Contracts, Termination, Repudiation and Rescission

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

But the courts do allow re issuance?



Peter

how many cases can you quote where a court has allowed a claimant with an invalid DN to stay the case whilst he re issues a valid dn ?

courts get things wrong- especially county courts....that's why there is an appeal system
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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.

and that is where i would (still) argue the point in court that issuance of proceedings IS enforcement- in fact the termination letter is "enforcement" - it says so in the DN which is written as prescribed by parliament and refers to the TN being "further enforcement- which by definition makes the DN itself "enforcement"

why does everyone gets their knickers in a twist over one looney judge trying to say that a TN and issuance does not constitute enforcement - his decision needs to be challenged properly

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

yes Ame, but only as diddydicky says before they have attempted to terminate with a demand for the full amount. which as we all know occurs on a regular basis. I will PM you on the very specifics of our cases if you like. As I said previously, a lay person is really being misled by the OC once this defective paperwork comes into existance. he or she is not usuallly a legal expert and in my view is entitled under the Act's tersm to asssume that the agreement is terminated. Their only fate they are led to believe is the courtroom and as has been advocated on another forum debtors prison.

We are not all QCs.

regards
Garlok

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

how many cases can you quote where a court has allowed a claimant with an invalid DN to stay the case whilst he re issues a valid dn ?

courts get things wrong- especially county courts....that's why there is an appeal system

And is it not still true that a creditor has to issue a valid DN to avail itself of the right to enforce through the court.

Or has that gone away.

In the good old days when all relevant paperwork was to be filed with a claim, this would never have happened as court staf would have picked it up.

As usual the financial industry got an inch and took the whole 10 miles (or is it yards?)

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

[QUOTE=peterbard;201057]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[/QUOTE


well , as two other posters have testified- they consider it is yourself that changes threads from discussion to personal insults- and then you have a happy knack of convining the mods that it is every one else that is out of step rather than yourself-

you succesfully got me thrown off the other site - having yet again started the ball rolling - so i presume that you obviously have some sort of "influence" over there

lets hope your influence is not as great here

i will CONTINUE to argue my corner and unlike yourself have NEVER personally insulted anyone who did not insult me first.

Ps the contents of your post were (IMO) rubbish....which is why i described them as such

it seems you have a penchant for turning other peoples opinions on the content of your postings -- into personal attacks when they are no such thing-

It is quite clear from your posts that you "do not like it" when other people will not cow tow to your opinion and you opnel;y regard them as fools or idiots if they do not see your point of view - as you have said many many times- no one on the forum is legally qualified including yourself- so please just make your points and allow others to make theirs without them having to change their opinion on your say so

rant over

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

I agree with you, it is out of order that they issue DNs demanding full sums not yet owing and only giving 5 days to rectify instead of the prescribed 14, it is bad practice and prejudices debtors who may think they have no option but to allow the agreement to default and be terminated and be hauled through courts.

I think the courts, again rightly or wrongly, are looking at the overall picture rather than technical points in isolation. There are cases where it is obvious the debtor would have behaved differently had things been done correctly - for example - toomanycalls thread on here, and also cases where it is a bit of a try on and had the default notice been correct the exact same actions would have been taken by the debtor....Judges do know the difference and rightly or wrongly at lower court levels they are judging on b.o.p. and fairness (hence the de minimus decision in Brandon).

I have said a number of times I think across the forums that I am all for trailblazing and taking a risk to prove a complex technical point, but only if it is with your own money and your own risk - or you can afford to pay for professional advice etc.

If you are a LIP struggling financially a £10k costs order could completely ruin you and as I have also said before I won't advise LIPs who come here for help to go into court on extremely risky and unproven strategies. Big picture stuff really.

As the more confident and more risk taking types take these arguments into court and through to appeal to obtain the case law it helps those of us who can't afford, financially, mentally, physically, the risk of taking such arguments through court when all the signs are against them succeeding.

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

Oh yes, and I have to say personal insults are coming from all sides and I know you have all had your differences on CAG and might have issues with some of the mods over there, but PLEASE try leaving it over there...start fresh here. We're actually quite nice people lol.

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

It also has to be remembered that it is the OC that is the "sophisicated, upright pillar of society financial institution" who has access and the pockets for the best legal brains in the country----- NOT US.

Hence we have a fundamental human right and I won't hit you with the Lisbon Treaty here (yet!) to assume that the creditor has got it right. If he has not got it right then he deserves frankly anything that that gets thrown at him.

I am with diddydicky all the way on this. And we should be finding a way to counter all of this argument which is stacking against us. Remember the legal principle of every case must stand or fall on its own merits. The DN argument is only part of what should be a comprehensive defence.

I also was kicked off CAG by the way for the same reasons.

regards
Garlok

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

But to find a way to counter the behaviour of the creditors, and their influence via barristers and money over the courts, we need to discuss both positive and negative sides of the issue and try and work out the right way forward. We won't always agree but discussions should at least continue respectfully, you never know when someone may come up with a gem which is actually the answer to it and you never know who that person may be.

Remember the legal principle of every case must stand or fall on its own merits. The DN argument is only part of what should be a comprehensive defence.

absolutely agree with you.

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

Oh yes, and I have to say personal insults are coming from all sides and I know you have all had your differences on CAG and might have issues with some of the mods over there, but PLEASE try leaving it over there...start fresh here. We're actually quite nice people lol.

Ame

I refer you to the discussioons we had by PM yesterday.

If you read what DD said, what Garlock said, and what I said and trace the source of the problem, and address it, trust me, all of the unpleasantness will go.

Ypu are tarring lots of folk with the same brush again, and its not on.

Vdr

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

how many cases can you quote where a court has allowed a claimant with an invalid DN to stay the case whilst he re issues a valid dn ?

courts get things wrong- especially county courts....that's why there is an appeal system
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and that is where i would (still) argue the point in court that issuance of proceedings IS enforcement- in fact the termination letter is "enforcement" - it says so in the DN which is written as prescribed by parliament and refers to the TN being "further enforcement- which by definition makes the DN itself "enforcement"

why does everyone gets their knickers in a twist over one looney judge trying to say that a TN and issuance does not constitute enforcement - his decision needs to be challenged properly

Not just this judgement i am affraid lots and lots of examples do you have one to the contry. As for the deffintiion of enforcement i think it has been done hasnt it, in the case quoted already quoted.NObody is getting their knicckers in a twist here except maybe you, some of us new all this already years ago.

Issuing a DN is not enforcement i could get several authorities on this for you appart from the one posted earlier but i know it would do no good.
Peter
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[quote=volvodriver;201115]Ame

I refer you to the discussioons we had by PM yesterday.

If you read what DD said, what Garlock said, and what I said and trace the source of the problem, and address it, trust me, all of the unpleasantness will go.

Ypu are tarring lots of folk with the same brush again, and its not on.

Vdr[/quote
You chose to make this personnel i do not . I am sure of my ground on the facts if you have facts to prove your case lets see them.

Peter
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It also has to be remembered that it is the OC that is the "sophisicated, upright pillar of society financial institution" who has access and the pockets for the best legal brains in the country----- NOT US.

Hence we have a fundamental human right and I won't hit you with the Lisbon Treaty here (yet!) to assume that the creditor has got it right. If he has not got it right then he deserves frankly anything that that gets thrown at him.

I am with diddydicky all the way on this. And we should be finding a way to counter all of this argument which is stacking against us. Remember the legal principle of every case must stand or fall on its own merits. The DN argument is only part of what should be a comprehensive defence.

I also was kicked off CAG by the way for the same reasons.

regards
Garlok

If you are going to fight you have to do it with correct information not unproven theories and wishful thinking

peter

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

[quote=diddydicky;201106]

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[/QUOTE


well , as two other posters have testified- they consider it is yourself that changes threads from discussion to personal insults- and then you have a happy knack of convining the mods that it is every one else that is out of step rather than yourself-

you succesfully got me thrown off the other site - having yet again started the ball rolling - so i presume that you obviously have some sort of "influence" over there

lets hope your influence is not as great here

i will CONTINUE to argue my corner and unlike yourself have NEVER personally insulted anyone who did not insult me first.

Ps the contents of your post were (IMO) rubbish....which is why i described them as such

it seems you have a penchant for turning other peoples opinions on the content of your postings -- into personal attacks when they are no such thing-

It is quite clear from your posts that you "do not like it" when other people will not cow tow to your opinion and you opnel;y regard them as fools or idiots if they do not see your point of view - as you have said many many times- no one on the forum is legally qualified including yourself- so please just make your points and allow others to make theirs without them having to change their opinion on your say so

rant over

I notice you say my comments were rubish but you dont elaberate.
You are, i can see perfectly comfortable with people dissagreing with you, hence your attitude here.

Look make you a deal fresh start no personnel stuff just the facts OK

Peter

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

can we not stick to the issues in hand

FACT a lender must issue a valid default notice if the Debtor is in breach of a regulated agreement before he can terminate the agreement.

FACT if the notice is valid he cannot terminate the agreement

FACT a lender can reissue a Default notice

I would suggest the same rules would apply to defaults as would apply to s78 in that a court cannot grant judgment where there is non compliance but the court may exercise its CMC powers under CPR 3 and stay proceedings and give directions

Maybe the court ought to dismiss the claim or maybe the court could grant judgment for the arrears only

There are a lot of variables that come into play, it wholly depends on each case, the facts etc. What happens in case A may not happen is case B

So i think the Harrison judgment clears up the creditor can re issue a notice,

What we now need to consider is what arguments are available to the Defendant to argue against a stay, against the creditor being allowed to reissue the notice in these proceedings etc.

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

And is it not still true that a creditor has to issue a valid DN to avail itself of the right to enforce through the court.

Or has that gone away.

In the good old days when all relevant paperwork was to be filed with a claim, this would never have happened as court staf would have picked it up.

As usual the financial industry got an inch and took the whole 10 miles (or is it yards?)

It should be noted that in the good old days they would have just enforced the agrement without any time to remedy

Peter

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

Paul, fact 2 who is the he who cannot terminate? Debtor or creditor?

can we not stick to the issues in hand

FACT a lender must issue a valid default notice if the Debtor is in breach of a regulated agreement before he can terminate the agreement.

FACT if the notice is valid he cannot terminate the agreement

FACT a lender can reissue a Default notice

I would suggest the same rules would apply to defaults as would apply to s78 in that a court cannot grant judgment where there is non compliance but the court may exercise its CMC powers under CPR 3 and stay proceedings and give directions

Maybe the court ought to dismiss the claim or maybe the court could grant judgment for the arrears only

There are a lot of variables that come into play, it wholly depends on each case, the facts etc. What happens in case A may not happen is case B

So i think the Harrison judgment clears up the creditor can re issue a notice,

What we now need to consider is what arguments are available to the Defendant to argue against a stay, against the creditor being allowed to reissue the notice in these proceedings etc.

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Paul, fact 2 who is the he who cannot terminate? Debtor or creditor?

well section 173(3) for example allows a debtor to allow enforcement where an order of the Court would be required by the creditor.

It is entirely right that the Debtor can exercise his right to cancel the agreement at any time even where there is a breach,