Contracts, Termination, Repudiation and Rescission

Re: Contracts, Termination, Repudiation and Rescission

There are some practical issues to be taken into account amongst all of the legalese. There was a case on CAG MBNA v redfish. The lady concerned corresponded with me on this as to how to deal with her solicitors (it transpired they were the same as ours). She no longer resides in the UK I understand.

It would seem that MBNA took her to court over an alleged debt and she instructed solicitors in the end to defend her. From her correspondence with myself by PM it appear that the case fell and she lost on a simple technicality over the DN. I understand nothing of MBNA's paperwork so I can't comment on the extent of the defects. However the case fell on the simple point of the defective DN not being married with the correct envelope in which it was sent.

From this I can only draw the conclusion that the defect concerned the amount of time to remedy but I don't know. However the lady concerned was certain that the judge had stated that he was finding for the claimant only reluctantly on the basis that had that DN and envelope been married correctly in evidence, then that alone would have rendered the "Statement of Truth" presented to the court by MBNA anything but a "Statement of Truth" and would have found for the defendant.

Perhaps this a salutory tale for all of us in keeping paperwork and shows demonstrably that the issue of defective DNs is far from a de minimus issue and may used effectively as said before in a proper comprehensive defence.

Garlok

Hi
Certainly i think if the recent case illustrates anything it shows the importance of keeping all paperwork when taking a loan.

Regarding the Default notice issue i dont think anyone is saying that the importance of presenting a correct Default Notice is in any way diminished.
The fact still is that if the default notice is inacurate or does not give the correct time to remedy then the agrement cannot be enforced until it is remedied.
Now a lot can happen if the time taken to remedy the DN, so it is by no definition a pointless exercise to challeng one.

But it has to be done within the confines of the act, it is after all a feature of it.

There are issues that i think should be discussed particularily around the Brandon judgement.
Personally i think this was a mistake.
The idea that the amount of predudice caused by the debtor should be a factor in the judgement is i think incorrect.
The act embodies the facility for varying judgements on amoumt of predudice in section 127, no such facility is offered in section 87, it does not say that the requirements of section 88 must be carried out or sanctions will be applied in proportion to the amount of predudice, it just says that it mnst be compliant.

Any way we will see what happens in the appeal.

Peter

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

There are some practical issues to be taken into account amongst all of the legalese. There was a case on CAG MBNA v redfish. The lady concerned corresponded with me on this as to how to deal with her solicitors (it transpired they were the same as ours). She no longer resides in the UK I understand.

It would seem that MBNA took her to court over an alleged debt and she instructed solicitors in the end to defend her. From her correspondence with myself by PM it appear that the case fell and she lost on a simple technicality over the DN. I understand nothing of MBNA's paperwork so I can't comment on the extent of the defects. However the case fell on the simple point of the defective DN not being married with the correct envelope in which it was sent.

From this I can only draw the conclusion that the defect concerned the amount of time to remedy but I don't know. However the lady concerned was certain that the judge had stated that he was finding for the claimant only reluctantly on the basis that had that DN and envelope been married correctly in evidence, then that alone would have rendered the "Statement of Truth" presented to the court by MBNA anything but a "Statement of Truth" and would have found for the defendant.

Perhaps this a salutory tale for all of us in keeping paperwork and shows demonstrably that the issue of defective DNs is far from a de minimus issue and may used effectively as said before in a proper comprehensive defence.

Garlok

Re: Contracts, Termination, Repudiation and Rescission

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[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

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Re: Contracts, Termination, Repudiation and Rescission

Btw, PT has already said that Schedule 1 of the enforcement notices regs requires that a notice is given to the debtor before termination. Are you sure that "no notice is required on running account credit"? I can find no reg that states this.[/quote]

sorry
Missed this bit no, as said the act is silent , however there is i think mention in the act of the creditors right to terminate on default of the devtor without notice i think.

I think most creditors accept that a section 76 notice should be sent in these circumstancesalthough it is not a statutory requirment. BUt as said befor it is all irrelavant now s they hae to give two months notice.

Peter

Re: Contracts, Termination, Repudiation and Rescission

Hi Guys

Seen this: ---> BBC News - Credit card borrower tortured by lender, says judge

The MBNA bank has been accused by a High Court judge of "torturing" a customer with repeated phone calls demanding he repay his credit card.
Mr Keith Harrison had his debt of £20,270 written off by Judge Nicholas Chambers QC at Mold in North Wales.

Already breaking waves :beagle:

Re: Contracts, Termination, Repudiation and Rescission

Thanks. This is confusing, however;

S98:

(2) Subsection (1) applies only where-

(a) a period for the duration of the agreement is specified in the agreement, and

(b) that period has not ended when the creditor or owner does an act mentioned in subsection (1)

There is no period stated in any agreement of mine.

Yes it is a bit

JUdges tend to use section 76 and 98 as shorthand for contractural terminationwhen as you say really it is just about the requirement of notice on fixed sum agrements.

I think this is why they rectified the situation with the european directive,
As various judges have said the Act is silent on contractural termination on running accounts so whatever is in the contract goes.

Usually there is a section in the T and cs that says the creditor may terminate at any time and on termination the full amount of liabilities under the contract are due.

THey are quite free to say this however they would not be able to enforce this demand because there would be no valid DN issued.


Peter
.

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Yes

Section 98 says that 7 days notice must be given on fixed sum agremnts this is because no notice is required on running account credit.
THe new European directive which came into force this month placed amendments to section 98 within the act. These compel the creditor to give two months notice before contractural termination, they must also provide a valid reason for doing so. Unfortunately the reason can be just for commertial considerartions.
Peter

Thanks. This is confusing, however;

S98:

(2) Subsection (1) applies only where-

(a) a period for the duration of the agreement is specified in the agreement, and

(b) that period has not ended when the creditor or owner does an act mentioned in subsection (1)

There is no period stated in any agreement of mine.

Btw, PT has already said that Schedule 1 of the enforcement notices regs requires that a notice is given to the debtor before termination. Are you sure that "no notice is required on running account credit"? I can find no reg that states this.

Re: Contracts, Termination, Repudiation and Rescission

Does this apply to (rolling) credit card contracts? S76/S98 both state that a period for the duration of the agreement must be specified in the agreement.

TIA

Yes

Section 98 says that 7 days notice must be given on fixed sum agremnts this is because no notice is required on running account credit.
THe new European directive which came into force this month placed amendments to section 98 within the act. These compel the creditor to give two months notice before contractural termination, they must also provide a valid reason for doing so. Unfortunately the reason can be just for commertial considerartions.
Peter

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Peter i absolutley agree with you

a creditor may terminate an agreement if there is no breach at all, that has to be correct. There is indeed a notice that must be sent to the debtor and this is alluded to in the heading of schedule 1 of the enforcement notices regs

Does this apply to (rolling) credit card contracts? S76/S98 both state that a period for the duration of the agreement must be specified in the agreement.

TIA

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

[QUOTE=peterbard;201125]

I notice you say my comments were rubish but you dont elaberate.
You are, i can see perfectly comfortable with people dissagreing with you, hence your attitude here.

Look make you a deal fresh start no personnel stuff just the facts OK

Peter

done!

Re: Contracts, Termination, Repudiation and Rescission

[quote=pt2537;201156]Peter i absolutley agree with you

a creditor may terminate an agreement if there is no breach at all, that has to be correct. There is indeed a notice that must be sent to the debtor and this is alluded to in the heading of schedule 1 of the enforcement notices regs[/quote

My problem is what if the creditor terminates in this way and then presents a default n, does this termination serve as the default termination and thus part of the enforcement.
I would have said not. I know that in contract law this kind of termination would not entitle the creditor to reclaim anything other than actual liabilities unlike a termination after a repudiatory breach. BUt in a consumer contract al liabilities are actual.

The thing is the judge in Bredon did seem to use the contractural clause so was he mistaken ??

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

Fact i am affraid

Read the previos posts on the subject.
I thought yhou had got your head arounfd this.
Anyway a notice of default issued by the credtortr is not the same as a default notice they can be sent on the same notice but do not have to be.
Notices of defaujlt usually give 28 days to remedy as per banking code guidlines.

The, "as never happend" section of section 89 refers to the statute it is of course within the statute.

It does not compell the creditor to reoppen your account re write your satements or refund any default charges on your account, i would wish it were otherwise.

Not good sarting your answer with rubbish is it as you once pointed out to me.

I think you should read Goks post on being humble

Peter
Peter

Errr see above
------------------------------- merged -------------------------------

Stop sniping peter it is wearing very thin for most of us and does nothing to help this discussion or gain you any respect at all

Garlok

Sorry what sniping?

Peter

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Hi
sorry re above also mentions the notice given by the banking code not the CCA i think i mentioned that also what a clever boy i am

SorryHumble muscle not working again:beagle:

Er no, you said;

"The default on your credit file depends entirely on the creditor and your record of payments.Even if the dn was renedied it would make no odds."

Whereas I do not think this is correct; if the DN is remedied where the intention to file the default record makes up a part of the "next steps" contained within the wording of the DN, then the default should not be recorded.

In the same vein, if the DN cannot be remedied because it is bad (eg, it demands the balance), then it would be wrong (according to ICO guidance to lenders) to record the default.

The issue was whether the creditor could lawfully, fairly, accurately record the default where the DN was bad. I do not see anything within the ICO doc that allows this (I see the opposite in fact).

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Stop sniping peter it is wearing very thin for most of us and does nothing to help this discussion or gain you any respect at all

Garlok

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Peter i absolutley agree with you

a creditor may terminate an agreement if there is no breach at all, that has to be correct. There is indeed a notice that must be sent to the debtor and this is alluded to in the heading of schedule 1 of the enforcement notices regs

SCHEDULE 1
FORM OF NOTICE TO BE GIVEN IN NON-DEFAULT CASES BEFORE A CREDITOR OR OWNER CAN BECOME ENTITLED TO
ENFORCE A TERM OF A REGULATED AGRREMENT BY DEMANDING EARLIER PAYMENT OF ANY SUM, RECOVERING
POSSESSION OF ANY GOODS OR LAND OR TREATING ANY RIGHT CONFERRED ON THE DEBTOR OR HIRER BY THE
AGREEMENT AS TERMINATED, RESTRICTED OR DEFERRED