Defaults, S89 and rescission

[Lord_Alcohol]

Re: Defaults, S89 and rescission

Do you mind me asking what your ultimate intention is here? Is it purely to prove a point - if so how far are you prepared to go to do this?

My intention is merely to end the impasse - AFAIK the agreement should be reinstated or terminated and the default record removed, and while I am in this limbo it is (a) taking up too much time in trying to get the OC to respond and (b) damaging personally due to the default marker.

I am prepared to go as far as possible with this - my view (currently; it may change) is that there is a fundamental breach of contract, in that it was effectvely ended by the OC where there was no cause (the breach was remedied)

If your aim is to be put back in the position you were before, do you not think they would then cancel the CC legitimately?

Yes I do, but I believe that they have already had their chance to do this, as per the EU directive.

I suspect I'm not the only one here a bit reluctant to give a definite opinion as we don't want to mislead you if you intend pursuing this to the hilt. If it's a case of purely trying to win a game of letter tennis, that's different.

Don't worry about that labman, I just need to work out a plan and this will then be dealt with through solicitors. At this stage I just need your thoughts, comments, criticism, so I can better understand my options.

Ta
LA
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Check out 87 (2):

Thanks Basa, but I understand this is now updated by the EU directive - the OC must give a notice and reasons for doing this (as per charitynjw's post). I have had neither.

[Lord_Alcohol]

Re: Defaults, S89 and rescission

Folks, any comments re the following would be welcome...

1. The DN is remedied according to contract and regulations. S89 should apply.

2. Payment of the amount demanded puts me well within card credit limit.

3. But OC restricts credit by failing to place the contract back to where it was "as though the breach never occurred".

4. The restriction of credit is implemented without following S98A - no notice is served, no reason given, etc.

5. The contract is legally still 'alive' (it was never terminated), but the OC fails to perform it (for 8 months and counting), even when asked to do so. This is a breach of my contract, as it states that I am able to use available credit and will need to make monthly contractual payments at the OC's direction (eg, he will send a monthly bill). There is, I think, a fundamental breach of contract.

6. The issue of DP is, I think, a separate matter for which compensation can be claimed (in theory at least).

Your thoughts very welcome. I'm still looking at serving a notice under S102 and claiming that the OC's non-performance rescinds the agreement.

Ta
LA

[berniel]

Re: Defaults, S89 and rescission

With respect I don’t think you are really interested in the truth about this.
Your whole argument is based on a misconception I am afraid. In my opinion the basis of this misconception Is a misunderstanding of this, “as though the breach never occurred.”
There are two ways of interpreting this
Either it is a method of removing the cause of action thus returning the agreement to the position before the notice was issued.
Or it removes any record of a breach returns the account to original status including re issuing your credit limit and reissuing you card. They would then have to retract any notices of default, CRA entries etc, effectively turn back the clock to the point when you first missed a payment, do you think that this is what the act intended despite the fact that you would have had to miss payments before the notice was issued?
The termination is not an issue as they can terminate on breach/ withdraw access to further funds without any notice anyway, the act stipulates this.
And yes a breach did occur, it is just that for the purposes of section 87 it should be treated as if it did not.
Bernie

[Lord_Alcohol]

Re: Defaults, S89 and rescission

With respect I don’t think you are really interested in the truth about this.

Why do you say that? An extremely odd thing to say.

Your whole argument is based on a misconception I am afraid. In my opinion the basis of this misconception Is a misunderstanding of this, “as though the breach never occurred.”

Yes, perhaps, but that is why I started this thread!

There are two ways of interpreting this
Either it is a method of removing the cause of action thus returning the agreement to the position before the notice was issued.
Or it removes any record of a breach returns the account to original status including re issuing your credit limit and reissuing you card. They would then have to retract any notices of default, CRA entries etc, effectively turn back the clock to the point when you first missed a payment, do you think that this is what the act intended despite the fact that you would have had to miss payments before the notice was issued?

Your interpretations appear identical. The agreement is returned to the point pre-notice. That would mean;

1. Contract to run as before
2. Payment history to show missed payments (and NOT a default)
3. Optional service of termination notice (with reasons)

The termination is not an issue as they can terminate on breach/ withdraw access to further funds without any notice anyway, the act stipulates this.

Sorry, that is just wrong. They cannot do this. An open end agreement is subject to S98A. In any case the breach was rectified and the agreement not terminated.

And yes a breach did occur, it is just that for the purposes of section 87 it should be treated as if it did not.
Bernie

Then what exactly is the difference, in practical terms? If the OC is no longer entitled to refer to the breach in any further action, there is no difference at all. The agreement was breached, it was put right according to contract and regulations, end of.

I appreciate you taking the time to reply but your post was not very helpful, unless I have misunderstood you in which case I apologise.

[Sparkie1723]

Re: Defaults, S89 and rescission

My Question.

What do more conversant folks than me think of ..........a Default Notice AND a Termination Notice being issued and dated the VERY same day........that is what has happened to my partner under a CCA HP agreement?...................Proceedings in progress. .......What is the " Guessed" considered view a Judge may take of this.

Sparkie

[Lord_Alcohol]

Re: Defaults, S89 and rescission

My Question.

What do more conversant folks than me think of ..........a Default Notice AND a Termination Notice being issued and dated the VERY same day........that is what has happened to my partner under a CCA HP agreement?...................Proceedings in progress. .......What is the " Guessed" considered view a Judge may take of this.

Sparkie

S88(1)(b) and (c) seem to say that, if the breach can be remedied, then the DN should set out the actions that the creditor will take if the demands contained in the DN are not complied with.

So if the DN states that the agreement will be terminated if it is not satisfied, then the OC would be in breach of SS88/89 if the agreement is terminated before that time.

But if the agreement is already terminated and the steps threatened in the DN already taken, what is the point in satisfying it? You may as well not bother as it would serve no purpose.

The only alternative I can think of is where the breach is not capable of remedy, but I don't really know what this means - I can't think of a breach due to arrears that cannot be remedied.

This, in fact, is exactly what seems to be happening in my case - a valid DN served, satisfied in order to avoid the steps listed in the DN itself, but then I find that the OC takes those steps anyway and the agreement remains terminated.

The question I have is this: is failure to comply with SS88/89 actionable by the borrower in some way?

LA

[berniel]

Re: Defaults, S89 and rescission

The knee jerk reaction is to say that since the required period for remmedy has not been given both notices are invalid.
In fact it depends on how the notice is drafted
If it is clear that the attached notice becomes active after the statutory period there is no reason why both docments shoud be dated the same, in fact on many occaisions they are the same docment
Bernie

[Sparkie1723]

Re: Defaults, S89 and rescission

The knee jerk reaction is to say that since the required period for remmedy has not been given both notices are invalid.
In fact it depends on how the notice is drafted
If it is clear that the attached notice becomes active after the statutory period there is no reason why both docments shoud be dated the same, in fact on many occaisions they are the same docment
Bernie

Thanks for input Lord Alcohol and Bernie.........but both documents absolutely completely different.

The Default Notice dated 4th October 2011 states that:
If the arrears are not paid by 23rd October we may:
a)Terminate the agreement and seek to recover the goods.
b)Seek payment from you for monies due as a result of termination.

Then the Termination Notice dated 4th Oct 2011 states ;
This is a Termination Notice.
You have failed to comply with the Default notice we sent to you about your agreement
This notice therefore Terminates your agreement.
You must pay us the balance outstanding under your agreement of £ ............
but no date or time as to when it is to be paid by
Sparkie

[Lord_Alcohol]

Re: Defaults, S89 and rescission

What was the outcome of this? Was the DN satisfied?

I would imagine that the OC will just claim that the TN was served in error. If the DN remained unsatisfied, then it may have effect. If the DN was satisfied, the TN should be ignored (it conflicts with SS88/89).

Was a complaint made at the time?

[Sparkie1723]

Re: Defaults, S89 and rescission

What was the outcome of this? Was the DN satisfied?

I would imagine that the OC will just claim that the TN was served in error. If the DN remained unsatisfied, then it may have effect. If the DN was satisfied, the TN should be ignored (it conflicts with SS88/89).

Was a complaint made at the time?

There was an accepted ongoing dispute with the creditor going on during this time, which never got resolved............. no letter of deadlock ever received ...to be honest the whole issue is a complete mess.

Even though this Termination Notice has been issued and they have made a claim using it .....they are still applying default sums to the account and snding letters saying the agreement is in arrears and should be cleared or they will consider taking further action.
The FULL story is on my tVIP hread Us V Black Horse Ltd Big claim......its just that I am trying to get as much help and input as I can

Sparkie

[Algee]

Re: Defaults, S89 and rescission

Your Lordship

Has your agreement been terminated, and if so was it on the same date as default entered?


Alan

[Lord_Alcohol]

Re: Defaults, S89 and rescission

Your Lordship

Has your agreement been terminated, and if so was it on the same date as default entered?


Alan

Good afternoon my good man.

I haven't received any form of termination notice whatsoever, and the default was recorded before the DN was served.

LA
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To be honest Sparkie I think this is a tricky one.

If there were arrears (missed contractual payments) then it seems valid to serve a DN. If the expectation of the OC through his DN is payment to him of the arrears as per contract, then it seems reasonable to suppose that the contract would continue as before (ie, it would meet the requirements of S89).

However, the OC has served a TN on the same date, making it clear that there is no need to pay the arrears because the full balance is now payable (not just the arrears). This action completely removes any sense of the need to satisfy the DN.

However, my bet would be that the OC would just say that his TN was in error and that the DN was perfectly valid. If the OC could be persuaded that his TN removed the need to pay the arrears, then it might just result in him serving a new DN.

Not much help I know.

[berniel]

Re: Defaults, S89 and rescission

Thanks for input Lord Alcohol and Bernie.........but both documents absolutely completely different.

The Default Notice dated 4th October 2011 states that:
If the arrears are not paid by 23rd October we may:
a)Terminate the agreement and seek to recover the goods.
b)Seek payment from you for monies due as a result of termination.

Then the Termination Notice dated 4th Oct 2011 states ;
This is a Termination Notice.
You have failed to comply with the Default notice we sent to you about your agreement
This notice therefore Terminates your agreement.
You must pay us the balance outstanding under your agreement of £ ............
but no date or time as to when it is to be paid by
Sparkie

Hi
Yes i do not see any problem unfortunately, the DN will trigger the termination notice, it is no different than the situation where both notices are presented on the same document.

As long as they did not commence proceedings before the statutory term had elapsed they would be OK.
Bernie

[Lord_Alcohol]

Re: Defaults, S89 and rescission

You say that proceedings have started. Could your defence be that you could not pay the arrears in the DN because the creditor superceded his demand with his TN, and so you thought that he was now demanding the balance, not the arrears, which you could not pay?

That seems reasonable to me, as the OC's actions have effectively prevented you from satisfying the DN.

A court may therefore just tell the creditor to serve a new DN if it gets that far, unless the OC can persuade the judge that the TN was just a silly mistake that could have been ignored had the debtor been inclined to pay the arrears.

Maybe that is enough to stop a successful claim for the balance?

Anyway, going back to my problem with S89.... :tinysmile_hmm_t2:

[berniel]

Re: Defaults, S89 and rescission

You say that proceedings have started. Could your defence be that you could not pay the arrears in the DN because the creditor superceded his demand with his TN, and so you thought that he was now demanding the balance, not the arrears, which you could not pay?

That seems reasonable to me, as the OC's actions have effectively prevented you from satisfying the DN.

A court may therefore just tell the creditor to serve a new DN if it gets that far, unless the OC can persuade the judge that the TN was just a silly mistake that could have been ignored had the debtor been inclined to pay the arrears.

Maybe that is enough to stop a successful claim for the balance?

Anyway, going back to my problem with S89.... :tinysmile_hmm_t2:

Yes if they said that the termination notice started at the date of the head of the noticer you could, but they havent done that by the sound of it. They have simply included the notice with the DN.
YOu could say that this was missleading, and dependant on the judge he may agree. It is a problem, in Brandon the date given for terminatiuon was actually on the DN and it was incorrect, this is far more use to us, because it is blatently in breach of regulations. This is down to interpretation.

Bernie