Defaults, S89 and rescission

[Lord_Alcohol]

Re: Defaults, S89 and rescission

Yes but the DN states that they may terminate the agreement (if the arrears aren't paid), but the TN contradicts that and states that the agreement is already terminated.

So on the date of service of the DN the agreement is not terminated but on the same date (the date of service of the TN) it is terminated.

Note that the date of service is 4th Oct for both notices; the DN gives 2 weeks for compliance by the debtor, the TN gives notice that the agreement is terminated forthwith.

This is a cockup on the OC's part surely? Hence the reason why it could appear to be impossible to satisfy the DN, because the 'next steps' contained therein are already taken. Unless the breach cannot be remedied, the OC must have violated S88 and the 1983 Enforcement Regs, and also failed to comply with S89.

[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

YOu see the problem

they say that the conditions of the DN have not been met, therfore the prescribed period must have passed, it does not say that the termination is effective on the date of the letter.

Bernie

[Lord_Alcohol]

Re: Defaults, S89 and rescission

Sorry Bernie I am not with you.

The TN, dated 4th October, does in fact terminate the agreement. It states "This notice therefore Terminates your agreement". This statement is made on the SAME DATE as the DN.

The prescribed period hasn't passed. It would be OK if the TN was dated 24th October and the DN not satisfied.

I am being thick I expect but just do not see what you mean.

[berniel]

Re: Defaults, S89 and rescission

Sorry Bernie I am not with you.

The TN, dated 4th October, does in fact terminate the agreement. It states "This notice therefore Terminates your agreement". This statement is made on the SAME DATE as the DN.

The prescribed period hasn't passed. It would be OK if the TN was dated 24th October and the DN not satisfied.

I am being thick I expect but just do not see what you mean.

s i said it would be the same if both the dn and the termination were on the same document , they would both have the same date then also, but the termination would be triggered by the expiry of the DN period.
The TN notice does not say that it is effective immediately just on the none compliance with the DN.
As i said this may be considered missleading but judges dont like default notice defences in general i have found.

Bernie

[Lord_Alcohol]

Re: Defaults, S89 and rescission

The TN notice does not say that it is effective immediately

Yes it does, it terminates the agreement on 4th Oct. The words "This notice therefore Terminates your agreement" seem, to me, conclusive, wouldn't you agree?

As i said this may be considered missleading but judges dont like default notice defences in general i have found.

Woodchester and Harrison spring to mind, both based on defective DNs. However, this is not a defective DN issue. It is a defective TN issue. The agreement was terminated before remedy could be effected (according to the notices).

Not sure where you're going with this Bernie but it seems to me the only proper outcome fair to both sides is service of a new DN with the statutory time to remedy followed by compliance with S89.

[berniel]

Re: Defaults, S89 and rescission

Yes it does, it terminates the agreement on 4th Oct. The words "This notice therefore Terminates your agreement" seem, to me, conclusive, wouldn't you agree?



Woodchester and Harrison spring to mind, both based on defective DNs. However, this is not a defective DN issue. It is a defective TN issue. The agreement was terminated before remedy could be effected (according to the notices).

Not sure where you're going with this Bernie but it seems to me the only proper outcome fair to both sides is service of a new DN with the statutory time to remedy followed by compliance with S89.

Woodchester was an incorrectly stated amount to remedy, Harrison was decided on none presentation of prescribed terms under section 62.

I am sure where i am going.

Bernie

[Lord_Alcohol]

Re: Defaults, S89 and rescission

Woodchester was an incoreectly stated amount to remedy, harrison was decided on none presentation of prescribed terms under section 62.

I am sure where i am going.

Bernie

Woodchester was an invalid DN; Harrison was decided on S127 and S140 and the fact that the agreement could not be enforced as the DN was bad ("It was a bad notice and enforcement cannot be attempted in dependence upon it"). So I have no idea at all why you seem to be saying that bad DNs cannot form a defence.

I referred Sparkie to these cases as DNs were central and he has a DN that cannot be satisfied; you then posted to disagree, saying that "judges do not like default notice defences" and suggesting that Woodchester and Harrison were not concerned with enforcement notices. You seem to contradict for the sake of it, leaving me (and possibly others) quite puzzled.

You have contradicted the contents of Sparkie's two notices, even when printed here in black and white. Earlier, you suggested that I do not want to know the truth, a seriously irritating statement that is both meaningless and unsupportable.

Are you able to explain why you think that Sparkie's TN is not effective until after 23rd October or why bad DNs cannot form a defence? Some clarity from you would help us understand what you are saying.

[Sparkie1723]

Re: Defaults, S89 and rescission

It may help to calm things down a little if I post this ......did not want too much on the public forum..but this will not harm
This is the actual Termination Notice ( My partners actually as our claim is a joint claim on separate issues)
But here you are

Sparkie




This is the Default Notice.

[Lord_Alcohol]

Re: Defaults, S89 and rescission

So that confirms that the termination is effective on the same date that the DN is served. Seems to me that the DN is therefore ineffective because the statutory time (as per the 1983 regs) has not been given.

Unless, of course, Bernie can show us otherwise....

[Sparkie1723]

Re: Defaults, S89 and rescission

So that confirms that the termination is effective on the same date that the DN is served. Seems to me that the DN is therefore ineffective because the statutory time (as per the 1983 regs) has not been given.

Unless, of course, Bernie can show us otherwise....

That is the way I see L _ A. also I am of the understanding that a Termination Notice must contain the same info as a Default Notice . Below is taken from OFT Guidelines on Default and Terination Notices

Form and content of Termination Notices

The information and forms of wording required in enforcement and
termination notices are laid down in the 1983 regulations,and broadly
parallel those applying to default notices.

Sparkie

[Sparkie1723]

Re: Defaults, S89 and rescission

Our claim against B/H is for a very large sum of money and they are trying to reduce the amount of collaterall damage by issuing these notices.......but there is our allegation of fabricating evidence in this.
We also have another Termination notice ....will not post that but I will post this....whci will explain a little.
I am not too worried about it being out in the public domain now I have this.

Sparkie



You see .................................................t hey have submitted to the Court in evidence a document that is purportetly to be a copy of the original and I asked the above firm to examine them and give their unbiased professional opinion on these documents, above is their opinion.........by the way I am acting as LIP against one of the biggest law firms in the UK DWF LLP

[Lord_Alcohol]

Re: Defaults, S89 and rescission

Just a thought but I have a feeling that a TN following breach is optional, in that no specific notice is needed where the termination is caused by a breach. I may be wrong but S98(6) seems to support this. I think the OC just needs to inform the debtor that the agreement is terminated.

Where there is no breach, then for sure TN's need to be sent and be in the proper format, presumably as per S98 as amended by the EU directive.

I don't think this makes any difference here, however; the OC is clearly ending the agreement before the statutory time has elapsed. It is unequivocal. The point is that there is therefore no sense in satisfying the DN as the OC has announced that the agreement is terminated on the same day that the DN is served.

[Sparkie1723]

Re: Defaults, S89 and rescission

Thanks L-A for that ....................but it is far more complex than just this..........I have brought this out into public domain to gain support and input........on the private thread I have had support and input but not as much as I expected.........this case has been listed for 4 days on the multi track by the Judge who has labelled it a VERY UNIQUE case..it was down for just a days hearing but now things have been made more complex ........they are trying every trick in the book .........even to the point of issuing a Stat Demand against us both for a £750 costs bill order.....after refusing an offer of £250 per month to clear it.................have blocked those STat Demands.

They did not want these false docs being proved in Court ...a Bankruptcy Petion would have halted our Case in its tracks.

Sparkie

[Lord_Alcohol]

Re: Defaults, S89 and rescission

Blimey Sparkie what an epic. Are you thinking of using S140? It seems a bit over the top to cock up dates on your DN/TN, forge documents and then seek an SD.

Hope you can keep us in the loop.

Be good if PT or even Peterbard were still posting... LB does seem to have lost some heavyweight posters.

[berniel]

Re: Defaults, S89 and rescission

[quote=Lord_Alcohol;249192]

Hi
The initial question and the subject of this thread was about the function of section 89, this I have explained if you do not agree we will have to agree to differ.
Regarding Sparkies default notice. I see nothing wrong with it. It seems to me to conform with all the requirements of the act.
The termination notice is dated prematurely, so there is an argument that the agreement was incorrectly terminated, or the creditor could argue that the date on the document does not reflect the date of intended termination just the date the document was drafted, the date of termination being determined by the default notice.
As I tried to say, if there is any room for argument in cases like this courts tend to find for the creditor, I have found.
In either case the sanctions for a defective default as per Woodchester do not apply because the default notice itself is not defective.
Harrison as you say has nothing to do with default notices other than a remark was made during the hearing which echoed the trite law that default notices can be re-issued if they are defective. So I don’t know why it was mentioned at all.
Bernie