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

[Guest]

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

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

Name one.

You have not actually answered all my points either - Basic contract law allows for unlawfull recission,

Yes it does this is the consumer credit act it deos not

and no where in the CCA does it say the Failure of an accurate DN followed by Termination makes the Termination invalid.

Yes it does in section 87 it says that the creditor is not entotled to termihnate


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.

Sorry?

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.

NOt sure what yuou mean here

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.

There is laots of case law i am affraid every dn that is re-issued disproves your theory. HIgh court judges disprove your theory. Dont know what else i can say

Peter

[teaboy2]

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

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 toi 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 terminatin 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 al the time, if you where right it would never happen

Peter

I understand the term recission perfectly well, but the term i refer to is unlawful recission so i refer you back to my point on unlawful recission that i made earlier in the threa, as you would have us believe that even in unlawful rescission would restore it to its original position when it does not, and as such when one party commits unlawful rescission the innocent party is entitled to make repayments of arrears only, as per the original terms. Therefore unlawful rescission does not entitled to offending party to benefit from full repayment of outstanding monies or to benefit from having both parties reverted back to there original state prior to the contact etc making the contract invalid and to never have existed - Like they would have benefitted from if it had been mutually rescinded or lawfully rescinded. If what you were saying was true then when unlawful rescission occurs the innocent party would be greatly predudice, put at a disadvanage and suffered a deteriment as a result of the other parties unlawful resicission of the contract, that he would not have suffered if it was mutual or lawful rescission.

My earlier point - 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.

Read more at: bank loan,defective dn, but contract specifically has clause about termination - Legal Beagles Consumer Forum

[Guest]

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

When one person refuies to abide by a contract it is a breach not rescission.
What you are confusing this with is repudiatory breach of contract which is another subject entirely.
On repudiatory breach the inocent party is entitled to be relieved of any obligations under the contract, i believe this is the contention that you are refering to.
This is a common law remedy and does not apply to CCA regualted agreements, and in any case the creditor could repudiate the agreement whilst he has liabilities attaching him to it.
You see i have been into these arguments in depth believe me there is nothing to them.
Peter

[teaboy2]

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

There is laots of case law i am affraid every dn that is re-issued disproves your theory. HIgh court judges disprove your theory. Dont know what else i can say

Peter

really name one CASE LAW that disproves the unlawful recission beyond any doubt whatsoever! Harrison doesn't, Brendon doesn't so which one and why have you not qouted it before now, to prove your argument? Though in anycase case law can be changed if the argument is good enough.

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

Name one. - As i have said, their is no case law that states definitely either way, naming small claims cases that i know to have been successful on this argument would be of no use to anyone, since they are no judgements published on them. You claimed you know of a few where they have failed - So i might ask you to Name them too. But what would be the the point? There would be no point in naming small claims cases regardless of the outcome as must outcomes depend on the judge on the day as you yourself have said.

You have not actually answered all my points either - Basic contract law allows for unlawfull recission,

Yes it does this is the consumer credit act it deos not - Where does it say it does not, It says they may not be entilted to terminate, though thats the same in contract law is it not? Yes it is. The cca does not say anything along the lines of "that terminating of the back of an invalid DN would be deemed the termination as not having occured", does it? NO it doesn't. So unlawful rescission is allowed.

and no where in the CCA does it say the Failure of an accurate DN followed by Termination makes the Termination invalid.

Yes it does in section 87 it says that the creditor is not entotled to termihnate - As above, so does contract law, but it doesn't say anywhere under the CCA their action of termination of the back of a faulty DN can bee deemed as not having occured does it? NO.


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.

Sorry? Jesus - See here 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.

Read more at: bank loan,defective dn, but contract specifically has clause about termination - Legal Beagles Consumer Forum

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.

NOt sure what yuou mean here - It means what it says, You say that a DN can remedied post termination, yet you failed provide evidence it can be.

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.

Read more at: bank loan,defective dn, but contract specifically has clause about termination - Page 2 - Legal Beagles Consumer Forum

I will not repond to this argument any more, i have made my view and interpretation clear on the matter.

[teaboy2]

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

When one person refuies to abide by a contract it is a breach not rescission.
What you are confusing this with is repudiatory breach of contract which is another subject entirely.
On repudiatory breach the inocent party is entitled to be relieved of any obligations under the contract, i believe this is the contention that you are refering to.
This is a common law remedy and does not apply to CCA regualted agreements, and in any case the creditor could repudiate the agreement whilst he has liabilities attaching him to it.
You see i have been into these arguments in depth believe me there is nothing to them.
Peter

Yes i know its a breach, but selling/terminating a contract unlawfully, is not just a breach of contract but also unlawful rescission

no i am not referring to repudiation.

[Guest]

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

Just re read your post.
You seem to be under the impression that unlawful rescission occurs when one party attempts to rescind but does not succeed. This is incorrect. unlawfuil rescission occurs when one of the parties rescinds the contract (withdraws from it) as if had not been made to the detriment of the other party.
Termination is not rescisson, all termination is,isthat the means by which the liabilities are transfered are withdrawn, the liabilities themseves remain.

They have to, if this were not true then no court would ever be able to recover them as all enforcement is only taken on terminated agreements(in cca cases).

Peter



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

really name one CASE LAW that disproves the unlawful recission beyond any doubt whatsoever! Harrison doesn't, Brendon doesn't so which one and why have you not qouted it before now, to prove your argument? Though in anycase case law can be changed if the argument is good enough.

HA HA I cant name anything that proves that proves anything to that extent, can just say that it hs never happened.

I will not repond to this argument any more, i have made my view and interpretation clear on the matter.

Yes you have

[teaboy2]

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

Just re read your post.
You seem to be under the impression that unlawful rescission occurs when one party attempts to rescind but does not succeed. This is incorrect. unlawfuil rescission occurs when one of the parties rescinds the contract (withdraws from it) as if had not been made to the detriment of the other party.
Termination is not rescisson, all termination is,isthat the means by which the liabilities are transfered are withdrawn, the liabilities themseves remain.

No am not under that impression at all - it occurs when an agreement is unlawfully terminated (by a party of the agreement) of the back of a invalid DN, as that is what unlawful rescission is (in regards to CCA) - An unlawful termination of agreement/account. No offense peter but prior to your argument, unlawful rescission was seen as a valid defense by many legally knowlegable people on forums and practicing in law, the vast majority of them still do. You argument only originally began to be argued by people on the back of the harrison case, which has been clearly interpretated wrongly due to the error in law that the judge made (that i pointed out twice now in this thread alone)

They have to, if this were not true then no court would ever be able to recover them as all enforcement is only taken on terminated agreements(in cca cases).

Peter



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


Yes you have

Only cos you posted it whilst i was in the process of writting a response to your previous post.

Originally Posted by teaboy2
really name one CASE LAW that disproves the unlawful recission beyond any doubt whatsoever! Harrison doesn't, Brendon doesn't so which one and why have you not qouted it before now, to prove your argument? Though in anycase case law can be changed if the argument is good enough.

HA HA I cant name anything that proves that proves anything to that extent, can just say that it hs never happened. Still waiting for the case law you referred to that you said would disprove my arguement!

I will not repond to this argument any more, i have made my view and interpretation clear on the matter.

So as i said i will not respond any futher to this debate. You have your opinion i have mine, and we are clearly doing nothing but going round and round in circles and debating this is not going to get us anywhere and is not going to benefit anyone - they have both points of views to choose from and its upto them whos argument they take with them.

I suggest we just respect each others opinion on this and refrain from entering a debating this futher to new case law comes to light.

agreed?

[Guest]

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

NO it is not a matter of opinion i am affraid you are incorrect, nothing wrong with that but you are advising people based on tht missconseption that is my only problem , i am quite happy for you to continue in your error if you would keep it to yourself.

Whils we are waiting for you single example here are a few who folowed the logic you prescribrd to

http://www.consumeractiongroup.co.uk/forum/showthread.php?t=276677&goto=newpost
post 130

http://www.consumeractiongroup.co.uk/forum/showthread.php?280020-Contracts-Termination-Repudiation-and-Rescission&p=3338072&viewfull=1#post3338072

http://www.consumeractiongroup.co.uk/forum/showthread.php?291988-Court-Case-pending-and-help-required-reviewing-position...&p=3345492&viewfull=1#post3345492 post 45
I will atetempt againt to expain you missconsption, rescission is an eauitqble remedy in law if the creditor had breached an agreement the offended party could remedy by having th agreement rescinded, but that would mean paying the money back. see above.

Definition of rescinding a contract “de future”(in the future)
Taken from a summay by Sir Owen Dixon of McDonlak v Dennys Lascelles Ltd.
When one party to a simple contract, upon the breach by the other contracting party of a condition of the contract, elects to treat the contract as no longer binding upon him, the contract is not rescinded from the beginning. Both parties are discharged from the further performance s the contract, but the rights are not divested or discharged which have already been unconditionally acquired.

The original test here http://www.oup.co.uk/pdf/0-19-925011-1.pdf

As I said the rescission would not affect the liabilities already due on the contract evenif it was possible.
There are lots more cases on cag use the searh tool it took me five minutes to find these. Then of course there is the high court of course, but that doesnt count.

Peter

[teaboy2]

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

NO it is not a matter of opinion i am affraid you are incorrect, nothing wrong with that but you are advising people based on tht missconseption that is my only problem, i am quite happy for you to continue in your error if you would keep it to yourself.

You say i am incorrect, sorry but you have done nothing to prove that is the case other than to argue your own opinion and interpretation, are you a lawyer or just someone that has read books, if the latter then you are no more qualified to state my interpretation and opinion is wrong as i am to state yours is wrong. To do so is nothing more than an attempt in my opinion to make yourself stand out as the almighty mr know it all on consumer forums. And your statement that your quite happy for me to continue in my error, well so far MBNA are refusing to take me to court because of my use the very argument i am debating with you now, that you say is wrong - despite me inviting them to do so not once but twice. Which consdiering they were heavily involved in the harrison link case is somewhat evidence that they know i have a valid defence. Hopefully they do take me to court so then i can push for it to be heard at the high court and finally get some case law to back it up. Do you youself have any case law to back up your argument against unlawfull rescission? No, you do not. So i would urge you not to wrongly make such statements that i am incorrect when there is no case law referring to agreements specifically under the CCA that make it definitively clear beyond all doubt that CCA regulated agreements can not be unlawfully rescinded - Because until such case law exist, then your view is just as likely to be incorrect and on the day such case law does exist then i my opinion and given case law on other contracts being in favour of my opinion, then i think you will find, that on that day, that it is you that is most likely to be incorrect. So given your above statements, all i can say is that i and others can say the exact same about your opinion and advise given. But i don't, i have only ever said that i disagree with your advise simply because at the end of the day it is upto the person seeking advise to decide what advise they use, and it would be wrong for you to suggest that i should keep my advise on this issue to myself purely because you think it is incorrect, even more so when you have done nothing to prove that i am incorrect not even with your below attempt to clutch at straws by linking to one post whos defense did not involved unlawful rescission and then linking to 2 posts you made by yourself, that still did nothing to prove i am wrong and were in fact nothing more than post by you making the same claims there as you are here. So please peter, do not go about telling people not to post advise just because you deem yourself correct and all advice to the contary is incorrect. Like i said doing so only shows only that you see yourself as almighty mr know it all. No offence intended off course, but thats the impression i now get and no doubt others will as a result of your above statement. Theres nothing wrong with debating the difference in our opinions and interpretations but to openly say someone is incorrect and should not post there opinion interpretation as advise, when you have nothing to prove that their opinion or interpretation is incorrect, is not only irresponsible but could also result in people not getting the proper advice as your argument would have them repay the entire debt.

Whils we are waiting for you single example here are a few who folowed the logic you prescribrd to

As i have said before there is no point in using small claims cases as examples as there is no defientive case law eitherway. plus a lot of small claims cases depend on the judge on the day as well as possible other factors. Not only that, but i do not have the time to go searching through the hundreds if not thousands of threads that i have posted in or go looking for the ones i have seen but not posted in, as i have a company to run. Though other case law regarding debts under contracts do support my argument, am sure you know which ones i am referring to, and as i have stated, nothing in the CCA 1974 or amended version, states that such unlawfull termination makes the termination invalid and should therefore be deemed as not having been terminated at all.

http://www.consumeractiongroup.co.uk/forum/showthread.php?t=276677&goto=newpost
post 130

Errr if he hadn't signed the consent order the creditors original claim would have been struck out - Sorry the defence was not about unlawful recission but about enforceability due to invalid DN and lack of TN (meaning account not terminated) and the claiments reissuing of them, nothing in the whole thread states that the defendent claimed unlawful recission, so your example only proves that the judge on the day did not agree that the DN or TN here invalid or not served - There is not claim that the debt was sold, which would have prevented the reissuing of the DN and TN and a as i have said all along if the account remains with the OC they can reissue a valid DN and TN to remedy the unlawful termination, its only after they sell the account when they can not longer issue one as they are no longer the owners of the account therefore meaning they have no rights to the account to remedy the agreement as the agreement would cease to exist once sold. So that example does nothing to prove anything in favour of your argument peter as the debtor defence was based on invalid DN and TN meaning they were not entitled to enforce through the courts, the judge deemed the DN and TN were valid, theres no mention of unlawful rescission being used by the Debtor as a defence. So all you have proved is that if a DN or TN is invalid originally and if the account is still owned by the OC they have the right to remedy the invalid notices - which they always did have if they still owned the accounts - and you proved that a judge like in many cases can rule that the DN and TN were not invalid, You have not proved anything against the use of unlawful rescission and i must protest at your use of such a case as evidence that the Unlawful rescission argument is flawed and bound to fail when no such arguement was used in this case. Basically the claiment withdrew original claim by consent as they could not find a copy of the original DN or TN (meaning lack of TN meaning account not terminated) they then reissued a valid DN and TN to correctly terminate the account and reissued their claim on the basis of a change to the facts of their claim, the defendent found the DN/TN to be invalid, though the judge ruled the DN and TN were valid. Nothing to do with unlawful rescission peter nor was it claimed as part of the defence. In post 69 the debtor him/herself states the account was never sold, too.

http://www.consumeractiongroup.co.uk/forum/showthread.php?280020-Contracts-Termination-Repudiation-and-Rescission&p=3338072&viewfull=1#post3338072

Problem for you though peter is i have never said that you should accept the recission in writing, have i? No i have not, i have said that the debtor is still entitled to pay the arrears as per the original agreement terms, but not the full amount owed, as described by the judge in the post you link too. Plus your link is to a post of your own contained in highlighted text a non linked quotation, so for all we know, the qoutation could be nothing but your own words and not a quotation of someone elses words at all, maybe you made it up just to prove a point like you are now trying to do so - rather unsuccessfully - by linking to your own posts on a different website.

http://www.consumeractiongroup.co.uk/forum/showthread.php?291988-Court-Case-pending-and-help-required-reviewing-position...&p=3345492&viewfull=1#post3345492 post 45 Again nothing to prove your argument on the flaw of using unlawful rescission, the post linked to only proves that creditors are using the Harrison v Link judges statement of "SOME, maybe corrected" i.e. prior to account being sold as a way round the previously invalid DN by reissuing, which is something they have been able to do all along, so long as they had not sold the account as i said above in response to link 1

I will atetempt againt to expain you missconsption, rescission is an eauitqble remedy in law if the creditor had breached an agreement the offended party could remedy by having th agreement rescinded, but that would mean paying the money back. see above.

Definition of rescinding a contract “de future”(in the future)
Taken from a summay by Sir Owen Dixon of McDonlak v Dennys Lascelles Ltd.
When one party to a simple contract, upon the breach by the other contracting party of a condition of the contract, elects to treat the contract as no longer binding upon him, the contract is not rescinded from the beginning. Both parties are discharged from the further performance s the contract, but the rights are not divested or discharged which have already been unconditionally acquired.

The original test here http://www.oup.co.uk/pdf/0-19-925011-1.pdf - Right funny how you refer to it as the original test, as i fail to see how a book is a test or in fact gives way to being case law? If you think i time to read then your wrong, i have a buisness to run and at this time of morning i should be in bed, not here responding to rediculous claims that posts you have linked (two being your own posts on other sites) prove my argument on unlawful rescission is flawed. And i am certainly not going to read a whole book when you can not be bothered to enlighten us as to the exact part you are using as reference to substainate you claims - Which i am certain will most likely prove my point more than yours.

As I said the rescission would not affect the liabilities already due on the contract evenif it was possible.
There are lots more cases on cag use the searh tool it took me five minutes to find these. Then of course there is the high court of course, but that doesnt count.

Your under the illusion that the creditor has not already rescinded the agreement when they have - So am sorry, but you can not as a debtor or party of a contract rescind an agreement that has already been unlawfully rescinded by the other party - you can not rescind an already rescinded agreement (whether lawfull or unlawfully rescinded), simply because once the other party has recinded the agreement is terminated and as such a debtor can not rescind an agreement that has already been terminated via the other party. Though you can make it an mutually agreed rescission of contract by writing to confirm your acceptance of the their unlawful rescission which then makes you liable to repay the full amount and hence why i do not advise people to write to confirm such unlawful rescission.

Repudiation is where, as you said, a party to a contract refuses to perform their part of the contract when they have no legal right under the contract to do so.

Recission is where a party terminates the contract as a result of another parties breach or with the other parties consent - unlawful recission is where it is rescinded in contradiction to law and against any terms and conditions that prevent them from having the right to rescind the contract lawfully, and therefore making such a rescission unlawful.

So in the case of a Bad DN the debtor is not refusing to honour the contract or comitting repudiation, nor is the creditor. But upon termination the creditor is recinding the contract and if of the back of a bad DN then they will have unlawfully rescinded, though so long as they have not sold the account they can remedy by reissue a valid DN (as they have always been allowed to do so) which would remedy their unlawful rescission and put the debtor in a state of repudiating the contract by failing or refusing to remedy the now, if and only if valid, DN that was reissued - However if the creditor sells the account of the back of a bad DN, then they are not entitled to any rights under the agreement or any rights of ownership and as such they lose the right to remedy their act of unlawful rescission, and as such it is they that are now in repudiation of contract for refusing to honour the agreement. Hence why the debtor is only entitled to repay the arrears as per the terms of the original agreement, which is what i have stated all along in this debate. You can not claim repudiation of contract in this case as you can not ignore the act of unlawful rescission that led to them being in repudiation of contract, hence why it is correct to claim unlawful rescission and not unlawful repudiation or repudiation, because the offending parties unlawful rescission is what leads to the offending party being in repudiation or contract. So if you do not claim for unlawful rescission then there is no claim for either unlawful rescission or the resulting repudiation by the offending party, as you can not claim for something that was the result of an unlawful act without making a claim to the unlawful act itself.

If i went in front of a judge claiming unlawful reputiation without claiming for unlawful rescission, then thats like me saying the issued a bad DN, and then terminated (followed by selling the account) the contract which is repudiation as they are refusing to perform their part of the contract as a result of terminating on the back of a DN - The judge will say that as they issued the DN then followed by termination then they did so honestly believing that they were entitled to terminate and therefore they are not refusing to honour the contract, however the bad DN prevents to court from enforcing in anycase. If i claimed unlawful rescission, on the grounds that they terminated of the back of a bad DN, and are now therefore in repudiation, then they judges response will be different, as there is no defence to rescinding an agreement when in this case the DN is invalid, whether they knew it was or not. so the judge will say something along the lines of - that the creditor was not entitled to terminate the agreement of the back of the a bad DN and doing so followed by the selling of the account leaves them with no entitled to remedy by reissue a valid DN, as such they did indeed unlawfully rescind the agreement and therefore as a result the debtor is entitled to treat such unlawful recission as the creditors repudation of contract and as such the debtor is entitled to damages as per case law but also only entitled to repay the arrears as per the terms of the original agreement. for i this uphold the debtors counter claim and i award damages of £xxxx, however as a result of the bad DN i am not permitted by law to enforce the creditors claims and therefore strike out. Though the judge could well write off the debt entirely so then even the arrears will not be owed and off course it just an example of what the judge may say in both cases and should not be taken as being exact to the word.

Peter

As i send before Peter, we should respect each other opinion on this and refrain from debating this any further. We are clearly never going to agree with eachother on this subject.

Also i was not going to respond if it had not been for your opening statement, so i suggest you also refrain for openly stating my advise on this subject is wrong when you have no case law or proof to back up your statement other that a few alleged lost small claims case, which going by your above links were not due to claiming unlawful rescission but due to wrongly claimin the DN or TN was invalid. I have not said you should not post, despite the fact i disagree with your opinion, and the reason why i have not said as such, is simply because like i have said before their is no definitive case law eitherway in regards to agreements under the CCA - Though there is under other contracts, which many involved in consumer issues will be well aware off - where such case law actually supports my opinion in general under general contracts, and i see no reason why the same does not apply to the CCA since the CCA does not say anywhere that termination is to be deemed as not having occured if the termination was unlawful - So its only right that people are aware of both arguments so they can decide themselves and not have you or i decide for them by telling them each others advice is incorret, when theres not definitive proof eitherway, or by either of us tell the other their advice is incorrect and they should keep it to themselves and not post their advice.

[Guest]

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

If you went in front of a judge claiming unlawful rescission on a cca agreement he would ignore you if he were polite, or lauigh in your face if he wasn't.

Unlike you i have took the time to read all the literature on the subject, and the main two problems in your argument are that rescisson does not mean what you think it means, and even if it did it would not be appropriate to use this argument in a cca context.

Putting all this to one side, if you have a theory you should find supporting evedence before you start presenting it as fact.

Despite what you say the evidence of high court judges and the repeated practice of creditore representing is pretty damming.

You see most of the evidence is going to be in lower courts because no one is going to appeal this argument after the lower court judge has told them it has no merit.

If this had worked there should be some supporting evedence in some court , any court.

There are cases on CAG where cases have been passesd back to creditors after being wrongfully assigned because of a bad DN, should i find them for you, or would you just say they were irrelevent because they werent appealed to high court.
Your problem is,( like many before you) that you base your argument on an incorrect premise , you need to go back and find out what rescission means in the context of contract law, then you will see why it does not apply to this scenario or even to agreements covered by the CCA.

Really untill you do, you are correct, it is a waste of my time trying to debate this with you.

Peter

[buster1967]

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

Thanks for the interesting debate guys,
I will keep the thread updated on what happens with my dodgy dn now its been assigned

The point that im really interested in in as tea boy says, the judge in Harrison said "some" DN s could be re issued, he never said all, we could do with futher clarification as to which DN"s come under the "some " category

[Guest]

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

Thanks for the interesting debate guys,
I will keep the thread updated on what happens with my dodgy dn now its been assigned

The point that im really interested in in as tea boy says, the judge in Harrison said "some" DN s could be re issued, he never said all, we could do with futher clarification as to which DN"s come under the "some " category

Unfortunately the act says that there is no reason why they cannot.
Good luck anyway

Peter

[volvodriver]

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

We've been here before. The word is not may, but often. PT, when he was here tried to clarify it for me, I have to say that I take an opposite view based on logic not law.

His clarification is here if you are interested:

Legal Beagles Consumer Forum - View Single Post - Default Re: Me V Bank - defective DN and unfair relationship defence.

Vdr

[teaboy2]

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

If you went in front of a judge claiming unlawful rescission on a cca agreement he would ignore you if he were polite, or lauigh in your face if he wasn't.

How you know, have you tried it? Has it been decided in law that Unlawful rescission does not apply to credit agreements like it does to other contracts under contract law? Where, like i have asked a number of times, does it say in the act "that any termination in breach of section 87 is invalid" - It doesnt, the only time they can remedy the bad termination and DN is by reissuing a new DN, but that is only if they still own the account. If they no longer own the account then they can not remedy as they do not have the rights or ownership to act on such account, and there its unlawful rescission at the point of sale.

Unlike you i have took the time to read all the literature on the subject, and the main two problems in your argument are that rescisson does not mean what you think it means, and even if it did it would not be appropriate to use this argument in a cca context.

Ohhh Unlike me? Well unlike you i do not read books on it as it is nothing more than another person(s) interpretation of the law, and is not always the correct interpretation. I on the other hand read the legalisation word for word and interpretate it myself and not of the back of someone elses interpretation. I also discuss such matters with my legal team, whom say my arguement is a valid one and needs to be tested in the high court - which is why i invited MBNA to take me to court twice, but they refuse to do so becuase they know i will be claiming unlawful rescission. I fail to see how unlawful rescission does not apply to a contract under CCA when it applies to all other contracts. You can not say that it does not apply as nowhere does it say that in law.

Putting all this to one side, if you have a theory you should find supporting evedence before you start presenting it as fact.

Lol what like your alleged supporting evidence - Perhaps you forgot what i said previously about there being no case law (in regards to contracts under Consumer credit act) and why there is no point using small claims cases as reference to support our arguments as 1 - there is no judgement published on such cases, 2 - they do not become case law so do not set a precident and can not be used in others in their defense and 3 - No one really knows the ins and outs of the case or issues argued by either side or what the judges reasoning was for the judgement. So if would be highly irresponsible for anyone to qoute small claims cases, as it could lead to people using them in their defence and as a result getting their defence throw out and/or lose their case as a result. Your first link in your previous post posted to a small claims case where it was not even unlawful rescission as it had not been unlawfully rescinded since the account was never sold and therefore still remained with the OC.

Despite what you say the evidence of high court judges and the repeated practice of creditore representing is pretty damming.

How are they? the Harrison case wasn't the brandon case isn't - as both cases failed on the invalid DN argument and where not claims for unlawful rescission and even if they were the fact the DN where found by a judge to be valid would mean the any argument for unlawful rescission would not apply. So please, tell us which high court cases are you referring to that failed on the unlawful rescission arguement or were damaging to the argument? i'll think you will find there is none.

You see most of the evidence is going to be in lower courts because no one is going to appeal this argument after the lower court judge has told them it has no merit.

Small claims cases have been won and lost on unlawful rescission claims - but as i have said small claims cases are not case law and alot of the time it depends on the judge on the day and what mood hes in, and given we do not know any details on the judgements other than what we see on the threads of consumer forums, it would be irresponsible to use such cases as evidence or to support eithers arguement.

If this had worked there should be some supporting evedence in some court , any court.

And there probably is, only small claims successes can not be used as case law, and high court claims are few and far between and have failed on the invalid DN not on any claim for unlawful rescission. Though there are plenty of case law in support of my argument for contracts not under the CCA, and as i have said i see no where under the CCA where it does not allow for unlawful rescission.

There are cases on CAG where cases have been passesd back to creditors after being wrongfully assigned because of a bad DN, should i find them for you, or would you just say they were irrelevent because they werent appealed to high court.
Your problem is,( like many before you) that you base your argument on an incorrect premise , you need to go back and find out what rescission means in the context of contract law, then you will see why it does not apply to this scenario or even to agreements covered by the CCA.

Yeah they can pass them back to the OC, but they can not reinstate the agreement which ceased to exists when originally sold, your just assuming that an unlawfully rescinded agreement makes the assignment invalid, well it does not, so long as it is inline with section 136 of the law of property act 1925. I have said before that the creditor would need the debtors consent to reinstate the agreement and the same would apply when passed back to the OC. As for my understanding of recission will see my last post where i made it clear how unlawful rescission is needed in before the creditor can be in repudiation of contract. I deal with contracts all the time as part of my buisness so i know dam well what rescission is and how it applies to contracts and contract law. Perhaps you do not understand that the whole process of issuing DN and demanding all money owed is a process the creditor uses to rescind the agreement and bring the parties back to the position they were in before the agreement was made hence why if the DN is invalid and they sell the account (losing their entitlement to remedy the bad DN) is unlawful resicission of contract which then places the creditor in repudiation. So section 87 if applied correctly is to enable the creditor to lawfully rescind the agreement after the debtor has defaulted on repayments. So if its not applied correctly then its unlawful rescission.

Really untill you do, you are correct, it is a waste of my time trying to debate this with you.

Actually its been a waste of time debating this with you for the last few days now, as it has just been going round and round in circles and been repeatitive.

Peter

See above.

[teaboy2]

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

Unfortunately the act says that there is no reason why they cannot.
Good luck anyway

Peter

Really where does it state that in the ACT?.

Bad DN's can only be remedied whilst the account is still with the OC - Once it has been assigned (sold) they have no rights or ownership of the account and the agreement ceases to exist and therefore they can no longer remedy the bad DN. Its the same if the account is assigned back to them, as the agreement will have ceased to exist at the original assignment, only time they can reinstate such agreement is with the debtors consent, which would then allow them to remedy the bad DN - though they will probably prey on the debtors lack of knowlegde of law and knowledge of their rights and fail to tell them they need their agreement to reinstate and as such they will just go ahead and reissue, though a simply letter stating you do not acknowledge nor did you consent to the reinstatement of the agreement and as such the agreement is not reinstated.
------------------------------- merged -------------------------------

We've been here before. The word is not may, but often. PT, when he was here tried to clarify it for me, I have to say that I take an opposite view based on logic not law.

His clarification is here if you are interested:

Legal Beagles Consumer Forum - View Single Post - Default Re: Me V Bank - defective DN and unfair relationship defence.

Vdr

Applies only if account is still with OC though - once sold they have no rights to any amount still owed and therefore have no course of action - Plus the agreement ceases to exist once account is sold.