dn then Tn there is an argument for theft
However we were all discussing a credit card agreement where it is money that changes hands not goods.
The fact remains that the Terminaton has occurred (like the punch on the nose in my analogy), you state the law allows this because the DN which the termination was based on was faulty.
I really have difficulty with this, it may be right & true, but I find it difficult.

You argue the action may have no legal standing because it follows another incorrect act, or two wrongs make another opportunity to make it right..

Surely you can see my dilema, you like me may not be able to explain it, there is no shame in that

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

PB says it is the debtor that has first repudiated if one or two payments are missed .....and isn't the creditor entitled to his money if you have missed a couple of payments

i say NO

credit cards- in particular are charged at astronomical rates and the business model allows for and incorporates occassional "defaults" on the part of the debtor and these are clearly "de minimus" events- if they were not de minimus then sects 87-89 would not exists for correcting them .[/quote]

Again no one is aying that default notices and the protection they provide under the act is inefective, just that the repudiation arguent does not hold water.

Creditors dont usually issue defaults on just a couple of missed payments do they? I think the judge may question this irrespctive of the default.

As for the bit about creditors making profit,well yes they do, i do not think a deffence based on the creditor can afford it has a lot of chance.

Peter

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

I did read your earlier post.
I understood from it that in a loan agreement, i.e. for a vehicle if the car was repossesed on the basis of a faulty Dn then Tn there is an argument for theft
However we were all discussing a credit card agreement where it is money that changes hands not goods.
The fact remains that the Terminaton has occurred (like the punch on the nose in my analogy), you state the law allows this because the DN which the termination was based on was faulty.
I really have difficulty with this, it may be right & true, but I find it difficult.

You argue the action may have no legal standing because it follows another incorrect act, or two wrongs make another opportunity to make it right..

Surely you can see my dilema, you like me may not be able to explain it, there is no shame in that

Ithink i do, it is because of your perspective.

The creditor is trying to enfoece, if the debtor is in breach he is entitled to do so.

As protection the act says he must comply with section 87 if he does not he cannot take the next step. The next step being enforcement.

Termunation is just part of that enforcement would you say that he was breaking the law by commencing enforcement procedigs in court?

That would be for the judge to decide.

Peter
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yes you are correct and i stand corrected..although i consider this a victory....and again it was due to X20 putting his case properly to the creditor and clearly they had no stomach for the fight in court!!
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no personal abuse was made or intended- but you seem to want the moderators to come to your aid when you are found out mis quoting what others have said in order to make your arguments ..i was simply pointing out that you tend to use mis information and mis quoted statements to justify your arguments and it surely is right that those are corrected

Not proven was it

Address the issues not me if you are able

peter

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

Wasn't taking court action ruled to be only a step to enforcement not actual enforcement. The faulty DN prevents the court ruling on the case until it is rectified ?

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Ithink i do, it is because of your perspective.

The creditor is trying to enfoece, if the debtor is in breach he is entitled to do so.
Agreed but he must do so correctly - otherwise he can enforce by sending the boys around with the baseball bats.

As protection the act says he must comply with section 87 if he does not he cannot take the next step.Agreed. The next step being enforcement. There is a path to enforcement, compliant DN, TN etc. The fact remains I have a piece of paper that states we no longer have an agreement

Termunation is just part of that enforcement would you say that he was breaking the law by commencing enforcement procedigs in court? He has acted incorrectly and not in accordance with the law if the Dn is faulty

That would be for the judge to decide. I believed the judge based his opinion on the law, enacted by parliment

Peter

I don't know the answers Peter, in a lot of ways I am playing advocate as I am in this unfortunate position, and yes I have accepted their repudiatin based on arguments I read on forums. It may be that I am grasping at straws to try to shore up my position, as yet I do not know.
But Pt's judgement should be with us soon, maybe that will clear the waters

[Angry Cat]

Re: Contracts, Termination, Repudiation and Rescission

The faulty DN prevents the court ruling on the case until it is rectified ?

The Creditor/Claimant, would have to cease proceedings:beagle:

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

Indeed, in some cases though, particularly Nationwide springs to mind, I have seen the cases stayed with liberty to pick up later once the situation has been rectified (ie agreement continued, dn issued and not remedied)

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

I don't know the answers Peter, in a lot of ways I am playing advocate as I am in this unfortunate position, and yes I have accepted their repudiatin based on arguments I read on forums. It may be that I am grasping at straws to try to shore up my position, as yet I do not know.
But Pt's judgement should be with us soon, maybe that will clear the waters

Yes the jusdge is enacte to decide not the debtor not the creditor.
If the DN is none compliient he will not allow the enforcement.

The creditor has to be able to get the case into court so he has to terminate,other wise how would the judge be given the opportunity to decide?

You have to start thinking as the default termianation as part of the enforcement and not an item sepperate to the rest.

Peter.

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

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

if the creditor argues that the termination was not a lawful termination because of blah blah blah which means that the "termination" is not valid...........

then the debtors "acceptance" of the "non" termination is equally as ineffective- therefore to suggest that the debtor has then "brought things upon himself" by his acceptance of what never was ....... is total poppycock!!

surely only a creditor would use that argument and hope to get away with it

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

Wasn't taking court action ruled to be only a step to enforcement not actual enforcement. The faulty DN prevents the court ruling on the case until it is rectified ?

Yes the currently accepted definition is that enforcement commences when an action is taken on the default noltice.

Peter

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

if the creditor argues that the termination was not a lawful termination because of blah blah blah which means that the "termination" is not valid...........

then the debtors "acceptance" of the "non" termination is equally as ineffective- therefore to suggest that the debtor has then "brought things upon himself" by his acceptance of what never was ....... is total poppycock!!

surely only a creditor would use that argument and hope to get away with it

It is not that the termination was unlawful it is just that the crediotr was not entitled to issue it. There is no offence listed in the CCA for issuing a termination when not entitled.

The DJ didnt seem to think it was poppy cock and niether do i, the debtor can termiante and repudiate the agrement as well you know then all the crediotor has to do is accept it.

In this case i think it was simpler than that though i think the court had an acknowledged default and found a way to get arround the default notice be, like it or not that appears to be what happened.
What we need to know is will some still be advising people to accept their terminations in the light of this.

Peter
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surely only a creditor would use that argument and hope to get away with it[/quote]

Well yes that is the problem

Peter

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

HI

http://www.legalbeagles.info/forums/...t=24021&page=5

5 months

Peter

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Yes the jusdge is enacte to decide not the debtor not the creditor.
If the DN is none compliient he will not allow the enforcement.

The creditor has to be able to get the case into court so he has to terminate,other wise how would the judge be given the opportunity to decide?

You have to start thinking as the default termianation as part of the enforcement and not an item sepperate to the rest.

Peter.

This I think is a cause of a lot of confusion for us mere mortals.

You say that a bad DN can not be used to terminate a contract (S87(1)(a)).

Yet you say that the OC must terminate in order to bring the matter to court.

We seem to be in a situation where the contract is open and closed at the same time. It is open because the DN was bad; it is closed so that the OC can go to court.

It is closed as far as the debtor is concerned (he received a TN); it is open as far as the law is concerned (no entitlement to terminate).

It is open as far as a new DN is concerned; but closed as far as the OC is concerned.

For those of us who do not operate professionally in this area, this makes no sense whatsoever.