Contracts, Termination, Repudiation and Rescission

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

Even if it were accepted that the creditor could 'terminate' after a bad DN, that termination would also be bad (unlawful if you like) such that it represents a repudiation that the debtor can affirm quite properly and possibly sue for damages.

that has been my view- however PT and PB are of the opinion that the creditor in a CCA agreement cannot repudiate- or terminate outside of s87 even unlawfully (unlike every other contract in the land) and therefore the performing party then cannot elect

BUT the debtor in the same agreement can !

Pt has case law to back it up

PB has - well, what he has!!

The creditor apparently can even accidentally or deliberately mislead the consumer with false information and then use the innocent consumers response to terminate the agreement without the need of s87- with no fear of reprisal from the court and no fear of breaching OFT guidelines as to misleading consumers and getting them to take transactional decisions they would not otherwise take

hell, they can even LIE in a statutory instrument in order to achieve this aim~

they can rack up costs (contrary to the whole principle of the taylor reforms and the subsequent CPR and overriding objectives) - by deliberately witholding any copy of the credit agreement until the day in court........even provide several contradicting copies of an alleged agreement on the way just to confuse the consumer even further

they can fail to comply with s78 until "well into the trial"

and if they screw up and shouldn't actually have got to court in the first place- well, no matter..... they can remedy the DN which didn't allow them a cause of action whilst the judge halts the trial and then carry on when they have served a proper DN

now called me an old cynic- but that doesn't sound like an act for the protection of consumers to me ! how about you?

it seems to me that based on these perverse interpretations of the CCA- we would be better off with no CCA at all and borrow under common law principles!

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

For me there is only one question:

After a bad DN and a subsequent termination, is that termination ineffective or simply contrary to regulations? Is the agreement terminated or not?

Some say the termination has no affect and everything winds back to a pre (bad) DN time, others say the termination is effective but without the entitlement of s87.

if the termination is effective- but without the entitlement to s87 then because the termination was not lawful (according the the act) then by definition- if it is held to still be a termination- then it has to be an unlawful termination

seems now that judges are "mixing and matching" legistlation in the same case--one law for the creditor- and another for the consumer!

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Yes, absolutely!

There seem to be a lot of questions that the OP does not answer.

The big one for me: how is it that the OC can "terminate" an agreement without entitlement, serve a new DN after trial and/or assignment while the agreement remains closed, claim that S88 describes the agreement as being "incapable of remedy" and expect all liabilities to be paid?

I would merely say that CCA reads simply, and that termination causes the creditor to lose entitlements. The OP is currently banging on OTR on PH's thread about the courts being there to impose the will of the banks; if true, then there is most definately no regulation of these contracts whatsoever. CCA becomes an utter travesty. I hope this is not the case.

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

I will not detail the demolition of the posts I took because they need to be read and re-read as a whole to ascertain the exact kernel of his argument which shifts emphasis. This is a standard courtroom "trick" which has not been brought off very well, i.e thow up a whole smoke screen of spurious legal argument couched in legalese which may or may not have substance, in the hope that the "opposition" will flounder in counter argument. The real expertise, I am told, is being able to cut directly through this smokescreen to expose the real intent and substance of the argument if it had any in the first place.

I dont think we have given this point sufficient recognition.

If you cut through the disinformation and obfuscation, and get back to the DN, where it all started, the creditor, by issuing a defective DN, denied themselves the right to the benefits of the CCA.

What starts wrong can never be right.

Can it really be that simple?

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

it seems to me that based on these perverse interpretations of the CCA- we would be better off with no CCA at all and borrow under common law principles!

You probably want to respond to the CCA consultations in that case - http://www.hm-treasury.gov.uk/d/cons...edit211210.pdf

Option 1 – Consumer credit is regulated under a new FSMA-style consumer credit rulebook by the CPMA. In order to maximise the benefits of an integrated regime and to ensure consistency across the CPMA‟s remit, the CCA would be repealed and consumer credit regulation would be moved to sit within the same regime as other retail financial services. The Government recognises the significant challenge of designing a proportionate and effective regime under this option, and this is discussed in more detail in Chapter 3.

.......
.........
The fast pace at which the UK credit market has developed in recent years, combined with the dynamic nature of product development, has not always been matched by changes to the legislative and regulatory framework. This may have contributed to problems where legislation has been slow to respond.27
........
........
27 For example, recent issues raised in respect of consumer credit legislation include Claims Management Companies‟ involvement with potential unenforceability of certain credit agreements

Consider that consultation alongside the responses to the BIS CCA consultation that 127(3) should be made retrospective etc etc that we published last week.

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

As we all now agree (don't we?) that a creditor who terminates on the back of a faulty Dn loses the entitlement to enforce through the courts anything other than the genuine arrears due at the time of the Dn. Is it possible that we can agree a course of action, back it up with case law and reasoned argument in preparation for those who follow to use in a court room.

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Unforunately Ame as you quoted the retrospective aspect of the 127(3) (BIS Consultation) in your post 620, this in itself is probably illegal even if it makes it onto the Statute Book for anyone in current dispute with CCA issues. What is being asked for there by the banks is in my view a serious disadvantage to the consumer.

It is a fundmental principle of the Lisbon Treaty (whether we like it as a treaty or not) that no European citizen can be disadvantaged by ANY retrospective law passed in ANY member state.

The protocols that our wonderful leaders had placed within that treaty to ensure (they thought) that they had control in appendix 26 or 27(the protocols appendices) if memory serves correctly say that the law prevailing in Poland and the UK (specifics please note) AT THE TIME OF SIGNING would prevail. This is double edged sword in our discussions because this alone precludes ANY legislation being brought to bear upon any of our current agreements which were current at the time of treaty signature.

One other thing, I have taken the time to read the Harrison judgment again and issue is taken with MBNA/Link over defective DNs and improper procedure of assignment. Might be worth a look. Its not a big judgement and a transcript perhaps woudl throw light, but we are cannot be party to that.

best regards
Garlok

[toomanycalls]

Re: Contracts, Termination, Repudiation and Rescission

Sorry for the hijack but I could really do with a little input on my thread here

http://www.legalbeagles.info/forums/...t=26868&page=6

I have a defective DN, letter of termination, a court claim that is at AQ needed by Monday and think an application to strike out is the best plan but need all the advice I can get with putting the paperwork together.

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

i think the one thing that is being missed, is we keep winning in the Courts using tried and tested arguments which we have developed along the way

Point being , i dont see anyone winning with these repudiation arguments, but what i do see, is people losing over and over

I would love for someone to put a case in front of me that shows me my view is wrong, but it just hasnt happened.

[Angry Cat]

Re: Contracts, Termination, Repudiation and Rescission

i think the one thing that is being missed, is we keep winning in the Courts using tried and tested arguments which we have developed along the way

Point being , i dont see anyone winning with these repudiation arguments, but what i do see, is people losing over and over

I would love for someone to put a case in front of me that shows me my view is wrong, but it just hasnt happened.

Tried and tested arguments...:beagle:

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

i think the one thing that is being missed, is we keep winning in the Courts using tried and tested arguments which we have developed along the way

Point being , i dont see anyone winning with these repudiation arguments, but what i do see, is people losing over and over

I would love for someone to put a case in front of me that shows me my view is wrong, but it just hasnt happened.

I sort of agree. I personally don't think the rescission/repudiation argument is of much use since, on reflection, I am not even sure you can apply common law rules to regulated agreements.

What I think is more important to sort out it what are the two parties positions after a bad DN and TN?

e.g. what constitutes 'entitlement' and 'enforcement' and can a creditor rectify a bad notice?

[toomanycalls]

Re: Contracts, Termination, Repudiation and Rescission

what are the two parties positions after a bad DN and TN?

How about an unfair relationship.

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

i think the one thing that is being missed, is we keep winning in the Courts using tried and tested arguments which we have developed along the way

Point being , i dont see anyone winning with these repudiation arguments, but what i do see, is people losing over and over

I would love for someone to put a case in front of me that shows me my view is wrong, but it just hasnt happened.

Thanks PT - this is exactly what we see, but the problem for the debtor at the time is that he will either be clueless (re CCA) and give up/enter into an arrangement/be sued for the balance, or he will look at the regs and realise that the creditor has made a mistake.

In the latter case, he may even speak to the creditor and advise him of his mistake, and request a temporary arrangement to get things back on track. However, he may also find that the creditor is uninterested and insists that the DN is good and that termination will follow. It is here that the problem arises; what should the debtor do? He does not remedy, as he knows the DN is bad and the creditor will not budge, and he sees that the agreement is subsequently terminated (against the regs he agreed to).

At this point he is even more confused; can the creditor actually do this? It was only a temporary blip that caused the breach, why is the creditor so eager to get to court? As the debtor knows that the creditor is in error, he writes to say that he accepts that the agreement is ended in order to discuss liabilities because, as far as the regs go, they only appear to be the arrears.

IMHO it cannot matter whether the debtor "accepts" this termination or not; the fact remains that it was the creditor who decided that the agreement was ended, and the only error made by the debtor was to fail to insist on continuing to make contractual payments (difficult when the facility is withdrawn by the creditor, who is jumping up and down demanding the balance).

So, to me, it seems puzzling why this is not called "repudiation", because it appears that the creditor no longer wishes the agreement to continue and it has been ended without observing the regs. This fact is augmented where the creditor is advised (in strong terms) of his mistake, with a view to rectifying it, but refuses to budge.

It would be helpful to understand why this view is wrong and what reasons the courts use to tell both parties that the agreement isn't "repudiated".

TIA

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Thanks PT - this is exactly what we see, but the problem for the debtor at the time is that he will either be clueless (re CCA) and give up/enter into an arrangement/be sued for the balance, or he will look at the regs and realise that the creditor has made a mistake.

In the latter case, he may even speak to the creditor and advise him of his mistake, and request a temporary arrangement to get things back on track. However, he may also find that the creditor is uninterested and insists that the DN is good and that termination will follow. It is here that the problem arises; what should the debtor do? He does not remedy, as he knows the DN is bad and the creditor will not budge, and he sees that the agreement is subsequently terminated (against the regs he agreed to).

At this point he is even more confused; can the creditor actually do this? It was only a temporary blip that caused the breach, why is the creditor so eager to get to court? As the debtor knows that the creditor is in error, he writes to say that he accepts that the agreement is ended in order to discuss liabilities because, as far as the regs go, they only appear to be the arrears.

IMHO it cannot matter whether the debtor "accepts" this termination or not; the fact remains that it was the creditor who decided that the agreement was ended, and the only error made by the debtor was to fail to insist on continuing to make contractual payments (difficult when the facility is withdrawn by the creditor, who is jumping up and down demanding the balance).

So, to me, it seems puzzling why this is not called "repudiation", because it appears that the creditor no longer wishes the agreement to continue and it has been ended without observing the regs. This fact is augmented where the creditor is advised (in strong terms) of his mistake, with a view to rectifying it, but refuses to budge.

It would be helpful to understand why this view is wrong and what reasons the courts use to tell both parties that the agreement isn't "repudiated".

TIA

Withdrawing credit facility is not an enforcement step, s87 clearly says this

I cannot see how the creditor can be the person who repudiates, i dont follow that argument when it is the debtor who fails to pay the contractual instalments.

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Having read pages of argument, I believe that the debt is repayable.
However, the creditor must obey the law in issuing a correct Dn/Tn if he is to become entitled to have the courts enforce on his behalf.
If these acts are not perfomed correctly it is impossible for the creditor to use the court system.

The debate centres on can the debtor elect to accept a faulty termination and can the creditor reissue on an agreement he has terminated (although not in CCA law)?

I assume the courts are used to decide these issues, lawyers use the law to try to influence the judge to find in their favour. Lip's tend to use more logic and common sense.

I think if this debate is to be settled there needs to be a court case so that a judge can decide - the positions have been debated endlessly without result / agreement.

I admit having a vested interest in the outcome, I have accepted repudiation therefore may have put myself in a difficult position. There are others like me.
I would also add that when I received the Dn & Tn I was in no doubt that my agreement had concluded.
My creditor has told me they will call in the DCA's, and they have.
My creditor has told me they will take action & I am sure they will.
So far logic tells me that my creditor knows what he is doing.
Having written & told him his Dn is pants he writes back & tells me it is not.
Eventually we go to court.
I stand in front of the judge & say 'the creditor cannot enforce as his Dn is pants, I even told him so'
Suposedly the judge throws the case out, allows my costs (because the case should not have been brought) and the creditor is allowed to reissue his Dn.
He will follow this with a contracted termination or a Tn (if I still fail to perform).


My challenge is the termination.
There are rules about how to make a CCA compliant termination which then allow the creditor to become entitled. However when the creditor terminates incorrectly then he must lose the right to become entitled, I believe this is common ground. What is not common ground is how the creitor can terminate (he did do this even though in regard to the CCA he was not compliant) and issue a compliant Dn on an agreement that he himself has terminated.
Surely an action that has been taken cannot be undone so easily?

Are there any case, in statue, where a contracted party has to continue on a course of action which they have been forced on to in error (as the creditor has)?

As I say, the creditor is entitled to his money back, he has just lost the ability to use the court system to collect / enforce on his behalf. This then means he can call in the services of a DCA, he can write with demands and he can report to the CRAs. I just struggle to see how he has become entitled to the assistance of the courts.