Contracts, Termination, Repudiation and Rescission

[Guest]

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

Unfortunately there is nothing in the act that prevents them from demanding full payment any time they want, they would have a problem enforcing that demand and i agree that it is unfair but there are guidlines you can throw at them, i know it doesnt seem like much but thats just the way it is.

Peter

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

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

I still have a problem with the word often, which has not been explained to my satisfaction.

In plain English, often is not always, therefore there must be some criteria agaist which it can be judged whether a particular instance fits into the no its only often and in this case it isnt camp, or the yes its the often camp and in this case it is.

But I do agree the creditor can, maybe.

Vdr

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Well done pt. Have I not been making this call for a proper discussion on finding a way forward? Exploring the avenues that may be of use?

As you know I do not have to do my fighting, as referred directly to me in one of peterbard' recent posts, I did what I could. When we felt we had reached the end of our knowledge and recognise our own limitations, we went to REAL EXPERTS whom you know.

Much of their advice, information and actions on a day to day basis is in direct contravention to much which has been advocated here, a la Carey all over the net. So I do not dabble in wishful thinking, I can report on facts on the ground as they relate to our cases where I am able.

best regards
Garlok
ex cag refugeee

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

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,

Hello Paul.

I'm not a lawyer, but I'm not thick either, but I cant see how your reply answers my question.

Is it the debtor or creditor who cannot terminate when the notice is valid?

Thank you

Vdr

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Also I ahve said as pt says

every case will stand or fall on its own merits.

I believe it is our job to find a proper basis for those merits.

regards
Garlok

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

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,

Correct me if i am wrong but i think what is meant is the creditor cannot termiate on a faulty DN because he is not entitled to.

I think that he could however terminate if there was a contractural right to do so.
If this was the case he could terminate at any time whether this would substitute for the default termination or not is a question that really needs answering.
It seems that it did in brandon, i would have said it couldnt.
In either case it is irrelevant from the point of view of accepting the unlawful termination because it would not be unlawful.

Peter
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I still have a problem with the word often, which has not been explained to my satisfaction.

In plain English, often is not always, therefore there must be some criteria agaist which it can be judged whether a particular instance fits into the no its only often and in this case it isnt camp, or the yes its the often camp and in this case it is.

But I do agree the creditor can, maybe.

Vdr

Hi

I think that any one would hesitate at using the word always in any situation.

Peter

[Lord_Alcohol]

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

From the ICO Technical Guidance for lenders;

31. The date of default recorded on the file should be the date on which a decision to file a default becomes effective according to the criteria discussed in paragraphs 9 to 16. If a notice of intention to file a default is served (see paragraphs 32 to 37), the default date should be the date the notice becomes effective. When a default is filed after a genuine and agreed variation in payment schedule has broken down, it should record the date of that breakdown subject to the conditions described in paragraph 21.

32. Lenders should tell their customers about filing information with a credit reference agency as part of the account opening procedure, in line with the requirements of the ‘fair processing code’4. This explanation will not normally refer explicitly to defaults and will often be distant from the events which cause them. Therefore we strongly recommend that a notice of the intention to file a default should be served. Many lenders now subscribe to trade association codes of practice which require this. This practice helps the transparency of the credit reference process and may even prompt payment, so avoiding the need to file a default at all.

33. Notices to comply with Sections 13.7 of the Banking Code5 and 7.5 of the Lending Code6 should provide adequate warning. A notice of intention to file a default can be sent with a formal default notice served under Section 87 of the Consumer Credit Act 1974. Where lenders are not required to issue these notices, they can send an intention to file a default through a final demand, letter or relevant account statement, which should make clear not only the intention to file but also the date of the intended default. The date should allow the customer enough time to respond properly. Lenders who have to provide a notice of intention to file a default under a relevant code of practice should be aware that not complying with the code may be taken into account in any assessment of the fairness of their processing.

There is therefore a separate default entity that goes beyond regular payment history; the required notice of intention to file this default record is often incorporated into the DN; therefore, if the DN is bad then the notice of intention to file the default must also be bad, otherwise it (recording of the default) cannot be avoided (which is not the intention of the notice warning of the intent to file the default).

Let's also remember that the default record will show the balance owed at the date of default (ie, not before the DN's remedy date), and therefore the debtor has had the entire credit industry told that he defaulted on that amount, which may not only be inaccurate but also unlawful and certainly unfair (if the ICO guidelines and DPA principles 1 and 4 are to be believed).

HTH

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

From the ICO Technical Guidance for lenders;

31. The date of default recorded on the file should be the date on which a decision to file a default becomes effective according to the criteria discussed in paragraphs 9 to 16. If a notice of intention to file a default is served (see paragraphs 32 to 37), the default date should be the date the notice becomes effective. When a default is filed after a genuine and agreed variation in payment schedule has broken down, it should record the date of that breakdown subject to the conditions described in paragraph 21.

32. Lenders should tell their customers about filing information with a credit reference agency as part of the account opening procedure, in line with the requirements of the ‘fair processing code’4. This explanation will not normally refer explicitly to defaults and will often be distant from the events which cause them. Therefore we strongly recommend that a notice of the intention to file a default should be served. Many lenders now subscribe to trade association codes of practice which require this. This practice helps the transparency of the credit reference process and may even prompt payment, so avoiding the need to file a default at all.

33. Notices to comply with Sections 13.7 of the Banking Code5 and 7.5 of the Lending Code6 should provide adequate warning. A notice of intention to file a default can be sent with a formal default notice served under Section 87 of the Consumer Credit Act 1974. Where lenders are not required to issue these notices, they can send an intention to file a default through a final demand, letter or relevant account statement, which should make clear not only the intention to file but also the date of the intended default. The date should allow the customer enough time to respond properly. Lenders who have to provide a notice of intention to file a default under a relevant code of practice should be aware that not complying with the code may be taken into account in any assessment of the fairness of their processing.

There is therefore a separate default entity that goes beyond regular payment history; the required notice of intention to file this default record is often incorporated into the DN; therefore, if the DN is bad then the notice of intention to file the default must also be bad, otherwise it (recording of the default) cannot be avoided (which is not the intention of the notice warning of the intent to file the default).

Let's also remember that the default record will show the balance owed at the date of default (ie, not before the DN's remedy date), and therefore the debtor has had the entire credit industry told that he defaulted on that amount, which may not only be inaccurate but also unlawful and certainly unfair (if the ICO guidelines and DPA principles 1 and 4 are to be believed).

HTH

As i said in my orriginal post can be sent with.
see above

Many thanks
Petr
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Hi
sorry re above also mentions the notice given by the banking code not the CCA i think i mentioned that also what a clever boy i am

SorryHumble muscle not working again:beagle:

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Peter i absolutley agree with you

a creditor may terminate an agreement if there is no breach at all, that has to be correct. There is indeed a notice that must be sent to the debtor and this is alluded to in the heading of schedule 1 of the enforcement notices regs

SCHEDULE 1
FORM OF NOTICE TO BE GIVEN IN NON-DEFAULT CASES BEFORE A CREDITOR OR OWNER CAN BECOME ENTITLED TO
ENFORCE A TERM OF A REGULATED AGRREMENT BY DEMANDING EARLIER PAYMENT OF ANY SUM, RECOVERING
POSSESSION OF ANY GOODS OR LAND OR TREATING ANY RIGHT CONFERRED ON THE DEBTOR OR HIRER BY THE
AGREEMENT AS TERMINATED, RESTRICTED OR DEFERRED

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Stop sniping peter it is wearing very thin for most of us and does nothing to help this discussion or gain you any respect at all

Garlok

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Hi
sorry re above also mentions the notice given by the banking code not the CCA i think i mentioned that also what a clever boy i am

SorryHumble muscle not working again:beagle:

Er no, you said;

"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."

Whereas I do not think this is correct; if the DN is remedied where the intention to file the default record makes up a part of the "next steps" contained within the wording of the DN, then the default should not be recorded.

In the same vein, if the DN cannot be remedied because it is bad (eg, it demands the balance), then it would be wrong (according to ICO guidance to lenders) to record the default.

The issue was whether the creditor could lawfully, fairly, accurately record the default where the DN was bad. I do not see anything within the ICO doc that allows this (I see the opposite in fact).

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

[quote=pt2537;201156]Peter i absolutley agree with you

a creditor may terminate an agreement if there is no breach at all, that has to be correct. There is indeed a notice that must be sent to the debtor and this is alluded to in the heading of schedule 1 of the enforcement notices regs[/quote

My problem is what if the creditor terminates in this way and then presents a default n, does this termination serve as the default termination and thus part of the enforcement.
I would have said not. I know that in contract law this kind of termination would not entitle the creditor to reclaim anything other than actual liabilities unlike a termination after a repudiatory breach. BUt in a consumer contract al liabilities are actual.

The thing is the judge in Bredon did seem to use the contractural clause so was he mistaken ??

Peter
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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

Errr see above
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Stop sniping peter it is wearing very thin for most of us and does nothing to help this discussion or gain you any respect at all

Garlok

Sorry what sniping?

Peter

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

[QUOTE=peterbard;201125]

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

done!

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Peter i absolutley agree with you

a creditor may terminate an agreement if there is no breach at all, that has to be correct. There is indeed a notice that must be sent to the debtor and this is alluded to in the heading of schedule 1 of the enforcement notices regs

Does this apply to (rolling) credit card contracts? S76/S98 both state that a period for the duration of the agreement must be specified in the agreement.

TIA

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

Does this apply to (rolling) credit card contracts? S76/S98 both state that a period for the duration of the agreement must be specified in the agreement.

TIA

Yes

Section 98 says that 7 days notice must be given on fixed sum agremnts this is because no notice is required on running account credit.
THe new European directive which came into force this month placed amendments to section 98 within the act. These compel the creditor to give two months notice before contractural termination, they must also provide a valid reason for doing so. Unfortunately the reason can be just for commertial considerartions.
Peter