Contracts, Termination, Repudiation and Rescission

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Hi pt,

I think the problem for me and many others is that despite your very laudable wins (and those of our own solicitors and others) based on the tried and tested arguments is that many of these tried and tested arguments have been dissected to death on forums such as these and LIPs have gone to court and lost on these arguments (not a criticism-- an observation). Much IMHO due to the "armchair lawyer" approach of some users of these sites. Hence we see a seeking of other methods in isolation with which to combat these perceived losses.

A classic example of this was of course the Carey collection of cases. I have even seen it stated that Waksman has actually changed the Statute Law, which of course he cannot do. I do note that Harrison has not seen the same attention by these users.

Since day one of our battles I have always assumed that a fairly comprehensive defence would have to be put together which had several strong points in it including as you know in "Harrison" the issue of a defective DN etc. I don't see it at all as magic solution in isolation. But I can understand perhaps the level of interest in it as more and more seek the golden bullet as it is perceived s78 et al has gone away for the LIP.

best regards
Garlok.

[volvodriver]

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.

You points exactly mirror the post I have just made on PHs thread OTR.

I look forward to some LEGAL argument to disprove your contention.

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Sorry NAB and Vd I can't give you any legal argument on this. The Harrison judgment goes some way towards clarification. However I can only repeat that at a time when everyone on CAG was saying "write and accept terminations made on the back of defective DNs", I was INSTRUCTED by our solicitors NOT to do so.

All of the armchair lawyers over there at the time jumped all over me, stating that our solicitors were wrong and they were leading me into trouble. Here we have the debate which is inconclusive again. Until a "lead" case is brought before the mercantile court this uncertainty will continue.

But have another read of Harrison, I found it a bit enlightening actually.

regards
Garlok

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Hi Garlok
Is it possible for you to ask your solicitor (or the relative who read for the bar) for their opinion, esp with regard to acceptance

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

I'll get back to you NAB

regards Garlok

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

I got banned OTR for daring to question the site team.

Are they real or what?

No notification, no right of appeal.

AND PumpinHeads thread has been taken down.

Just hope they now moderate the posts which need moderation.

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Vdr,
I think they are trying to tell you guys to play nicely, remember what Donkey said happened to him

Maybe get my questions answered now if all the troops venture back over here

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

Vdr,
I think they are trying to tell you guys to play nicely, remember what Donkey said happened to him

Maybe get my questions answered now if all the troops venture back over here

I agree, and I dont mind if they force ALL the guys on there to play nicely.

Trouble is there seems to be some rules for 99.99% of posters, and other rules for the remainder.

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

I know, I was watching.
I did not post over there as I am in this to learn not fight.

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Just read you guys last posts, Yep I am another refugee who was banned for standing my ground against a troublemaker and then the site team when they backed him and not the good guys.

We are all here (or there) to learn and share, a lot of us under real stress and one bad apple soon ruins the barrel.


Garlok

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

Do you guys want a seperate thread about the CAG stuff as opposed to the topics being discussed on the thread ? If not s'ok for now just don't want this one going off track too far, if yey then I'll move these last few posts to Lamppost.

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Ok Ame, slapped wrist accepted.

regards
Garlok

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

I'll be good from now on

I accept your default notice is genuine, and note the penalty of my non compliance.

My dogs use lamp posts, dont want to go there!

Vdr

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

From post 630

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?

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Hi N-A-B,

Well I have asked the question and I think I am even more confused than I was before. The twisted logic of it all makes me angry as plain language and commonsense seem to have flown the coup completely.

Anyway I was pointed to a case from last month as being the latest take by the courts and the simplest way of expalining the situation. It appears that a debtor defendant had accepted the termination in writing which had been issued on the back of a defective DN. The creditor claimant also accepted that the DN was defective. Judge held that the defendant had in fact herself terminated the agreement and refused to "perform" her obligations under an agreement which was otherwise unenforceable hence he found for the claimant. She had brought the judgment upon herself. This apparently is on the basis that the Creditor cannot terminate on the back of a defective DN, well known for a long time amongst the legal fraternity. NOT amongst all of the little guy battlers like ourselves said I, most forums were and have been advising quite the opposite.

This case description rang loads of bells with me and in fact it is on this very thread or one very much like it. It is within one of peterbard's posts number 513. I now have to ask myself whether the issuing of defective DNs is a deliberate act by creditors to trap people into making a fatal error. I would have done so had I not been instructed NOT to do so. Barclaycard via Mercers must have issued thousands of the darned things.

The conversation went on to speculate on the possibility that in reality the terms "termination", "repudiation", "recission" are not totally understood or specified in an accurately defined way, neither are there any ground rules as to what may or may not be unlawful in this respect. The courts under duress from creditors seem to have given creditors carte blanche almost.

The other thing that came up was about actually the termination of the agreement/contract occurs. I know this is going to cause a bit of contention, but termination in the best defined sense may have occurred long before a DN has been issued. As simply as I can for my own befuddled mind, the converstaion went something like:-

"Did you receive any phone calls directly from the collections people of the OC, not inhouse companies, dormant companies or dcas?"
"yes"
" were the figures demanded correct?"
"no"
"what was demanded from you?"
" the payment for the current month (which in our own case had already been paid) plus an addtional sum which amounted to the following month's payment on a statement which had not been issued nor was due"
"fine, they demanded monies not yet due then?"
"yes"
"it has to be contended therefore that the OC has signalled to you that he has brought to an end the agreement he claims to have in place"
"never thought of it that way"
" this has been done completely outside of the statutory and regulatory regime under which he must operate and you are not compelled to accept his unlawful actions".
"OK where now?"
"as the sole raison d'etre of the agreement is to extend financial credit to you, this may be an irredeemable breach, it reaches to the "very heart of the agreement", it is history and cannot be withdrawn or changed"

It went on I'm afraid and ran into common law AND I still did not get conclusive answers I feel. Merits of the case on the day seems to be the thing. Until there is a defintive case in the courts which goes to a higher court then I am now convinced this will rumble on and on.

best regards
Garlok.