MACKENZIE

[Guest]

Re: MACKENZIE

Ehh seriously Davyb, are you saying the a Default Notice performs none of the functions under the CCA Act 1974?? If you are then you have completely lost me there. As a Valid Default does perform the functions under the act. Its only when its invalid when it fails to perform. Or are you referring to the example i posted earlier today (which to be honest i can not remeber if it was valid or not now and i never checked it before i posted it as an example to proof PDL companies do issue DN's), if so then am not talking about that particular DN, am talking about DN's in general.

I suppose it gives time to remedy but so does a LBA, It cannot do what a DN was designed to do, that is restore the debtors right to make payments as per an agreement, it can't because the agreement is over.

D

[teaboy2]

Re: MACKENZIE

I suppose it gives time to remedy but so does a LBA, It cannot do what a DN was designed to do, that is restore the debtors right to make payments as per an agreement, it can't because the agreement is over.

D

It doesn't restore any rights at all - The act itself states that if a debtor complies with the DN that the breach shall be deemed as not having occured. Therefore all it does is put both parties back to where they would have been if the debtor had not originally defaulted. It does nothing more than that.

As for "I suppose it gives time to remedy but so does a LBA" - whilst that is true, it still doesn't make an LBA a default notice required under section 87(1), you can not substitute a DN with a LBA.

[bluebottle]

Re: MACKENZIE

Afternoon all,

The important point (IMO) is that they [Mac Hall] just do not like being in the same position as the people they write to:

That is to say they [Mac Hall] are now being stopped from bullying....and will run away.

I was always told that if you stand up to a bully he/she will stop. I had my ex-wife arrested twice for assaulting me in the 14 years of our marriage, and I not ashamed to say that I did so - why? Because I do not believe in striking a female, and I knew she was breaking the Law!! She was a bully, but only in the last 3-4 years of our marriage...it seemed to grow once she had the smell of money....my dear departed Mum left me well provided for...need I say more?.

So my view is Mac Hall = Bullies. Me = standing up to the bullies with their own treatment of others being used against them. [Works every time!!]

PS: As an ex-PC I knew/know that those who intimidated others often 'got their doors put in' (by other PC's), just to show these low-life perpetrators that they were not going to get away with their behaviour. Saved a fortune for the Government and bought offenders to heel. 'Summary Justice', I think it's called!

Best wishes all


Dougal

The police is like an extended family and does look after its own. I can vouch for that when my father was killed in an RTC in 1987. What you say in the last few lines of your post is very true.

[Guest]

Re: MACKENZIE

It doesn't restore any rights at all - The act itself states that if a debtor complies with the DN that the breach shall be deemed as not having occured. Therefore all it does is put both parties back to where they would have been if the debtor had not originally defaulted. It does nothing more than that.

As for "I suppose it gives time to remedy but so does a LBA" - whilst that is true, it still doesn't make an LBA a default notice required under section 87(1), you can not substitute a DN with a LBA.

Hi

In the normal course of events, if a debtor breaches an agreement and receives a default notice , he will be given the option of payng the arrears within 14 days or having his account terminated.

If he remedies, you are quite right, he is put back into the situation before the breach occurred, therefor the account will still be running he will be entitled to readopt the pay arrangement made under it, this is the whole point of a default notice under the act.

Of course any CRA markers or other record of account activity will remain.

If the account has already ended(as it would be in a pdl)he would be unable to do this.

D

[teaboy2]

Re: MACKENZIE

Hi

In the normal course of events, if a debtor breaches an agreement and receives a default notice , he will be given the option of payng the arrears within 14 days or having his account terminated.

If he remedies, you are quite right, he is put back into the situation before the breach occurred, therefor the account will still be running he will be entitled to readopt the pay arrangement made under it, this is the whole point of a default notice under the act.

Of course any CRA markers or other record of account activity will remain.

If the account has already ended(as it would be in a pdl)he would be unable to do this.

D

I agree with the first bit, though the last sentence is laughable.

Under a PDL if the debtor pays within the statutory 14 days, then the loan is repaid in full and both parties are returned to the position they would have been in if the breach had not occured. So how you can say that a debtor can not do this is beyond me. The account does not end it continues untill the the loan is either repaid in full or terminated of the back of a VALID DN. If the agreement had already ended then the creditor would not be able to issue a default notice, which would also mean he would therefore not beable to enforce the agreement in court. As you simply can not issue a default notice on an agreement that ceased to exist prior to issuing the DN.

Now as i said in the other thread, i see no point in continuing this debate with you since you have in the other thread proven you unwillingness to back up your interpretation with any hard facts, particular in regards to the case law quoted in the other thread, which you alone claimed was inapproriate, but refused to tell us why it was. Therefore i see no point in dicussing what is just your own personal interpretation when your not willing to provide hard facts, legislation or case law to back up your interpretation.

[Guest]

Re: MACKENZIE

I must admit i find some of your posts quite confusing, contract have core terms the repayment details are one of them, that is all. When a contract reaches the end of its term it is TERMinated.

Very basic stuff teaboy, now if you cannot understand that, what on earth is the use of me or anyone else trying to explain the relative complexity of case law to you.

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.

[Guest]

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

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.

[Guest]

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

[Guest]

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

[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?

[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.

[Guest]

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

[Guest]

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