Contracts, Termination, Repudiation and Rescission

Re: Contracts, Termination, Repudiation and Rescission

Sorry Peter I will not be baited into an argument with you, However I, personally, will now treat everything you say as falling into the categories I have listed. I will not respond to any post you make, like volvodriver. And when you say you have the courage of your convictions I do not think you know the meanings of the words you are mistaking arrogance for conviction. That is what you are saying not me.

Garlok.

Personally i think it is pretty arrogant to tell someone else they must abide by your rules.

Like i said i am quite happy for you to be humble.

I will of course continue to listen to your points and agree or dissagre.

peter

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Sorry Peter I will not be baited into an argument with you, However I, personally, will now treat everything you say as falling into the categories I have listed. I will not respond to any post you make, like volvodriver. And when you say you have the courage of your convictions I do not think you know the meanings of the words you are mistaking arrogance for conviction. That is what you are saying not me.

Garlok.

Re: Contracts, Termination, Repudiation and Rescission

I am sorry to intervene here again as I did not want to raise this. This is NOT "having a go", Peter. I think there are those of us about who are intelligent enough and perceptive enough to realise that you do have a problem and are prepared to live with that. However your style does come across quite badly at times and yes, had I not realised you had this problem I too would have felt patronised and talked down to.

As someone has pointed out the fact that Einstein also had this difficulty with life, may I just be permitted to pass on some actual experience.

I am a simple mechanical engineer who has been privileged to have held very senior positions in the plasma physics industry across the world. I started out part time at technical college whilst having a full time job to get my quali's. I have been even more privileged to meet with and work with some of the greatest brains ever spawned by mankind. The common denominator of ALL of them was that they were very very humble people, very self effacing yet their knowledge was encyclopaedic, their warmth as human beings and compassion for their fellow man was unbelievable.

However they taught me a valuable lesson which I think we can all learn from and I still am learning from it so late in life.

This lesson:-

If a person has the need to ram their opinions down others throats there are three options:

1. That person is a thief of another's ideas.
2. That person is on very uncertain ground.
3. It is an outright lie that the person is trying to justify.

It is a lesson in humility and proper care for others that we all pay lip service to on here.

No offence intended at all
Best regards
Garlok

None taken


Never been good at being humble, always taught to have the courage of my convictions and argue the until proven wrong or correct.

Not alone in this approach. Nothing against you being humble though.

Diofferent strokes

Peter

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

There are half-answered and unaswered questions which remain around the issues of default and termination. This is due to no ones fault on this forum, or over the road. What once was a fairly simple to understand CCA has now become a minefield by the intervention of various judgements which have distorted the act so that it now is nothing like, and does nothing like it was intended to do.

Maybe Brandon will make the issues clearer, maybe not.

The fact is that the financial industry has emasculated the act, and the eunuch which remains is no longer fit for the purpose of protecting the customer.

The judiciary, and the solicitors and barristers who have brought this about should hang their heads in shame.

Yet another blight visited on us by bankers.

Vdr

What is even more galling is that Supertoff Dave and his foetal sidekick, and the Return of Bambi are strutting the world stage deploring the corruption in Arab states, whilst we are having our savings, incomes, benefits and rights to protection stripped away to pay for banker's excesses.

Is that hipocrisy or what?

Maybe we need a people lead revolution in this country against the ruling classes of all political colours, who, along with their cronies have got richer whilst the vast majority have got poorer.

Rant over.

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

I am sorry to intervene here again as I did not want to raise this. This is NOT "having a go", Peter. I think there are those of us about who are intelligent enough and perceptive enough to realise that you do have a problem and are prepared to live with that. However your style does come across quite badly at times and yes, had I not realised you had this problem I too would have felt patronised and talked down to.

As someone has pointed out the fact that Einstein also had this difficulty with life, may I just be permitted to pass on some actual experience.

I am a simple mechanical engineer who has been privileged to have held very senior positions in the plasma physics industry across the world. I started out part time at technical college whilst having a full time job to get my quali's. I have been even more privileged to meet with and work with some of the greatest brains ever spawned by mankind. The common denominator of ALL of them was that they were very very humble people, very self effacing yet their knowledge was encyclopaedic, their warmth as human beings and compassion for their fellow man was unbelievable.

However they taught me a valuable lesson which I think we can all learn from and I still am learning from it so late in life.

This lesson:-

If a person has the need to ram their opinions down others throats there are three options:

1. That person is a thief of another's ideas.
2. That person is on very uncertain ground.
3. It is an outright lie that the person is trying to justify.

It is a lesson in humility and proper care for others that we all pay lip service to on here.

No offence intended at all
Best regards
Garlok

[Angry Cat]

Re: Contracts, Termination, Repudiation and Rescission

it is almost correct.

Although i do doubt that judge chambers would have allowed them to try and put the default right, as they would not accept it was defective even at the trial they wouldnt accept it

Surely though, Link would not have been able to go back and rectify the ineffective default. If, they were not "the creditor" at the time that the DN was served:beagle:

Re: Contracts, Termination, Repudiation and Rescission

So then the agreement is terminated on a bad DN (in this case)?

And if a DN is served by the assignee, what if the debtor remedies? Can the former offer the latter the same or similar contractual terms? Does he have a licence to do so?

Am sure I'm missing something here.

Hi La

I think i said under the contractural option.

Doesnt need to accounts are not usually assigned unless the are beyond remedy. The default notice would be for the full ballance if paid within the stat period the creditor would not enforce.

peter

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

There are half-answered and unaswered questions which remain around the issues of default and termination. This is due to no ones fault on this forum, or over the road. What once was a fairly simple to understand CCA has now become a minefield by the intervention of various judgements which have distorted the act so that it now is nothing like, and does nothing like it was intended to do.

Maybe Brandon will make the issues clearer, maybe not.

The fact is that the financial industry has emasculated the act, and the eunuch which remains is no longer fit for the purpose of protecting the customer.

The judiciary, and the solicitors and barristers who have brought this about should hang their heads in shame.

Yet another blight visited on us by bankers.

Vdr

[jumper999]

Re: Contracts, Termination, Repudiation and Rescission

I think basically that it was the way in how Link pursued the debt and used their bully boy tactics to claim it that was the real winner here.

This case shows and proves that creditors have to treat customers fair and not hound them down like dogs when they get in to debt. It is also good to see these financial institutions get a kick up the rear and let them know that they are not above the law.

Unfair relationships and treating customers unfairly seems to be getting a few success lately, especially by the FSA and DB Mortgages.........and this judgment confirms that if you have a good case and prepare it correctly then justice is still alive for the little folks like us.

Nor to forget the captain of the ship PT who has once again sailed this ship safely to shore,

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Correct me if I'm wrong, but this case was dismissed due to Link's behaviour in recovering the debt.

The DN was an issue, but could have been rectified. But had it been rectified, Link would still face the problem of their previous antics.

The point being that a debtor can only succeed in court where the creditor has behaved "badly", as per HH Chambers' paragraphs under S127/S140. Therefore, where the creditor has not behaved "badly", the DN merely needs to be re-issued.

Is this analysis correct?

it is almost correct.

Although i do doubt that judge chambers would have allowed them to try and put the default right, as they would not accept it was defective even at the trial they wouldnt accept it

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Correct me if I'm wrong, but this case was dismissed due to Link's behaviour in recovering the debt.

The DN was an issue, but could have been rectified. But had it been rectified, Link would still face the problem of their previous antics.

The point being that a debtor can only succeed in court where the creditor has behaved "badly", as per HH Chambers' paragraphs under S127/S140. Therefore, where the creditor has not behaved "badly", the DN merely needs to be re-issued.

Is this analysis correct?

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Hi dont see any reason why an assigne cannot send a default notice in fact i know they do.

The account nis usually terminated prior to assignment under the contractural option.

Nothing to stop the DCA commencing proceedings on the contractural terminated account in fact they do it all the time.

Section 87 just says a regulated ageement it does not say under a regulated agrement.

Peter

So then the agreement is terminated on a bad DN (in this case)?

And if a DN is served by the assignee, what if the debtor remedies? Can the former offer the latter the same or similar contractual terms? Does he have a licence to do so?

Am sure I'm missing something here.

Re: Contracts, Termination, Repudiation and Rescission

Ohay, I know the termination question is alive and kicking, but how can a DN that is defective be reissued when the account has been assigned to a DCA? Does the DCA have to send a valid DN? What happens about an account that has been closed (for tax purposes) following the defctive DN and then sold?

Hi dont see any reason why an assigne cannot send a default notice in fact i know they do.

The account nis usually terminated prior to assignment under the contractural option.

Nothing to stop the DCA commencing proceedings on the contractural terminated account in fact they do it all the time.

Section 87 just says a regulated ageement it does not say under a regulated agrement.

Peter

Re: Contracts, Termination, Repudiation and Rescission

I don't think you're going to get an answer to this as no-one frankly knows.

Even though this case was where MBNA assigned to a DCA the judge's only comment regarding faulty DNs was that a creditor cannot enforce after one, but he did intimate a faulty DN can be remedied but didn't expand at all under what circumstances that could happen.

This judgement I feel took no account of the faulty DN. It was won because the debtor kept meticulous records of original documentation and was able to demonstrate there were no T&Cs attached to the signed agreement (it helped that MBNA cocked up the T&Cs as well) plus the heavy handed way MBNA and Link apparently treated the debtor.

The creditor didn't ask to re-issue (the DN) and wasn't given the chance.

What I want to know is - if it is generally regarded that the agreement endures after a faulty DN (even though all parties believe it doesn't!) what happens to all the missed payments in the 2 years between the faulty DN and (non) termination and the issue of any revised DN??

It is interesting to note that HHJ Chambers said:81.


Many here have extrapolated this to infer that termination also cannot be attempted because this is part of enforcement.

However HJ Flaux (McGuffick) (also a High Court judgement) said
81. Once it is recognised that the bringing of proceedings is not enforcement, it necessarily follows that activities (iii) to (vi) do not constitute enforcement, since they are all steps taken prior to the commencement of proceedings and therefore by definition, at most, steps taken with a view to enforcement.


It could therefore be argued that termination (since it is only a step toward enforcement) is not debarred on a bad notice.

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

Re: Contracts, Termination, Repudiation and Rescission

In the same way that you did not address the point about the judge marking down to me personally, neither did I address my points to you personally. If you have taken them personally I'm sorry, but I really cannot help that. Neither did I make any comment about spelling.

I dont consider my comments patronising, dismissive or rude. Just realistic. If you (one) is to be a LIP, you have to be able to read and assimilate information and present it in court and be quick witted enough when things get hard.

Yes forums like this exist to help people. They can only do that as far as enabling people to educate themselves, and to have some guidance about what might happen in court.

After that its showtime and the LIP is the star. As Costa's thread shows, even well prepared and presumably articulte folk cannot always get the result they ought. How much harder is it for someone who is dismissive of the difficulty, and dismissive of the very real points I raised.

Peter, I will never comment on one of your posts again. I think you are a disruptive influence, and I hope that someone else can get you to see reason where I, regrettably have failed.

Goodbye

Vdr

Sory to see you go particularily because i honestly do not know what reason it is you refer to.

I cant put my finger on exactly what the point you are trying to make is. Not being funny.

Just read your post again are you saying that i am underestimating how hard it can be for some to act as LIP i would refute that i know how hard it can be, but i think most are capable of it , is that what you mean.

Peter