Contracts, Termination, Repudiation and Rescission

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

Why is the meaning of the term "enforcement" even being debated? Is it important to the discussion, and if so, how?

I always understood the term "Enforcement" to mean that which occurs AFTER Judgement; i.e. the collection of the Debt by DCAs/Bailliffs etc once a Court Order was in force. This can be done by Attachment of Earnings; but until there is a Judgement it cannot.

enforcement taken after a judgement is enforcement of the COURTS ORDER not of the matter that led the court to make an order!!

it "makes a difference" because creditors "use" the commencment of court proceedings to frighten off LIP's and to pile on costs in which event you should remember that for every memberof a forum such as this who will contest- there will be hundreds who are frightened into submission ...

whereas - if the judges used their common sense and interpreted the act and common sense as intended- as peterbard says "anything" after the unremedied DN IS enforcement- and thus the creditor would be prevented from taking those steps and would be forced to NEGOTIATE and TALK reasonably with their customers without the customer feeling under immense pressure by way of court proceedings

furthermore- even if looked at from the creditors point of view- surely it would be more productive and a lesser waste of court resources and time if they were forced by court rulings to ensure their ducks were in a row

the courts could save an enormous amount of court time throughout the UK by ruling that any actions concerning CCA agreements cannot be commenced at court ( even at Northampton) UNLESS:-

1 the creditor has in his possession a properly executed agreement or a reconstructed agreement and proof that a copy of the original/or reconstructed agreement has been sent to the debtor together with an admission as to which it is (original/reconstructed)

2 the creditor has fully complied with any s77/79 request made by the debtor

3 the creditor has proof that a VALID Default Notice and Termination Notice has been correctlyt served on the debtor

4 Any assignments have been properly notified to the debtor

5 the creditor makes a declaration to be submitted with the claim that he has fully checked all of his documentation for accuracy and correct service- and that he understands that any submitted claim found wanting in these respects WILL be struck out upon application by the defendant without costs and without leave to amend.

there is absolutely no reason whatsoever why the creditor should not be forced into checking the validity of the claim prior to lodging it-by using its vast legal and accounting resources- rather than relying on the defendant (who by definition is unlikely to be able to afford legal advice) to have to take legal advice to do what the creditor should have done before he started the action

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

I don't want to throw a spanner in the works, but there has been no consideration yet of Judge Chambers comments in Mold Courts. It would seem that a number of phone calls is unreasonable i.e. his words "torture", which means harassment, duress, enforcement etc and consequently ordered MBNA to write off the debt in its entirety and the "contract" "agreement" whatever declared unenforeceable! i.e. no enduring contract (big C or little c), no enduring debt!

regards
Garlok

[EXC]

Re: Contracts, Termination, Repudiation and Rescission

Sorry to butt in here guys but Beagles' have obtained the banks' responses to the BIS & HM Treasury consultation on consumer credit under the Freedom of Information Act.

Much of it is about CCA enforceabilty etc, for example Barclays http://www.legalbeagles.info/FOI/FOIBarclays2.pdf

So for all you CCA heads, all the responses are here Banks and OFT responses to BIS consultation - Legal Beagles Consumer Forum

[StoneLaughter]

Re: Contracts, Termination, Repudiation and Rescission

Hmm - I though you just said that even a terminated agreement is still an agreement and thus unavoidably regulated.

I also seem to recall that no one could avoid the Act.

There was simply no need for that. Peter's agreement to my post was sufficient for us to move on. So... shall we move on?

[mystery1]

Re: Contracts, Termination, Repudiation and Rescission

If "A" says/indicates by conduct, that the agreement is over (termination) and "B" says ok i agree then it turns out "A" cannot in fact do what he did how on earth can the acceptance by "B" be seen as termination ?

Totally illogical.

M1

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

Hi
what remains is a contract(small c) which is no longer under an agreement.
I believe this was raised in Rankine in relation to the validity of section 78 requests on contractss that were no longer under an Agreement.

Hmm - I though you just said that even a terminated agreement is still an agreement and thus unavoidably regulated.

I also seem to recall that no one could avoid the Act.

[StoneLaughter]

Re: Contracts, Termination, Repudiation and Rescission

Why is the meaning of the term "enforcement" even being debated? Is it important to the discussion, and if so, how?

I always understood the term "Enforcement" to mean that which occurs AFTER Judgement; i.e. the collection of the Debt by DCAs/Bailliffs etc once a Court Order was in force. This can be done by Attachment of Earnings; but until there is a Judgement it cannot.

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

No it does not it proves that a debtor can termiate the agrement at any time as well as the creditor and when he does he has to pay back the liabilities

Yes he does he lists every thing that constitute proceedings right up to the default notice presentation then nothing, everything after that is enforcement.

No it does not contractural termination can but not that following a breach as in 87

what i cannot understand is that when you put forward an argument that has been supported by court decisions.......you take the attitude that like it or not..that is the c case and that others should accept that as a fait accompli

yet when you put forward a (sensible that i totally agree with) view, such as " everything after DN IS enforcement-- you totally ignore the ruling made that everything after the DN is NOT enforcement.. and that termination, and service of proceedings does NOT amount to enforcement- only obtaining the judgement is enforcement!!


clearly terminating an agreement and demanding payment of sums not yet due and taking your customer to court is enforcement- any judge who says otherwise is living in a parallel universe!

Re: Contracts, Termination, Repudiation and Rescission

Yes - and the legal effect of this "c"ontract is as I said; You still gotta pay but you get no CCA protection.

Yes
Would it were otherwise

Peter

[StoneLaughter]

Re: Contracts, Termination, Repudiation and Rescission

Yes - and the legal effect of this "c"ontract is as I said; You still gotta pay but you get no CCA protection.

Re: Contracts, Termination, Repudiation and Rescission

So we're still confused. The CCA gives creditors (and presumably reciprocally debtors) rights to "Terminate" the agreement under certain circumstances. HOWEVER - what effect does such "Termination" have?
Personally I think that a Credit Agreement under the terms of the CCA carries with it THREE SEPARATE THINGS for each party.

It carries :

• An Agreement between two parties (to honour the following)
• A set of RESPONSIBILITIES and OBLIGATIONS
• A set of RIGHTS.

IMHO, when an agreement is lawfully terminated, the RESPONSIBILITY and OBLIGATION of the debtor to pay, and the RIGHT of the creditor to collect, remain. This can be enforced through the Courts.

However, any protection RIGHTS the debtor has under the CCA will (if not abrogated completely) be severely reduced, and any RESPONSIBILITIES and OBLIGATIONS to honour regulation under the CCA by the creditor will be similarly reduced.

In other words, once the agreement is lawfully terminated, the debtor cannot rely on the provisions of the CCA to protect him, as the lending agreement has ceased to exist in that form, and what remains is a simple lien, or debt, which can be regulated by other Law.

Hi
what remains is a contract(small c) which is no longer under an agreement.
I believe this was raised in Rankine in relation to the validity of section 78 requests on contractss that were no longer under an Agreement.

[StoneLaughter]

Re: Contracts, Termination, Repudiation and Rescission

So we're still confused. The CCA gives creditors (and presumably reciprocally debtors) rights to "Terminate" the agreement under certain circumstances. HOWEVER - what effect does such "Termination" have?
Personally I think that a Credit Agreement under the terms of the CCA carries with it THREE SEPARATE THINGS for each party.

It carries :

• An Agreement between two parties (to honour the following)
• A set of RESPONSIBILITIES and OBLIGATIONS
• A set of RIGHTS.

IMHO, when an agreement is lawfully terminated, the RESPONSIBILITY and OBLIGATION of the debtor to pay, and the RIGHT of the creditor to collect, remain. This can be enforced through the Courts.

However, any protection RIGHTS the debtor has under the CCA will (if not abrogated completely) be severely reduced, and any RESPONSIBILITIES and OBLIGATIONS to honour regulation under the CCA by the creditor will be similarly reduced.

In other words, once the agreement is lawfully terminated, the debtor cannot rely on the provisions of the CCA to protect him, as the lending agreement has ceased to exist in that form, and what remains is a simple lien, or debt, which can be regulated by other Law.

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

I have to say reluctantly that on these latter points I have to agree with what Peter in post 524 and Angry Cat in post 527 have said . It was most definitely the professional instructions issued to us by our solicitors NOT to write and accept the "terminations" we had received.

Whilst, as a lay person, I feel I am entitled to believe that once that demand for the full outstanding amount on a running credit agreement has arrived on the back of a defective DN that they have "unlawfully" unilaterally terminated my agreement with them, I have to take on board better knowledge than I have.

My personal sympathies (and militant tendencies) are therefore with argument presented by LA and basa but on this count I have to bow to superior knowledge.

regards
garlok

Re: Contracts, Termination, Repudiation and Rescission

Sorry Peter, as others have found that particular post of a modicum of interest I have decided to leave it alone.

I would advise you, however, if you start a thread and are intolerant of views that conflict with your own, you might like to consider a general warning that holders of alternate opinions will be shown short shrift.

Your thread is riddled with contradictions and differing views and even judgements; your one-size-fits-all view is just one of many.

THOUGHT YOU MAY

I am intolerent with views that do not agree with established fact, and waste every ones time.
You have your own thread on this where all these issues have been dealt with oner six months ago, why not re kiondle your ideas over there, we were getting to the point on here where real porgress was about to be made thanls to PT and others, now it is decending again into this fantassy.

Peter
------------------------------- merged -------------------------------

Maybe.
, it's dead. And that is probably a view held by the lender too.

The agreement becomes an "account", into which the lender wants his money to be paid. This account is not an agreement. It has no agreed provisions and is not regulated by the Act.

99 % of agrements arent regulated by the act the agreed provisions are that the money is owed and due to be repaid, That is all that the needs to be for an agrement to exist.
Peter

Re: Contracts, Termination, Repudiation and Rescission

Maybe.

The point, however, is that S87(1) prevents entitlement to the balance where the DN is bad. So you may owe the money but the lender cannot get it.

Moreover, the lender had already told the debtor that the agreement is ended. As far as he's concerned, it's dead. And that is probably a view held by the lender too.

The agreement becomes an "account", into which the lender wants his money to be paid. This account is not an agreement. It has no agreed provisions and is not regulated by the Act.

Hi
If there is no agreement between the parties when an agrement is terminated then what exactly is it the court enforces.

NO the agrement is not dead it is terminate the contract is no longer under an Agrement.
THer is still however an agrememnt between the two parties,always will be untill the agrement can be rescinde by the liabilities being seetled.

"An account is not an agreement"

Ok what is an account two parties one who has loaned money the other who owes it with an oligation to repay.
An agreement .

The court refers to enforcing the agremnt this is after termination are they wrong?

As usual you are trying to deflect from the reall point. That is that this technique does not work.
Not only does it not work but it is dangerous, as illustrated by Pumpkin heads post above.
Now it is clear that you do not understand why this is, but surely you must see the proof within the varios actions that have been made under this and the subsequent damaging failures.

Peter