Message For Teaboy

[miliitant]

Dear ***********

Thank you for your reply.

I take your points, although I’m not sure legal (and lawful) assignation of the rights under a contract amounts to unlawful rescission.

I never said the assignment itself was unlawful or that the rights of the assignee are effected (as to their ownership), Unlawful rescission is the termination of a contract or in this case credit agreement, when the original creditor sells the account without serving a valid or accurate default notice to the debtor. As such the following case law confirms the failure of a default/termination notice to be valid is unlawful rescission.

“Failure of a Default or Termination Notice to be accurate not only invalidates such notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) but it is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt (Wilson v First County Trust Ltd (2003) UKHL 40, Wilson V Robertsons (London) Ltd(2006) EWCA Civ 1088, Wilson v Pawnbrokers (2005) EWCA Civ 147) - but would also give the claimant a claim for damages in the sum of £1000 (Kpohraror v Woolwich Building Society (1996) 4 All ER 119).”

So the assignment and ownership is not unlawful itself and perfectly legal, but selling the account without a valid default notice being served is unlawful rescission – though unlawful rescission of contract itself, does not make the assignment unlawful. But it does mean the assignee can not enforce the account/debt in court, and also the assignee can not remedy the invalid default notice. Though an invalid default notice can be remedy by the original creditor, BUT ONLY PRIOR to selling the account, once the account is sold, and as with (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) case law, the agreement ceases to exist and therefore can not be remedied. Though a debt still exists with or without an agreement - Though with no valid agreement, or if such agreement is unlawfully rescinded, then the assignee can not enforce the debt via the court, to do so would not only be an abuse of the court process, but also itself unlawful. So their are for this purpose to different acts, act 1 being termination of contract, act 2 being assignment of account/debt. IF act 1 is done unlawfully it does not effect the legal ownership of act 2. though the assignee can not enforce the account/debt if act 1 was done unlawfully, though that does not effect their legal ownership of the debt.

Further, I am not sure there was anything to rescind from as ** had already full performed their obligations under the same and the credit period allowed had already expired. As for a default notice, it is without question that such a document can be lawfully and properly served at any time prior to the date of issue of a legal action. Even if it turns out that a default notice has not been served (and my information is that is it has), the simple remedy would be to serve one.

Doesn’t matter, they still had to perform the service of a default notice as per the CCA ACT 1974 for which the agreement is governed by. As they failed to perform to serve a default notice under the agreement governed by the CCA act 1974 then they did not perform their legal obligations under said agreement (if it ever existed) as such they terminated the agreement whilst in breach of the CCA ACT 1974 (and therefore whilst in breach of contract) even if a debtor fails to pay, the creditor must still adhere to the CCA ACT prior to terminating the agreement, by issue a default notice, failure to pay is not a breach of contract as the default notice under part vII allows for the debtor to remedy and by doing so the ACT is clear that when a default (failure to pay) is remedied then the breach will be treated as never have occurred. So the debtor is not in breach of contract until they have received a valid default notice and failed to remedy the default. That is why it is so important for a creditor to serve a valid default notice allowing 4 working days for postage (before it is deemed as served) after the date of the notice, and another clear 14 days (it’s a statutory right for a debtor to have 14 days to remedy form after the date the default is deemed served) after after the date it is deemed as served for the debtor to remedy. So to put it simply a default notice is a legally required notice that must be served on a debtor informing them of the their breach and allowing the to remedy and put the agreement back to where it was before the default, hence why law states that upon remedy the breach will be treated as not having occurred. So if the default is invalid or not served then no breach on the debtors part has occurred as such a breach only in the eyes of the law occurs after a valid default notice is issued. So default of account is not the same as a breach of agreement, as a default is not a breach of contract as a breach of contract only occurs when a valid default is issued and the debtor fails to remedy the default. You simply can not serve a default at anytime prior to legal action, it must be served by the original creditor and be valid and contain the prescribed content prior the the original creditor selling the account. Once sold it can not be remedied by ‘simply issuing a new one’, the law is clear on that as is the case law above (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998)




I DO HOPE THIS A PIECE OF YOUR HANYWORK TEABOY AND WOULD VALUE YOUR COMMENTS

YOU GO ON ABOUT NEEDING A DEFAULT NOTICE TO TERMINATE AN AGREEMENT PRIOR TO SELLING ETC. THATS STATUTE LEGISLATION SO NO ISSUES ON THAT. WHAT I AM ASKING IS HOW THIS SCENARIO PANS OUT WITH PAYDAY LOANS.

PAYDAY LOANS ARE OVER THIRTY DAYS THEN THEY EXPIRE SO S.86 AND S.87 OF THE CCA 1974 APPLIES

the whole amount of the loan automatically becomes due on the expiration of the original term which would be the thirty day loan so

IS A DEFAULT NOTICE SERVED UNDER 87 (1) OF THE CCA 1974 REQUIRED FOR A PAYDAY LOAN PRIOR TO TERMINATION OF THE AGREEMENT (WHICH IT HAS AFTER 30 DAYS)

PRIOR TO SELLING THE DEBT TO A DCA THEN THE DCA THREATNING TO GO LEGAL

[teaboy2]

Re: Message For Teaboy

Yes, because the agreement does not expire due to the debtor defaulting on payment. Therefore the agreement carries on until it is either terminated or the loan is paid in full. For example, if you took out a loan for 24 months and then missed the last 7 months repayment, the agreement does not end on the 24th month due to you missing the last 7 payments (or even the just missing the last payment) it continues whilst the debt remains outstanding or until the agreement is terminated of the back of a default notice. Remember they can only enforce the debt if a default notice is issued and is valid, they can not therefore terminate via section 98 and enforce the debt, as that can only be used to terminate in Non Default Cases - Hence why section 98 is termed as "Duty to give notice of termination (non-default cases)." - So it can not be used to terminate an agreement where the debtor is in default.

Basically a CCA does not expire untill it is terminated or the loan has been repaid in full, written off or become statuted barred.

[Guest]

Re: Message For Teaboy

Sorry to but in Militant.
But really this is mostly nonsense.

The period of a loan on a fixed sum agreement is one of the core terms of the agreement, it is not extended just because the sums due under it are not repaid.
The creditor may decide not to enforce, but all sums remain due and payable under the original agreement unless it is modified( see modified agreements CCA).

That act separatess agreements of a fixed term and open ended agreements in many sections, (section 98 for instance). This is because the facility to terminate open ended agreements like credit cards has to be stipulated, where it does not in fixed term agreements because they automatically terminate at the end of their term.


D

[Guest]

Re: Message For Teaboy

To answer the question teaboy , no a section 87 notice is not needed unless the agrement is still within its term.

D

[teaboy2]

Re: Message For Teaboy

Sorry to but in Militant.
But really this is mostly nonsense.

The period of a loan on a fixed sum agreement is one of the core terms of the agreement, it is not extended just because the sums due under it are not repaid.
The creditor may decide not to enforce, but all sums remain due and payable under the original agreement unless it is modified( see modified agreements CCA).

That act separatess agreements of a fixed term and open ended agreements in many sections, (section 98 for instance). This is because the facility to terminate open ended agreements like credit cards has to be stipulated, where it does not in fixed term agreements because they automatically terminate at the end of their term.


D

The part highlighted in red proves that the agreement is still in force until all sums are repaid. What i means is the sums still have to be paid as per the agreement, so the agreement simply can not cease to exist (terminate) just because it has past the last repayment date. The terms of the agreement are still in force until the money is repaid in full. It only terminates, like with all contracts, when the terms of the contract have been met and fulfilled fully by both parties, or when it is terminated lawfully or unlawfully by one or both parties. If it was no longer in force, then the creditor would not be entitled to enforce the debt under said agreement nor would they be entitled to continue to add charges under the agreement when it has past the last repayment date or add any additional interest other than what is allowed by the act itself and by law.

[Guest]

Re: Message For Teaboy

When an agreement is terminated all sums due under it become due. The terms of the agreement no longer apply.
The facility for the debtor to payt by installment ends. If this happens within the term of the contract thenthe creditor would have to send a DN in order to claim sums not already due, he would say tht the debtor had to pay arrears and give him 14 days to pay, if he didnt the agrement would be termnated and all sums including sums not yeet due would be payable.

If the agreement had reached its full term all sums under the agreement would be due. Al entitlement to repay in installments would have ended, no default notice would be appropriate because the amount of arrears would be the same as the amount due. He could not remedy without paying the amount due under the agreement.
D

[Guest]

Re: Message For Teaboy

The terms of the agreement are still in force until the money is repaid in full.

If the above were true anyone could simply stop paying their loan and recommence when they like continuing with there payments, we know this is not the case.

D

[Guest]

Re: Message For Teaboy

It is quite simple really, when the creditor loans you the money he does it on the understanding that he gets it back in a certain period of time, on a fixed sum loan.

Simple as that.
D

[teaboy2]

Re: Message For Teaboy

If the above were true anyone could simply stop paying their loan and recommence when they like continuing with there payments, we know this is not the case.

D

No not at all, as they are required under the same agreement to make the payments as per the terms of the agreement. If they do not then under same agreement the creditor can enforce the debt via section 87(1) and take it to court. There is no way of getting out of paying the debt at all, it still has to be paid unless a court deems the debt unenforcable or it becomes statuted barred. If the agreement terminated as you say then they would not be entitled to enforce the debt as the agreement that allows them to do so no longer exists or as a result of the creditors non complience with section 87 (1). Which is why it does not terminated on the last repayment date, it carries on until the debt is repaid or terminated as a result of non complience of a default notice issued under section 87(1) by the debtor or terminated by the creditor under section 98. If it terminated as you say it does, then their would be no agreement in place which would prevent the creditor from issuing a DN under section 87(1) as you can not be in breach of a contract that had already terminated, nor is the creditor entitled to issue a DN when the agreement no longer exists. Not only that, but section 87(1) makes it clear that the agreement can not be terminated unless a DN is issued and not complied with, unless it is terminated under section 98.

If i bought item from the shop by paying 50% upfront and the rest over a 6 month period and the shop terminated the contract on the 3rd month, would the shop be entitled to the rest of the money? No because they terminated the contract unlawfully. The same applies with CCA's, why do you think they do not send out termination notices or letters informing the debtor that the agreement is ended/terminated? It's because it has not terminated.

Nothing in the CCA act 1974 states a CCA ends on the last repayment date, why does it not state that, its because the agreement remains in place until the debt is repaid in full or has been terminated as a result of either non complience with a default notice under section 87(1) or terminated by the creditor under section 98 - Or the debt has become statuted barred. Not only that but if the CCA terminated, then creditors would not be entitled to continue to record payment history on a persons credit file as such term entitling them to do so is part of the CCA agreement.

Your confusing the term of the Loan (which stipulates the time in which the money lent must be repaid) with being that of the time in which the contract remains active, it is not. As the loan term itself is simply a key financial term within the contract itself, it is not the duration of the contract, but the period in which the loan must be repaid, nothing more. The contract duration is only complete when the amount lent is repaid in full, or is either terminated via non complience with section 87(1) default notice or by termination by the creditor under section 98.

From what your saying, if i employed a builder to build an extension for me and the contract terms stated the work must be completed within 56 days (same as money must be repaid within 56 days under a CCA), then according to you the contract would end at the end of the 56th day regardless of whether the work was completed or not, therefore meaning i would not be entitled to inact other terms of the same contract that stipulate what would happen if the work was not completed due to the contract being already terminated - Thats just simply not the case as the contract simply does not end just because the work was not completed within the 56 days. Its the same for CCA's it does not terminated just because the timeline for the repayment of the amount lent to the debtor has past.

[Guest]

Re: Message For Teaboy

Please don''t be offended teaboy. But as a rule i find that if an argument is worth anything you can usually stated in a few words,I am afraid i lost the thread half way through.

Simply, the term of the agreement, is part of the bargain, the debtor agrees to pay within the term, if he doesn't the agreement is terminated in default.

It is not a new concept and completely independent of the act, it would be absurd to say that a debtor could lawfully and indefinitely extend the repayment period of a loan at a whim.

D

[Guest]

Re: Message For Teaboy

Dear ***********

Thank you for your reply.

I take your points, although I’m not sure legal (and lawful) assignation of the rights under a contract amounts to unlawful rescission.

I never said the assignment itself was unlawful or that the rights of the assignee are effected (as to their ownership), Unlawful rescission is the termination of a contract or in this case credit agreement, when the original creditor sells the account without serving a valid or accurate default notice to the debtor. As such the following case law confirms the failure of a default/termination notice to be valid is unlawful rescission.

“Failure of a Default or Termination Notice to be accurate not only invalidates such notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) but it is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt (Wilson v First County Trust Ltd (2003) UKHL 40, Wilson V Robertsons (London) Ltd(2006) EWCA Civ 1088, Wilson v Pawnbrokers (2005) EWCA Civ 147) - but would also give the claimant a claim for damages in the sum of £1000 (Kpohraror v Woolwich Building Society (1996) 4 All ER 119).”

So the assignment and ownership is not unlawful itself and perfectly legal, but selling the account without a valid default notice being served is unlawful rescission – though unlawful rescission of contract itself, does not make the assignment unlawful. But it does mean the assignee can not enforce the account/debt in court, and also the assignee can not remedy the invalid default notice. Though an invalid default notice can be remedy by the original creditor, BUT ONLY PRIOR to selling the account, once the account is sold, and as with (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) case law, the agreement ceases to exist and therefore can not be remedied. Though a debt still exists with or without an agreement - Though with no valid agreement, or if such agreement is unlawfully rescinded, then the assignee can not enforce the debt via the court, to do so would not only be an abuse of the court process, but also itself unlawful. So their are for this purpose to different acts, act 1 being termination of contract, act 2 being assignment of account/debt. IF act 1 is done unlawfully it does not effect the legal ownership of act 2. though the assignee can not enforce the account/debt if act 1 was done unlawfully, though that does not effect their legal ownership of the debt.

Further, I am not sure there was anything to rescind from as ** had already full performed their obligations under the same and the credit period allowed had already expired. As for a default notice, it is without question that such a document can be lawfully and properly served at any time prior to the date of issue of a legal action. Even if it turns out that a default notice has not been served (and my information is that is it has), the simple remedy would be to serve one.

Doesn’t matter, they still had to perform the service of a default notice as per the CCA ACT 1974 for which the agreement is governed by. As they failed to perform to serve a default notice under the agreement governed by the CCA act 1974 then they did not perform their legal obligations under said agreement (if it ever existed) as such they terminated the agreement whilst in breach of the CCA ACT 1974 (and therefore whilst in breach of contract) even if a debtor fails to pay, the creditor must still adhere to the CCA ACT prior to terminating the agreement, by issue a default notice, failure to pay is not a breach of contract as the default notice under part vII allows for the debtor to remedy and by doing so the ACT is clear that when a default (failure to pay) is remedied then the breach will be treated as never have occurred. So the debtor is not in breach of contract until they have received a valid default notice and failed to remedy the default. That is why it is so important for a creditor to serve a valid default notice allowing 4 working days for postage (before it is deemed as served) after the date of the notice, and another clear 14 days (it’s a statutory right for a debtor to have 14 days to remedy form after the date the default is deemed served) after after the date it is deemed as served for the debtor to remedy. So to put it simply a default notice is a legally required notice that must be served on a debtor informing them of the their breach and allowing the to remedy and put the agreement back to where it was before the default, hence why law states that upon remedy the breach will be treated as not having occurred. So if the default is invalid or not served then no breach on the debtors part has occurred as such a breach only in the eyes of the law occurs after a valid default notice is issued. So default of account is not the same as a breach of agreement, as a default is not a breach of contract as a breach of contract only occurs when a valid default is issued and the debtor fails to remedy the default. You simply can not serve a default at anytime prior to legal action, it must be served by the original creditor and be valid and contain the prescribed content prior the the original creditor selling the account. Once sold it can not be remedied by ‘simply issuing a new one’, the law is clear on that as is the case law above (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998)




I DO HOPE THIS A PIECE OF YOUR HANYWORK TEABOY AND WOULD VALUE YOUR COMMENTS

YOU GO ON ABOUT NEEDING A DEFAULT NOTICE TO TERMINATE AN AGREEMENT PRIOR TO SELLING ETC. THATS STATUTE LEGISLATION SO NO ISSUES ON THAT. WHAT I AM ASKING IS HOW THIS SCENARIO PANS OUT WITH PAYDAY LOANS.

PAYDAY LOANS ARE OVER THIRTY DAYS THEN THEY EXPIRE SO S.86 AND S.87 OF THE CCA 1974 APPLIES

the whole amount of the loan automatically becomes due on the expiration of the original term which would be the thirty day loan so

IS A DEFAULT NOTICE SERVED UNDER 87 (1) OF THE CCA 1974 REQUIRED FOR A PAYDAY LOAN PRIOR TO TERMINATION OF THE AGREEMENT (WHICH IT HAS AFTER 30 DAYS)

PRIOR TO SELLING THE DEBT TO A DCA THEN THE DCA THREATNING TO GO LEGAL

Hi sorry regarding this.

The blue writing has it right.
Rescission of a contract requires both parties to be returned to a position that they would have been in if te contract had not been made, since the creditor has already performed, the only way to rescind the agreement would be to return his money.

Also correct about the DN it would simply be a notice of intended action issueable at any time.

The case law references quoted in red are inappropriate to say the least, sorry whoever wrote them.

D

[teaboy2]

Re: Message For Teaboy

Please don''t be offended teaboy. But as a rule i find that if an argument is worth anything you can usually stated in a few words,I am afraid i lost the thread half way through.

Simply, the term of the agreement, is part of the bargain, the debtor agrees to pay within the term, if he doesn't the agreement is terminated in default.

It is not a new concept and completely independent of the act, it would be absurd to say that a debtor could lawfully and indefinitely extend the repayment period of a loan at a whim.

D

Yes the debtor does agree to pay within the term, when he does not then hes in breach of said term, but we all know that an agreement can only be terminated whilst the debtor is still in default by the issuing of a VALID default notices where the Debtor does not comply with it. So sorry but the agreement does not simply terminate just because the loan period has past.

No one is saying a debtor can indefinitely extend the repayment period, i certainly did not, nor did i even suggest that. Its quite clear in the act itself that the creditor can enforce the debt, therefore force the debtor to repay, but that can only be done by issuing a VALID DN under section 87 (1) and if the Debtor has not complied with it. So why you are stating anything about anyone saying or even suggesting that the debtor can extend the period of the loan is anyones guest. The loan period will have past, if the debtor has defaulted then they are in breach of the terms of the agreement, they are not entitled to not repay the loan, nor can they stick their finger up at the creditor and say i will pay you when i can be bothered too. What you fail to realise is that when a debtor defaults the ball is in the creditors court and they have the power to enforce the debt, whether the debtor feels like paying or not.

Yes i agree that the loan duration is a term of the agreement, and is part of the bargin. However its is not the duration of the agreement itself, its simply the duration and schedule as to when the loan under the agreement is due to be repaid. Such duration can be extended or shortened should the debtor be struggling to meet repayments or wants to pay off the remaining balance early. The agreement is for the money that is loaned, it is not for the time it takes to repay, which is why the agreement does not end when the duration of the loan has come to pass, but only ends when the loan is repaid or the agreement is terminated off the back of a VALID DN by the creditor. Which would then entitle the creditor to enforce the outstanding balance in court, though they do not need to terminate the agreement after a VALID DN is issued prior to going to court.

[Guest]

Re: Message For Teaboy

Sorry you are loosing me again, are you talking about a modifieng agreement were both parties agree to a new contract.

Yes this is a possibility, but it is not what is being discussed here is it?

The creditor would have to give notice before he went to court, if that is what you mean?

D

[Guest]

Re: Message For Teaboy

Yes i agree that the loan duration is a term of the agreement, and is part of the bargin. However its is not the duration of the agreement itself, its simply the duration and schedule as to when the loan under the agreement is due to be repaid.

Could you explain this for me, i am unsure what is meant.

D

[teaboy2]

Re: Message For Teaboy

Hi sorry regarding this.

The blue writing has it right.
Rescission of a contract requires both parties to be returned to a position that they would have been in if te contract had not been made, since the creditor has already performed, the only way to rescind the agreement would be to return his money.

Also correct about the DN it would simply be a notice of intended action issueable at any time.

The case law references quoted in red are inappropriate to say the least, sorry whoever wrote them.

D

Those case references have been used time and time again successfully by many people on consumer forums.

You know what Davyb, all you have said in the last couple of days, flies directly in the face of the advice that has been given out millions of times on all consumer forums for years. You also remind me of another user that used to go by the name PeterBard, whom i also had debates with, who would argue points but not provide anything concrete to back up his points, such as case law or legislation. You say above that the relevant case Law quoted is not appropriate, yet you fail to state why or provide anything that would show the stated case law was no longer appropriate. Do you really believe that just because you say it is people should take you word for it!!

Your right about both parties being returned to their original positions under recession of contract, however that does not apply when the it is unlawful rescission (or unlawful repudation if you prefer) as for it to be lawful rescission of contract both/all parties to the contract must agree to it. If their was no such mutual consent to the recission then its unlawful and as such the party who rescinded the agreement is not entitled to being returned to their original position prior to the contract being signed.