Contracts, Termination, Repudiation and Rescission

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

No it does not it proves that a debtor can termiate the agrement at any time as well as the creditor and when he does he has to pay back the liabilities

Yes he does he lists every thing that constitute proceedings right up to the default notice presentation then nothing, everything after that is enforcement.

No it does not contractural termination can but not that following a breach as in 87

what i cannot understand is that when you put forward an argument that has been supported by court decisions.......you take the attitude that like it or not..that is the c case and that others should accept that as a fait accompli

yet when you put forward a (sensible that i totally agree with) view, such as " everything after DN IS enforcement-- you totally ignore the ruling made that everything after the DN is NOT enforcement.. and that termination, and service of proceedings does NOT amount to enforcement- only obtaining the judgement is enforcement!!


clearly terminating an agreement and demanding payment of sums not yet due and taking your customer to court is enforcement- any judge who says otherwise is living in a parallel universe!

[StoneLaughter]

Re: Contracts, Termination, Repudiation and Rescission

Why is the meaning of the term "enforcement" even being debated? Is it important to the discussion, and if so, how?

I always understood the term "Enforcement" to mean that which occurs AFTER Judgement; i.e. the collection of the Debt by DCAs/Bailliffs etc once a Court Order was in force. This can be done by Attachment of Earnings; but until there is a Judgement it cannot.

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

Hi
what remains is a contract(small c) which is no longer under an agreement.
I believe this was raised in Rankine in relation to the validity of section 78 requests on contractss that were no longer under an Agreement.

Hmm - I though you just said that even a terminated agreement is still an agreement and thus unavoidably regulated.

I also seem to recall that no one could avoid the Act.

[mystery1]

Re: Contracts, Termination, Repudiation and Rescission

If "A" says/indicates by conduct, that the agreement is over (termination) and "B" says ok i agree then it turns out "A" cannot in fact do what he did how on earth can the acceptance by "B" be seen as termination ?

Totally illogical.

M1

[StoneLaughter]

Re: Contracts, Termination, Repudiation and Rescission

Hmm - I though you just said that even a terminated agreement is still an agreement and thus unavoidably regulated.

I also seem to recall that no one could avoid the Act.

There was simply no need for that. Peter's agreement to my post was sufficient for us to move on. So... shall we move on?

[EXC]

Re: Contracts, Termination, Repudiation and Rescission

Sorry to butt in here guys but Beagles' have obtained the banks' responses to the BIS & HM Treasury consultation on consumer credit under the Freedom of Information Act.

Much of it is about CCA enforceabilty etc, for example Barclays http://www.legalbeagles.info/FOI/FOIBarclays2.pdf

So for all you CCA heads, all the responses are here Banks and OFT responses to BIS consultation - Legal Beagles Consumer Forum

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

I don't want to throw a spanner in the works, but there has been no consideration yet of Judge Chambers comments in Mold Courts. It would seem that a number of phone calls is unreasonable i.e. his words "torture", which means harassment, duress, enforcement etc and consequently ordered MBNA to write off the debt in its entirety and the "contract" "agreement" whatever declared unenforeceable! i.e. no enduring contract (big C or little c), no enduring debt!

regards
Garlok

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

Why is the meaning of the term "enforcement" even being debated? Is it important to the discussion, and if so, how?

I always understood the term "Enforcement" to mean that which occurs AFTER Judgement; i.e. the collection of the Debt by DCAs/Bailliffs etc once a Court Order was in force. This can be done by Attachment of Earnings; but until there is a Judgement it cannot.

enforcement taken after a judgement is enforcement of the COURTS ORDER not of the matter that led the court to make an order!!

it "makes a difference" because creditors "use" the commencment of court proceedings to frighten off LIP's and to pile on costs in which event you should remember that for every memberof a forum such as this who will contest- there will be hundreds who are frightened into submission ...

whereas - if the judges used their common sense and interpreted the act and common sense as intended- as peterbard says "anything" after the unremedied DN IS enforcement- and thus the creditor would be prevented from taking those steps and would be forced to NEGOTIATE and TALK reasonably with their customers without the customer feeling under immense pressure by way of court proceedings

furthermore- even if looked at from the creditors point of view- surely it would be more productive and a lesser waste of court resources and time if they were forced by court rulings to ensure their ducks were in a row

the courts could save an enormous amount of court time throughout the UK by ruling that any actions concerning CCA agreements cannot be commenced at court ( even at Northampton) UNLESS:-

1 the creditor has in his possession a properly executed agreement or a reconstructed agreement and proof that a copy of the original/or reconstructed agreement has been sent to the debtor together with an admission as to which it is (original/reconstructed)

2 the creditor has fully complied with any s77/79 request made by the debtor

3 the creditor has proof that a VALID Default Notice and Termination Notice has been correctlyt served on the debtor

4 Any assignments have been properly notified to the debtor

5 the creditor makes a declaration to be submitted with the claim that he has fully checked all of his documentation for accuracy and correct service- and that he understands that any submitted claim found wanting in these respects WILL be struck out upon application by the defendant without costs and without leave to amend.

there is absolutely no reason whatsoever why the creditor should not be forced into checking the validity of the claim prior to lodging it-by using its vast legal and accounting resources- rather than relying on the defendant (who by definition is unlikely to be able to afford legal advice) to have to take legal advice to do what the creditor should have done before he started the action

[never-in-doubt]

Re: Contracts, Termination, Repudiation and Rescission

Sadly the judge for all his extensive waffle was wrong, because there was an existing HoL judgment which spelt out exactly what unenforceable means:


'Orakpo Respondent v Manson Investments Ltd HL [1978] AC 95'

Flaux was bound by this decision but chose to ignore it.

His decision on enforcement was based on a concession made by counsel, which IMHO was wrongly made.

HTH

Dad

Flaux is a plum, he thinks he is above the bloody law most the time. We really need a strong appeal to rip his last few fiasco judgments apart.

I have no time for him, he is so pro-banks it's unreal, bet he also has a posh house, a posh mistress (rentboy whatever) and a posh accent! I have no time for the guy. He may as well quit and join Barclays as their chief litigation officer!

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

What a "Spot On" post at 548 DD!!!!
regards
Garlok

[never-in-doubt]

Re: Contracts, Termination, Repudiation and Rescission

What a "Spot On" post at 548 DD!!!!
regards
Garlok

I concur. Wise thoughts DD.

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

There was simply no need for that. Peter's agreement to my post was sufficient for us to move on. So... shall we move on?

No.

This is a crucial point where peter has changed stance to suit his argument.

He repeatedly states a terminated agreement is still an agreement and would thus still be regulated and subject to the provisions of the Act. Then he agrees with you that a contractually terminated agreement suddenly becomes an unregulated agreement subject to common contract law.

The clauses in an agreement which peter maintains allow a creditor to contractually terminate are written into a regulated agreement which is also supposed to comply with the provisions of the Act.

I wonder how contractual termination stacks up against 140A when there are adequate provisions already within the Act to not require unilateral termination i.e. deferment or restriction.

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Hi
If there is no agreement between the parties when an agrement is terminated then what exactly is it the court enforces.

The liabilities that the contract entitles the creditor prior to termination? As per S87?

NO the agrement is not dead it is terminate the contract is no longer under an Agrement.
THer is still however an agrememnt between the two parties,always will be untill the agrement can be rescinde by the liabilities being seetled.

Yes, very true. What I meant was that the provisions of the agreement no longer matter (such as monthly payments, access to credit, etc) because the creditor has withdrawn them by his termination.

"An account is not an agreement"

Ok what is an account two parties one who has loaned money the other who owes it with an oligation to repay.
An agreement .

Sure, but the agreement was that the loan was regulated and that the creditor would observe those regs. But he didn't. He ended the agreement without observing those regs. Yet the regs say that he is not entitled to take his various actions...

The point to make here is what is the point of regulation if the creditor ignores the regulations? If you have regulations but do not allow the debtor to use them for protection, again, what is the point of them?

The court refers to enforcing the agremnt this is after termination are they wrong?

They are not always right, as you know.

But there can not be any enforcement where the DN is bad. They can enforce where the the regs are observed, but have problems otherwise.

The Pumpkinhead judgement also shows that contracts can be terminated without following the regs, and that this issue is perhaps more to do with entitlements than anything else.

As usual you are trying to deflect from the reall point. That is that this technique does not work.
Not only does it not work but it is dangerous, as illustrated by Pumpkin heads post above.

Well, maybe, although I am not sure what the real point is. There is no conclusive judgement anywhere. In fact, we have various judgements that contradict.

This is a complete nightmare for me and I think many others. The regs seem so clear, yet much of this discussion concerns means of allowing the creditor to avoid his obligations, sometimes in an almost unbelievably convoluted manner.

Now it is clear that you do not understand why this is, but surely you must see the proof within the varios actions that have been made under this and the subsequent damaging failures.

Not really. I see Durkin, Brandon, PT's and Pumpkinhead's judgements, all with totally different outcomes. There is no consistency in any of this, hence the endless debate.

:tinysmile_hmm_t2:

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

I don't want to throw a spanner in the works, but there has been no consideration yet of Judge Chambers comments in Mold Courts. It would seem that a number of phone calls is unreasonable i.e. his words "torture", which means harassment, duress, enforcement etc and consequently ordered MBNA to write off the debt in its entirety and the "contract" "agreement" whatever declared unenforeceable! i.e. no enduring contract (big C or little c), no enduring debt!

regards
Garlok

I guess this is a S140 issue and to me is the best bit about the judgement. Mr Harrison's experiences are a picnic compared to the stress I (and I think many others) have been through over the past 2 years.

I agree that discussion of this might be very worthwhile.

Interestingly, S140 would also apply to non-regulated agreements....it might be that this judgement might offer a way for some of us to find equitable settlements to ongoing disputes (regulated or not), rather than go to court.

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Yes LA, ours has been a very long three and a half years now with a telephone log of 800 or so calls including over 100 over one weekend and 80 over the next, and not one shred of a legal document in sight.

Plus 15 DCAs and 2 solicitors practices later.

regards
Garlok