Contracts, Termination, Repudiation and Rescission

[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

[Guest]

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

[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:

[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

[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.

[Guest]

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

[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.

[Guest]

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

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Any chance the contributors can put their ego's away and actually try to discuss points and help others?
There are some questions we may never agree on but there is no need to drag the thread into the argumentative gutter, as has been done OTR.

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

Any chance the contributors can put their ego's away and actually try to discuss points and help others?
There are some questions we may never agree on but there is no need to drag the thread into the argumentative gutter, as has been done OTR.

With respect, that's what some of us have been trying to do.

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

Any chance the contributors can put their ego's away and actually try to discuss points and help others?
There are some questions we may never agree on but there is no need to drag the thread into the argumentative gutter, as has been done OTR.

Absolutely

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

The Judgment comes temptingly close to confirming that doesn't it.
It certainly implies that postage time is relevant - that may be enough in itself.

Thank you PT for posting the Judgment an interesting read and a good win rewarding the obvious amount of work put into the case.

postage time has always been relevant- and the date of service is what counts

the issue in this case was not that the creditor was suggesting that there should be no time allowance for postage.......he was simply trying to peddle the argument that he had sent it first class (2 days) and not second(4 days) and got found out lying

the beauty of the judgement (IMO) is that all LIPS should be quoting extracts of this judgement in their defences to counter the "holier than thou" arguments that creditors put forward as to how they cannot possible get things wrong

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

If the termination existed then the notice would not be capable of remedy by issuance of a new DN on a terminated account. The termination would have had to have existed for the debtor to accept it.

The termination could not exist because the DN was defective so no unlawful termination no acceptance of same.

Any way i have read hese words so many times i can quote them from memory.

" the idea that a creditor can just keep re issuing an default, that he can just have another go at getting it right is frankly ludicrous".

I can look up the postings if you like there are enough of them.
Well turns out it isnt lujdicrous at all it never was.

Now cant we just move on.

Peter

no, we cant move on!!

it is all well and good a creditor seeking to abandon/discontinue or hold over proceedings to correct a bad DN

i'll bet you a £1 to a bucket of pig***** that a court would take a different view if the creditor ballsed up a second DN and came back for a third helping!!

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

postage time has always been relevant- and the date of service is what counts

the issue in this case was not that the creditor was suggesting that there should be no time allowance for postage.......he was simply trying to peddle the argument that he had sent it first class (2 days) and not second(4 days) and got found out lying

the beauty of the judgement (IMO) is that all LIPS should be quoting extracts of this judgement in their defences to counter the "holier than thou" arguments that creditors put forward as to how they cannot possible get things wrong

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 -------------------------------

no, we cant move on!!

it is all well and good a creditor seeking to abandon/discontinue or hold over proceedings to correct a bad DN

i'll bet you a £1 to a bucket of pig***** that a court would take a different view if the creditor ballsed up a second DN and came back for a third helping!!

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

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

Bit of selectiuve quoting here me thinks.

It actually says:

"

• . 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."

In the English I learned and studied the word often does not mean always. We should be asking when does "often" apply in respect of default notices, and what are the criteria for deciding whether in any particicular set of circumstances it can be remedied.

I consider the issue of bad notices still very much alive and kicking.

Vdr

quite right- they can bad notices can ONLY be remedied BEFORE the creditor terminates.

once he terminates and commences proceedings ( and i would argue that even if he did not formally terminate- the commencement of proceedings amounts to termination) - he is then serving proceedings without a "cause of action" since he is not yet "entitled" to claim sums not yet due.

I agree with amethyst in that the debtor should not be prejudiced by the creditors wrongful actions and that the defendant should submit a defence and make an application for the claim to be struck out on that basis. If i were the defendant i would also seek to ask the court to order the removal of adverse information from the CRA's files as to the invalid DN BEFORE the claimant can re serve a new DN by reference to s89

If the claimant does not do so then any subsequent DM would also be invalid since the debtor could not achieve the status that s89 offers him by remedying the new DN