Contracts, Termination, Repudiation and Rescission

[Algee]

Re: Contracts, Termination, Repudiation and Rescission

No, PB, as usual you have not answered the question. If you read what I posted

It is at this point that the Creditor issues a Default Notice, asking you for the arrears, or he will post a Default on your file. If you pay, he will not and you can carry ohn as if nothing happened.

Or if you want to be pedantic, the creditor issues a s87 notice.

Alan

Re: Contracts, Termination, Repudiation and Rescission

PB


This quote is taken from the ICO guidance. It is at this point that the Creditor issues a Default Notice, asking you for the arrears, or he will post a Default on your file. If you pay, he will not and you can carry ohn as if nothing happened.


How does this square up with your post #448?


Alan

Sorry where does it say"at this point the creditor must issue a 87 notice"

Defaults are registered on all kind of accounts not just those covered by the CCA many do not have to issue default notice at all , mobile phones ,electric any number.
In order to give an accurate report of the customers credit worthyness there must be a common method of assesment there cannot be a special arrangement fo CCA debts only.

The creditor may decide not to issue a section 87 but the ICO would still expect him to give a reliable report of the customers payment record.
Hope this answers your question

Peter

Re: Contracts, Termination, Repudiation and Rescission

No one is talking specifics her are they. Let us just take a specific example which has occurred probably thousands of times.

Barclaycard.
A dispute/complaint/ s78 request/SAR occurs.
Toute suite Mercers are involved. They issue routinely very defective DNs headed s87(1)
Argument still carries on with Mercers, they get bored eventaully and pss it on to the next level of thuggery in the BC coven i.e. Calders.
Who, if true to form after maybe 10 unsuccessful threatening telephone calls issue a demand for the full amount allegedly outstanding on the account.

A lay person is perfectly entitled to believe that the OC has terminated the agreement in its entirety. In fact how can it possibly endure? It may or may not be a fact that the debt may endure ( I note that there is very little discussion of the cases where DJ's have instructed the OC to write the debt off and clear the alleged debtors files). There fore on what basis is the cause of action. A dispute has occurrred which has clearly not been resolved by the OC in a proper manner. What is now being said is that we all need to be QC's to deal with our problems or get hammered into the ground. Why does this thread exist? why does this forum exist then?

I would like to know and these are serious questions.

regards
Garlok.

Hi
I am not sure what the questions are but.

The agrement endures for as long as there are liabilities under it.

NOt sure i have seen any cases where the debt had been writern
of by the court on the default issue but i would like to see one perhaps you could indicate where one exists.

I think this forum exists to give realistic and reliable information to people in order for them to better defend themselves against unfair actions by creditors/DCAs

Peter

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

Garlok,

''DJ's have instructed the OC to write the debt off and clear the alleged debtors files''

Can you point me to some of these pls.

I don't think any one is saying you need to be a QC, the only way to work out if there is, or isn't an argument, against reissuing a DN is to discuss it, and discuss it in terms wherever possible that a lay person can understand and would be able to convey to a court if they should so chose to try that route. I think personally I'm just making the point that the court acts, rightly or wrongly, far more on common sense than technicalities.

Ame
xx

[Algee]

Re: Contracts, Termination, Repudiation and Rescission

It is an accepted industry standard to record only serious ‘defaults’ with credit reference agencies. The term ‘default’ on credit reference files is used to refer to the situation when the relationship between the lender and borrower has broken down. A record showing a series of payments as six months in arrears when this does not reflect the real payment history should not be used as an equivalent of a default. Where a code is used to describe a default or variation in payment, it should always be accompanied by an explanation in plain and intelligible terms which informs the reader of its meaning.

PB


This quote is taken from the ICO guidance. It is at this point that the Creditor issues a Default Notice, asking you for the arrears, or he will post a Default on your file. If you pay, he will not and you can carry ohn as if nothing happened.


How does this square up with your post #448?


Alan

Re: Contracts, Termination, Repudiation and Rescission

HI
Nothing here about the default being found to be enforceable under the consumer credit act.

2 Definition of ‘Default Data’ from ‘Information Sharing – Principles of Re

10 Indicators of a default
The following indicate that a breakdown has occurred in most types of product (excluding those in the section on Exceptions at paragraphs 12-15). This list is not necessarily exhaustive.

��

The account has been referred to a collection agency or in-house debt collection department.

��

The account has been referred for legal action.

��

The account has been included in a bankruptcy, IVA, or similar.

��

The asset financed has been repossessed or instructions for repossession have been given.

��

The lender takes or has taken steps to cut off the service provided (or would do so if they were not prevented on social rather than commercial grounds or by other regulations, codes of practice or statute).

��

The customer has not made satisfactory proposals in response to a demand for repayment.

Peter

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

No one is talking specifics her are they. Let us just take a specific example which has occurred probably thousands of times.

Barclaycard.
A dispute/complaint/ s78 request/SAR occurs.
Toute suite Mercers are involved. They issue routinely very defective DNs headed s87(1)
Argument still carries on with Mercers, they get bored eventaully and pss it on to the next level of thuggery in the BC coven i.e. Calders.
Who, if true to form after maybe 10 unsuccessful threatening telephone calls issue a demand for the full amount allegedly outstanding on the account.

A lay person is perfectly entitled to believe that the OC has terminated the agreement in its entirety. In fact how can it possibly endure? It may or may not be a fact that the debt may endure ( I note that there is very little discussion of the cases where DJ's have instructed the OC to write the debt off and clear the alleged debtors files). There fore on what basis is the cause of action. A dispute has occurrred which has clearly not been resolved by the OC in a proper manner. What is now being said is that we all need to be QC's to deal with our problems or get hammered into the ground. Why does this thread exist? why does this forum exist then?

I would like to know and these are serious questions.

regards
Garlok.

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

Yip, just trying to see it from the other viewpoint too

Re: Contracts, Termination, Repudiation and Rescission

interesting (tho I disagree a DN is enforcement). I'm not sure I understand the difference between 4 and 5 - Section 4 is telling you what will happen if you remedy, section 5 is telling you what will happen if you don't remedy.....odd they should use enforcement in the negative action one.

Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983/1561

I thbink McGuffic is generally taken as authority on what is enforcement

In contrast, the bank invited the court (as set out in the list of issues) to conclude not only that reporting to the CRAs did not amount to enforcement, but that a number of other activities did not constitute enforcement: (i) reporting to CRAs without also telling them that the agreement is currently unenforceable; (ii) disseminating or threatening to disseminate the claimant's personal data in respect of the agreement to any third party; (iii) demanding payment from the claimant; (iv) issuing a default notice to the claimant; (v) threatening legal action and (vi) instructing a third party to demand payment or otherwise to seek to procure payment.

Peter

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

http://webarchive.nationalarchives.g...3%20%20doc.pdf

Data Protection Technical Guidance - Filing defaults with CRA's

Re: Contracts, Termination, Repudiation and Rescission

what rubbish!

the creditor places monthly "markers" on the CRA to indicate the current monthly state of the account

the creditor, having served a DN ( which the creditor beleives is valid) will - if the debtor does not remedy- then place a note on the debtors CRA files that the debtor has defaulted on the ENTIRE debt (including the fact that the debtor has defaulted on sums which are not yet due.. (by virtue of the invalid DN)

the debtor- if served with a Second valid DN which he remedies- CANNOT acheive the intent of s89 since he cannot then be in a position !"as if the default had never occurred" - since the creditor has already reported to the world at large that the debtor has defaulted on the agreement and owes the creditor £11,500 ( or whatever)

The only way that the situation post invalid DN can be "put right" is for the "status quo" (as at the time of the serving of the invalid DN) to be resumed- BEFORE a valid DN- compliant with the CCA can then be served.... and which would- if remedied satisfy s89

we all know however that once the defamatory genie is out of the bottle- it is not a simple matter to put it back....

i suspect this area ofhe law was not argued!!
if that is not prejudicial to the debtor....then i am a dutch mans uncle!

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

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

for once i agree with you- the judge was a fool- the DN CLEARLY states that "further enforcement action will follow" therefore parliament (not the judge) clearly decided that the DN itself was enforcement otherwise it would not have referred to what might follow as |"further enforcement"

the judges job is to interpret the law......not re write it

interesting (tho I disagree a DN is enforcement). I'm not sure I understand the difference between 4 and 5 - Section 4 is telling you what will happen if you remedy, section 5 is telling you what will happen if you don't remedy.....odd they should use enforcement in the negative action one.

Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983/1561

5.

Where any action is specified under paragraph 3(c) or (d) as required to be taken, a statement indicating the consequences of the failure by the debtor or hirer to comply with the default notice in the following form—

“IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]”.

4.

Where any action is specified under paragraph 3(c) or (d) as required to be taken, a statement that the provision for the taking of any action by the creditor or owner such as is mentioned in paragraph 6 will be ineffective if the breach is duly remedied or the compensation is duly paid in the following form—

“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”.

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

Think i should point out here that a dn has nothing to do with an entry on your credit report valid or not.
This has been confirmed on here many times.

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.

Peter

what rubbish!

the creditor places monthly "markers" on the CRA to indicate the current monthly state of the account

the creditor, having served a DN ( which the creditor beleives is valid) will - if the debtor does not remedy- then place a note on the debtors CRA files that the debtor has defaulted on the ENTIRE debt (including the fact that the debtor has defaulted on sums which are not yet due.. (by virtue of the invalid DN)

the debtor- if served with a Second valid DN which he remedies- CANNOT acheive the intent of s89 since he cannot then be in a position !"as if the default had never occurred" - since the creditor has already reported to the world at large that the debtor has defaulted on the agreement and owes the creditor £11,500 ( or whatever)

The only way that the situation post invalid DN can be "put right" is for the "status quo" (as at the time of the serving of the invalid DN) to be resumed- BEFORE a valid DN- compliant with the CCA can then be served.... and which would- if remedied satisfy s89

we all know however that once the defamatory genie is out of the bottle- it is not a simple matter to put it back....

i suspect this area of the law was not argued!!
if that is not prejudicial to the debtor....then i am a dutch mans uncle!

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

Yes i agree i think perhaps we should now start addressing DCAs/Creditors directly on their practices post defaultt.

Not saying we should ignore the more technicle aspects completely,but it does seem that judges are begining to listen to debtors genuine complaints about unfair treatment.

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


Possibly

But since the debor would have to specify the reason the first default failed is it likely.

I ave never heard of it.

Perhaps someone on here has

Peter

no i haven't-


i had previously stated the view that i did not think that the courts would allow creditors to serve DN's ad infinitum until they got one right- and that this proposition was ludicrous

my post was in response to your suggestion that the foregoing had been shown by events....not to be ludicrous./.......when in fact neither you nor i have seen multiple attempts at serving DN's therefore one clearly cannot say that was i considered ludicrous is no longer ludicrous!

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

It is true that the case was not won on the comment but it is on record and i am sure it will be quoted as pecedent. Ihe fact that the judge did not think enogh of the need to re issue the default is not a good sign either i think.

I admit i have thought long and hard about the termination after default matter, all the articles i have read seem to agree that termination starts on the action taken following the default notice, and since termination is one of those actions it does make sense.
I do not inderstand the quote from Mcguffic.(above)

" (iii) demanding payment from the claimant; (iv) issuing a default notice to the claimant; (v) threatening legal action and (vi) instructing a third party to demand payment or otherwise to seek to procure payment"

So i dont really see how you can infer anything from them they are all actions before or at the issuance of the dafault notice, termination notices are issued after?

As for what would happen between the faulty default and the new one i cant see any other answer than the interest would accrue at the contractural rate, it did in woodchester i think.
.

peter

for once i agree with you- the judge was a fool- the DN CLEARLY states that "further enforcement action will follow" therefore parliament (not the judge) clearly decided that the DN itself was enforcement otherwise it would not have referred to what might follow as |"further enforcement"

the judges job is to interpret the law......not re write it