Contracts, Termination, Repudiation and Rescission

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

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

Thanks. This is confusing, however;

S98:

(2) Subsection (1) applies only where-

(a) a period for the duration of the agreement is specified in the agreement, and

(b) that period has not ended when the creditor or owner does an act mentioned in subsection (1)

There is no period stated in any agreement of mine.

Btw, PT has already said that Schedule 1 of the enforcement notices regs requires that a notice is given to the debtor before termination. Are you sure that "no notice is required on running account credit"? I can find no reg that states this.

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

Thanks. This is confusing, however;

S98:

(2) Subsection (1) applies only where-

(a) a period for the duration of the agreement is specified in the agreement, and

(b) that period has not ended when the creditor or owner does an act mentioned in subsection (1)

There is no period stated in any agreement of mine.

Yes it is a bit

JUdges tend to use section 76 and 98 as shorthand for contractural terminationwhen as you say really it is just about the requirement of notice on fixed sum agrements.

I think this is why they rectified the situation with the european directive,
As various judges have said the Act is silent on contractural termination on running accounts so whatever is in the contract goes.

Usually there is a section in the T and cs that says the creditor may terminate at any time and on termination the full amount of liabilities under the contract are due.

THey are quite free to say this however they would not be able to enforce this demand because there would be no valid DN issued.


Peter
.

[never-in-doubt]

Re: Contracts, Termination, Repudiation and Rescission

Hi Guys

Seen this: ---> BBC News - Credit card borrower tortured by lender, says judge

The MBNA bank has been accused by a High Court judge of "torturing" a customer with repeated phone calls demanding he repay his credit card.
Mr Keith Harrison had his debt of £20,270 written off by Judge Nicholas Chambers QC at Mold in North Wales.

Already breaking waves :beagle:

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

Btw, PT has already said that Schedule 1 of the enforcement notices regs requires that a notice is given to the debtor before termination. Are you sure that "no notice is required on running account credit"? I can find no reg that states this.[/quote]

sorry
Missed this bit no, as said the act is silent , however there is i think mention in the act of the creditors right to terminate on default of the devtor without notice i think.

I think most creditors accept that a section 76 notice should be sent in these circumstancesalthough it is not a statutory requirment. BUt as said befor it is all irrelavant now s they hae to give two months notice.

Peter

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Fireforless (Free Shipping on fireplaces, canopies, wall heaters bbqs, fryers, and patio furniture.) is changing the industry by offering the lowest prices on brand name products. Everything from BBQ's to fountains are on sale. On top of their everyday low prices is no taxes and free shipping on every order.
The top products include Fireplaces and Accessories, BBQ's, Fountains, and Canopies. But don't forget your fireplace because fireforless has all the latest accessories to jazz up your old hearth.

WTF....?

[never-in-doubt]

Re: Contracts, Termination, Repudiation and Rescission

WTF....?

thats what we call a spammer!

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

There are some practical issues to be taken into account amongst all of the legalese. There was a case on CAG MBNA v redfish. The lady concerned corresponded with me on this as to how to deal with her solicitors (it transpired they were the same as ours). She no longer resides in the UK I understand.

It would seem that MBNA took her to court over an alleged debt and she instructed solicitors in the end to defend her. From her correspondence with myself by PM it appear that the case fell and she lost on a simple technicality over the DN. I understand nothing of MBNA's paperwork so I can't comment on the extent of the defects. However the case fell on the simple point of the defective DN not being married with the correct envelope in which it was sent.

From this I can only draw the conclusion that the defect concerned the amount of time to remedy but I don't know. However the lady concerned was certain that the judge had stated that he was finding for the claimant only reluctantly on the basis that had that DN and envelope been married correctly in evidence, then that alone would have rendered the "Statement of Truth" presented to the court by MBNA anything but a "Statement of Truth" and would have found for the defendant.

Perhaps this a salutory tale for all of us in keeping paperwork and shows demonstrably that the issue of defective DNs is far from a de minimus issue and may used effectively as said before in a proper comprehensive defence.

Garlok

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

There are some practical issues to be taken into account amongst all of the legalese. There was a case on CAG MBNA v redfish. The lady concerned corresponded with me on this as to how to deal with her solicitors (it transpired they were the same as ours). She no longer resides in the UK I understand.

It would seem that MBNA took her to court over an alleged debt and she instructed solicitors in the end to defend her. From her correspondence with myself by PM it appear that the case fell and she lost on a simple technicality over the DN. I understand nothing of MBNA's paperwork so I can't comment on the extent of the defects. However the case fell on the simple point of the defective DN not being married with the correct envelope in which it was sent.

From this I can only draw the conclusion that the defect concerned the amount of time to remedy but I don't know. However the lady concerned was certain that the judge had stated that he was finding for the claimant only reluctantly on the basis that had that DN and envelope been married correctly in evidence, then that alone would have rendered the "Statement of Truth" presented to the court by MBNA anything but a "Statement of Truth" and would have found for the defendant.

Perhaps this a salutory tale for all of us in keeping paperwork and shows demonstrably that the issue of defective DNs is far from a de minimus issue and may used effectively as said before in a proper comprehensive defence.

Garlok

Hi
Certainly i think if the recent case illustrates anything it shows the importance of keeping all paperwork when taking a loan.

Regarding the Default notice issue i dont think anyone is saying that the importance of presenting a correct Default Notice is in any way diminished.
The fact still is that if the default notice is inacurate or does not give the correct time to remedy then the agrement cannot be enforced until it is remedied.
Now a lot can happen if the time taken to remedy the DN, so it is by no definition a pointless exercise to challeng one.

But it has to be done within the confines of the act, it is after all a feature of it.

There are issues that i think should be discussed particularily around the Brandon judgement.
Personally i think this was a mistake.
The idea that the amount of predudice caused by the debtor should be a factor in the judgement is i think incorrect.
The act embodies the facility for varying judgements on amoumt of predudice in section 127, no such facility is offered in section 87, it does not say that the requirements of section 88 must be carried out or sanctions will be applied in proportion to the amount of predudice, it just says that it mnst be compliant.

Any way we will see what happens in the appeal.

Peter

[ncf355]

Re: Contracts, Termination, Repudiation and Rescission

Made the BBC then

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

Yes it is a bit

JUdges tend to use section 76 and 98 as shorthand for contractural terminationwhen as you say really it is just about the requirement of notice on fixed sum agrements.

I think this is why they rectified the situation with the european directive,
As various judges have said the Act is silent on contractural termination on running accounts so whatever is in the contract goes.

Usually there is a section in the T and cs that says the creditor may terminate at any time and on termination the full amount of liabilities under the contract are due.

THey are quite free to say this however they would not be able to enforce this demand because there would be no valid DN issued.


Peter
.

so whatever is in the contract goes.


............ providing it does not circumvent the provisions of the CCA!
------------------------------- merged -------------------------------

Hi Guys

Seen this: ---> BBC News - Credit card borrower tortured by lender, says judge



Already breaking waves :beagle:

what a shame the article did not mention the lies MBNA/Link told about posting of the DN and were found out!!

[mystery1]

Re: Contracts, Termination, Repudiation and Rescission

Made the BBC then

Marc Gander of the Consumer Action Group (CAG) was delighted with the ruling.

Given PT's blog here that did make me chuckle.

M1

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

pmsl....not delighted enough to allow a link to it when it first came out, had to wait for it to go on Bailli.

[Angry Cat]

Re: Contracts, Termination, Repudiation and Rescission

what a shame the article did not mention the lies MBNA/Link told about posting of the DN and were found out!!

Quite so!

Further, Link Financial continue to bombard consumers phones; silent calls, no messages left.

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

[quote=diddydicky;201284]so whatever is in the contract goes.


............ providing it does not circumvent the provisions of the CCA!
------------------------------- merged -------------------------------


HI

Precisely(or the unfair terms regulations of course)

Peter

[Ihaterbs]

Re: Contracts, Termination, Repudiation and Rescission

Even if the judge found that the terms had been sent wouldn't the "separate document" argument have led to the agreement being unenforceable or wasn't this argued in the claim?