Contracts, Termination, Repudiation and Rescission

[Guest]

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?

Hi

No the section 62 are the copy supplied with he orriginal for the debtor to keep, not the executed document(he sends this off) and the 63s are the second copy that is sent within i think 7 days of execution back to the customer on a credit card these can be sent along with the card

Peter.

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Apologies in advance for further disagreement with the thread owner (and others), but I still retain some considerable dissatisfaction and unease about the apparent consensus.

The recent ruling doesn't seem to answer the salient point: can a regulated contract be rescinded in any way on breach other than via a good DN? Judge Chambers merely states what we already knew, that no enforcement can be taken without a good DN, reinforcing what we believed about the incorrect Brandon judgement (and others).

The fact remains that the subject of enduring contracts when the creditor has terminated and the debtor has accepted is still to be decided. PT's judgement does not answer this.

Peter's view is that the contract may or may not endure (it's up to the judge), but that service of a new DN does not require a live contract. This allows an unlicenced DCA to issue DNs. However, there is no explanation as to how the 1983 enforcement regs can be squared with this; if they are read, it is hard to see how a S87 DN can be served where there is no agreement or prospect of the contractual remedy that the DN was supposed to allow.

The very first post on this thread similarly dismisses S89, which I think is wrong. My view, FWIW (not much, I know), is that Part VII of the Act intended that the debtor is notifed of the seriousness of his breach in the DN and given an opportunity to rectify it. As simple as that. As the creditor could serve a DN at any contractual point after the breach, there is obviously no need for him to wait 6 months to do so if he doesn't want to. This means that the risk to the creditor is minimised, as his route to court is a lot shorter.

On the flip side, the creditor must follow the regs (the word must is used throughout).

So we now have this problem of the creditor terminating on the back of a bad DN. We have seen in the recent judgement that he cannot enforce, but the judgement does not say he cannot terminate. The judgement in fact supports CCA to the letter; the creditor is not entitled to terminate without a good DN, but he terminates the contract anyway. This seems to be a fact, as debtors have had possessions taken, been sued in court and been forced into long-term payment plans where their contracts have been terminated via a bad DN.

The argument that the contract endures would therefore allow all these former customers to sue their creditors and demand reinstatement of their agreements.

The argument that the contract is ended but that the creditor or assignee still retains the power to serve a new DN is similarly flawed, as a cursory glance at the enforcement notice regs will show; the DN has to contain various sections which require that the contract is allowed to re-establish itself as it was before the breach.

Again, and it's my view which I know is not shared, is that the loops and hurdles being traversed on this thread are all to enable to creditor to get his money or goods without following the regulations under which he told the debtor the contract was regulated. The issue is a bad DN. It is hard to imagine a simpler notice. It is also hard to imagine a simpler part to CCA as VII.

In my (tiny) mind, the creditor has (deliberately or not) made a mess of his DN. That mess may have prevented the debtor from his lawful entitlement to put things right. The creditor goes on to end the agreement, often by service of a TN but certainly with demands for the balance which are supported by threats of legal action and other nasty stuff (as we have seen). But the creditor offered the debtor the regulated contract, and advised him in strong terms that it was such and that he must be aware that he is to be bound by all the provisions of the Act. To then take the view that, actually, the creditor isn't so bound and he can distribute defective notices, terminate and use his legal muscle to insist that he is correct and terrify debtors into submission is wholly wrong, as I am sure we would all agree.

So, that's my view. Peter will call me names and others will disagree, but I have yet to see any sensible argument that enables an erroneous creditor to back-peddle and claim entitlements which he has already waived by failing to abide by those regulations he stressed to the debtor at the outset were to bind both parties for the duration of the contract. Ergo, if the creditor tells me that the contract is terminated then I consider it terminated.

As far as new DNs are concerned, is there any doubt that the enforcement notices regs require a live contract? The wording is of a notice required to be served before a contractual provision can be enforced: a second DN may be served during enforcement of that provision, not before it, making a cock of the regulations. As we consider the situation on breach, then the notice to be served is a S87(1) notice, which must comply with Schedule 2. And Schedule 2 requires wording to be contained that affirms the entitlement of the debtor to remedy and to avoid enforcement action.

Moreover, the word entitlement is everywhere within the regs. In my understanding, an entitlement is something given or awarded to one party where another may not necessarily agree (or be awarded the same). But where both parties have agreed to end the contract on the basis of a unilateral procedure that waives entitlement, all that happens is that the contract ends and entitlements are lost.

Apologies for the waffle but it's been building up over the past few days, reading Peter's increasingly tortuous reasons for letting the creditor have his cake and eat it (and I know his views are frequently supported by the courts and certainly the banks!) and scratching my head wondering what planet I've landed on.

eep:

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

This person accepted there termination (from cag)

Hi Peter
I've only just noticed your post on my thread asking for the judgement to be cut and pasted up for you. Here's a copy of what I posted up.

Precise of Judgement by DJ given 25 Feb 2011 “Both parties have a limited right of appeal. Claim relates to an agreement regulated by CCA which is neither a hire purchase nor other type of hire agreement. (DJ then gives financial details of agreement).
The amended defence put the claimant to proof that the agreement was valid. Defendant stated that agreement lacked cancellation details and had been conducted partly over the telephone. “I have ruled against her being able to raise an argument relating to this today. It wasn’t in her defence and would have been unfair to Claimant, so I conclude it was an enforceable agreement.
Claimant purported to send a default notice under CCA s87. This notice was wholly defective. I’m not going to expand or consider further on this point as Claimant accepts it is void.
20 January 2010 Defendant wrote to Claimant and pointed out the issues with the default notice and stated “I therefore am writing to accept your unlawful rescission of the agreement and note that you are now only entitled to claim the arrears genuinely due at the time of the termination (not including any unlawful charges).”
Clear to me that the loan agreement was at an end from that date by agreement which renders any arguments about provisions of the CCA irrelevant. I accept Kennedy LJ statement and superficially the Defendant’s argument was attractive – why should the Claimant be allowed to do this? (DJ runs through arguments) Defendant’s case fatally flawed as the defendant chose to agree to the ending of the contract. She could have said the DN is nonsense but Mrs C accepted..... Nothing then to do with CCA becomes an ordinary debt claim.
Consequence of bad notice may be as defendant contends. Sum lawfully due. She agreed to rescission of agreement - an error.”
DJ continues to talk about costs etc.

All they had to do was keep their mouth shut and the case would have been set asside or dicontinued as it was well you see what happened.

NOw i am not entering into any further argument about this , this is what happened it is fact, make your own mind up, frankly there are much more interesting and productive avenues i would much rather be pursuing.

Peter

Peter

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

NOw i am not entering into any further argument about this , this is what happened it is fact, make your own mind up, frankly there are much more interesting and productive avenues i would much rather be pursuing.

Peter

Peter

My post was hopefully for general discussion, being posted on a public thread. As this is your thread, let me know if you'd like me to remove this post so that you are not further inconvenienced by debates on which you have already concluded.

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

Apologies in advance for further disagreement with the thread owner (and others), but I still retain some considerable dissatisfaction and unease about the apparent consensus. etc........

eep:

I have to agree with LA here. HHJ Chambers only said a creditor cannot enforce on a bad DN, and as I pointed out HHJ Flaux maintains the bringing of proceedings is not enforcement.

As the termination is an action prior to enforcement proceedings it is not prevented and cannot be regarded as ineffective because of a bad DN.

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

I have to agree with LA here. HHJ Chambers only said a creditor cannot enforce on a bad DN, and as I pointed out HHJ Flaux maintains the bringing of proceedings is not enforcement.

As the termination is an action prior to enforcement proceedings it cannot be regarded as ineffective because of a bad DN.

Flaux did say that steps outlined in 87 Could constitute enforcement

sorry but thats detailed as "terminate" within 87 so there we go

[dave27]

Re: Contracts, Termination, Repudiation and Rescission

i find this bit very interesting:

75.
The notice of enforcement was a statutory pre-condition of enforcement. It was a bad notice and enforcement cannot be attempted in dependence upon it. 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.

and my favourite bit is:

bad notices can often be remedied by the service of good notices.

however, i think i might be in a situation that would prevent the creditor going back and correcting that mistake and issuing a compliant notice.

within the terms and conditions of my agreement, there is a clause that states when a notice is deemed served.

11.13. Notices under this agreement must be in writing.
They must be sent by Fax or Post or delivered by Hand, to the addresses shown in this agreement or any other address provided.
Notices will be considered as delivered at the time they are sent if sent by Fax.
Two days after posting if sent by Post, and at the time of delivery if delivered by hand

probably what he means by "OFTEN" (but not all the time).

Dave

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

Flaux did say that steps outlined in 87 Could constitute enforcement

sorry but thats detailed as "terminate" within 87 so there we go

I've not read that.

He does say that CCA1974 contemplates that s87 amounts to enforcement [74], but at [76] says: nothing in either sections 76 or 87 can be said to give one any real clue as to the parameters of the concept of enforcement.

I cannot find anywhere he says flat out 87 constitutes enforcement. In fact I would argue enforcement cannot even start until after the DN and TN. I thought this was an accepted fact given that enforcement begins on the courtroom steps.

I would go further (if only to instill Peter's wrath !! LOL) and say that whilst a bad DN must surely remove the creditors entitlements to terminate and demand sums not due that does not prevent those unlawful actions any more than a speed limit prevents speeding.

[Angry Cat]

Re: Contracts, Termination, Repudiation and Rescission

There is nothing new in HHJ Chambers comment.
Mistakes in an ineffective DN can be erased by issuing a fresh and correct DN.

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

There is nothing new in HHJ Chambers comment.
Mistakes in an ineffective DN can be erased by issuing a fresh and correct DN.

Only if you consider the agreement endures. I don't believe a DN can be issued on a non existent agreement.

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

My post was hopefully for general discussion, being posted on a public thread. As this is your thread, let me know if you'd like me to remove this post so that you are not further inconvenienced by debates on which you have already concluded.

yes please

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

Apologies in advance for further disagreement with the thread owner (and others), but I still retain some considerable dissatisfaction and unease about the apparent consensus.

The recent ruling doesn't seem to answer the salient point: can a regulated contract be rescinded in any way on breach other than via a good DN? Judge Chambers merely states what we already knew, that no enforcement can be taken without a good DN, reinforcing what we believed about the incorrect Brandon judgement (and others).

The fact remains that the subject of enduring contracts when the creditor has terminated and the debtor has accepted is still to be decided. PT's judgement does not answer this.

Peter's view is that the contract may or may not endure (it's up to the judge), but that service of a new DN does not require a live contract. This allows an unlicenced DCA to issue DNs. However, there is no explanation as to how the 1983 enforcement regs can be squared with this; if they are read, it is hard to see how a S87 DN can be served where there is no agreement or prospect of the contractual remedy that the DN was supposed to allow.

The very first post on this thread similarly dismisses S89, which I think is wrong. My view, FWIW (not much, I know), is that Part VII of the Act intended that the debtor is notifed of the seriousness of his breach in the DN and given an opportunity to rectify it. As simple as that. As the creditor could serve a DN at any contractual point after the breach, there is obviously no need for him to wait 6 months to do so if he doesn't want to. This means that the risk to the creditor is minimised, as his route to court is a lot shorter.

On the flip side, the creditor must follow the regs (the word must is used throughout).

So we now have this problem of the creditor terminating on the back of a bad DN. We have seen in the recent judgement that he cannot enforce, but the judgement does not say he cannot terminate. The judgement in fact supports CCA to the letter; the creditor is not entitled to terminate without a good DN, but he terminates the contract anyway. This seems to be a fact, as debtors have had possessions taken, been sued in court and been forced into long-term payment plans where their contracts have been terminated via a bad DN.

The argument that the contract endures would therefore allow all these former customers to sue their creditors and demand reinstatement of their agreements.

The argument that the contract is ended but that the creditor or assignee still retains the power to serve a new DN is similarly flawed, as a cursory glance at the enforcement notice regs will show; the DN has to contain various sections which require that the contract is allowed to re-establish itself as it was before the breach.

Again, and it's my view which I know is not shared, is that the loops and hurdles being traversed on this thread are all to enable to creditor to get his money or goods without following the regulations under which he told the debtor the contract was regulated. The issue is a bad DN. It is hard to imagine a simpler notice. It is also hard to imagine a simpler part to CCA as VII.

In my (tiny) mind, the creditor has (deliberately or not) made a mess of his DN. That mess may have prevented the debtor from his lawful entitlement to put things right. The creditor goes on to end the agreement, often by service of a TN but certainly with demands for the balance which are supported by threats of legal action and other nasty stuff (as we have seen). But the creditor offered the debtor the regulated contract, and advised him in strong terms that it was such and that he must be aware that he is to be bound by all the provisions of the Act. To then take the view that, actually, the creditor isn't so bound and he can distribute defective notices, terminate and use his legal muscle to insist that he is correct and terrify debtors into submission is wholly wrong, as I am sure we would all agree.

So, that's my view. Peter will call me names and others will disagree, but I have yet to see any sensible argument that enables an erroneous creditor to back-peddle and claim entitlements which he has already waived by failing to abide by those regulations he stressed to the debtor at the outset were to bind both parties for the duration of the contract. Ergo, if the creditor tells me that the contract is terminated then I consider it terminated.

As far as new DNs are concerned, is there any doubt that the enforcement notices regs require a live contract? The wording is of a notice required to be served before a contractual provision can be enforced: a second DN may be served during enforcement of that provision, not before it, making a cock of the regulations. As we consider the situation on breach, then the notice to be served is a S87(1) notice, which must comply with Schedule 2. And Schedule 2 requires wording to be contained that affirms the entitlement of the debtor to remedy and to avoid enforcement action.

Moreover, the word entitlement is everywhere within the regs. In my understanding, an entitlement is something given or awarded to one party where another may not necessarily agree (or be awarded the same). But where both parties have agreed to end the contract on the basis of a unilateral procedure that waives entitlement, all that happens is that the contract ends and entitlements are lost.

Apologies for the waffle but it's been building up over the past few days, reading Peter's increasingly tortuous reasons for letting the creditor have his cake and eat it (and I know his views are frequently supported by the courts and certainly the banks!) and scratching my head wondering what planet I've landed on.

eep:

Highlight above

It is called reallity

Peter

[Angry Cat]

Re: Contracts, Termination, Repudiation and Rescission

Only if you consider the agreement endures. I don't believe a DN can be issued on a non existent agreement.

A non existant agreement?

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

This person accepted there termination (from cag)

Hi Peter
I've only just noticed your post on my thread asking for the judgement to be cut and pasted up for you. Here's a copy of what I posted up.

Precise of Judgement by DJ given 25 Feb 2011 “Both parties have a limited right of appeal. Claim relates to an agreement regulated by CCA which is neither a hire purchase nor other type of hire agreement. (DJ then gives financial details of agreement).
The amended defence put the claimant to proof that the agreement was valid. Defendant stated that agreement lacked cancellation details and had been conducted partly over the telephone. “I have ruled against her being able to raise an argument relating to this today. It wasn’t in her defence and would have been unfair to Claimant, so I conclude it was an enforceable agreement.
Claimant purported to send a default notice under CCA s87. This notice was wholly defective. I’m not going to expand or consider further on this point as Claimant accepts it is void.
20 January 2010 Defendant wrote to Claimant and pointed out the issues with the default notice and stated “I therefore am writing to accept your unlawful rescission of the agreement and note that you are now only entitled to claim the arrears genuinely due at the time of the termination (not including any unlawful charges).”
Clear to me that the loan agreement was at an end from that date by agreement which renders any arguments about provisions of the CCA irrelevant. I accept Kennedy LJ statement and superficially the Defendant’s argument was attractive – why should the Claimant be allowed to do this? (DJ runs through arguments) Defendant’s case fatally flawed as the defendant chose to agree to the ending of the contract. She could have said the DN is nonsense but Mrs C accepted..... Nothing then to do with CCA becomes an ordinary debt claim.
Consequence of bad notice may be as defendant contends. Sum lawfully due. She agreed to rescission of agreement - an error.”
DJ continues to talk about costs etc.

All they had to do was keep their mouth shut and the case would have been set asside or dicontinued as it was well you see what happened.

NOw i am not entering into any further argument about this , this is what happened it is fact, make your own mind up, frankly there are much more interesting and productive avenues i would much rather be pursuing.

Peter

Peter

I dont think any of you read this
This person like many accepted the termiation
The court accepted her right to rescind the agrement under section173 then of course all the liabiulities under the agrement became due and the court found against her .
Now what is so difficult to understand.
If nshe had not followed the course you outline whe would have beeen under the protection of the act and specifically section 87 by following your
distorted reasoning she has lost out it is really not rocket science.

For the record a default notice is not enforcement but any of the actions taken after that default are and that includes the default termiantion this fact is quoted in every serios piece i have ever read on the subject it is not a theory it is a fact.
For gods sake use all this mental energy for some more productive cause.
Peter

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

A non existant agreement?

Yes, an agreement that has been terminated, ended, is no more, deceased, no longer exists (with apologies to Monty Python).