Contracts, Termination, Repudiation and Rescission

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

I dont really think the judge is going to mark you down on your grammar.



Peter

Hi Guys,

"IMVHO if the standard of debate and comprehension of written English seen on this thread and others here and on CAG is what LIPs take into a courtroom, there is no wonder so many lose."

This I wholeheartedly agree with Volvodriver. Unfortunately this is making life much more difficult for the professionals who are prepared to help us mere mortals as well as the cards are slowly stacking against us.

On the defective DN issue, I cannot see any justice whatsoever in allowing a creditor to keep on going back to court over and over again until he gets the decision he wants ON THE SAME FACTS other than a piece of paper which HE should have issued correctly in the very first place as is required of him in Statute Law.

I would have thought that res judicata would have prevented this. Only murder allows for for the double jeopardy rule to be relaxed elsewhere and the burden of proof here is "beyond reasonable doubt" The very same posters have argued in other places that proof required in these cases is only on balance of probabilities i.e. 51%. An inaccurate, defective DN is proof absolute that the creditor has "screwed up" and has breached the Statutes governing its behaviour.

Perhaps we should also be looking at principles and fundamentals when formulating argument rather dissecting an individual word and the nuances it contains.

regards
garlok

Yes I agree with you broad approach, the problem is that lawers have agued over what "should" means when in the context its perfectly obvious.

I do think we need to be very precise and try to understand the DN and termination issue - I note that there are several unanswered questions including my own. This probably means that we wont know until a clever DCA twists common English in court.

If a clever solicitor sees words like "often" you can bet they will be all over it like a pox rash seeking to make it advantageous to them.

A return to the basics is required, regrettably that needs to come from the judiciary, and I cant see that happening.

We therefore must do what we can here, if others will let us.

Vdr




Read more at: Contracts, Termination, Repudiation and Rescission - Page 16 - Legal Beagles Consumer Forum

Peter I agree with you.

The judge most certainly wont mark you down, he is not a teacher.

However if you have not been able to read and understand the case and case law, and the opponents' submissions AND been able to present a logical, reasoned and informed argument the fate will be worse.

You will lose.

As a good example, go read Diddy Dickie's thread over on CAG, where he won.

Also read Costa's where he still lost against a hanging judge. I'm not sure of the status of his appeal, but the quality of his case handling should make it far easier to present a good case at appeal.

I think you were a little dismissive of an important point.

Vdr.

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

Peter I agree with you.

The judge most certainly wont mark you down, he is not a teacher.

However if you have not been able to read and understand the case and case law, and the opponents' submissions AND been able to present a logical, reasoned and informed argument the fate will be worse.

You will lose.

As a good example, go read Diddy Dickie's thread over on CAG, where he won.

Also read Costa's where he still lost against a hanging judge. I'm not sure of the status of his appeal, but the quality of his case handling should make it far easier to present a good case at appeal.

I think you were a little dismissive of an important point.

Vdr.

Yes i know your point i have beard it a lot

The idea that my nability to spel in any way effects my comprehesion just betrays your basic ignorance.
THe opposite is true in reality

I have read a book a week since i was ten yrars old i have a honours degree in acountancy but sometimes i cant even spel my name. So go figure.

I can also understand complex ideas far faster than my more literate countrparts.
My son is the same fortunately he doesnt have to put up with the same garbage i did at his age .

[never-in-doubt]

Re: Contracts, Termination, Repudiation and Rescission

Nuffin wrong wiv bein dick slex ist. Wasn't Richard Branson; Lynda la Plant and even Sir Redgrave (rower) all dyslexic?

Goes to show it's no barrier to a person, respect Peter.

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

Nuffin wrong wiv bein dick slex ist. Wasn't Richard Branson; Lynda la Plant and even Sir Redgrave (rower) all dyslexic?

Goes to show it's no barrier to a person, respect Peter.

Lets not forget Albert Einsien.
My wife got me a framed list of peple with the problem that had made ood for my 30th birthday

God that was thirty years ago nearly.
Sorry folks hit a nerve

Peter

[never-in-doubt]

Re: Contracts, Termination, Repudiation and Rescission

Huh now that explains why no bugger can understand Einstein's theories!! Lol

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

Peter I agree with you.

The judge most certainly wont mark you down, he is not a teacher.

However if you have not been able to read and understand the case and case law, and the opponents' submissions AND been able to present a logical, reasoned and informed argument the fate will be worse.

You will lose.

As a good example, go read Diddy Dickie's thread over on CAG, where he won.

Also read Costa's where he still lost against a hanging judge. I'm not sure of the status of his appeal, but the quality of his case handling should make it far easier to present a good case at appeal.

I think you were a little dismissive of an important point.

Vdr.

Right

I think that most people can present a reasoned and informed argument, and if they cant then that is why forums like this exist,

I think it is you attitude that is dissmisive, patronising and downright rude comments about peoples abilities or lack therof are niether productive or helpful.

Peter

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

Okay, 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 defective DN and then sold?

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:

75. The notice of enforcement was a statutory pre-condition of enforcement. It was a bad notice and enforcement cannot be attempted in dependence upon it. However, bad notices can often be remedied by the service of good notices and I see no reason why that should not be so in respect of credit agreements.

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.

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

Yes i know your point i have beard it a lot

The idea that my nability to spel in any way effects my comprehesion just betrays your basic ignorance.
THe opposite is true in reality

I have read a book a week since i was ten yrars old i have a honours degree in acountancy but sometimes i cant even spel my name. So go figure.

I can also understand complex ideas far faster than my more literate countrparts.
My son is the same fortunately he doesnt have to put up with the same garbage i did at his age .

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

[Guest]

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

[Guest]

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

[Guest]

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

[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.

[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?

[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

[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,