Contracts, Termination, Repudiation and Rescission

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

I can't wait to see the judgement that you refer to in post 16 Pt, it will be interesting to put into context

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

In these circumstances, if you havent paid for 2 years then yes you have two years of arrears

when the OC says the contract is terminated? Arrears are missed payments; the OC has withdrawn the facility to make payments.

In the second part of the scenario then you may well have argument over the fact that there is an unfairness, but really, i do not see how anyone can moan if they are sued when they havent paid the debt that they ought to have been paying.

Isn't the point that the debtor merely seeks his entitlement under S87/88? He's had problems, he wants to put things right, but the OC has terminated and demands the balance using what you previously termed a bad DN (which gave him no entitlement to terminate - but he did anyway!).

Personally, i have never been one to run the Defective default argument on its own, it has no legs imho, however, it can help with a wider issue but like i said each case turns on its own facts, you need to look at the overall conduct of the creditor and debtor.

There may be an arugment to say, hold on a minute, the 700 telephone calls, the defective notice, the threats of this and that while i was trying to negotiate and resolve the matter are materially unfair

But like i said, each case turns on its own facts,

S140?

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

So if a new Dn is issued, it is acceptable to have 2 years worth of arrears?

Therefore,
Default occurs
Faulty Dn issued
Many letters
Many late payment fees
5 1/2 years later
correct Dn issued
litigation
a further 6 years CRA reporting

They will write on my coffin 'debtor, do not allow in unless paid in advance'

well

In these circumstances, if you havent paid for 2 years then yes you have two years of arrears

In the second part of the scenario then you may well have argument over the fact that there is an unfairness, but really, i do not see how anyone can moan if they are sued when they havent paid the debt that they ought to have been paying.

Personally, i have never been one to run the Defective default argument on its own, it has no legs imho, however, it can help with a wider issue but like i said each case turns on its own facts, you need to look at the overall conduct of the creditor and debtor.

There may be an arugment to say, hold on a minute, the 700 telephone calls, the defective notice, the threats of this and that while i was trying to negotiate and resolve the matter are materially unfair

But like i said, each case turns on its own facts,

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

I think each case must turn on its own facts,

Also it must be noted that the law is an ever changing vessel which may one day lead to XXX Conclusion and YYY the next.

There have been a number of judgments handed down which have impacted on the landscape,

The default notice must accurately state the nature of the breach and what must be done at that point in time to remedy the breach,

So if a new Dn is issued, it is acceptable to have 2 years worth of arrears?

Therefore,
Default occurs
Faulty Dn issued
Many letters
Many late payment fees
5 1/2 years later
correct Dn issued
litigation
a further 6 years CRA reporting

They will write on my coffin 'debtor, do not allow in unless paid in advance'

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

If the OC demands more than he entitled to
He then issues & CRA reports
His actions are little more than blackmail

It's like sending the boys around with baseball bats, as they leave they say sorry, wrong guy

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Understand the debtor may apply for more time to pay Pt
Are we correct in assuming the arrears must be the original arrears ( in this example £500) to then make the second Dn as it should have appeared in the first place
What excuse can the OC use if mistakes are not allowed?

I think each case must turn on its own facts,

Also it must be noted that the law is an ever changing vessel which may one day lead to XXX Conclusion and YYY the next.

There have been a number of judgments handed down which have impacted on the landscape,

The default notice must accurately state the nature of the breach and what must be done at that point in time to remedy the breach,

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Understand the debtor may apply for more time to pay Pt
Are we correct in assuming the arrears must be the original arrears ( in this example £500) to then make the second Dn as it should have appeared in the first place
What excuse can the OC use if mistakes are not allowed?

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

I don't see a new DN being served, because there was only one breach. If a 2nd DN is served, it can only show that original breach, whoever owns the debt.

I know PT has said that a creditor can get a S129 time order, but again the DN would show the original arrears and nothing else.

Remember that the creditor has terminated and therefore the concept of further arrears is somewhat mind-bending. If the court tells both parties that the contract actually endures, then I still don't see how that changes anything because the creditor has neverthess told the debtor it's all over and monthly payments are no longer an option, which leaves the doors open to S140.

I remain convinced that the creditor is, as was my quail this lunchtime, stuffed (but without the gravy).

no no no no

The Debtor may apply for the time order, not the Claimant, thats the point im angling at

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

re costs
if I KNEW (sorry guessed correctly) that the Dn was faulty, maybe I would have troule finding it. I might engae the most expensive firm of barristers to defend the action
I might then find the faulty Dn the night before court.
I believe it is the defendants right to use whatever firm of solicitors he sees fit to travel to the court to defend him

Re assignments
if not correctly assigned then other problems ensue

Either way difficult for the default to have 'never occurred'
------------------------------- merged -------------------------------
The OC can't count, his Dn states 12 days, the Dn is faulty
He says to the judge, sorry M'lud, it's a mistake, I will reissue

According to PT mistakes are not allowed, tthey are not catered for in the act

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

But most DCAs can't give credit.
if they issue a new Dn & the creditor rectifies then we have an agreement which means they are offering credit - maybe without a license??

And the costs from failed litigation would be handy too

Ah yes, I get it. I suppose that once the debt is properly assigned but is "uncollectable", then that's that. Well spotted Biker!

I like the idea of costs - presumably these would be actual "damages", or costs incurred due to the OC's blunder?

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

But most DCAs can't give credit.
if they issue a new Dn & the creditor rectifies then we have an agreement which means they are offering credit - maybe without a license??

And the costs from failed litigation would be handy too

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

I don't see a new DN being served, because there was only one breach. If a 2nd DN is served, it can only show that original breach, whoever owns the debt.

I know PT has said that a creditor can get a S129 time order, but again the DN would show the original arrears and nothing else.

Remember that the creditor has terminated and therefore the concept of further arrears is somewhat mind-bending. If the court tells both parties that the contract actually endures, then I still don't see how that changes anything because the creditor has neverthess told the debtor it's all over and monthly payments are no longer an option, which leaves the doors open to S140.

I remain convinced that the creditor is, as was my quail this lunchtime, stuffed (but without the gravy).

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Another thought
if the OC litigates on the back of a faulty Dn
You notice on the court steps that the Dn is faulty
Can you claim costs
Because he will have to reissue & give 14 days so you pocket the costs
Then wave 2 fingers or rectify the corrected Dn, whichever you prefer
------------------------------- merged -------------------------------

I just don't see this happening.

I also find it unlikely but we are being told it is possible
------------------------------- merged -------------------------------
How about
OC issues bad Dn
Finds he has a pain in the ass as a debtor
Sells (assigns) the debt to a DCA
DCA issues
Can there still be a new Dn?

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

This is why I was asking
But if you can't accumulate on a terminated agreement, surely you can't default a terminated agreement...

Yes, exactly. Which is why, IMHO, all that can be claimed in a 2nd DN is the original arrears.

The DN would show the same breach as before, not a new one.

But I don't see how the creditor would ever do this; he must resurrect the contract as it was before and somehow circumvent ss 89 and 140. I just don't see this happening.

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

This is why I was asking
But if you can't accumulate on a terminated agreement, surely you can't default a terminated agreement...