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Everything posted by cecilrhode

  1. someone said earlier that a company can break an agreement by its actions. Think it was mayfly. Thats a general aspect of contract law. I had a account that had insurance packaged with it as a gift valid for 2 years as long as I held the account. I ran into money problems, told the bank, who quickly after that issued a bad DN and then 'terminated'. Some time after, I tried to claim on the insurance. The insurers told me that the bank had told them the insurance was finished because I no longer had the account.The bank confirmed that they only provided the insurance as long as I was a customer. Now, after Brandon, we are told that the bank didn't have the right to end the account, and that even when they said they had, they couldn't have done. Well, by not paying for my insurance according to the agreement, they broke the agreement. In other repudiation (or rescission as some wrongly call it) So I suppose, rather than rely on a common sense interpretation of contract law, that the bank lost its rights to the balance when they refused to provide the facilities of the account - insurance, monthly statements, and a credit account (regardless of the available credit balance), I have to rely on the findings of the Brandon case, and sue the bank for my losses not covered by the insurance, as well as the cost of equivalent insurance, and in turn, allow them to add the relevant amount of interest to the balance as if the account was still live. And after that, they still won't provide monthly statements or the other account facilities. My point is that at some point when a bank has acted on a bad DN, common sense must tell us that even though we know now that a bank did not have the right to end the agreement, in fact, it did by virtue that it stopped providing the account facilities. Just as the judge said that Amex may have had the right to contractually end the agreement, it could not use that argument as justification or excusal of the fact that it chose to go down the CCA route and got it wrong; then if a bank acts on a bad DN, 'terminates' then sells the account, it should not be allowed to say "well, yes we said we were closing the account after issuing the DN, and we did so, and then sold the debt to some shark, but in fact we were just availing ourselves of the right to sell an asset". Another point, relating to debt sales, is that you have an agreement where the bank agrees to provide an account and associated facilities. if they sell that account to a DCA who cannot provide those facilities, is THAT not breaking the agreement? Yes, they may have the right to sell the DEBT, but they still made an agreement to provide facilities -credit etc. By selling the debt. they close the account and avoid their responsbilities whilst denying the consumer the benefits of the account, whilst holding him to his responsibilities.
  2. a belated thanks. I did send it back, marked gone away............ and a week later another came. That was sent back as well, and another came. and on it went until eventually after about 8 letters, it stopped. Then another batch came from someone else, and the process was repeated. Boring.
  3. thanks postggj, to clarify, I did write to the creditor (Expurto Credite) saying the bank they bought the debt from, never had a agreement that complied with the CCA, and was not enforceable in court. They wrote back and said they had spoken to the bank who had confirmed the agreement was valid (yeah,. like they're gonna admit they sold a dog,even if they did know). I've had a couple of letters from the 'solicitor' chasing up and making various threats. The first I replied to pointing out that I had informed their 'client' (LOL) that the agreement was unenforceable and saying that whilst I knew they were acting on their client's word, they should satisfy themselves of the enforceability or otherwise before making more threats of legal action. The 'solicitor' never replied Now this letter saying they have received 'instructions' has really teed me up/ I'm just trying to think of how to complain. I've complained to the SRA before when a solicitor misrepresented the law, and the SRA said that as it was a point of law, it up to the courts to decide, so they couldn't act. That seemed to state that a solcitor could tell lies about what he could or could not do, and the SRA can't act. I'm not really sure what to complain to the SRA about - maybe the solicitor has actually received instructions.... Just wondering if I can write to the solicitor and ask if they have received instructions I was wondering if this is the work of the DCA (and it almost certainly is isn't it?) is making that kind of statement against OFT guidance etc. There again, how do you establish who actually sent the letter, the pimp DCA or the prostitute solicitor?
  4. I've had a letter from a "solicitor" (LOL, ROFLMAO), in reality, from someone who's bought one of my debts. No surprise, typical solicitor prostituting themselves. This later though, says they have 'received instructions to commence court action'. Now, I'm pretty convinced the agreement they have is not enforceable, and both the creditor, and this solicitor has been informed. Is it against any laws, guidelines etc, to state that they have received instructions when the letter is written by the creditor themselves? Whats happened, they've given instructions to themselves? I'm not worried, as I said, I don't think its enforceable (they said it was obviously), but despite trying to negotiate a FnF, they're not interested. The threats of doorstep visitors, that's par for the course. I am annoyed though about letters stating they have instructions to start legal action, and other obvious lies. As I said, not worried, just want to complain about them.
  5. No response yet MrZ - its only been 2 weeks. how long do you think it takes to invent reasons not to comply without admitting you just don't want to?
  6. Actually Pather, you're out of date, the rules were amended in October 2010. The replacement now says "Where the petition is based on a statutory demand which was served more than 4 months before the presentation of the petition, the petition must include a statement explaining the reasons for the delay" Only an explanation of the delay is required. Not a good one! Anyway, in general, once the petition has been made, it cannot be withdrawn without the consent of the court. The court can dismiss the petition if the debtor has paid all the debts or has made a reasonable proposal to pay. The court is able to make the bankruptcy Order if satisfied that the petition is true, that the debt has not been paid or secured. It can also stay or dismiss the petition as it sees fit. There doesn't seem to be any requirement for the petition to be served at any particular interval after the SD, although as said, the court can dismiss any petition if it sees fit. If the debtors circumstances haven't improved, and there is no injustice to the debtor caused by the delay since the SD, I find it very unlikely that a petition would be dismissed because the SD is more than 4 moths since serving. All that is required is a half decent explanation for the delay. "We couldn't be bothered with the petition" might not do it, although that in itself explains the delay and subject to there being no injustice, might be good enough. However, "we weren't really serious about bankruptcy we just wanted to scare him" will probably NOT do it, though it could. At the end of the day, the court has to decide if making a bankruptcy Order is unfair to the debtor. If the money is still owed and he cannot produce a suitable payment offer, then practrically ANY explanation is tecnhically adequate. As long as the explanation doesn't insult the court (such as 'we just wanted to scare him'), it could be accepted, and the hearing would proceed. However, if you want a good, and feasible reason, how about "We, the petitioner, have given the debtor every chance to comply with the SD so as to avoid bankruptcy proceedings being necessary. Unfortunately, despite our best hopes, the debtor has failed to comply and given no reasonable expectation of when they may be able to comply with the SD" That good enough for you? Sounds good, dunnit? They were kind enough to delay things so that bankruptcy wasn't necessary. NOTE: This is a REAL EXAMPLE of the reason given for the delay since the SD, in a real bankruptcy petition. The time since the SD and the petition? Just short of 17 months. Of course, the judge may feel that the explanation is insincere and dismisses, in which case the petitioner gets another SD form, serves it, waits the required 18 days for a set aside application, then, when they've got the SD safe and sound, petition any time they like after the 21 days allowed for action, or as Directed by the court. Of course, the court has the power to dismiss for any reason as it sees fit anyway. However, have either of you any experience of a bankruptcy petition based on a SD being dismissed because of the time since the SD was served? If so, please tell. Also, please tell what rule it is that says the bankruptcy court can refuse the petition because the time since the SD was served is too great, or because the judge doesn't feel the explanation is good enough. The SD itself doesn't expire - ever, so it would be illogical for there to be a rule limiting the time between the SD being served and the bankruptcy petition. The above rule only says that an explanation for the delay is given, it places no store in the merit of the explanation, but if you know different, as I said, please tell, because I know someone with just that problem. as for the other things you say panther, I do point out that at the moment, it probably isn't worth the £970 (not 1k as you say) to petition for bankruptcy (I don't know how much his music collection, or his pc is worth. I did also say that some DCA has a reputation for sending SDs as a scare tactic, and that I think it was the same one here. No, he hasn't got a SD at the moment, but I disagree that it is nothing to worry about. Lets just say they wait a few months then go for a SD, just before the debts are barred. In the worst case, (your view) they have 4 months to petition. Without knowing the exact dates, thats gonna be either just before his wedding, or just after. How would you like to planning your marriage having to have meetings with the Trustee, or even worst, having just got married and having to defend a bankruptcy petition, and if you fail, having the risk of your wedding gifts being seized? Of course, it could all be a bluff, like 90% of talk of SDs. In this case though, talk of an SD is very well timed.
  7. Thats the key to it. It all makes sense now. Their customers are the banks and lenders.......... they've just decided to treat THEM fairly. the rest of us can whistle.
  8. As panther says. If they get the SD, they allow you a set time to make payment. My understanding (which is a bit limited) is that the SD resets the statute barred date. have a look at this from the insolvency office: (http://www.insolvency.gov.uk/pdfs/guidanceleafletspdf/statdemand.pdf) "10. Does a statutory demand expire? There is no expiry period for a statutory demand. However, under the Limitation Act 1980, a debt must not be more than 6 years old or based on a default judgment more than 6 years old. This period can start to run again from any date the debtor agrees the debt exists and may be extended more than once. You may need legal advice if you think the debt is affected by this time limit." What this means, IMHO is that they must obtain the SD before the debt is statute barred or before any CCJ is 6 years old. My interpretation is that getting the SD means the court accepts and agrees the debt as described on the SD exists, and that the 6 year SB clock starts again. Thats my interpretation. If I (and panther) am right, they could get the SD, and wait for your circumstances to improve and then enforce it, and if you can't pay, make you bankrupt. Thats something to think about with your marriage scheduled. At the moment it cost £790 to make a bankruptcy petition, so it isn't worth it for them right now. You should make absolutely sure about when the 6 years is up though. The SD isn't going to get them any money right now, so, with SB looming, they may decide the SD will buy them more time. If I were you, I wouldn't rely on them getting the SD wrong, I would find obstacles to tie them up and delay, including moving house. One other thing, I have read there is one company that has been in trouble for issuing SDs as a frightener, when they have no intention of petitioning. I think it was capquest. They wrote to you that they had already sent one. That's possibly grounds for complaint.
  9. hey, nicklea, I'm not gung ho at all, but you are right, you do get all sorts of people on here, knowledgeable ones, and ones that think they're knowlegable. I haven't tried pushing anyone into anything, I've simply given an opinion. A fair opinion, and suggested the OP look things up. As for repudiation, you're entitled to your opinion. In my opinion, repudiation a is well accepted concept on this site. As part of a balanced approach, I point out several times that there is a lot of debate about it. Unlike you, I tried to point out that there are difference in opinions. If I was pushing him into something, I wouldn't be pointing out the debate would I? I'd just be telling him to follow my advice because everyone else's is dangerous. Just like you did. As for repudiating by their actions, I think the argument went over your head. Maybe you jumped the gun and were so keen to criticise me that you didn't read what I said properly. Or maybe you don't know enough about it to understand. As I said, there are many examples of repudiation available to study. It is a well founded concept in common law and contact law, as I said. A party can repudiate a contract by their actions, ie, in not fulfilling core elements of the contract. Obviously, nicklea, to break a contract, your actions must be incompatible with it. ie, you break and therefore repudiate by your actions. Duuhrr, I hope thats clear enough for you. No where was I referring to what the CCA allows. The CCA doesn't mention repudiation at all. As for the few examples you quote, I daresay you may be right. Lots of cases go pear shaped, mainly because the person doesn't have legal aid, does it themselves and doesn't argue the case properly. Sometimes this is because they don't understand the concept themselves, and rely on quoting what they've read. Not surprisingly, they don't convince the judge. Sometimes, the judge is just an ass who has no time for the legal argument and makes his mind up before he goes into court. I've seen that many times in court, where the judge makes ridiculous decisions that fly in the face of the facts. Judges are sometimes like offside decisions in football. As for me, you are quite right, I haven't made that argument in court. But I have challenged several creditors and said I'm more than willing to make that argument in court. They haven't taken me up on the offer. I wonder why? They might win. On the other hand they might not. To fred, I simply say that I always wonder how come the poster before me has all these people supporting his views, and I wonder why these people don't publicise their views in their official capacity? He's a one trick pony who only ever seems to comment on repudiation, but asked for the thread he started on this very subject (http://www.consumeractiongroup.co.uk/forum/showthread.php?280020-Contracts-Termination-Repudiation-and-Rescission), to be closed, possibly because too many people disagreed and wouldn't let him preach to all us uneducated idiots. His argument about contract existing where there are liabilities is either a red herring, or proof he doesn't understand the concept. When a contract is repudiated, the innocent, ie non-repudiating party is entitled, if he wishes, to treat all obligations as discharged. IE, the contract can be ended at that point. No obligations left, no liabilities. It is OVER. Thats basic contract law, and in fact, is a pretty standard definition of repudiation. Now that I've said that, I fully expect him to come back with smart ass insults and rude comments because thats his style As for the 'source' he quotes, ie the OFT, they shouldn't be giving legal advice. What they should do is look at their diary and see what they were doing late last year. In case they can't work it out, they were screwing up a court case on charges because they didn't know the law. If the OFT were any use, we wouldn't be complaining about the blatant breaches of OFT guidelines by those in the credit industry. Before they branch out into supplying legal advice and interpretations of the CCA, they should actually do what they should do which is to regulate the industry effectively. Now, Fred, I hope you are able to get some relevant advice, and that this thread doesn't simply turn into a pulpit for those wanting to argue about repudiation and whether it exists or not. Good luck
  10. "Treating Customers Fairly is now a given for our industry" Really? Who's first in line to be treated fairly then?
  11. do we know the grounds for appeal? is he on this site or can he be contacted?
  12. lets face it, even if they do go for bankruptcy, you have no assets - unless your record collections has a few tasty collectors items! It would simply be a waste of money. whatever assets they did get wouldn't cover the cost of filing the court papers. of course, they may be serious, but who said DCAs have any sense? Put yourself in their shoes, would YOU pay the bankruptcy petition costs? The danger is that they could get the Statutory Demand, and then wait for your circumstances change, and then enforce it.
  13. i don't see how they can be adding charges - there is no agreement giving them the right to do so. you haven't agreed to their terms and conditions, so what right do they have to charge anything. without a valid agreement, they have made a gift of the money. they can ask for it back, thats all as for repudiation, there is considerable debate about it. look it up and make your own decision. as for the DNs, most agree that when the account is terminated, a 2nd DN cannot be served as there is no live agreement to serve it on. you cannot default what doesn't exist. Whether the first DN and termination paperwork was correct, they can effectively terminate by their actions. The crux is when are you entitled to believe that the agreement is terminated - if they refuse to fulfil their responsibilities and satisfy your rights under the contract, they cannot expect you not to do the same, regardless of whether the paperwork is correct. They can repudiate by their actions, as well as by faulty paperwork. As i said, research repudiation as there is a lot of debate, and no case law in the finance sector, but loads of it in contract law. http://www.parliament.the-stationery-office.co.uk/pa/ld200607/ldjudgmt/jd070328/golden-1.htm this is a well known case http://www.consumeractiongroup.co.uk/forum/showthread.php?170345 http://www.inhouselawyer.co.uk/index.php/contract/7474-understanding-repudiatory-breach http://www.bailii.org/uk/cases/UKHL/1961/5.html an interesting case http://www.inhouselawyer.co.uk/index.php/contract/7297-implications-of-contractual-termination-clauses-on-common-law-rights General description.discussion http://www.gillhams.com/dictionary/434.cfm A simple description of repudiation http://www.parliament.the-stationery-office.co.uk/pa/ld199900/ldjudgmt/jd000330/hurst-1.htm This shows how things can become complicated
  14. this is interesting. I have a credit card account with unenforceable agreement bought by Experto Credite. I made them an offer but they refused, wanting the whole amount. They write to me and put their words on HL legal stationery threatening me. I've already said there is no point in correspondence and they should issue court papers. still they write. is this a suitable candidate to charge them compensation for admin? my thoughts are that as it is the debt owner rather than a dca they may contest it and the hearing will effectively rule the agreement enforceable or not. Or do I misunderstand the methodology?
  15. they can't enforce it as they have no agreement. the DNs and termination malarkey is about whether you owe the full amount or just the arrears when it was closed. Look up repudiation on here and Google. whether you were prejudiced by the incorrect time is a moot point. are they prejudiced if you go over your credit limit by £1, or if your payment is a day late or £1 short? if they are or are not, they still charge you £12, so they obviously think that a day matters! the fact is the statute states what the time allowed is, not recommend or suggest, it states it. it is not for them to say that Parliament was wrong because 10 days is just as good as 14. A few years ago the time allowed for 7 days, and was increased to 14 as it was recognised the customer needed time to get his head round the DN, check his records, get legal advice etc, and then allow 4 days for payment into his account. If Paliamanet thought that 10 days was enough, the Statute would allow 10 days, and not state 14. as usual, the banks have their own intepretation of the law. I would let things cool for a while - they can't enforce it without an agreement, and then in 6 months or so, make them an offer to pay it off, based on the arrears. The debt is unenforceable, without an agreement a court is prohibited from making a judgement, and your offer should be based on the fact that your goodwill is the only way they can raise any money towards this debt. btw, if you DID accept the terms and conditions, they'd have proof wouldn't they? technically, I suppose you should make a CCA request, and when they fail to provide an agreement,put the account into dispute which (I believe) prevents them from selling the debt. However, they are likely to supply a reconstructed agreement (what they claim your agreement looked like) which kind of gets them off the hook regards selling. Have a look at the thread callled something like "hitting back with CPUTR 2008" and study it don't acknowledge the debt, it is 'alledged', and don't make any payments. the statute bar date is 6 years from the last acknowledment or payment, after that no one can enforce the debt, agreement or not
  16. its also worth suggesting to the letting agent or landlord that you will pay a larger security deposit - say 3 months rent on top of the normal one, to be refunded once the set aside is granted and your cra cleared. if you're going for a 6 month shorthold tenancy, they've virtually got all the rent up front as the deposit is normally about a month and half. You'll have the set aside within 6 months so if you stay after that, you will have a normal credit file. the credit checks dont guarantee that a tenant wont stop paying, but if you've paid the rent up front, that risk is removed. of course, finding an extra 3 months rent might be hard, but if you can, it'll open the door, otherwise, offer what you can afford
  17. any clause that allows a creditor to end an agreement whenever they feel like it, undermines the requirement in the CCA to supply a default notice and give time for rectification. the fact that it is in the agreement doesn't matter. the agreement is their 'wish list' like any set of standard T&Cs businesses use. it doesn't mean its legitimate. it also doesn't matter that the creditor says such a 'whenever we like' clause isn't used against accounts in default, the fact that they could, or that the lender would reasonably assume the clause could/would be used, tips the balance of power to the creditor - why have a clause that won't be used? As the CCA was written to 'regulate creditors and protect lenders' such an open clause is not compatible with the CCA and shouldn't be there. there is no provision in the CCA for non-default accounts to be terminated. whether that was by accident or design we can't know., but that does not mean that a open dream wish clause is compatible with regulated agreements as for courts and judges, there are plenty of cockeyed decisions made in court every day, I know of a case in family court where a judge took a young child away from its unemployed father and gave residence to its drug abusing prostitute mother because he 'didn't have enough money to care for it properly'. Social services took the child into care within a week when neighbour reported it crying continuously - the mother had gone 'working' leaving the child alone, and then gone to a friends to get high. The fact that the child had been with the father for 6 months since they separated (because she started using drugs) without incident wasn't considered relevant by the judge. So, in essence, isolated snipets of what random judges have decided is not very reliable as to what should happen. One of the problems is that few people get legal aid now, and have to do it themselves, often, they don't prepare enough, and don't actually argue their case properly.
  18. 1) No - there is no agreement in existence that is required under the CCA, the agreement must specify charges 2) Depends on your point of view. Many say no because if they ended the agreement incorrectly, all that is owed is the overdue amount, and there is no agreement specifying when payments are due. Others disagree 3) Thats a separate matter, handled by a different dept. Yu can opt out of junk mail 4) Obviously not. it has to be open/live to be terminated. Once its terminated it isn't open/live. However, what they actually terminate is the agreement. The 'account' can be closed, and another one opened eg, you lose your card, you become eligiable for a 'gold' card etc. If they sent you a letter saying they WERE ending the agreement, but didn't actually do it before you told them the DN was faulty, then they could issue a correct DN, then termiante.
  19. I'm interested in what others may say, but personally dont think its possible. I assume you DID default on payments for whatever reason, and were warned about the default etc. If so, it is a fact. Your credit file contains info about your conduct, not the reasons for it, justifiable as it may be. What you want is for the creditor to say you didn't defualt, and to change the last year of data. They wont do that as they have an agreement with the agency to supply accurate and updated data. All creditors use that info and if the info is inaccurate, they may make the wrong decision on lending. They all know that once the data starts being inaccurate, its useless, so they won't change it to benefit you. They WILL process data that you say is wrong though, if it penalises you.. They rely on the fact that you wont take court action to force them to correct it, and the ICO has some strange ideas about when data is inaccurate and when it should be changed As I said, inetesred in what others say, but its virtually impossible to get inaccurate defaults corrected, so cant see them changing accurate ones However, see this http://www.learnmoney.co.uk/credit-file/remove_default_notice.html
  20. I'm interested in what others may say, but personally dont think its possible. I assume you DID default on payments for whatever reason. If so, it is a fact. Your credit file contains info about your conduct, not the reasons for it, justifiable as it may be. What you want is for the creditor to say you didn't defualt, and to change the last year of data. They wont do that as they have an agreement with the agency to supply accurate and updated data. All creditors use that info and if the info is inaccurate, they may make the wrong decision on lending. They all know that once the data starts being inaccurate, its useless, so they won't change it to benefit you. They WILL process data that you say is wrong though, if it penalises you.. They rely on the fact that you wont take court action to force them to correct it, and the ICO has some strange ideas about when data is inaccurate and when it should be changed As I said, inetesred in what others say, but its virtually impossible to get inaccurate defaults corrected, so cant see them changing accurate ones
  21. good ol HeftyHippo, he introduced me to experto shenanigans. I mentioned at the time MBNA had sold my account, same as his. EC don't have a compliant agreement in my case. I wrote and explained this, and offered them a fee to settle. They replied after about 2months and offered 5% discount!!! I laughed as I filed their letter. Not heard from them for more than a year. couldn'tcare less about them. as for HLL, whenever I get a prostituted letter like that, I always find a reason to write to THEM, not the client. I write as if they were acting for a client, and ask them questions, knowing that they have to pass the letter to the client. It just costs them some time, and hopefully, they charge their 'client', eg complain that their previous letter quoted a different account number or balance
  22. if you don't want to handle phone calls (which could become almost non-stop), change your number now. Or, if thats too inconvenient, get a cheap mobile and give them that number, and invent another home phone number. Then, in a few weeks, give them another home number, or another mobile inplace of the home one. They usually keep a record of your number change which means they sometimes keep the old number. Changing it twice helps flush out your real number. You can try telling them no to call, but they probably won't take any notice. If you manage to get them onto a mobile number, you can talk to them a few times s they know its real, and then just ignore it. Or, get Truecall which you can program to block numbers. if they do get through, just refuse to answer security questions, and put the phone on the side whilst you go make a cup of tea. Eventually, they'll get the message, but it can take months
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