Contracts, Termination, Repudiation and Rescission

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

well i did get a little annoyed, and i would simply say, to describe keiths situation as a "Horror" story does not do it justice.

But you are right its not all set out in the judgment, and its why we are doing an interview with the BBC in a weeks time to give the full picture

well let's hope that they ALSO give some coverage to the lies told under oath as to the posting of the DN and his ability to prove them wrong!!

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

The crediotr can terminate any time he wants, he can demand full and immediate repayment any time he wants

Read more at: Contracts, Termination, Repudiation and Rescission - Page 23 - Legal Beagles Consumer Forum

no, i'm sorry but he CANNOT!

if the consumer has defaulted in any way (missed payments usually)- the creditor CANNOT terminate when he wants. he cannot terminate unless and until he serves a valid DN- which you have on numerous occassions confirmed- any termination in furtherance to no/invalid DN is not termination

the suggestion that he can- having served an invalid DN- simply then turn to another clause in the agreement (which itself would be in contravention of the CCA) is not right

I have and continue to be of the opinion that any other clause in an agreement ( not being a fixed term agreement) which gives the creditor the right to terminate- does NOT give the creditor the right to immediate repayment of sums outstanding.

running credit agreements are not overdrafts and not subject to early recall



i think i now understand what you have been banging on about for months (hoepfully)- and that is that you keep saying the the creditor can termination anytime he likes as under a separate clause in the agreement

well yes, he can - but he cant legally ENFORCE the immediate repayment of sums that were not yet due under the agreement- if he has done so not under s87 and the debtor has been performing satisfactorily



1/ if under s87 he has not become entitled

2/ under any other clause in the agreement which seeks to override the CCA


there is only ONE (being appealed i beleive) judgement that says differently

[Ihaterbs]

Re: Contracts, Termination, Repudiation and Rescission

There was a case (multi track) last year where the claimant was only allowed arrears up until judgment on the back of a bad default notice. The Claimant has now issued a compliant default notice. Why?

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

The crediotr can terminate any time he wants, he can demand full and immediate repayment any time he wants

Read more at: Contracts, Termination, Repudiation and Rescission - Page 23 - Legal Beagles Consumer Forum

no, i'm sorry but he CANNOT!

if the consumer has defaulted in any way (missed payments usually)- the creditor CANNOT terminate when he wants. he cannot terminate unless and until he serves a valid DN- which you have on numerous occassions confirmed- any termination in furtherance to no/invalid DN is not termination

the suggestion that he can- having served an invalid DN- simply then turn to another clause in the agreement (which itself would be in contravention of the CCA) is not right

I have and continue to be of the opinion that any other clause in an agreement ( not being a fixed term agreement) which gives the creditor the right to terminate- does NOT give the creditor the right to immediate repayment of sums outstanding.

running credit agreements are not overdrafts and not subject to early recall



i think i now understand what you have been banging on about for months (hoepfully)- and that is that you keep saying the the creditor can termination anytime he likes as under a separate clause in the agreement

well yes, he can - but he cant legally ENFORCE the immediate repayment of sums that were not yet due under the agreement- if he has done so not under s87 and the debtor has been performing satisfactorily



1/ if under s87 he has not become entitled

2/ under any other clause in the agreement which seeks to override the CCA


there is only ONE (being appealed i beleive) judgement that says differently

Pointless entering such an agreement if there are no obligations on either side !! I do understand your argument, but fail to see its relevance.

Agin you are not reading what i have said i said creditors do not have onligations debtors do this again is a quote put it in your browser you will se it is accpted civil law.

Just as debtors have rights and creditors have obligations. Your statement is perverse.

No it is fact the what obligations do the creditors have under a loan agreement?


No one lender or borrower would write such a phrase into a contract. It is a silly thing to say. That does not mean a creditor cannot be in breach of the agreement for any number of reasons.

am

I still feel that 'convenience' termination clauses in running-account credit agreements may be contrary to 140A. The credit is the whole and only reason for the agreement and there are after all perfectly good remedies of deferment and restriction in the Act.

Also I don't care whether an agreement is live, dead, terminated, ended or buried 6ft under, all the provisions of the regulating Act still apply, which includes contracting out. Common Law never trumps Statute.

I think i must have said this a hundre times the creditor can terminate at any time he can demand early repayment at any time just look at any copy of the regs its in there.
he cannot howcer or more correctly a court cannot enforce that demand because of the restriction imposed on it by the CCA.

Yes i see what you are saying If i get this right youare saying that if the account is in default the creditor cannot use the contractual termination clause.

This may be true it is certainly true that he could not start enforcement proceedings until the required statutory period has expired so he would not be able to issue a default termination, the question is would the contractural termiantaion suffice and the rest of the enforcement be able to continue. Really i do not see any difference.
I think that the default termination would not be valid just as the default itself would not be valid but if a contractural termination was in place then the enforcement would still be flawed beacaus of the faulty dn.

The fact that the contractural termiantion was still in affect would not have an effect on the reissue of a dn, dns are issued all the time on aggrements that have been contracturally terminated. It would just be hard to do the same on a default termination because the details of the breach on that termination would be incorrect as per the default notice.

This seems to tie in with Brandon anyway.

Peter
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There was a case (multi track) last year where the claimant was only allowed arrears up until judgment on the back of a bad default notice. The Claimant has now issued a compliant default notice. Why?

Because the notice was bad so it did not entitle the creditor to enforce the agrement in breec and pursue the full liabilites.

HOwever it does not stop the crediotr re presenting

Peter

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

Thank you basa, you and LA picked up the rather silly shifts in stance rather quicker than I did. It took me a reread

I asked a simple question which relates directly to statements made by the poster concerned earlier in this thread and he is unable totally to answer it.

HHJ Chambers did not as far as I can see actually make the alleged agreement void. Therefore based on 'bard's previous arguments the agreement/contract therefore endures or the original arguments are falacious.

Any question as to the authroity of this poster leads to this i.e we are all idiots except him.

And yet another shift in stance.

Garlok.

Never said anyone is an idiot

If i implied it i appologise.
The judge in the case discharged the liabilities under the agrement i understand .When and if this happened the agreement became void or it was rescinded "De futuro" in the future, meanting that the unt paimounts already paid under the agrment were not reclaimable but all future liabilites were discharged.

It as a matter of great interest to me that the judge ws able to do this i was aware of the possibility because i had read section 140 but i had not come across it before, i think it is agreat boon for peope fight ing injustice as i have already said.Even more so than section127(3), because the debt now does not exist and niether does the contract because the liabilities have been disharged. THis means that DCA can no longer pursue as they could in an unenforcable ageement under section 127(3)

Peter
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Yes, but also to be top dog is clearly of great importance...:beagle:

Not to me

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

There was a case (multi track) last year where the claimant was only allowed arrears up until judgment on the back of a bad default notice. The Claimant has now issued a compliant default notice. Why?

I find this hard to understand too, although Peter has provided an explanation.

It seems strange that a creditor can terminate the agreement on breach without following the regs, take the debtor to court and obtain enforcement of the arrears without entitlement (and why the judge allowed this is puzzling) and then serve a new DN on (presumably) the missed intervening payments when he had withdrawn the facility to make them.

In the case above, it appears that the judge has enforced a term of an agreement where there was no entitlement, as with Brandon. Hopefully these cases will disappear now we have PT's judgement.

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

[quote=Lord_Alcohol;201895]Well I must be the biggest idiot here because I still don't get it...although am beginning to wonder whether this is a communication problem more than anything else.

Reading the recent posts, we have the following (I think!)...

1. The agreement is terminated because the lender terminated it. The debtor may or may not have accepted that termination. There remains confusion as to what termination means.
2. quote]

Hi
this is what i have been asking for les do it one step at a time.

See if we can agree

I say the termination of either party is allowable under the act.When either party unilatterally terminates the effect is the same , the terms of the contract no longer apply.

In other words any tems involving repayment are terminated.

If the creditor does this he is entitled to ask for early payment however he would not be able to enforce that request because the act prohibits that enforcement by requiring a crediotr to produce a section 87 notice and this can only be done on breach by the debtor.

If the creditor did try to enforce the court would say no you cannot because it is inequitable to demand early repayment, the debtor has done nothing wrong(no breach section87), if the debtor chose to take advantage of the termination of the agrement by the creditor and cease payment the court when presented with a compliant DN would say yes the agrement has been breached, (section87 does not say under an agement it just says an agrement) no reason why the agreement could not be a contracturally terminated one.

If the debtor decides to terminate the agrement (which he is fully entitled to do he would be very fooish because he is terminating his rights to repay as per its terms. The full amount under the agrement would become due and payable as per pumpkin head. This does not have to be billateral the debtor has refused to abbide by the terms of the agrment in writing what is the court to do It has to award the liabilities to the creditor. No default would be required in this case the debtor has stated to the court that he does not intend to abide by the contract by the act and by his obligaitons to pay.

A termnaion of an Consumer credit agrement can be made by either party at any time so accepting a termination is an irrellavance.

A contractural termination differs from a default temrnation in that a default termination has to be made after a default ,it will contain the details of the enforcement , usually saying "you have failed to comply with the default notice and the account is now terminated."This part of the enforcement process.
A contractural termination merely release both parties from being bound by the terms of the agreement.

So ok what do you not agree with

Peter

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

I find this hard to understand too, although Peter has provided an explanation.

It seems strange that a creditor can terminate the agreement on breach without following the regs, take the debtor to court and obtain enforcement of the arrears without entitlement (and why the judge allowed this is puzzling) and then serve a new DN on (presumably) the missed intervening payments when he had withdrawn the facility to make them.

In the case above, it appears that the judge has enforced a term of an agreement where there was no entitlement, as with Brandon. Hopefully these cases will disappear now we have PT's judgement.

HI

Isnt this just because section87 lists all the acts that require a default notice,and recovering monies already due is not one of them.No notice is requied to enforce this is it?.
Again ther is nothing within the act that says notice is required to pujrsue current debt on the account it is silent on it

Peter

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Peter

This is good. The points I do not fully agree with are;

1. Termination of the agreement by either party: yes, you are right, but there is no entitlement to terminate the agreement on breach by the debtor without a DN (S87(1)(a)).
2. You say that terms involving repayment are terminated; I say that all terms are terminated, because the debtor is not informed that some terms remain (other than contractual liabilities). At the point he receives his TN, the creditor merely states that the agreement is "terminated".
3. I don't agree that a DN can be served where the contract is terminated because of the wording required to be placed in the DN itself. I may be wrong, but the 1983 regs seem to make it a necessity that a breach must be allowed to be remedied, and if the breach is remedied the creditor has no cause of action.
4. As far as pumpkinhead is concerned, it was the creditor that terminated the agreement not the debtor; the debtor merely went along with it. I do not see what difference agreeing with a TN makes at all. The fact remains that the contract was regulated until terminated. Pumpkinhead agreed with the termination, not that contractual regulation should not apply.

I think that's about it...

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

HI

Isnt this just because section87 lists all the acts that require a default notice,and recovering monies already due is not one of them.No notice is requied to enforce this is it?.
Again ther is nothing within the act that says notice is required to pujrsue current debt on the account it is silent on it

Peter

Yes, but the notice must still be good. It is supposed to accurately reflect the breach so that the debtor knows what to do, as we saw in Woodchester.

[Shepherdess]

Re: Contracts, Termination, Repudiation and Rescission

According to the banks, an agreement once terminated cannot be reinstated without a new contract. Amazing thing, Google:
http://www.cashquestions.com/forum/s...ad.php?p=37621

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

Peter

This is good. The points I do not fully agree with are;

1. Termination of the agreement by either party: yes, you are right, but there is no entitlement to terminate the agreement on breach by the debtor without a DN (S87(1)(a)).

Agreed

1. You say that terms involving repayment are terminated; I say that all terms are terminated, because the debtor is not informed that some terms remain (other than contractual liabilities). At the point he receives his TN, the creditor merely states that the agreement is "terminated".

All terms of the agrement are contractural, some are regulated some are not. Some are not mentioned in the act.
All terms regualted or not, are terminate on the termination of the contract/agreement.
SO i agree all terms are terminated it makes no difference if they are regualted by the act or not

1. I don't agree that a DN can be served where the contract is terminated because of the wording required to be placed in the DN itself. I may be wrong, but the 1983 regs seem to make it a necessity that a breach must be allowed to be remedied, and if the breach is remedied the creditor has no cause of action.

NO 87 does not nessesarily reqiuire a rememdy the agrement can be beyond remedy and still require a default notice look in section 88, i havent got my CCA to hand but it says something like "if the breach is incapable of remedy."
If the breach if incapable of remedy then all compliance with the act by fully paying the ballance just prevents enforcement

As far as pumpkinhead is concerned, it was the creditor that terminated the agreement not the debtor; the debtor merely went along with it. I do not see what difference agreeing with a TN makes at all. The fact remains that the contract was regulated until terminated. Pumpkinhead agreed with the termination, not that contractual regulation should not apply.

NO here you are wrong it was P who terminated

I am sure you will see this if you re read his report
I think that's about it...

See above

Peter

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

every body Ok with the above?

Peter:beagle:
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According to the banks, an agreement once terminated cannot be reinstated without a new contract. Amazing thing, Google:
http://www.cashquestions.com/forum/s...ad.php?p=37621

This is absolutely true i got the same response from the nat wes when i posed ythe same quetion its on here somewhere.
It is of course absolutely true

Peter

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

Yes, but the notice must still be good. It is supposed to accurately reflect the breach so that the debtor knows what to do, as we saw in Woodchester.

Only if it is to be used to enable him to take one of the actions listed in secvtion87 ofthe act.
Recovering amounts already due on the conrtaqct is not one of them.

Peter

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

every body Ok with the above?

Peter:beagle:

Almost!

I have some difficulty understanding how a creditor can terminate an account via a bad DN and then claim under S88 that the agreement cannot be remedied! This to serve a new DN but without re-opening the contract.