Cause of Action Discussion

[jon1965]

Re: Cause of Action Discussion

I am lost.
A DN was issued followed by a termination followed by a claim. If you are referring to section 3 i dont see the relevance.
The contract may say that but the CCA says a DN needs issuing. Also both Dodge and Andy understand that I am not sold on that point but open to persuasion.

[charharp]

Re: Cause of Action Discussion

That's the point can you not read? Yes a DN needs issuing before a demand can be made but it's a procedural formality. it's not when the creditor first demands full payment it's when it first has the option to. they first have the option to after one missed payment. The issuance of a DN is just a formality.

let me put this in a simpler way you may understand. You can not leave your house because the door is locked and you don't have a key. You are 'locked' in, your wife returns home and unlocks the door but you don't leave the house because you don't want to. You leave the house the following morning. You wasn't locked in until the following morning you just chose not to leave, it was your choice. The opening of the door and walking out is not required for you to be no longer 'locked' in.

[Guest]

Re: Cause of Action Discussion

I am lost.
A DN was issued followed by a termination followed by a claim. If you are referring to section 3 i dont see the relevance.
The contract may say that but the CCA says a DN needs issuing. Also both Dodge and Andy understand that I am not sold on that point but open to persuasion.

Not sure if we have changed subject here as I am only seeing half of the conversation, but a sections 87 default notice is of course a requirement before a creditor can demand full repayment.

If this delays the COA or not will be down to a court somewhere to decide, personally I think it must, as do several authorities on the subject, however we could be wrong and it could be classed just as a procedural bar similar to a letter before action.

I would say that the two are different because a letter before action demands repayment of the full sum and a default notice does not, only arrears, the full demand only comes after the remedy period and the issuance of the TN

In brown vs read the judge said that "a cause of action must have all the component parts needed for a wronged party to be able to enforce a judgment", plainly without a default/termination notice this is not possible on a regulated agreement, however this is a requirement of statute and a court may consider the SOL overrides the CCA in this respect, it is interesting, more so when you can see both sides of the argument.

[Guest]

Re: Cause of Action Discussion

This is interesting also courtesy of Dodge OTW

I came across this see page 28 (3.7).

Interesting http://lawcommission.justice.gov.uk/...nsultation.pdf

[Guest]

Re: Cause of Action Discussion

Not sure if we have changed subject here as I am only seeing half of the conversation, but a sections 87 default notice is of course a requirement before a creditor can demand full repayment.

If this delays the COA or not will be down to a court somewhere to decide, personally I think it must, as do several authorities on the subject, however we could be wrong and it could be classed just as a procedural bar similar to a letter before action.

I would say that the two are different because a letter before action demands repayment of the full sum and a default notice does not, only arrears, the full demand only comes after the remedy period and the issuance of the TN

In brown vs read the judge said that "a cause of action must have all the component parts needed for a wronged party to be able to enforce a judgment", plainly without a default/termination notice this is not possible on a regulated agreement, however this is a requirement of statute and a court may consider the SOL overrides the CCA in this respect, it is interesting, more so when you can see both sides of the argument.

Incedently for the benefit of the slower witted among us, this is the question that the BMW case has thrown up, it does not change the fact that the first missed payment does not entitle the creditor to reclaim all sums under due under a contract( usually).

[jon1965]

Re: Cause of Action Discussion

That's the point can you not read? Yes a DN needs issuing before a demand can be made but it's a procedural formality. it's not when the creditor first demands full payment it's when it first has the option to. they first have the option to after one missed payment. The issuance of a DN is just a formality.

let me put this in a simpler way you may understand. You can not leave your house because the door is locked and you don't have a key. You are 'locked' in, your wife returns home and unlocks the door but you don't leave the house because you don't want to. You leave the house the following morning. You wasn't locked in until the following morning you just chose not to leave, it was your choice. The opening of the door and walking out is not required for you to be no longer 'locked' in.

Originally Posted by Foxyflugel
Hi everyone

I received a court claim form dated 28th Nov 2013 - it is from Earlswood Solicitors and the claimant is Britannica Recoveries s.a.r.l.- Moorgate. The POCs say

1) Egg made a loan to Defendant (D) subject to standard terms and conditions.

2) Claimant (C) purchased loan on 11/07/11

3) If any instalment was not paid on due date, C would be entitled to repayment of outstanding balance of total payable, less (on payment) any rebate to which D might be entitled.

4)D failed to pay instalments due. C issued a default notice requesting payment D failed to pay the sums due, which consequently became immediately due and payable, Formal Demand issued dated 18.11.13

5) D has failed to pay the outstanding balance of £XXX.

I have checked my credit file and it says this debt was defaulted on 10/1/11.

I have completed an online AOS

I have sent (yesterday) a CPR 31.14 to the solicitors requesting the agreement, default notice and termination notice.

Any more advice anyone??

Many thanks in advance

Andy the post above was posted by Charharp to make some point which I am not sure about.

Charharp
I think you have not been reading.
Andy has stated his point of view with reasons that a DN needs issuing, he has also stated that the idea I have is also a valid argument but his belief is in what he says.

I have stated that I am not completely sold on that idea but am open to persuasion. If my understanding is right Sequenci also thinks the same as me. As of yet there is no definitive rulings on either loans or credit cards regulated by the CCA and to be honest it could go either way (IMHO)

You are it seems trying to make an argument out of something that really isn't there. In the case you quoted you have only quoted the POC and nothing from the agreement. Maybe it was "understood" that a DN had to be issued, just because it doesn't say it doesn't mean it isn't there

[Guest]

Re: Cause of Action Discussion

Andy the post above was posted by Charharp to make some point which I am not sure about.

Charharp
I think you have not been reading.
Andy has stated his point of view with reasons that a DN needs issuing, he has also stated that the idea I have is also a valid argument but his belief is in what he says.

I have stated that I am not completely sold on that idea but am open to persuasion. If my understanding is right Sequenci also thinks the same as me. As of yet there is no definitive rulings on either loans or credit cards regulated by the CCA and to be honest it could go either way (IMHO)

You are it seems trying to make an argument out of something that really isn't there. In the case you quoted you have only quoted the POC and nothing from the agreement. Maybe it was "understood" that a DN had to be issued, just because it doesn't say it doesn't mean it isn't there

Yes jon the quote is not relevant to this discussion(what a surprise ) the firs DN mentioned would be a default notice and the second "defa " would be the mention on the CRA, registration of the failure to remedy under ICO guidelines.

As for the DN delay it is a minor point anyway, in the scheme of things, and as you say could go either way, a clever lawyer may be able to distinguish BMW on grounds we have not even thought of.

[charharp]

Re: Cause of Action Discussion

Andy is delusional. Jon not so much. A default is not required to begin the limitations clock. End of story.

[jon1965]

Re: Cause of Action Discussion

Thank you for those kind words although I am not sure Andy would agree.

Is that your opinion or is that based on fact?

If it is your opinion that is fine and as they say opinions are like ****holes>>>>> everyone has one.

If it is based on fact please show us

It is perfectly possible to have differing opinions yet be friends or at least civil

[charharp]

Re: Cause of Action Discussion

Well Andy makes his own rules up that don't even make sense. It's like trying to buy things with Monopoly money and getting angry with people who won't accept it.

Default, termination of contract whatever you want to call it is irrelevant to SB unless termination of contract creates a debt which did not exist before termination. To be clear terminating a credit card or loan does not create a debt, the debt already existed.

[jon1965]

Re: Cause of Action Discussion

Indeed the debt exists but if you follow the logic that Andy does the debt is not due for repayment until the DN has been issued and failed
I take it then that this is your opinion which as i said is fine but getting angry and abusive because someone disagrees helps no one.
I find an opinion based on it is cos i say so not very convincing.
My belief is based on opinions given by debt professionals that it is based on the contract although i can see how that can be inconsistent. That is why i do not rule out the DN theory.
Under the cca the only amount due pre default is the arrears.

[Guest]

Re: Cause of Action Discussion

Indeed the debt exists but if you follow the logic that Andy does the debt is not due for repayment until the DN has been issued and failed
I take it then that this is your opinion which as i said is fine but getting angry and abusive because someone disagrees helps no one.
I find an opinion based on it is cos i say so not very convincing.
My belief is based on opinions given by debt professionals that it is based on the contract although i can see how that can be inconsistent. That is why i do not rule out the DN theory.
Under the cca the only amount due pre default is the arrears.

Not just my view nor the cca but contract law, if the debt is under an agreement, the terms say that the debtor can repay in installments, if the repayment is to be demanded another way then the agreement must be terminated.

I know that you know this jon, how many cases have we seen that have been challenged in court because they have not been correctly terminated and therefore the court would not be able to enforce an action. This is a feature of contract law and has nothing to do with the cca.

[charharp]

Re: Cause of Action Discussion

The mistake Andy Einstein makes is that yes a default does have to be issued but limitations runs from the first instance they are able to issue one. Not when they actually do. He's unable to distinguish the meanings between the words owed and due. I'm not talking about money being due, I'm talking about it being owed....it actually existing. In BMW case the debt didn't exist until contract was terminate because it was being rented.

[Guest]

Re: Cause of Action Discussion

This is a quote form squire sanders solicitors linked earlier in this thread

Comment
The Court of Appeal’s decision is both pragmatic and commercially sound. The Agreement, like many others, stated that the balance became due upon termination. If the Agreement had been regulated by the CCA, termination is subject to the lender serving (where appropriate) a notice under the CCA (most commonly a default notice or, for non-default cases, a combined enforcement and termination notice). Notice is specifically required before a lender can become entitled to (amongst other things) demand "earlier payment of any sum"

[Guest]

Re: Cause of Action Discussion

The mistake Andy Einstein makes is that yes a default does have to be issued but limitations runs from the first instance they are able to issue one. Not when they actually do. He's unable to distinguish the meanings between the words owed and due. I'm not talking about money being due, I'm talking about it being owed....it actually existing. In BMW case the debt didn't exist until contract was terminate because it was being rented.

Just thought I would have a look to see what load of nonsense you are currently on about.

You think that because something is under HP the credit is not going to the debtor, how does he eventually end up with the car in this case, in fact when I finish my mortgage how will I end up with my house, it belongs to the creditor at the moment.

Just because the credit goes to the trader and the title does not pass until the last payment does not mean that the item is on rental you pillock.

Sums under a HP agreement are regarded in exactly the same way as a fixed sum loan see the cca here

http://www.legislation.gov.uk/ukpga/1974/39/section/9

3)

Without prejudice to the generality of subsection (1), the person by whom goods are bailed or (in Scotland) hired to an individual under a hire-purchase agreement shall be taken to provide him with fixed-sum credit to finance the transaction of an amount equal to the total price of the goods less the aggregate of the deposit (if any) and the total charge for credit

Now back on ignore you really are not worth the effort and for gods sake read a book.