Contracts, Termination, Repudiation and Rescission

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

Well I think we have agreed that a DN can be reissued, if in court then the court would (and have) let them reissue the DN and go to default/termination etc again before picking the case back up, but if they still got it wrong we don't think a court would be so lenient and would strike them out and they'd have to fight their butts off to be allowed another go.

Have we ?

(maybe not then lol)

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

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.

the defendant should submit a defence and make an application for the claim to be struck out on that basis.

whether a court is then prepared to allow a claimant to hold a claim in abeyance whilst he gets his facts right and a cause of action established-seems to be to be very doubtful since it would go against the overriding principles and would open a floodgate for creditors to start actions willy nilly and worry about supplying evidence for them later

I am well aware that some judges patently are against the LIP but i believe that any county court judge going down this road would be would be overruled on appeal (IMO)

But the courts do allow re issuance?



Peter

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

I do not think that it needs to be any clearer really,

Enforcement cannot occur on the back of a bad notice.

The bad notice can be remedied.

The court has the power to stay proceedings as we all know anyway.

So i dont see where the issue is

one "issue" would be that the creditor has placed adverse information on the debtors CRA files and whilst it remains- the debtor can hardly remedy a second DN and then act as if "the breach had never occurred" (s89) since his credit reputation has already been tarnished by the creditor wrongly seeking to attempt to terminate/wronlg demand repayment in full

was this ever brought to the judges attention?

usually that information would have been on the debtors file for many many months and so MUST have been prejudicial to the debtor




the overriding principles are pretty clear in that a claimant must have a cause of action (and must have the evidence to support that cause of action BEFORE he starts the action- as far as i am aware)

secondly, how long would it be before creditors were allowed to start "blank actions" against debtors and then "fill in the blanks later"

was an application made at the very outset by the debtor to have the claimants claim struck out as not having a cause of action - due to the invalid DN?

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

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

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

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

Hmmmm, thinking on Volvo's point. If the court ordered a valid DN be issued and it wasn't then the claim should be struck out for not complying with judges orders (unless v good explanation)...however if the court simply stayed the case to allow the parties to get their 'ducks in a row' (who bought that saying over here anyway !) and left them at liberty to apply to pick things up and amend POCs then I don't think it could be construed as an abuse of process if they didn't issue a valid DN. However a second invalid DN is unlikely to attract similar leniancy from the judge and it is likely to be struck for having no prospect of success, but statute wise I think they could continue reissuing until they got it right but they couldnt ever terminate and the debtor would have to not be prejudiced by their crapness (unlikely I think) for them to continue indefinately and still succeed in court.

The Harrison judgment does show it is an idea, even if just to be on the right side of the judge in court, to make what payments you can even if just token. I do though understand some people for whatever reason prefer to stop and force court action for enforcement to enable a payment plan to be set and terms for interest etc to be set in stone.

(VD I think it wasn't clear that you agreed that a DN be reissued and just wondered on the issue of second and third and fourth faulty DNs being reissued till they got it right (assuming I have read you correctly that is lol) )I think the truth of the matter is we don't know - it hasn't been tested in court as far as I know but we do know that cpr and case law shows non compliance with Judges orders for entering documentation can be cause for a strike)

where i am perplexed is that everyone is now in agreement that if the agreement is not terminated then the creditor cannot enforce

so where, in the CPR and under what overriding objective- is it stated that a claimant can commence a claim which has no legal basis- and then have it "stayed" whilst he goes off to find one (a legal basis for the claim.that is) !!

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

one "issue" would be that the creditor has placed adverse information on the debtors CRA files and whilst it remains- the debtor can hardly remedy a second DN and then act as if "the breach had never occurred" (s89) since his credit reputation has already been tarnished by the creditor wrongly seeking to attempt to terminate/wronlg demand repayment in full

was this ever brought to the judges attention?

usually that information would have been on the debtors file for many many months and so MUST have been prejudicial to the debtor




the overriding principles are pretty clear in that a claimant must have a cause of action (and must have the evidence to support that cause of action BEFORE he starts the action- as far as i am aware)

secondly, how long would it be before creditors were allowed to start "blank actions" against debtors and then "fill in the blanks later"

was an application made at the very outset by the debtor to have the claimants claim struck out as not having a cause of action - due to the invalid DN?

Again if the court found the DN to be invalid the creditor could just re issue it is not ojnly PTs case but everyones experiancev as evidenced on this thread?

Peter
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where i am perplexed is that everyone is now in agreement that if the agreement is not terminated then the creditor cannot enforce

so where, in the CPR and under what overriding objective- is it stated that a claimant can commence a claim which has no legal basis- and then have it "stayed" whilst he goes off to find one (a legal basis for the claim.that is) !!

The court does decide that the case cannot continue that is why it makes the creditor re issue its case?

peter

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

where i am perplexed is that everyone is now in agreement that if the agreement is not terminated then the creditor cannot enforce

so where, in the CPR and under what overriding objective- is it stated that a claimant can commence a claim which has no legal basis- and then have it "stayed" whilst he goes off to find one (a legal basis for the claim.that is) !!

The legal basis is that the debtor has not been paying their debt.

Because it is a consumer credit act regulated debt the creditor and the court must pay heed to the CCA. It is part of the argument and the court goes ahhh, you think they owe you money but its actually under the CCA and you havent done things right so you can't enforce at the moment, go and do it right so the debtor isnt prejudiced, and if the debtor still can't pay we'll have another look at it then.

Taking court action is not enforcement. It is simply a step to enforcement. The claim can be heard but judgment cannot be given until the correct steps have been taken.

[mystery1]

Re: Contracts, Termination, Repudiation and Rescission

Again if the court found the DN to be invalid the creditor could just re issue it is not ojnly PTs case but everyones experiancev as evidenced on this thread?

Peter
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The court does decide that the case cannot continue that is why it makes the creditor re issue its case?

peter

Amethyst posted evidence that in court a judge has in the past suspended court proceedings to allow a fresh default notice to be sent and then recommence proceedings when that wasn't rectified. As i read it she didn't say this was correct or incorrect.

Courts do get things wrong and that is why there are appeals. Late last year the supreme court ruled that courts had been deciding wrongly in repossession cases for decades. http://www.supremecourt.gov.uk/docs/...7_Judgment.pdf

M1

[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

[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
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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

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!

[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”.

[Guest]

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

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

Data Protection Technical Guidance - Filing defaults with CRA's

[Guest]

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