Contracts, Termination, Repudiation and Rescission

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

Also I have to agreed with volvodriver, the judge really hasn't placed much emphasis on the bad notice part at all and I don't know if it would be strong enough to be relied upon in a case solely reliant on a defective DN (ie creditor arguing it creates a precedent that they can reissue etc)

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

M1
I think Peter is saying
The creditor cannot go to court unless the agreement is terminated
The creditor cannot terminate on a faulty Dn
The only sanction on a creditor who does go to court is he has to wait until he has issued a new, correct Dn (which is then defaulted) until he can persue his claim through court.

I agree up to there

Peter also states that a new Dn cannot be issued on a terminated agreement, which it would have to be for the claim to be in court.....

that seems to be the sticking point for people ...the agreement ISN'T TERMINATED because it can't be due to the defective DN and is in court in error .... yes it should be kicked out and they should have to restart after the new DN isnt remedied but that doesn't sit right with the overriding objective.


Peter, I know it isn't unusual I just though B&W docs might help M1 out with the question.

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

So you had not made the decision.

Point is sooner or later you are going to have to let this go and the sooner you do the better for all of us, because we can all get on with something more productive.

Peter

I dont have to let anything go. And I have no position on the issue of bad notices.

I have always said that I have no legal training, nor knowledge of the law.

I do, however like to read well reasoned argument, and the in first post of your that I commented on this afternoon, you sought to use a badly quoted phrase from a judgement to attempt to give credibility to a position you, and others hold.

I have no argument with that position, but I do object to a position being supported on the basis of selective quoting.

The word often as I pointed out changes the meaning very significantly, and means that you are unable to use this judgement to support your assertion that bad notices can be remedied. They may well be able to be, this judgement does not support that view in its entirety.

If the judge had intended that he would not have introduced the element of uncertainty by qualifying his statement.

Vdr

Re: Contracts, Termination, Repudiation and Rescission

M1
I think Peter is saying
The creditor cannot go to court unless the agreement is terminated
The creditor cannot terminate on a faulty Dn
The only sanction on a creditor who does go to court is he has to wait until he has issued a new, correct Dn (which is then defaulted) until he can persue his claim through court.
Peter also states that a new Dn cannot be issued on a terminated agreement, which it would have to be for the claim to be in court.....

It appears to be a circular argument

Indeed it is

BUt at the end of the day the judge has to be given the opportunity to judge.
Unles the default is enforced how can he decide if that enforcement is legitimate, when he decides on the effiacy of the enforcement he is also deciding if the temination is valid because it is part of that enforcement.

Peter

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

M1
I think Peter is saying
The creditor cannot go to court unless the agreement is terminated
The creditor cannot terminate on a faulty Dn
The only sanction on a creditor who does go to court is he has to wait until he has issued a new, correct Dn (which is then defaulted) until he can persue his claim through court.
Peter also states that a new Dn cannot be issued on a terminated agreement, which it would have to be for the claim to be in court.....

It appears to be a circular argument

Re: Contracts, Termination, Repudiation and Rescission

So in my case, DN with no time for service and full amount claimed instead of arrears, termination letter (obviously disallowed), court claim issued referring on POC to the bad DN. They can stop proceedings at any stage and reissue the DN?

I'm at AQ right now, should I go for a strike out based on no right to proceed due to duff DN or just cave in now as they will just reissue and get away with it?

HI

I really think we should have a look at the default notice here.Does it give the option of remedy or is it just a demand for the ful ballance?

Peter

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

The account wasn't terminated because the DN was defective....thats my understanding anyway.

Both parties might think it terminated but as the DN was wrong it wasn't allowed to be terminated under the CCA so they had to reissue DN, then terminate, then lift the stay in court to enable enforcement.

Re: Contracts, Termination, Repudiation and Rescission

English is a wondeful language when used and understood correctly.

consider = Think carefully about (something), typically before making a decision

It is neither a fact, nor a conjecture, perhaps on the way to becoming reasoned point of view from an agnostic perspective.

Vdr

So you had not made the decision.

Point is sooner or later you are going to have to let this go and the sooner you do the better for all of us, because we can all get on with something more productive.

Peter

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

So in my case, DN with no time for service and full amount claimed instead of arrears, termination letter (obviously disallowed), court claim issued referring on POC to the bad DN. They can stop proceedings at any stage and reissue the DN?

I'm at AQ right now, should I go for a strike out based on no right to proceed due to duff DN or just cave in now as they will just reissue and get away with it?

If that is the case and they reissue a DN then you will only be obliged to pay the arrears then continue with the agreement. Of course it depends very much whether there is a large or small chunk of sums not yet due that is claimed and on your personal circumstances....but I don't think anyone is saying chuck in the towel - it may just be more of a maths decision - which way is to your greater benefit.

In the case I posted below the defendant was much more likely to have been in a position to pay arrears of £600 rather than the entire account of £3k as 2,4k wasn;t actually due and they had not been able to terminate because of the defective DN. It is a second chance for the debtor as well as the creditor in my view, but how realistic a one it is depends on individual circumstances.

(ie if you cave now you'd be making an offer to pay by installment of the £3k whereas if they have to reissue you'll need to pay off the arrears of £600 then carry on with the agreement)

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

I see what you mean

Does that mean you agree with me?

Re: Contracts, Termination, Repudiation and Rescission

In the case I posted a couple of documents from it was an asking for sums not yet due error in the DN - they went to court - it was defended on the DN - court said okay i'll stay it - reissue the DN and come back to me - they did reissue - still wasnt remedied (another stay was in after the one I posted too so extra time given) - stay was lifted and judgment went against defendant - installment and costs order given.

.


HI Thanks for that Amy it is not an unusual scenarion but nice to have it in black and white.

Thing is they where able to do this because the account was not terminated it could not be because the orriginal default was defective.This enabled them to reissue and enforce.

Peter

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

Ahh "you consider" now does that mean it is alive and kicking, or it may be alive and kicking . Is this a statement of fact or mearly conjecture.
I see what you mean




Peter

English is a wondeful language when used and understood correctly.

consider = Think carefully about (something), typically before making a decision

It is neither a fact, nor a conjecture, perhaps on the way to becoming reasoned point of view from an agnostic perspective.

Vdr

[toomanycalls]

Re: Contracts, Termination, Repudiation and Rescission

No impact at all,

The CPUT regs arent enforceable by the lay person, only the regulator.

As for no enforcement, they cannot terminate as termination IS enforcement on the back of a bad notice

Judge Chambers made that clear

So in my case, DN with no time for service and full amount claimed instead of arrears, termination letter (obviously disallowed), court claim issued referring on POC to the bad DN. They can stop proceedings at any stage and reissue the DN?

I'm at AQ right now, should I go for a strike out based on no right to proceed due to duff DN or just cave in now as they will just reissue and get away with it?

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

In the case I posted a couple of documents from it was an asking for sums not yet due error in the DN - they went to court - it was defended on the DN - court said okay i'll stay it - reissue the DN and come back to me - they did reissue - still wasnt remedied (another stay was in after the one I posted too so extra time given) - stay was lifted and judgment went against defendant - installment and costs order given.

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

Ahh "you consider" now does that mean it is alive and kicking, or it may be alive and kicking . Is this a statement of fact or mearly conjecture.
I see what you mean




Peter