MACKENZIE

Re: MACKENZIE

Teaboy

Sorry shouldn't laugh, would you like me to tell you the difference between principle and security on a contract.

C

Re: MACKENZIE

Had to comment on this it is so funny

But you forget that it also says under section 87(1) to enforce any security (are you saying money or repayment of monies is not a security)

Yes i am security on a loan is usually property or goods


you also forget that they can not enforce a debt in court without a vaild default notice, nor can they inact any term of the contract as per schedule 2 6f of the Consumer Credit (Enforcement,Default and Termination Notices) Regulations 1983, that would allow them to enforce the debt/agreement.off course they can not demand earlier repayment of any sum as the arrears is the full balance left owed.Therefore they can only enforce, which requires a Valid DN before they are entitled to enforce

See highlighted

I think perhaps you need to read a bit more

D

[bluebottle]

Re: MACKENZIE

If the creditor commits an act of default or breach of its obligations under an agreement/contract, then, depending on the nature and gravity of the default or breach of obligations, the other party, the debtor, has a right to seek redress for that default or breach of obligations. Irrespective of any rights the creditor may have, nothing shall negate or deprive the debtor, who is regarded as the weaker party in the agreement/contract, of their right to seek redress, whatever form that redress may take, for breach of contract/obligation.

An extreme example of this would be where a person enters into a loan agreement over a two-year repayment period and, part way through the term, the creditor decides to pull the rug out from under the debtor's feet by ending the agreement, without good reason, and demands the debtor pay the outstanding balance immediately, knowing full-well the debtor cannot. Only a judge who was two steps away from being classed as bent would side with the creditor, unless, of course, the creditor lies through their teeth to the court.

Re: MACKENZIE

I think there are one or two on CAG.

But it doesn't really matter, anyone who understands the legislation would tell you the same.

Any way i don't know why you wouldn't believe me, i believe you when you say you work with contracts all day

D

[teaboy2]

Re: MACKENZIE

I could understand this bit, just.

"Oh i see, so section 87(1) does not apply to fixed term credit agreements? Funny, i never saw it say that anywhere in the CCA act 1974, nor is a fixed term aggreement for a PDL or Bank Loan classed as an exempt agreement. So where does it state that section 87(1) does not apply to a PDL or other fixed term loans our what case law backs that up? Or are you simply basing your view on cases you have lost in county court that do not set precendents and could have been lost for various reasons?"

Yes a few people have been foolish enough to rely on the DN thing when challenging this type of agreement, fortunately the judge wouldn't lrt the creditor have the full amount claimed, just the principle plus one month, they can do that you know, section 127(!), dn issue thrown out all cases.

D

Right and case law is? Ohh i see, you just expect us to believe your word for it. You know it amazes me how you make these assertions as Facts yet fail to provide any supporting evidence. Not to mention there could well be many other factors that resulted in the debtor losing in.. county court was it? Such as admitting they took out the loan or owe the debt, or the judges lack of legal knowledge on the credit act as it has been known to happen.

[teaboy2]

Re: MACKENZIE

Steady on chaps.
Of course the CCA applies to fixed sum loans, never said it didn't, if you read section 87 though it says that in order to claim early repayment, all amounts due on a fixed sum loan which has run its course are in arrears(past due), see the difference.
You cannot offer a remedy because the remedy is to pay the full balance due. But you forget that it also says under section 87(1) to enforce any security (are you saying money or repayment of monies is not a security) you also forget that they can not enforce a debt in court without a vaild default notice, nor can they inact any term of the contract as per schedule 2 6f of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983, that would allow them to enforce the debt/agreement. off course they can not demand earlier repayment of any sum as the arrears is the full balance left owed. Therefore they can only enforce, which requires a Valid DN before they are entitled to enforce

Yes BB everyone forgets that underneath the statute there is the contract, and the contract is governed by contract/common law.

If statue were not there the agreement would be enforced upon termination, however terminated, either by default, or because it had run its course and the sums under it had not been repaid.

All the DN(and statute) do is delay the proceedure where remedy is possible, when the asagreement is run its course, there is no remedy other than to pay the ballance due. So there is a remedy then when the agreement has run it course. Do you realise how your last state contradicts itself - you say "there is no remedy", then say "other than paying the outstanding balance" straight after, is that not the same as paying out standing arrears due! err yeah its exactly the same. Make your mind up there is either a remedy or there is not. Section 87(1) is there specifically to allow the debtor the chance to remedy a breach whether its missin the first payment, or last payment.

Simple

D

see above

Re: MACKENZIE

I could understand this bit, just.

"Oh i see, so section 87(1) does not apply to fixed term credit agreements? Funny, i never saw it say that anywhere in the CCA act 1974, nor is a fixed term aggreement for a PDL or Bank Loan classed as an exempt agreement. So where does it state that section 87(1) does not apply to a PDL or other fixed term loans our what case law backs that up? Or are you simply basing your view on cases you have lost in county court that do not set precendents and could have been lost for various reasons?"

Yes a few people have been foolish enough to rely on the DN thing when challenging this type of agreement, fortunately the judge wouldn't lrt the creditor have the full amount claimed, just the principle plus one month, they can do that you know, section 127(!), dn issue thrown out all cases.

D

Re: MACKENZIE

Steady on chaps.
Of course the CCA applies to fixed sum loans, never said it didn't, if you read section 87 though it says that in order to claim early repayment, all amounts due on a fixed sum loan which has run its course are in arrears(past due), see the difference.
You cannot offer a remedy because the remedy is to pay the full balance due.

Yes BB everyone forgets that underneath the statute there is the contract, and the contract is governed by contract/common law.

If statue were not there the agreement would be enforced upon termination, however terminated, either by default, or because it had run its course and the sums under it had not been repaid.

All the DN(and statute) do is delay the proceedure where remedy is possible, when the asagreement is run its course, there is no remedy other than to pay the ballance due.

Simple

D

[bluebottle]

Re: MACKENZIE

What about abuse of agreement/contract by the creditor? What happens then? Issue a DN? I don't think so. The CCA may regulate what the parties can and cannot do, mainly for the borrower's protection, but Contract Law is the overriding factor.

[teaboy2]

Re: MACKENZIE

You mention contract law,not all contracts are covered by the act TB, yet creditors sue on them all the time, without the benefit of a default notice. Contract law is not one act par se it is based on many different acts and common law! A contract does not terminate when a party is in breach of a term as there are remedies to such breaches and in the case of a CCA that remedy is section 87(1) of the CCA 1974 e.g. issuing a DN. A creditor is not entitled to enforce a debt under a credit agreement if they have not first complied with Section 87(1) i have never seen a creditor in court argue that they did not need to issue a DN to enforce in court. Especially when they can not enforce a debt without first issuing a Valid DN. The Brandon V Amex appeal outcome made it clear that the DN was not a deminis issue and was required and needed to be VALID thats case law.

You think that if a consumer contract is terminated then the creditor is unable to enforce because he hasn't previously presented a DN?. Thats right and case law confirms this its only if he issued remedies his failure to issue a DN when he will then be entitled to enforce in court. Though if he sold the account he no longer has the right to issue a DN as he no longer owns the right to the debt.

Well it is a novel view but not one that is supported by creditors unfortunately. - Really wheres your case law prove where a creditor has successfully gone to court for a PDL without a DN notice being issued? Why is it the PDL company's and creditors of other fixed term loans do themselves issue default notices after the loan period?

You need to look more carefully at the function of the notice and its relationship to the contract. - No i don't, i understand it perfectly well.

The statute only regulates the contract, the terms of the contract still apply whether regulated or not, the payment details the total credit, the interest and also its term. It also regulates the terms, and UTCCR 1999 also regulate the terms as well as general contract law. So you point their is mute especially when its the terms that make up the contract.

All the statute does is give the debtor a chance to remedy a default if the contract is "under an agreement," once it is terminated it has no function. It also prevents the creditor from enforcing and terminating the agreement if they fail to comply with section 87(1) and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983. As a result of such non complience the creditor is no entitled enforce. A credit agreement does not terminate just because the loan period has past in default cases statue law prevents it being terminated under section 87(1) is complied with by the creditor.

Look at the default notice, I am sure you have seen it, anything about commencing court action, nope it says to demand EARLY payment of any sum. - So whats you point, theirs nothing stopping them from taking legal action infact its you that needs to look at the DN example from Quick Quid i posted ealier as at the bottom of the page it clear states - "we will take appropriate collections measures which may include, but are not limited to, the use of a third party collections agency or sale of your debt to a collections company." Key wording their is "but are NOT Limited to" therefore implying other forms of enforcement such as legal action. Though without checking i may have not included that section when i took a screen shot of it, so it may have been cut off.

Its all about actions that can be taken whilst under an agreement. The section says in order to terminate due to breach, there are other ways a contract can terminate, like when they come to an end, the same as any other contract.
I think you need to re-think your understanding of contract law - Seriously, and which section would that be percisely as nothing under the CCA 1974 says it can be terminated in default cases, any other way. I deal with contracts on daily basis, so i have bloody good understanding of contract law, its you that needs to read up on it.

D

I should hastily add that this does not apply to a credit card or open ended agreement of course, in that case the agreement would have to be terminated upon default by the issue of a default notice.

D

Oh i see, so section 87(1) does not apply to fixed term credit agreements? Funny, i never saw it say that anywhere in the CCA act 1974, nor is a fixed term aggreement for a PDL or Bank Loan classed as an exempt agreement. So where does it state that section 87(1) does not apply to a PDL or other fixed term loans our what case law backs that up? Or are you simply basing your view on cases you have lost in county court that do not set precendents and could have been lost for various reasons?

Re: MACKENZIE

I should hastily add that this does not apply to a credit card or open ended agreement of course, in that case the agreement would have to be terminated upon default by the issue of a default notice.

D

Re: MACKENZIE

You mention contract law,not all contracts are covered by the act TB, yet creditors sue on them all the time, without the benefit of a default notice.

You think that if a consumer contract is terminated then the creditor is unable to enforce because he hasn't previously presented a DN?.

Well it is a novel view but not one that is supported by creditors unfortunately.

You need to look more carefully at the function of the notice and its relationship to the contract.

The statute only regulates the contract, the terms of the contract still apply whether regulated or not, the payment details the total credit, the interest and also its term.

All the statute does is give the debtor a chance to remedy a default if the contract is "under an agreement," once it is terminated it has no function.

Look at the default notice, I am sure you have seen it, anything about commencing court action, nope it says to demand EARLY payment of any sum.

Its all about actions that can be taken whilst under an agreement. The section says in order to terminate due to breach, there are other ways a contract can terminate, like when they come to an end, the same as any other contract.
I think you need to re-think your understanding of contract law

D

[teaboy2]

Re: MACKENZIE

You almost have it here. When an agreement terminates, it means that the terms of the contract no longer apply.(hence the name).
Therefore the rights and obligations under the contract cease, the debtor looses the right to repay by installment on a credit agreement and all sums become due.

So when the term of a contract ends all sums become due, (principle+ interest)if they are all paid the contract is dissolved.

If not what remains becomes a default balance, this is because it remains in spite of the terms of the agreement.(the agreement says that all sums must be paid within a certain time)

The creditor is then free to sue for all sums without being bound by any agreement.
This is why an agreement must be terminated before a creditor can sue.

Hope this assists

D

They would not be able to sue as the tehy can not issue a Default notice under section 87(1) if the contract has terminated already and therefore they can not enforce in court - Hence why the agreement does not cease when the debtor is in default.

By your reckoning not only would the debtors rights to make repayments cease (which it does not as they can repay at any time even after the statutory 14 days, though a default will be registered on their credit file) but the creditors right to any sums due would also cease, since they also are a party to the same contract. This is exactly why the creditor must in default cases follow section 87(1) route prior to terminating the agreement. Ohh and the agreement does not have to be terminated prior to the creditor suing, you can sue for breach of contract even if the contract has no been terminated. How you can say "The creditor is then free to sue for all sums without being bound by any agreement." is beyong me - what do you think determines if the debt is enforceable of not, a plain blank sheet of paper?

You clearly have no idea about contract law. Now please stop responding to my post, i already told you i find your responses as an attempt to harass me into responding.

Re: MACKENZIE

[QUOTE=teaboy2;275554
A contract regardless of duration only completes/terminates when all terms are fulfilled and/or breaches remedied by both parties (such remedies maybe stipulated in other terms in the contract or by statute law such as section 87(1) Default Notice if complied with by the debtor), or if it is either mutually terminated, or terminated by legal entitlement under statutory law by either party, such as by the creditor issuing a DN under section 87(1) followed by a valid termination notice, in the case of credit agreements.

.[/QUOTE]

You almost have it here. When an agreement terminates, it means that the terms of the contract no longer apply.(hence the name).
Therefore the rights and obligations under the contract cease, the debtor looses the right to repay by installment on a credit agreement and all sums become due.

So when the term of a contract ends all sums become due, (principle+ interest)if they are all paid the contract is dissolved.

If not what remains becomes a default balance, this is because it remains in spite of the terms of the agreement.(the agreement says that all sums must be paid within a certain time)

The creditor is then free to sue for all sums without being bound by any agreement.
This is why an agreement must be terminated before a creditor can sue.

Hope this assists

D

[teaboy2]

Re: MACKENZIE

No its not terminated, how can it be terminated when the debtor is in default of the last payment, and therefore has not fulfilled his side of the contract by not making all repayments (another core term). It also can not be terminated in default cases, prior to issuing a DN under section 87(1) - You can not issue a DN or be entitled to enforce debt under said section if the agreement ceases to exist prior to the DN being issued. Only time it terminates when the loan period has past is when the debtor has not defaulted and paid back the loan in full. Nothing in the CCA 1974 allows for the agreement to terminate in Default Cases at the end of the loan period.

A contract regardless of duration only completes/terminates when all terms are fulfilled and/or breaches remedied by both parties (such remedies maybe stipulated in other terms in the contract or by statute law such as section 87(1) Default Notice if complied with by the debtor), or if it is either mutually terminated, or terminated by legal entitlement under statutory law by either party, such as by the creditor issuing a DN under section 87(1) followed by a valid termination notice, in the case of credit agreements.

Yes it is basic stuff Davby. Its basic contractual law, not just CCA stuff, which you seem to not realise.

Now thats it Davyb, i shall not be continuing this argument with you so please refrain form responding to any of my posts, whether in this thread or others. If you can not back up your statements, then i have no desire to disgust, debate or argue points of law, or different forms of advise given out by either us with you any more. In fact given the nature of the way you have tried to twist my words and make me out to have said things i have not, whether it be by innocent misinterpretation of sub concious or knowing use of Mental Pyschology tactics, i will deem any direct response to my post as nothing but an attempt to harass me in to replying.