Cause of Action Discussion

[charharp]

Re: Cause of Action Discussion

EDIT
All that is true but you miss the point about limitations! Limitations is not mentioned in that, the creditor can do all that after one missed payment that's why it's from first missed payment. As so as you miss the first payment it can be terminated, just because they usually do t until 6 months later is irrelevant!!

[Guest]

Re: Cause of Action Discussion

Andy you are a weapons grade moron!

All that is true but you miss the point about limitations! Limitations is not mentioned in that, the creditor can do all that after one missed payment that's why it's from first missed payment. As so as you miss the first payment it can be terminated, just because they usually do t until 6 months later is irrelevant!!

If you would go to the trouble of actually reading anything you would see that the whole case is about limitations this is the next paragraph to the one which you could have looked up yourself

If the Court of Appeal had come to any other conclusion it would have been contrary to the wording of the CCA. This envisages that the balance does not become due (and cannot be demanded as being due) until after the expiry of the notice period. The Court of Appeal’s decision can also be used in appropriate circumstances by lenders wanting to stop the limitation period running. It seems clear that, subject to an argument that the lender has affirmed the agreement by not taking steps to accept a debtor’s repudiation, termination could be delayed until the end of the term of the agreement. This would allow lenders to delay (most obviously where the debtor is in a difficult financial position or cannot be located) issuing proceedings until the last moment, like BMWFS did, and avoid being time-barred

[Guest]

Re: Cause of Action Discussion

Are limitations mentioned enough for you there

Bye

[charharp]

Re: Cause of Action Discussion

You just don't get it Andy.

[Guest]

Re: Cause of Action Discussion

You just don't get it Andy.

I notice when confronted with inescapable logical argument or authority you either make a statement like this or just issue abuse, why is that do you think ?

The problem is that you have no knowledge in this area and you are trying to discuss processes when you do understand the fundamental mechanisms involved.

You seem to be insistent on making this issue personal for some reason, it is not as far as I am concerned.

I am just reluctant to instruct you on elements of basic contract law, of which i have been aware of and working with on and off for over forty years and which to be frank I considered to be common knowledge however if I must.

Your first misunderstanding is regarding a contractual breach.
One of these does not entitle the creditor to all reclaim all the money that is under a contract.

This is fundamental, there is over 800 years of contract law which says that the breach of a contractual term can ONLY bring damages which are proportionate to that breach.

If you look at all the claims for incorrectly issued charges and penalty fees on credit agreements on all these threads on all these forums and taking place up and down the country, this common law principle is at the root of all these claims.
A contractual breach(missed payment) can only incur a charge that is "proportionate" anything more than this would be a penalty and unlawful.

To put it even simpler for you, if a debtor misses a payment the creditor can only reclaim what it cost him to put the account back into the condition it would have been if that payment were not missed, this is an absolute.

If a number of payments are missed, or even if the creditor does consider that a single missed payment is enough to render the agreement unworkable, he must say so in a term of the contract, and the debtor must agree to it at its inception.
This is why there all those termination clauses exist, like the ones at the beginning of this thread.

It is these clauses which are used to terminate the agreement, and also enable the creditor to demand full payment.
This also is what starts any cause of action in regards of the SOL.

In common law terms these represent the creditor acceptance of the repudiation (breach) of the contract and say that the contract is ended.

This is all basic common law, nothing to do with BMW vs hart, but in order to understand the more complex issues the former must be fully understood.

[jon1965]

Re: Cause of Action Discussion

Just trying to catch up on posts from last night.

Andy , yes I know that a bad DN can bar enforcement as it is required. My only knowledge of requirement is the CCA1974 as I am afraid I do not join up the legislation that often. My knowledge of contact law is little if I am honest (or maybe more than I know I just don't link them). When you look at the lack of enforcement with a bad DN it does suggest to me that your argument is correct but I am afraid you will just have to say I told you so and rub my nose in it lol.

Charharp
I am getting frustrated now as it seems you keep changing your stance.
It started off as last payment, then went to first missed payment. Somewhere you have conceded that the contract can state otherwise.
In post 83 you say a DN is not needed.
In post 85 you say the debt exists regardless of termination
In 88 you say that it is from when the creditor is able to issue a DN (one missed payment)
In 91 you say its from 1st missed payment

You have conceded that a default issues depends on the contract so it may be after 1 or 2 or even several missed payment.
In that case the cause would not be the issue of the DN but from expiration of the DN

There has indeed been some discussion on whether it is earliest point or when it actually happens and I think that it has been established that it needs to be done in short order .

If you wish to continue the discussion maybe we need to assert exactly what your position is and how you have come to that position as I am sure you can see why I am confused.

I think I am talking myself into the position of limitations starting from the expiration of the DN assuming that the DN is issued at the earliest reasonable point as allowed by the contract. If the creditor contains a clause allowing 30 days to fix a remedial breach I can see no reason why that DN can not be issued so that it's expiration coincides with the end of the 30 days

[charharp]

Re: Cause of Action Discussion

Too many holes to pick at. Mortgage is nothing like HP, bank doesn't buy the house then rent it to you.

andy you are just not capable of grasping where you are going wrong. HP is not comparable to CC or loans, completely different product.

If you are correct why does NDL and every other debt advice service say it's 6 years since last payment? Not that I'm citing that as proof, just would like your angle on how you have outwitted the whole debt advice industry with all it's lawyers and experience?

EDIT

[jon1965]

Re: Cause of Action Discussion

Have you actually read what NDL says about SB because it most certainly does not say 6 years from last payment

http://www.nationaldebtline.co.uk/en...limitation_act

Oh and there is no outwitting the debt industry as Andy's theory actually extends the limitations to that which you would propose which is so full of holes .

[charharp]

Re: Cause of Action Discussion

The Limitation Act says that the limitation period for simple contract debts is six years.
The cause of action (when the limitation period starts running) for simple contract debts, is usually when your agreement says the creditor is able to take court action because you have fallen behind with payments. This is normally after one or two missed payments.

NDL website. You're a pair of idiots.

[Guest]

Re: Cause of Action Discussion

Too many holes to pick at. Mortgage is nothing like HP, bank doesn't buy the house then rent it to you.

andy you are just not capable of grasping where you are going wrong. HP is not comparable to CC or loans, completely different product.

If you are correct why does NDL and every other debt advice service say it's 6 years since last payment? Not that I'm citing that as proof, just would like your angle on how you have outwitted the whole debt advice industry with all it's lawyers and experience?

Oh wait, you haven't! You're just full of sh*t!

OK lets hav a look at what you say here and try again to ignore the abuse.

"Too many holes to pick at. Mortgage is nothing like HP, bank doesn't buy the house then rent it to you."

These are all forms of financial credit agreements, if you want to differentiate between them and think that this difference has some bearing on the discussion in hand you need to qualify this remark with some more information preferably form an informed source

"andy you are just not capable of grasping where you are going wrong. HP is not comparable to CC or loans, completely different product."

What are the reasons for your belief here( authority please)

"If you are correct why does NDL and every other debt advice service say it's 6 years since last payment? Not that I'm citing that as proof, just would like your angle on how you have outwitted the whole debt advice industry with all it's lawyers and experience?"

It does not NDL says that it depends on the terms of the agreement and will not be last missed payment.
(Even when you quote authority you get it wrong)

"Oh wait, you haven't! You're just full of sh*t!"

Self explanatory symptom of a very limited intellect

[jon1965]

Re: Cause of Action Discussion

If you are correct why does NDL and every other debt advice service say it's 6 years since last payment? Not that I'm citing that as proof, just would like your angle on how you have outwitted the whole debt advice industry with all it's lawyers and experience?

The Limitation Act says that the limitation period for simple contract debts is six years.
The cause of action (when the limitation period starts running) for simple contract debts, is usually when your agreement says the creditor is able to take court action because you have fallen behind with payments. This is normally after one or two missed payments.

NDL website. You're a pair of idiots.

Please note the differences between the two above quotes.

I would also suggest that you look at the meanings of the word usually and normally. They do not mean always !

I am finding it very hard not to call you Gordon and refer you to Jilted John

[charharp]

Re: Cause of Action Discussion

You've said the COA is the default notice on every type of debt. That is proof you are wrong. Class 1 moron.

[Guest]

Re: Cause of Action Discussion

You've said the COA is the default notice on every type of debt. That is proof you are wrong. Class 1 moron.

Nope wrong again , no one is saying that.
We are saying that the current advice is that the COA is when the terms of the agreement say the creditor can demand repayment , we are also acknowledging that there is an argument that this may be further delayed by the requirement of the act and particularly the service of a default notice.

The last part is open to argument and will be decided in a court at some point.

[jon1965]

Re: Cause of Action Discussion

Nope wrong again , no one is saying that.
We are saying that the current advice is that the COA is when the terms of the agreement say the creditor can demand repayment , we are also acknowledging that there is an argument that this may be further delayed by the requirement of the act and particularly the service of a default notice.

The last part is open to argument and will be decide in a court at some point.

I agree with that assessment and suggest that anyone who is not sure reads the thread in its entirety . I do not think that Andy or myself have made any fundamental changes to our opinion however I think my opinion on the sensible outcome in court (as and when) is changing. Until such a time i will err on the side of caution and would urge everyone else to do the same unless as a last ditched attempt or as one of several points within a defence.

[Joanna C]

Re: Cause of Action Discussion

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.

MBNA do not issue default notices for 6 months. However according to their T's & C's they are entitled to call in the outstanding balances immediately on missed payment. They could of course issue the DN after the first missed payment or 2nd but they choose to wait for six months. I think it unlikely that the courts would allow MBNA to extend the COA this way. Personally I agree with the procedural point and that the COA in this circumstance would be 30/31 days after 1st missed payment.