Contracts, Termination, Repudiation and Rescission

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

sorry. was responding to threads as i read them

slapped wrist

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

probably right, but if the legal arguments had been honed further, she may have achieved a better result overall no matter what judge it was before

Harrison has successfully been used to defeat claims in their entirety on the back of bad default notices

spot on IMO

i also think it would be useful to quote harrison when the claimant quotes amex v brandon

harrison (unless i am mistaken) was not in the least interested in WHEN the creditor did actually terminate- merely that it clearly did not give the debtor sufficient time to remedy

which IMO shoots down the idea that the debtor should be able to second guess when receiving a DN - when the creditor really intends to terminate
------------------------------- merged -------------------------------

Where did the assertion come from, that a defective DN "...can be remedied"? It seems to me that all the procedural and legal pointers we're getting lead us to the conclusion that while one statute may allow the DN to be remedied, so many other things stand in the way of doing so that it is effectively impossible?

The debtor is hardly going to write to the creditor (prior to litigation) and say "I say, old chap, that's not a valid DN, would you please correct it" now is he?! So the DN is assumed by the creditor to be valid - the creditor litigates when no mitigating/rectifying action is taken by the debtor - and suddenly "remedying" the DN is downright bloody difficult if not impossible due to the other protection the debtor has re: enforcement and so on.

Seems to me, that once there's a defective DN, if the debtor plays his cards right then the most likely outcome is a writing off of the entire matter...?

from memory i believe that a repudiation can be unrepudiated, and a mistake corrected- if it is done before the other party is prejudiced in any way

thus a creditor serving an invalid DN - then realising or having his mistake brought to his attention- could re serve a fresh and valid notice before taking any further action on it


However, it is (IMO) also useful pre litigation if the debtor has brought the invalid default notice and/or any point of law to the creditors attention since he can use BOS v robert mitchell in respect of costs

there is IMO no requirement on the debtor to do the creditors job for him and alert him to his mistakes so that he can amend his claim against you to make it compliant.

however i personally find that i can alert creditors to their failings by including this in correspondence to the creditor without them being smart enought to realise the significance (until it is too late) they just do not read long letters - they read the first paragraph, file it then send out another threatogram

creditors are in any event arrogant and they train their staff to believe they are 100% invincible and to ignore anything the debtor says about their activities being unawful (silly billy's)

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

By my own admission I have accepted a repudiation based on a faulty Dn
I have a written reply saying our Dn is fine
If it would assist the debate I am happy to post both documents

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

By my own admission I have accepted a repudiation based on a faulty Dn
I have a written reply saying our Dn is fine
If it would assist the debate I am happy to post both documents

Snap !!!!

Oh ... and recently a 'copy' one with the same dates (i.e. over 12 months ago), but strangely now compliant !!

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

I would be very careful with the wording when you have a POC to respond to Basa, I would come from the angle ' a compliant Dn was never served', they will then swear that one was & you can refute this with copies of both. That way you discredit all other evidence they present.
IMO

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

I would be very careful with the wording when you have a POC to respond to Basa, I would come from the angle ' a compliant Dn was never served', they will then swear that one was & you can refute this with copies of both. That way you discredit all other evidence they present.
IMO

That's why I've asked them if the *copy* DN complies with the 'Copies Regs' and CPUTR !

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Can I ask which Bank? maybe RBS?

[Shepherdess]

Re: Contracts, Termination, Repudiation and Rescission

So, they've issued a back dated correction???? FFS
Beggars belief. So somehow you can transport back in time and, with the benefit of the newly corrected timescale, make payment of the arrears?

LOL. Wonder what they'd do if you sent them a cheque for the arrears, backdated to the dn date. (From an account no longer active..."well the money was in at the time..." )

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

Snap !!!!

Oh ... and recently a 'copy' one with the same dates (i.e. over 12 months ago), but strangely now compliant !!

that is otherwise called a deception- if i am not mistaken! especially if presented in support of a POC

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

In the brandon case- one hopes that in appeal the argument will be used that a DN is either valid or invalid when it is served- now backed up by the harrison judgement

therefore when the debtor receives the DN- he makes a judgement as to whether it is valid or invalid

if he sees that it is invalid and does not allow him sufficient time to remedy- and knows that a bad DN means that enforcement cannot take place- then he makes this decision AT THAT TIME not to remedy what is a Bad DN

therefore his decision is made- even on day one of receving the DN-
he may even have taken legal advice on this as suggested in the notice accompanying the DN

how therefore can the judge in Amex v Brandon rule


a/ that the debtor (especially if CAB or a lawyer have told him that the DN is invalid and enforcement cannot follow-) should neverthless have remedied what was an invalid DN

b/ rule that a creditor can in effect "correct a bad DN" by simply extending the time that he had previously told the debtor within the DN - that he had to remedy the DN


What the judge was saying in effect was " the creditor can issue a bad DN- and even if he gives just one day to remedy- can rectify his mistake by then not terminating for another 3 weeks or more!

thanks to the harrison judgement i think Brandon is going to be on to a winner!

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

that is otherwise called a deception- if i am not mistaken! especially if presented in support of a POC

This had crossed my mind !!! And also Shepherdess' comments.

I can sort of see them trying to explain to a judge how I am supposed to pay arrears before a date well over 12 months ago, or explain how a 'copy' is so totally different!!

I'm now wondering if they dare re-issue a compliant one with a new remedy date?

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

This had crossed my mind !!! And also Shepherdess' comments.

I can sort of see them trying to explain to a judge how I am supposed to pay arrears before a date well over 12 months ago, or explain how a 'copy' is so totally different!!

I'm now wondering if they dare re-issue a compliant one with a new remedy date?

lets hope they used the "doctored one" with their POC!

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

therefore when the debtor receives the DN- he makes a judgement as to whether it is valid or invalid

if he sees that it is invalid and does not allow him sufficient time to remedy- and knows that a bad DN means that enforcement cannot take place- then he makes this decision AT THAT TIME not to remedy what is a Bad DN

Yes, and this decision may be influenced by the creditor's position before the DN expires; the creditor, on receiving a query from the debtor about the DN's compliance, insists that his notice is correct (when clearly it is not). The debtor cannot agree to the DN, because he signed up to all the regs under CCA (he was told by the creditor how important this was!) and, as the notice does not comply with the regs, he cannot accept it.

I have two DNs, both significantly non-compliant, and for both I advised the creditors of their mistake before expiry of the notice. Both creditors refused to issue new ones and went on to terminate the contracts. IMHO, this is the repudiation - the creditor had no interest at all in continuing with the contract, even when advised of his mistake over the DN and presented with an offer to remedy the contractual breach within prescribed timescales.

As Garlok suggested earlier, it appears that the creditor decides to terminate long before the Act prescribes. Service of DNs for many creditors merely pays lip-service to regulations that do not interest them.

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

As diddydicky said:-
"therefore his decision is made-even on day one of receving the DN-
he may even have taken legal advice on this as suggested in the notice accompanying the DN"

And as is the case of our experience the legal advice was to do nothing, do not respond to it, it is defective. File carefully and let them eventually hoist themselves on their own petard.

regards
Garlok

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

you are quite right.......and whilst i accept that there appears to have been no success yet in this area.............i still do not believe (especially when - as you say - the fault has been pointed out to the creditor and he has the opportunity to correct it) that the argument for the debtors right to consider the creditors actions as UR and make an election cannot be succesfully made in court

We are talking in this instance of a creditor deliberately and wilfully not only refusing to perform- but arrogantly dismissing the representation of the debtor as to this fact.

I have not won on this issue in court per se- but the fact that the creditor discontinued in the face of this lodged defence would seem to me to be a clear indication of the creditor being uncomfortable with having to continue in these circumstances

i suspect that the reason this has never been resolved to the debtors advantage in court- is that creditors have backed down as in my case rather that proceed

of course these go unreported