bank loan,defective dn, but contract specifically has clause about termination

[buster1967]

Hi Guys/Ladies,
First post here and am seeking some help as ive just had an assignment letter from Lowells

Basically got a bank loan a cpl of years ago and fell into arrears , the cca was checked out and all appeared compliant,

However the bank sent out a DN after 2 missed payments in 2009 which only gave 9 days to remedy , this isnt a postal issue as the 9 days are clearly in the letter itself
The date on letter says 14th June, and breach has to be remedied by 23rd June ,and they will terminate if I dont remedy the breach

However on back of agreement in one of the clauses, it clearly says the bank can terminate if I breach, but has to give me the required time to remedy as required by law before it can do so

They did terminate the agreement by letter on the 24th June,which was only 10 days after the actual date on the DN letter, so even the termination date itself was inside the 14 days required by law

I informed the bank after termination of the defective DN, but they werent interested and nothing really happened until this new assignment letter

I understand the brandon appeal is awaiting judgement,but is this breach by the bank a defence I can use as the bank has clearly broken a clause that is specifically mentioned in my fixed loan agreement,or could they still say the termination never really occured if defective DN ,

If so how can they argue they have legally assigned it if they try and claim its still a live contract and no termination took place?

kind regards

Buster

[New_Age_Biker]

Re: bank loan,defective dn, but contract specifically has clause about termination

My understanding is
In order to use the courts to enforce there must be a correct DN
As the agreement has been assigned the DN cannot now be corrected
Therefore the courts cannot be used to enforce.
They can ask, demand or write but they cannot use the courts to enforce.

Please seek others advice, this is only my opinion

[buster1967]

Re: bank loan,defective dn, but contract specifically has clause about termination

Thank you for the reply,much appreciated,
Does anyone know when the outcome of the Brandon appeal will be handed down, or is the date at the judges discretion ?

Im really not sure what to do from here, Lowells are ringing me up daily, I just ignore them,I dont know whether to make them aware of the defective DN and the clause on back of agreement , or just keep ignoring them till the start proceedings against me,and then battle from there,

Anyone any suggestions/advice

Buster

[New_Age_Biker]

Re: bank loan,defective dn, but contract specifically has clause about termination

keep your powder dry.
It is for them to make a claim against you & prove their case
They have no case which the courts can enforce if there is not a valid DN
If you do not answer their security questions they cannot talk to you about this matter, explain that you will only communicate in writing

IMHO

[Guest]

Re: bank loan,defective dn, but contract specifically has clause about termination

My understanding is
In order to use the courts to enforce there must be a correct DN
As the agreement has been assigned the DN cannot now be corrected
Therefore the courts cannot be used to enforce.
They can ask, demand or write but they cannot use the courts to enforce.

Please seek others advice, this is only my opinion

Hi

Unfortunately it can be re-issued, it would have to be by the orriginal creditor of course, but this is pretty much standard proceedure in these cases.

It would be a problem if the enforcement process had commenced and the court discontinued, but this is not the case here.

Peter

[New_Age_Biker]

Re: bank loan,defective dn, but contract specifically has clause about termination

Peter,
I was of the understanding that once assignment had been completed the Dn could not be reissued, as the agreement had been terminated (by the assignment?). Therefore the DN could not be reissued on a terminated agreement. Also the OC would no longer be a party to the agreement having assigned the benefits of said agreement to the asignee.

If I am wrong ( a distinct possibility) under what circumstances can a Dn not be corrected?

This was the basis for my advice.
The judge in the Harrison case said the Dn may be corrected but did not clarify the circumstances, I believe.

[Guest]

Re: bank loan,defective dn, but contract specifically has clause about termination

Unfortunately if the default notice was defective then the termination would also be defective, and also the assignment.
So legally the agreement is still in the hands of the creditor.

This has been the scenario in several cases on CAG although they dont go into the technicallitites they usualy just hand it back to the OC and they re issue a default then terminate and correctly assign. Sadly to say i one case the judge just enforced despite the incorrect proceedure, this is the risk you take , the lender could have appealed of course but he did not have the means,. I am not happy about this situation you understand just saying it the way it is.

But in any case you are correct in saying that the DCA cannot enforce the agreement at this point and should not be saying they can.
Peter

[New_Age_Biker]

Re: bank loan,defective dn, but contract specifically has clause about termination

I understand that the Dn & TN would be defective, thank you for enlightening me re the assignment.

As the Harrison judge said 'may' be corrected, uder what circumstances would it be held that the Dn may not be corrected?
Surely there comes a point when the OC has progressed so far down the road of attempting to enforce that he cannot go back when it is pointed out to him that his expensive barrister has not checked the paperwork properly!

[buster1967]

Re: bank loan,defective dn, but contract specifically has clause about termination

My credit rating was excellent prior to these defaults,its now trashed
If they re issue DN and commence court proceedings, im pressuming I could counterclaim against the bank for damages etc ? , if they claim the dn and termination werent valid, surely that would mean my credit info was inaccurate too ,
Surely they cant have it every which way.

Just been reading the woodchester case ,I know its old now, but does the Kpohraror still have any relevance,

[FONT='Arial','sans-serif']Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119"[/font]

[teaboy2]

Re: bank loan,defective dn, but contract specifically has clause about termination

I disgree with peters views on the termination, i firmly believe once an agreement has been terminated unlawfully then it can not be reinstated without mutual consent. As such they can not reissue a DN post termination. Nothing in that act says that such termination would be invalid or invalidate the assignment - Plus contract law itself says the opposite to what peters view is and does not allow for a contract that was unlawfully terminated to be reinstated without mutual consent.

I believe the Judge in the Harrisons case when referring to some DN maybe corrected, that he was referring to reissuing DN's on accounts that had not yet been terminated. His failure to go into details on this and clarify the difference between the ones that can be remedied and the ones that can't simply allows for the ones that can't be remedied to be the ones where termination has already occured.

People are reading to much into the Harrison case with regards to unlawful rescission no longer being a valid defense as it is still very much a valid one.

Yes some cases have been lost when using it, but why those cases were lost depends on the facts of the arguments on the DN and the Termination and off course the judge on the day. But without any reference to such cases judgements, we may never know why.

All we have is the Harrison case judges rather speculative comment of "some maybe corrected" without provided any clarification as to his reasoning as such or how or when they can be, and we have the brandon v amex case (current waiting appeal) where the judge decided its ok for the default to be invalid if enfrocement action is not taken till after a clear 14 days has passed, despite the debtor not receiving a clear 14 days notice on the DN. Which according to the act would prevent such enforcement action being taken as a result of the DN not containing a clear 14 day notice period - Therefore an error in law by the brandon judge in my opinion as its clear in the act that a DN must give a clear 14 days to remedy prior to the creditor being entitled to terminate - which was not the case in the brandon case as the notice upon receipt only gave 11 days notice. So it doesnt matter that the creditor did not terminate till 14 days had past as the default notice was still invalid.

[Guest]

Re: bank loan,defective dn, but contract specifically has clause about termination

I understand that the Dn & TN would be defective, thank you for enlightening me re the assignment.

As the Harrison judge said 'may' be corrected, uder what circumstances would it be held that the Dn may not be corrected?
Surely there comes a point when the OC has progressed so far down the road of attempting to enforce that he cannot go back when it is pointed out to him that his expensive barrister has not checked the paperwork properly!

Realy section 75 of that judgeement was mearly an asside in my view, if anything when read vin context the judge is sayiong that the default issue is not even worth considering it bore no relation to the uotcome.

However he did state what is really just evedent within the act, and that is that the creditor is not entiled to enforce on a defective DN, this is trite law and not regarded as anything unusual except to a few on these forums.

In relation to the rescission argument the comment kills it dead because if it were true that a termination after a dfeective notice was unlawfull rescission, then no DN could EVER be represented.

Much has been made of the word" may" in the comment, the alternatives are to say always, which would be foolish and say nothing wich would indicate always in many minds. The creditor does not have to represent of course and i have seen cases where the case is under way when the defective notice has caused the judge to discontinue.

This means the creditor has to apply for re continuance, issue a new notice, mostly at this point they givee up in my expereiance.

Peter

[Guest]

Re: bank loan,defective dn, but contract specifically has clause about termination

My final advice on this on this thread, if you are unsure, look at case histories see if you can find ANY that contradict what i have said.

Peter

[teaboy2]

Re: bank loan,defective dn, but contract specifically has clause about termination

My final advice on this on this thread, if you are unsure, look at case histories see if you can find ANY that contradict what i have said.

Peter

Thats the problem though peter, there is no definitive case law either way in regards to credit agreements, and most are made in small claims so do not become case law even if succesful (and i know some case have been in regards to unlawful rescission). Theres none that says a credit agreement can not be unlawfully rescinded and non that says it can that i know off of the top of my head - Though theres plenty of case law that says a contract can be unlawfully rescinded and a credit agreement is a contract either way.

unlawful rescission of contract which would prevent the Court enforcing any alleged debt (Wilson v First County Trust Ltd (2003) UKHL 40, Wilson V Robertsons (London) Ltd(2006) EWCA Civ 1088, Wilson v Pawnbrokers (2005) EWCA Civ 147)

[Guest]

Re: bank loan,defective dn, but contract specifically has clause about termination

http://www.consumeractiongroup.co.uk...-issues/page13

Plenty more like this i am affraid

[Guest]

Re: bank loan,defective dn, but contract specifically has clause about termination

I really do not want to get into this again , it really has been done to death. The simple truth is that there is no argument here. If an agreement were to be rescinded by either party all liabilities under the contract would be immediately due. This is by definition rescision.

Peter