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

[teaboy2]

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 If an agreement were to be rescinded by either party all liabilities under the contract would be immediately due.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

Not when Unlawfully rescinded. What your saying is that regardless of lawful rescission and/or unlawful rescission, both parties would be due to repay all liabilities. Sorry its does not work like that in the case of unlawful rescission - You can't have it both ways peter.

When a claiment unlawfully rescinds an agreement/contract the innocent party (debtor) is entitled to continue to make repayments as per the agreements terms for arrears owed (not full amount of the loan) upto the date of termination or invalid DN (which ever of the two comes first, which may depend on type of agreement/contract) only - though the contract between the two parties still ceases to exist when terminated whether lawfully or unlawfully. And debtor would also be entitled to costs and compensation as a result of the claiments unlawful rescission and legal action against them. In such cases a judge will likely award costs and damages in the debtors favour, as debtor will have shown he/she are willing to repay the arrears as per the terms - though the judge is also likely to write off the debt as a result of the claiments vexatious legal action and/or possible harassment endured as a result of the claiments attempts to enforce a debt that they are not entitled to enforce.

Also section 87 makes it clear that for the need of a valid DN to demand earlier payment of any sum - So if the DN is invalid they can not even claim the arrears let alone the full amount of the debt. So once terminated of the back of a faulty DN (unlawful rescission) the innocent party (debtor) can by right withhold sums as the creditor is not entitled to demand any earlier payment of any sum. Therefore it is upto the debtor if they wish to repay the arrears upto the date of the DN as per the terms of the original unlawfully rescinded agreement or not (though it usually works in their favour if they do). Even if the agreement was terminated and no longer exists they can still refer to the terms for making such repayments and are therefore honouring their part of the agreement even though the creditor unlawfully terminated it of the back of a faulty DN and as such is not entitled to earlier repayment of any sums.

I noticed, and have said before, that you seem to be one of, if not the main advocate against the use of unlawful rescission on a number of consumer forums and wrongly assume the act does not allow for unlawful termination (unlawful rescission/repudiation) - Which is like saying its not allowed because its a breach of statutory law and statutory law can not be breached - sorry but actions that go directly against statutory law is a breach of such law. Your logic would mean if i raped a woman (a statutory offence), then as its breach of statutory law, such rape would be deemed as not having occured by your reckoning.

Remeber your post here and qouted below - Consumer Credit Support - View Single Post - Unlawfully terminated accounts.

hi

just descovered this old thread.Wondered if anyone has had any furter thoughts.

Some people are under the impression that becaiuse a credit can agrement has been terminated,prior to default then a defaltn notice cannot be issued.

My belief has always been that any party can terminate a contract any time he likes. The liability under the contradct does not dissapear of course.
I have heard judges say that the contract has been terminated undre section98. My initial response to this was ,surely this is for fixed period loans only, but if you look at the section the fixed sum bit is only mentioned in the subsection.

So does this not mean that the ability to terminate none defaulting agreements exists under the cca.

The OFT says in its guidlines say that it is not nessesRRY TO send default notices on none defaulting agreements on runnoing credit accounts sop they seem to think so any thoughts

Peter

The content of the qoute aboive says to me your not 100% certain with regards to the act and termination (though i accept it was posted in feb 2010) - For the record, in regards to the termination on non defaulted accounts, yes they can be terminated during the period of the agreement and the correct notice period prior to termination is given - Though once a default is issued they can no longer relying on section 98 to terminate as they will have already acted upon section 87 which once inacted does not allow for them to terminate prior to the remedy date or without a valid defualt - if they do then its unlawful rescission. Also 98 (6) prevents them from using 96 (1) to terminate in the event of a breach by the debtor which means they would have to issue a default notice to terminate in the event of a breach by the debtor under section 87.

I think we simply need to agree to disagree on this too peter.

[New_Age_Biker]

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

Excellent debate, however I believe the question was about when a Dn could or could not be rectified.
There appear to be two sides to the unlawful recession discussion. We can accept that as there is little proof either way.

[teaboy2]

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

Personally i believe they can be rectified prior to any termination, but once terminated the DN can not be rectified as the agreement cease to exist, so theres no longer an agreement for which a DN can be issued under. Though the agreement can be reinstated, but to do so they need your mutual consent to reinstate. - Thats how i see things, thats how it was before the recent case law gave people reason to question it - Though i believe the above is why the Harrison judge only said "SOME maybe corrected" implying that others can not be rectifield, which would tally with what my believe is.

If going by what others believe then it would not be a question of "SOME may be corrected" (as stated by the Judge in the Harrison case) but indeed ALL can be correct, which is not what the judge in the harrison case stated.

[New_Age_Biker]

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

Does the assignment, having occurred, clarify or muddy the waters.
Surely, once assigned the rights and benifits have passed to the assignee. Therefore the OC cannot issue a corrected Dn as he has no interest in the position.
If the DCA then assigns the agreement back again then again surely it follows that the agreement has passed through other hands and is not the original agreement, hence the OC cannot reissue

Or am I missing something?

If I am right the OP has nothing to worry about

[teaboy2]

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

Does the assignment, having occurred, clarify or muddy the waters.
Surely, once assigned the rights and benifits have passed to the assignee. Therefore the OC cannot issue a corrected Dn as he has no interest in the position.
If the DCA then assigns the agreement back again then again surely it follows that the agreement has passed through other hands and is not the original agreement, hence the OC cannot reissue

Or am I missing something?

If I am right the OP has nothing to worry about

Once assignment occurs the rights of entitlement (sums owed, nothing more) under the agreement transfer to the assignee - However the agreement ceases to exists due to the assignee not being an original party to the agreement.

If assigned back to the OC, the agreement is not reinstated as you can not reinstate an agreement that has already ceased to exist (even if you were the original party to the agreement), without the consent of the other party (debtor).

Nothing in the CCA Act or in contract law allows for reinstatment without consent of the other party post termination of the original agreement. Though a court does have the power to order its reinstatement so long as it does not cause a prejudice against, or deteriment, to the innocent party.

[New_Age_Biker]

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

Excellent information Teaboy 2
However in the light of Peter's post above is it possible that the assignment will not be legal (as the Dn /Tn are not valid) therefore the agreement persists?

Or is it better for the OP to stay put, keep quiet & wait for proceedings to commence.
His defence would be that the claimant would not have grounds to claim as no valid DN issued. By entering a defence he would preclude further inforcement without the permission of the court & bearing in mind the evident poor preperation of the claimant would the court issue such permission?

[teaboy2]

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

Excellent information Teaboy 2
However in the light of Peter's post above is it possible that the assignment will not be legal (as the Dn /Tn are not valid) therefore the agreement persists?

Or is it better for the OP to stay put, keep quiet & wait for proceedings to commence.
His defence would be that the claimant would not have grounds to claim as no valid DN issued. By entering a defence he would preclude further inforcement without the permission of the court & bearing in mind the evident poor preperation of the claimant would the court issue such permission?

In my view, no, its not possible for the agreement to endure - see post #16. Plus the act does not state that the termination would be invalid if terminated of the back of an invalid DN, only that a DN most be valid in order for them to be entitled to terminate - Meaning if the DN is not valid then the termination is unlawful (i.e. Unlawful Rescission) in breach of section 87 of the act and puts the creditor in breach of contract as a result of their breach of section 87.

Its always best to wait till the account is sold to a DCA or legal proceedings are issued before mentioning the invalid DN and/or Unlawful rescission of the back of an invalid DN which only entitles the claiment for the arreas owed upto the date of the rememdy date on the invalid DN or the date or termination/assigment which ever date comes first.

[New_Age_Biker]

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

So it looks like the advice in post#2 is the way to go for Buster

As for his credit file if the agreement is sound I see nothing that prevents reporting.

[teaboy2]

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

So it looks like the advice in post#2 is the way to go for Buster

As for his credit file if the agreement is sound I see nothing that prevents reporting.

Exactly. I myself have had a credit card agreement unlawfully rescinded by MBNA prior to starting my company. They sold the account the day before i got the dam DN and the DN was invalid anyway as i only had 10 days to rememdy. I have successfully been arguing unlawful rescission since then and now i lucky to get a letter once every 6-8 months, in which i respond reapeating what i said the last time. Given MBNA were the original creditor in the HArrison case - They off all people, if peter was correct, would not be paying any attention to my claims to unlawful resicission. But they are and there lack of action to enforce says to me that i am indeed correct.

So i always advise people that have invalid DN that if the account has been sold, then its unlawful rescission and those whos accounts have not been sold should wait till it is or till a claim is made against them where they can argue the invalid DN. Either way, never tell the OC anything till they sell the account or issue a court claim.

I do not condone debt avoidance, but i also, as a matter of principle, do not believe a creditor should be paid money back or be entitled to the benefits of such agreements when they have unlawfully terminated the. As to me, that would be like saying "good boy, you acted unlawfully - Now heres your reward" - They do not deserve such reward.

[Guest]

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]

Regarding your credit file, i am affraid that has nothing to do with the default notice under section7 it is a record of your repayment history.

Regarding Woodchester.The case has no relevance whatsoever, the case was a hire agreement, there was no principle sum under the agreement so no liabilities were due once the arrears of hire were paid, in a loan agreement liabilities are always due until they are paid.
Khapoar aloso has no relavance to your circumstances.

Peter

[Guest]

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

Not when Unlawfully rescinded. What your saying is that regardless of lawful rescission and/or unlawful rescission, both parties would be due to repay all liabilities. Sorry its does not work like that in the case of unlawful rescission - You can't have it both ways peter.

When a claiment unlawfully rescinds an agreement/contract the innocent party (debtor) is entitled to continue to make repayments as per the agreements terms for arrears owed (not full amount of the loan) upto the date of termination or invalid DN (which ever of the two comes first, which may depend on type of agreement/contract) only - though the contract between the two parties still ceases to exist when terminated whether lawfully or unlawfully. And debtor would also be entitled to costs and compensation as a result of the claiments unlawful rescission and legal action against them. In such cases a judge will likely award costs and damages in the debtors favour, as debtor will have shown he/she are willing to repay the arrears as per the terms - though the judge is also likely to write off the debt as a result of the claiments vexatious legal action and/or possible harassment endured as a result of the claiments attempts to enforce a debt that they are not entitled to enforce.

Also section 87 makes it clear that for the need of a valid DN to demand earlier payment of any sum - So if the DN is invalid they can not even claim the arrears let alone the full amount of the debt. So once terminated of the back of a faulty DN (unlawful rescission) the innocent party (debtor) can by right withhold sums as the creditor is not entitled to demand any earlier payment of any sum. Therefore it is upto the debtor if they wish to repay the arrears upto the date of the DN as per the terms of the original unlawfully rescinded agreement or not (though it usually works in their favour if they do). Even if the agreement was terminated and no longer exists they can still refer to the terms for making such repayments and are therefore honouring their part of the agreement even though the creditor unlawfully terminated it of the back of a faulty DN and as such is not entitled to earlier repayment of any sums.

I noticed, and have said before, that you seem to be one of, if not the main advocate against the use of unlawful rescission on a number of consumer forums and wrongly assume the act does not allow for unlawful termination (unlawful rescission/repudiation) - Which is like saying its not allowed because its a breach of statutory law and statutory law can not be breached - sorry but actions that go directly against statutory law is a breach of such law. Your logic would mean if i raped a woman (a statutory offence), then as its breach of statutory law, such rape would be deemed as not having occured by your reckoning.

Remeber your post here and qouted below - Consumer Credit Support - View Single Post - Unlawfully terminated accounts.
The content of the qoute aboive says to me your not 100% certain with regards to the act and termination (though i accept it was posted in feb 2010) - For the record, in regards to the termination on non defaulted accounts, yes they can be terminated during the period of the agreement and the correct notice period prior to termination is given - Though once a default is issued they can no longer relying on section 98 to terminate as they will have already acted upon section 87 which once inacted does not allow for them to terminate prior to the remedy date or without a valid defualt - if they do then its unlawful rescission. Also 98 (6) prevents them from using 96 (1) to terminate in the event of a breach by the debtor which means they would have to issue a default notice to terminate in the event of a breach by the debtor under section 87.

I think we simply need to agree to disagree on this too peter.

No as i said you have no argument, i am not the main advocarte against this i just point out that it has absolutely no foundation in law iether statute or common, that courts ignore the contentions and that all attempts to use this have failed, that is when the courts have even bothered to acknowledge them.

There has been many who have sujpported this argument over the years, sooner or later they realise that the weight of the arguments against them are just to great to ignore anymore and then they dissapear, as i say i have anwered all the points you have rasied before on many occaisions i really dont want to do it all over again.

Peter

[teaboy2]

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

Regarding your credit file, i am affraid that has nothing to do with the default notice under section7 it is a record of your repayment history.

Regarding Woodchester.The case has no relevance whatsoever, the case was a hire agreement, there was no principle sum under the agreement so no liabilities were due once the arrears of hire were paid, in a loan agreement liabilities are always due until they are paid.
Khapoar aloso has no relavance to your circumstances.

Peter

Agreed in part, as the woodchester case did in fact make it clear that an defeault notice is invalid if the amount payable on the notice is inaccurate therefore strenghening any claim that a DN not accurate under the section 87 and/or in prescribed form would be invalid - the same applies to loan agreements. As for Kpohraror, well thats about unlawful recission, which am in favour of, so i disgree on that not being relevant as it sets the precendent for damages claimable for unlawful recission of contract - Though i won't say any more to avoid reigniting the debate on unlawful recission.

[Guest]

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

Not when Unlawfully rescinded. What your saying is that regardless of lawful rescission and/or unlawful rescission, both parties would be due to repay all liabilities. Sorry its does not work like that in the case of unlawful rescission - You can't have it both ways peter.

When a claiment unlawfully rescinds an agreement/contract the innocent party (debtor) is entitled to continue to make repayments as per the agreements terms for arrears owed (not full amount of the loan) upto the date of termination or invalid DN (which ever of the two comes first, which may depend on type of agreement/contract) only - though the contract between the two parties still ceases to exist when terminated whether lawfully or unlawfully. And debtor would also be entitled to costs and compensation as a result of the claiments unlawful rescission and legal action against them. In such cases a judge will likely award costs and damages in the debtors favour, as debtor will have shown he/she are willing to repay the arrears as per the terms - though the judge is also likely to write off the debt as a result of the claiments vexatious legal action and/or possible harassment endured as a result of the claiments attempts to enforce a debt that they are not entitled to enforce.

Also section 87 makes it clear that for the need of a valid DN to demand earlier payment of any sum - So if the DN is invalid they can not even claim the arrears let alone the full amount of the debt. So once terminated of the back of a faulty DN (unlawful rescission) the innocent party (debtor) can by right withhold sums as the creditor is not entitled to demand any earlier payment of any sum. Therefore it is upto the debtor if they wish to repay the arrears upto the date of the DN as per the terms of the original unlawfully rescinded agreement or not (though it usually works in their favour if they do). Even if the agreement was terminated and no longer exists they can still refer to the terms for making such repayments and are therefore honouring their part of the agreement even though the creditor unlawfully terminated it of the back of a faulty DN and as such is not entitled to earlier repayment of any sums.

I noticed, and have said before, that you seem to be one of, if not the main advocate against the use of unlawful rescission on a number of consumer forums and wrongly assume the act does not allow for unlawful termination (unlawful rescission/repudiation) - Which is like saying its not allowed because its a breach of statutory law and statutory law can not be breached - sorry but actions that go directly against statutory law is a breach of such law. Your logic would mean if i raped a woman (a statutory offence), then as its breach of statutory law, such rape would be deemed as not having occured by your reckoning.

Remeber your post here and qouted below - Consumer Credit Support - View Single Post - Unlawfully terminated accounts.
The content of the qoute aboive says to me your not 100% certain with regards to the act and termination (though i accept it was posted in feb 2010) - For the record, in regards to the termination on non defaulted accounts, yes they can be terminated during the period of the agreement and the correct notice period prior to termination is given - Though once a default is issued they can no longer relying on section 98 to terminate as they will have already acted upon section 87 which once inacted does not allow for them to terminate prior to the remedy date or without a valid defualt - if they do then its unlawful rescission. Also 98 (6) prevents them from using 96 (1) to terminate in the event of a breach by the debtor which means they would have to issue a default notice to terminate in the event of a breach by the debtor under section 87.

I think we simply need to agree to disagree on this too peter.

Regarding this yes i was convinced even then when no one else was by the way that agrements can be terminated without a default notice,by the way section 98 does not provide the reason that agreements can be terminated it meerly says that notice must be given when tterminating fixed term none defaulted agreements. There was nothing in the act that says agreements cannot be terminated at any time,(there is now).

YOu keep missunderstanding the term rescission as is usuall with people who addopt your argument here is the definition

The abrogation of a contract, effective from its inception, thereby restoring the parties to the positions they would have occupied if no contract had ever been formed

Restore to its orriginal possition, nothing about who is to blame for what so the debtor would have to repay the loan , hardley the result you would wish for.

I think what you are refering to is termination which as said above can never be unlawful in a cca agreemen.

Really i do not know why this argument is still being made, we all know that DNs are being re-issued all the time, if you where right it would never happen

Peter

[teaboy2]

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

No as i said you have no argument, i am not the main advocarte against this i just point out that it has absolutely no foundation in law iether statute or common, that courts ignore the contentions and that all attempts to use this have failed, that is when the courts have even bothered to acknowledge them.

There has been many who have sujpported this argument over the years, sooner or later they realise that the weight of the arguments against them are just to great to ignore anymore and then they dissapear, as i say i have anwered all the points you have rasied before on many occaisions i really dont want to do it all over again.

Peter

And i have answered all point you raised, and i know of quite a few who have won unlawful rescission claims.

You have not actually answered all my points either - Basic contract law allows for unlawfull recission, and no where in the CCA does it say the Failure of an accurate DN followed by Termination makes the Termination invalid. As i said just becuase the act says you need a valid DN to terminate, it doesnt mean they can not be terminated of the back of an invalid DN, which you have argued claiming its Statutory law and that you can not be in breach of statutory and therefore deemed to have not occured, which i pointed out that yes you can be in breach of satutory law.

You have not told us how they can remedy a default post termination, it was made clear by the judge in the harrison case that only "some" maybe correct, but he failed to state how, when or why. Which leaves the door open to assume he was referring to invalid DN prior to termination - Especially when you take into the account that he decided that DN was valid simply because the Date of the notice of Assignment allowed the Debtor more than 14 days (despite the action of the account being terminated/sold prior to a clear satutory 14 days had passed) and as such, payment of sum demanded on the default to remedy prior to the date of assignment notice would have been good discharge - Which in error in law, as the action of termination occured prior to the satutory 14 days allowed for remedy had passed, and the CCA section 88 (2) is clear the creditor should not take ACTION prior to the date specifield or the 14 days having passed. Note - If the date specified does not allow a clear 14 days from receipt, then the DN is invalid on that point.

So its clear to me that the judge view the DN as valid and as such no unlawful recission occured in the harrison case, but the decision on the DN was based on an error in law. And waht about the invalid DNs that did not fall into the judges Catagory of "SOME" why can they not be remedied? To me it is simply because they were post termination.

As i said lets agree to disagree. There is no case law to say definitively eitherway.

[Guest]

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

Agreed in part, as the woodchester case did in fact make it clear that an defeault notice is invalid if the amount payable on the notice is inaccurate therefore strenghening any claim that a DN not accurate under the section 87 and/or in prescribed form would be invalid - the same applies to loan agreements. As for Kpohraror, well thats about unlawful recission, which am in favour of, so i disgree on that not being relevant as it sets the precendent for damages claimable for unlawful recission of contract - Though i won't say any more to avoid reigniting the debate on unlawful recission.

Khapour was a case wher the bank failed to honour a credit to a customer resulinng in loss of trade and resultant damages, the agreement was rescinded because no advance was made.
In a credit agreement the money has already been advanced, it cannot be rescinded unless the money was returned.You see the difference.
Peter