Defaults, S89 and rescission

[Sparkie1723]

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.

Hi again L-A our claim is under the CCA section 140, the DPA, The Misrepresentation Act..........and now because of these fabrcated Docs ..The New Fraud Act 2006 and the Counterfeit and Forgery Act.

This case is due for hearing 19th to 22nd March and it will make the papers..our total claim is for £96,000.
Everyting is all in Court EXCEPT for the fact that DWF LLP were ordered that they submit the Trial Bundle by the 27th Jan .............they have not complied with that order and have not filed it .......Court is on to that and have contacted them .........DWF have replied to the Court saying it will be filed imminently........the order was made 28th November last year 2011.

Sparkie

Sparkie

[Lord_Alcohol]

Re: Defaults, S89 and rescission

Holy cow! This is excellent. Good for you Sparkie, I like your style.

[Sparkie1723]

Re: Defaults, S89 and rescission

Holy cow! This is excellent. Good for you Sparkie, I like your style.

Thanks for that L-A ....just hope my luck doesn't run out............I must say that the JUdge who has said this case must only be heard by him as he is the Senior Judge at the Court in question is a VERY VERY fair man........even if I lose I will not say a word against him.

He ade these comments at one of the case management hearing that we had the costs awarded against us in August last year
Mr "Sparkie" you are still more likely than not win this case...........then he turned to the solicitor for B/Horse and said Mr " Not so Sparkie" I would advise you that your clients are more likely to lose this case and I would suggest that a part 36 offer be made............JUdges do not normally make suchstrong comments at case mangement hearings.........they did make an offer..............we rejected it............it is since then they have turned to these malicious actions ie the STat Demands and the fabricated docs.

Sparkie

[berniel]

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.

?
AN agreement must be terminated before proceedings can begin to recover liabiites not yet due under the terms of the contract.
Section 98 just ensures that notice is given prior to none default termination.

Bernie

[Lord_Alcohol]

Re: Defaults, S89 and rescission

[quote=berniel;249208]

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

Your reply to my query re S89 was;

As said all section 89 does is remove the cause of action so the creditor cannot enforce.

But the wording of S89 is;

If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or (c) the breach shall be treated as not having occurred.

To consider the breach as not having occurred requires a bit more than removing the cause of action, wouldn't you say? Following satisfaction of a DN the cause of action is clearly lifted but what is the status of the agreement/account? That was my question, which remains unanswered.

As to Sparkie's DN, the problem with it is that it cannot be satisfied. It is a notice that cannot be looked at in isolation because it is accompanied by a notice of termination of the same date, suggesting that the OC had no intention of allowing satisfaction and was using the breach to claim the full balance, bypassing S88 entirely. Had there been a note from the OC immediately afterwards to withdrawn the termination then perhaps that is different, but it doesn't seem to be the case here.

Harrison was mentioned simply because HHJ Chambers pointed out to all that enforcement cannot be contemplated when a DN is bad.

It seems that in Sparkie's case the OC has started proceedings on the basis of a DN that could not possibly be satisfied, for the reasons mentioned.

I also think it is a mistake to view individual notices in isolation. With Sparkie, it seems fairly clear that the OC did not intend that S88 should ever apply.
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?
AN agreement must be terminated before proceedings can begin to recover liabiites not yet due under the terms of the contract.
Section 98 just ensures that notice is given prior to none default termination.

Bernie

Didn't I just say that? The OC sends a notice of termination, not a formal TN under CCA which are reserved for non-default cases.

[berniel]

Re: Defaults, S89 and rescission

[quote=Lord_Alcohol;249214]

Your reply to my query re S89 was;

As said all section 89 does is remove the cause of action so the creditor cannot enforce.

But the wording of S89 is;

If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or (c) the breach shall be treated as not having occurred.

To consider the breach as not having occurred requires a bit more than removing the cause of action, wouldn't you say? Following satisfaction of a DN the cause of action is clearly lifted but what is the status of the agreement/account? That was my question, which remains unanswered.

The status is the same as before the DN was issued

As to Sparkie's DN, the problem with it is that it cannot be satisfied. It is a notice that cannot be looked at in isolation because it is accompanied by a notice of termination of the same date, suggesting that the OC had no intention of allowing satisfaction and was using the breach to claim the full balance, bypassing S88 entirely. Had there been a note from the OC immediately afterwards to withdrawn the termination then perhaps that is different, but it doesn't seem to be the case here.

The requirements of section 88 refer to the default notice the default notice is correct. See the title of the section

Harrison was mentioned simply because HHJ Chambers pointed out to all that enforcement cannot be contemplated when a DN is bad.

Yes that is the point thi sis nothing new, BUt he also said bad notices can be remedied as i remember

It seems that in Sparkie's case the OC has started proceedings on the basis of a DN that could not possibly be satisfied, for the reasons mentioned.

This is a possibility, in my opinion unlikely

I also think it is a mistake to view individual notices in isolation. With Sparkie, it seems fairly clear that the OC did not intend that S88 should ever apply.
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Didn't I just say that? The OC sends a notice of termination, not a formal TN under CCA which are reserved for non-default cases.

None default cases

Above

Bernie

[Lord_Alcohol]

Re: Defaults, S89 and rescission

I give up.

[Sparkie1723]

Re: Defaults, S89 and rescission

I would like to point out the agreement in question is a Hire Purchase agreement and should this not fall under section 99 maybe?????.

Just a thought.
However.......... I came on to this thread to make "peeps" aware of how Creditors go to great lenghts to twist, falsify and fabricate docs which on face value "Appear" to be genuine, when they are not and for people to scrutinise their default notices closely, I certainly did not want to stir up so much hassle among subscibers.

This my fault for plunging everyone into the middle of a very big mess up...........I should not have done so and I applogise again........I'll have to shut my mouth up on this thread............I cause too many "shocks" ..........that's why I am " Sparkie".

Sorry folks

Sparkie

[Lord_Alcohol]

Re: Defaults, S89 and rescission

Please don't apologise Sparkie - the penny has dropped...

I have found bernie's posts strangely familiar, giving the same sense of irritation and puzzlement as those from a well-known poster, whose last post was just 2 weeks before bernie's first.

That well-known poster? Peterbard of course.

You are, aren't you Bernie, the Bard himself? I see the exact same spelling mistakes and the same capitalised introduction, the same obtuse answers and the same annoying refusal to accept mistakes.

Why not reveal yourself Bernie...or should I say Peter?

[Sparkie1723]

Re: Defaults, S89 and rescission

Please don't apologise Sparkie - the penny has dropped...

I have found bernie's posts strangely familiar, giving the same sense of irritation and puzzlement as those from a well-known poster, whose last post was just 2 weeks before bernie's first.

That well-known poster? Peterbard of course.

You are, aren't you Bernie, the Bard himself? I see the exact same spelling mistakes and the same capitalised introduction, the same obtuse answers and the same annoying refusal to accept mistakes.

Why not reveal yourself Bernie...or should I say Peter?

If you are right L_A then I am not too worried about causing upset asI follow yiour drift.
Will let other stuff out on the public thread that all will find quite astounding

Sparkie.

[berniel]

Re: Defaults, S89 and rescission

I would like to point out the agreement in question is a Hire Purchase agreement and should this not fall under section 99 maybe?????.

Just a thought.
However.......... I came on to this thread to make "peeps" aware of how Creditors go to great lenghts to twist, falsify and fabricate docs which on face value "Appear" to be genuine, when they are not and for people to scrutinise their default notices closely, I certainly did not want to stir up so much hassle among subscibers.

This my fault for plunging everyone into the middle of a very big mess up...........I should not have done so and I applogise again........I'll have to shut my mouth up on this thread............I cause too many "shocks" ..........that's why I am " Sparkie".

Sorry folks

Sparkie

There is no problem

Yes section 99 would have been appropriate, since you have paid more than 50%of your total credit, however you would have had to terminate the agreement by writing yourself.
Unfortunately it doesn't wrork if they terminate upon default.

Bernie
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Please don't apologise Sparkie - the penny has dropped...

I have found bernie's posts strangely familiar, giving the same sense of irritation and puzzlement as those from a well-known poster, whose last post was just 2 weeks before bernie's first.

That well-known poster? Peterbard of course.

You are, aren't you Bernie, the Bard himself? I see the exact same spelling mistakes and the same capitalised introduction, the same obtuse answers and the same annoying refusal to accept mistakes.

Why not reveal yourself Bernie...or should I say Peter?

Why would my identity be relevant. Do you not have an argument, since i see you have been thanked for your comment perhaps someone else would like to support your argument in this.

What exactly is your argument by the way.
Bernie

[berniel]

Re: Defaults, S89 and rescission

If you are right L_A then I am not too worried about causing upset asI follow yiour drift.
Will let other stuff out on the public thread that all will find quite astounding

Sparkie.

Good , hate you to worry

Bernie

[Lord_Alcohol]

Re: Defaults, S89 and rescission

Good , hate you to worry

Bernie

Typical Peterbard reply - sarcastic, obtuse and pointless.
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Why would my identity be relevant. Do you not have an argument, since i see you have been thanked for your comment perhaps someone else would like to support your argument in this.

What exactly is your argument by the way.
Bernie

My argument is that you are Peterbard, a poster who has been singularly unhelpful, rude and antagonistic to me and others in the past. Surely that is clear enough?

[berniel]

Re: Defaults, S89 and rescission

Typical Peterbard reply - sarcastic, obtuse and pointless.
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My argument is that you are Peterbard, a poster who has been singularly unhelpful, rude and antagonistic to me and others in the past. Surely that is clear enough?

Dont forget my poor spelling.

Bernie

[Lord_Alcohol]

Re: Defaults, S89 and rescission

Dont forget my poor spelling.

Bernie

Oh yes, thanks...and your poor spelling.