Contracts, Termination, Repudiation and Rescission

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Basa,
On the case you are fighting next week, have you accepted?If so it may be prudent to have the totals of borrowings and payments - just in case the judge decides to recind the contract for you ....

[Ihaterbs]

Re: Contracts, Termination, Repudiation and Rescission

I'm informed that Lloyds default notices are bad and unenforceable post October 2008.

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

Basa,
On the case you are fighting next week, have you accepted?If so it may be prudent to have the totals of borrowings and payments - just in case the judge decides to recind the contract for you ....

Sorry, I have misled you about my case.

I am suing the creditor.

There is NO agreement - at all. Just a small slip of paper with a signature box referring to the Consumer Credit Act and the signature. No terms, not even a date.

Obviously I am going the s61 route. (s78 being easily cured by 'made up' documents).

But I am conscious that to prove there never was an agreement could drop me in the common law of contracts pool and its anyone's guess how a judge would interpret that.

There was a DN issued but tbh it is nearly always a loosing battle to get CRA defaults removed. No point anyway because they just skin the cat another way. (And before a certain LB member jumps in - yes I do know the difference between a default notice and a notice of default at the CRAs and that they are not legally connected).

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Wish you well with the case Basa, I trust you will let us know how you get on.

[Shepherdess]

Re: Contracts, Termination, Repudiation and Rescission

A nice result OTR:

Judge dismissed the case due to:

The requirement of section 87 of the Act is that a Default Notice is issued BEFORE the claimant can take the steps outlined in the section.
The section does not state the Default Notice can be issued AFTER action or at A DATE IN THE FUTURE or more particularly WHEN THE CLAIMANTS SOLICITOR HAS REALISED THERE IS A FATAL ERROR IN THE PARTICULARS OF CLAIM.
The claimant has admitted in the Amended Particulars of Claim that the Default Notice was issued after they had terminated and so therefore they are not entitled to bring the claim in the first place.

Nationwide solictor told me that they would be putting in a new claim asap..

Round One to us.

Shepherdess :tinysmile_grin_t:

[Shepherdess]

Re: Contracts, Termination, Repudiation and Rescission

I haven't linked as I don't want the thread to degenerate into DN arguments in the way poor Pumpkinheads did over there.
Happy to PM it to anyone with a genuine interest in helping those with DN issues though

[middenmess]

Re: Contracts, Termination, Repudiation and Rescission

There should be a whole raft of arguments as to the ability to issue a fresh DN on a running credit? account that for all intents and purposes has been closed for some time.

If they reissue and the debtor is able or wants to satisfy the arrears how could the debtor ever be put back into the same position as they were prior to the adverse reports on their credit file being made after the expiry deadline of the faulty DN?

It just can't be done.

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Well, we had a cracker today from BC. A letter of profuse apology that they had overlooked placing the default on our credit file and it would be done back-dated to May last year (2010) and it would be from this date that the statute barring clock would start. Profusely apologetic for the inconvenience this oversight on their part has caused us.
(haven't we got a "roars with laughter" smiley?). :laugh:

Wrong!!! The original defective s87(1) DN was way back in 2009 and we have numerous demands for the full outstanding amount, postdated by demands for arrears, postdated by further demands for the full outstanding amount, all before putting us on the outside primate circuit of the DCAs (or is that an insult to primates).

Are these people a complete joke?? We should open up the mines and send the lot of them digging coal as forced labour, at leats they would be doing something useful!!!!

regards
Garlok

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

Hi basa,

Re your post above no. 679. I have argued this before and have always been "shouted down" shall we say on the basis that "CCA law is different from the Common Law of Contract" and that "Contract" can never apply in CCA disputes. But something has to govern the circumstances of a "non-agreement" ??????

Whether I actually agree is irrelevant really, the point remains to be proved. However it IS an established principle of the Common Law of Contract that should a contract be breached so that it is legally declared void, in my humble view, exactly what happens when a CCA dispute arises and the agreement is found defective, then Common Law requires that the parties to that void agreement/contract are returned to the exact position that they were in prior to the existance/inception of the flawed contract, i.e that there should be no benefit, gain or loss by EITHER party.

Therefore any CC agreement which has any maturity to it would have to be looked at right back to the date of its inception, all purchases and cash withdrawals would have to be paid for but there can be no gain on behalf of the alleged creditor, he has no right to the interest and charges he has collected on the way nor is he entitled to the income he has generated from the collection of such charges and interest. You then get into a similar scenario of statutory interest and interest in restitution as is often discussed on these forums about crdit card charges.

I think you would find in most cases of a mature "agreement", it is in fact the alleged debtor who is owed monies from the creditor.

Some points to ponder if you enter the minefield of Contract Law and I suspect why the banks try to steer clear at every turn.

regards
Garlok

Hi
Yes in a case like this the agreement would be rescinded (Futoro), this is an equitable remedy used by the courts, this means that any liabilities on the contact at the time of termination would be due but nothing further. So in the case of a credit card all the interest upto the termination date would be payable

Peter
------------------------------- merged -------------------------------

There should be a whole raft of arguments as to the ability to issue a fresh DN on a running credit? account that for all intents and purposes has been closed for some time.

If they reissue and the debtor is able or wants to satisfy the arrears how could the debtor ever be put back into the same position as they were prior to the adverse reports on their credit file being made after the expiry deadline of the faulty DN?

It just can't be done.

Doesnt have to be cone of course section89 does not mean anything ike that.

Peter

[pandora]

Re: Contracts, Termination, Repudiation and Rescission

This is a great comprehensive thread - but in a nutshell could anyone advise ...

If you receive a dud DN - followed by termination (with the CCA being compliant to The Act) - where that leaves you now ? ie if matters procceed before a Judge.

i.e as termination doesn't count (if I've read correctly) - on the back of a DUD DN - and as long as they eventually present a correct DN before proceedings, do you now have no defence at all (i e - is the defence re a bad DN and the creditor being entitled to only arrears at the time of termination, now dead in the water ? )

Thanks all....

P :beagle:

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

This is a great comprehensive thread - but in a nutshell could anyone advise ...

If you receive a dud DN - followed by termination (with the CCA being compliant to The Act) - where that leaves you now ? ie if matters procceed before a Judge.

i.e as termination doesn't count (if I've read correctly) - on the back of a DUD DN - and as long as they eventually present a correct DN before proceedings, do you now have no defence at all (i e - is the defence re a bad DN and the creditor being entitled to only arrears at the time of termination, now dead in the water ? )

Thanks all....

P :beagle:

I think the view now is that the creditor cannot enforce where the DN is bad (as per PT's Harrison judgement). Any such claim, should it reach court, must be dismissed.

The creditor can, I think, serve a new DN but he cannot do this at court or less than 14 days before court (AFAIK, based on PT's analysis).

If he serves a new DN there still seems to be a lack of clarity as to what the amount demanded on the DN will be. Personally I cannot see this being anything other than the original arrears, but I know this view is not shared.

If the creditor has "terminated", then it is even more unclear what the position is. To serve a new DN, I would say that the contract must be live and open, so the creditor would clearly have to accept he made a mistake by terminating, probably remove some adverse data, and assume that you are happy for the agreement to continue. Again, others will disagree with this view, and say that the creditor can just discontinue his action, serve a new DN with an amount that would be the same as though the agreement had continued, pretend that his termination was a mistake and expect you to just swallow it.

My thoughts on this are very strongly based on S140 and the bias caused by the creditor's errors; the debtor would not be able to cancel an agreement and expect it to be resurrected a year or two later, so why should the creditor? Moreover, the debtor is making decisions largely based on what information is supplied by the creditor; if what is supplied is based wholly on an error, then those decisions may be more beneficial to the creditor rather than the debtor.

Anyway, that's how I see it at the moment. I'm sure others will have different views. It would be very worthwhile studying the Harrison judgement in detail.

I would also have a look at this post from PT;

http://www.legalbeagles.info/forums/...&postcount=204

which details what costs could be considered.

I would also think about S13 of DPA for a possible claim for compensation if the default has been recorded with the CRAs but the default record was inevitable due to the creditor's error. This might apply if a new DN is served and is remedied - you may have a claim for compensation for the period when the erroneous record was on your file.

HTH

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Hi LA

I don't think there will ever be real clarity on these subjects and we really are in the basic principle of Common Law that a case stands or falls on its own merits.

Even when a specific is sought as in the "Carey" case it all quickly becomes a debacle.

Perhaps we need several cases of complex compound defences to come our way and then we would see how the dN/termination argument fits into thinking.

regards
Garlok

[pandora]

Re: Contracts, Termination, Repudiation and Rescission

Many thanks LA for your detailed yet easy to understand and absorb, explanation .... xx

Its my OH loan that is the basis of my q, my own debts have rubbish CCAs, which were all defaulted on dud DNs to boot - but my defence is very much the dud CCAs.

My OH had a loan that was defaulted on a dud DN (whilst in dispute) and terminated. It was then sold to a DCA, who have provided the docs showing the assignment.

So in his case it really is a mess - as the OC sold a disputed debt to a third party, following it being defaulted with CRAs by them on the back of a very dud DN - I am thinking that he can never be put back in the orig position (ie with the opportunity to satisfy the DN and continue as before) as the owner of the debt is not a regulated lender - so I would think unless the debt was bought back by the OC the new owner who is a DCA is stuffed on enforcing .... or am I over simplifying things ?? (my head hurts !! :tinysmile_hmm_t2

P :beagle:

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Many thanks LA for your detailed yet easy to understand and absorb, explanation .... xx

Its my OH loan that is the basis of my q, my own debts have rubbish CCAs, which were all defaulted on dud DNs to boot - but my defence is very much the dud CCAs.

My OH had a loan that was defaulted on a dud DN (whilst in dispute) and terminated. It was then sold to a DCA, who have provided the docs showing the assignment.

So in his case it really is a mess - as the OC sold a disputed debt to a third party, following it being defaulted with CRAs by them on the back of a very dud DN - I am thinking that he can never be put back in the orig position (ie with the opportunity to satisfy the DN and continue as before) as the owner of the debt is not a regulated lender - so I would think unless the debt was bought back by the OC the new owner who is a DCA is stuffed on enforcing .... or am I over simplifying things ?? (my head hurts !! :tinysmile_hmm_t2

P :beagle:

Well, I know some will disagree, but I think you are right and the assignee will have to somehow transfer the account back to the OC in order for a new DN to be served.

Some will say that a DCA that does not hold a credit licence can serve a DN, but I do not see how this can be. The wording that the 1983 regs require to be inserted into the DN mean that, if the debtor remedies, then the contract continues as before. But how would this happen where the debt is assigned to an organisation with no credit licence? It cannot be done - it is a nonesense.

Remember that a DN is "Served under S87(1) of the CCA", etc. An unlicenced business cannot go around serving out documents that embody regulations which do not concern it.

The point here is that the OC is in error - he should not have assigned the debt to an unlicenced organisation in these circumstances. This is just my opinion; maybe there is a legal explanation for this?

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

I am thinking that he can never be put back in the orig position (ie with the opportunity to satisfy the DN and continue as before) as the owner of the debt is not a regulated lender - so I would think unless the debt was bought back by the OC the new owner who is a DCA is stuffed on enforcing .... or am I over simplifying things ?? (my head hurts !! :tinysmile_hmm_t2

P :beagle:

Hmm, tricky this one,

The CCA does not as far as i know (although i understand there are amendments being added that may change things here) prevent a creditor from restricting further advances.

So it is possible you could be placed in the position you ought to be by this DCA.

I note you say not a regulated lender? do you mean unlicensed?? if so then this is a criminal offence pursuant to s39 CCA 1974