Unlawful Recission of Contract

[Moral Dilemma]

Has anyone any thoughts on the following:

 

Instalment due under a loan on the 1st of each month:

 

Instalment due on 01/06/xxxx paid in full, next instalment due on 01/07/xxxx and was 1st missed instalment.

 

Claimant's witness statement says following:

 

"Defendant has made no further Instalment Repayments since July xxxx.

 

" I can confirm that on 19 June xxxx Defendants Account was transfered to … to commence recovery proceedings"

 

If recovery proceedings commenced on 19 June, this would have been before an installment was missed. If recovery proceedings started prior to a payment being missed Claimant would be attempting to enforce an agreement prior to default.

 

Question is would this be Unlawful Recission of Contract.

 

Claimant claims Dn issued on 05/07/xxxx - but never received by Defendant.

 

Formal Demand issued 24/07/xxxx - but never received by Defendant.

 

Anyone with any thoughts on this?

[heliosfa]

I take it all of the xxxx's are the same year? if so, it's definitely fishy

 

who is the claimant? and have they supplied a copy of the alleged DN? It seems a bit quick of them that they issued a DN 4 days after a single missed payment. I take it that the acount was in good standing before that date?

 

Thanks,

H

[Moral Dilemma]

Yes all xxxx's are the same year, all previous payments due had been paid without problem so account was in good order.

 

Claimant claims they are unable to reproduce the DN as it was produced by an automated system and a copy not retained by them.

[Moral Dilemma]

Just wanted some input as to whether commencing recovery proceedings prior to the account being Defaulted would be classed as Unlawful Rescission of Contract and if anyone knows of any case law etc that could possibly be used.

 

Claimant's has quoted the clause in their agreement which states:

 

The total amount payable will (subject to service of any notice…) become immediately due and repayable by the Customer…if any of the following events occur:-

 

(a) non-payment of any of the Instalment Repayments within one month from the date on which it is due.

[Bill Shidding]

Hi, I'm really sorry to play devils advocate but-

I've been in your position.

I raised the exact same point (dates), albeit in my particular circumstances the dates were the same, just different months.

The claimant said to the DJ, "sorry Sir, it must be a typo, can we change it?"

DJ said "Yes"

Claimant changed the date, to one that suited them better.

This was about a DN.

End my tale of woe.

 

Bill

[Moral Dilemma]

Don't worry about playing Devils Advocate, you have only said what has already occurred to me what their response may be.

 

I am however hopefully that as they have produce screen shots from their computer system which they claim shows the DN issued on 05/07/xxxx and Formal Demand on 24/07/xxxx that they may not be able to riddle out of it that way.

[Bill Shidding]

Hi MD, Just be wary - they can and do "control/update" their databases.

Re-writing history as they go. I also have concrete evidence of this.

 

However, if your creditor decides to claim arrears (in the future) instead of relying on ALL previous docs sent to you, the court will dismiss all docs because DN/TN/FDs all relate to sums due in the future.

An arrears notice is all that is required (with a valid CCA for loans) for claiming sums due in the past. Regardless of when your agreement began. Playing DA again, I know.

 

There are a few posters with a far greater sense of injustice/anger/rage at xyz creditors, than me. However, lots of the legal arguments used in old threads are no longer available. See CCA 2006 and the subsequent amendment that decimated debtors rights. That will cheer you up!

 

The saying goes "you can't beat the system". I would add "and if you do, they'll change the system" which they did, on October 1st 2008.

 

I am currently in that situation. I have yet to read/hear/formulate any form of defence or argument to prevent judgment against me.

 

Bill

Edited March 31, 2009 by Bill Shidding

[42man]

http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

[Bill Shidding]

Hi 42man, tis the oft quoted thread "A tale of a dodgy DN".

 

My understanding of that particular thread is, the claimant;

1) Issued a DN with an excess amount required to remedy the breach.

2) Issued a termination notice.

3) Issued a 2nd DN, that attempted to "cover up" the initial mistake.

4) Issued a 2nd TN.

5) Claimed that as the agreement endured, they were able to issue a second DN legitimately.

6) Lost. Due to the same reasons as in Woodchester v Swain etc.

 

Woodchester v Swain also has a statement;

"A default notice is not required where the creditor simply demands payment of arrears without seeking one of the specified remedies, and the creditor will be entitled to such an order even if the agreement is not terminated"

Woodchester Lease Management Services vs Swain & Co. [1999] 1 WLR 263, CA

 

Hence, Upon a court hearing, I believe the claimant could (did it to me);

Try to convince the DJ that the error is a typo.

If that fails, they will claim all sums due as arrears.

Bypassing the need for any docs, other than the enforceable agreement and a current notice of arrears. If the DJ agrees that the DN/TN or FD was effective/ineffective, it does not prevent the claimant from claiming arrears. It all hinges on when the case is heard. If the case is heard after the agreements natural term has ended, all sums due are arrears.

 

Bill

[Moral Dilemma]

Got a feeling this thread is getting sided-track by the Default Notices issue, but my original post was not regarding a DN but the following:

 

Claimant's witness statement says following:

" I can confirm that on 19 June xxxx Defendants Account was transfered to … to commence recovery proceedings"

 

If recovery proceedings commenced on 19 June, this would have been before an installment was missed (next instalment due 0n 01/07/xxxx). If recovery proceedings started prior to a payment being missed Claimant would be attempting to enforce an agreement prior to default.

 

Question is would it be Unlawful Recission of Contract to start recovery proceedings before Defendant defaulted.

[heliosfa]

If they did start recovery and demanded payment of the entire amount prior to the default, then yes, it would be unlawfull rescission of contract.

 

Have they submitted any documents that show the date of the 19th? e.g. a termination notice?

[Bill Shidding]

Hi MD, question not sidetracked;

 

Hence, Upon a court hearing, I believe the claimant could (did it to me);

Try to convince the DJ that the error is a typo.

If that fails, they will claim all sums due as arrears.

 

But just to clarify,

You paid June 1st

You didn't pay July 1st

Claimant will change June to July, with the courts permission or, as above. When did you actually receive the F/D?

June/July/August/?

Edited March 31, 2009 by Bill Shidding

[Moral Dilemma]

Heliosfa

 

In witness statement

 

Claimant claims Dn issued on 05/07/xxxx - but never received by Defendant. (as you said in post 2 - 4 days is bit quick after 1 missed payment)

 

Formal Demand issued 24/07/xxxx - but never received by Defendant.

 

and claims they are unable to reproduce the DN and Formal Demand as they are produced by an automated system and a copy not retained by them.

[Moral Dilemma]

As never received DN no idea by which date would need to comply.

 

Info from SAR shows :

 

Missed payment 01/07

DN issued 05/07

FD issued 24/07

[heliosfa]

OK, so they won't reproduce the DN... Can I just ask what year this was in? or atleast what day the DN was issued?

 

They need to be put to strict proof of the date of service (e.g. how it was sent) and that it was compliant really. hmmm...

 

IMHO, if they cannot produce a copy, they have no case...

[Moral Dilemma]

07

[heliosfa]

OK, so any Default Issue they issued would ahve had to have given you until the 23/7 to comply with given service time and 14 day requirement.

 

Was the payment that month completely missed or just late?

How much was the monthly payment?

is the claimant the OC or a DCA?

 

Thanks,

H

[Moral Dilemma]

H

Glad you've worked out 23/7 as date to comply (I got exactly same date).

 

Payment missed completely

Claimant is OC

 

MD

[heliosfa]

OK,

 

have you been supplied with a copy of the agreement yet? if so, is it compliant?

is this a loan or a ccard?

 

 

atm, it's looking like the claimant needs to be put to strict proof that a default was served, e.g. proof of postage and method, and that it was compliant. As this is such an important doc, it should not be ignored...

 

Did they send you any letters demanding full payment?

[Moral Dilemma]

It is a Loan - 8K outstanding - claim is fast track.

 

Copy of agreement supplied not compliant - after pointing this out to claimant did not hearing anything for over 6 months then received demand for payment in full from their Sol's within 7 days, then CC Claim arrived.

 

Claimant have confirmed in their Witness Statement they no longer have original (issued Notice to prove doc's at trial with my witness statement).

 

In my defence put claimant to strict proof that DN was served and and it was compliant.

 

Claimants Disclosure list and doc's they supplied did not include DN or Formal Demand.

Edited April 1, 2009 by Moral Dilemma
Added outstanding amount

[heliosfa]

OK, do you have the copy of the agreement they sent you for your CCA request? if so, you could use that to show it isn't an enforceable agreement.

 

It's good to have multiple avenues to attack from.

 

I take it you are well beyond filing a defence, when is the hearing due?

[Moral Dilemma]

Heliosfa

 

Agreement supplied without signatures (they made usual claim about how they can omit signatures for S77 request) but further copies they have supplied (following request for info after received CC Claim Form, under Disclosure and when attended their Solicitor's office for inspection) all had no signatures.

 

Also no DN or Formal Demand received and they (so far) have not supplied any reproduced ones.

 

By the way, I need to thank you for jogging my memory on something.

 

You asked did I received any letters from them around the 19/06, it was whilst at work this afternoon and I remembered received a letter at time this all started off. Luckily I found it.

 

Dated 22/06, from their collection centre and informs me "you have missed a payment on your loan(s)."

 

The payment shortfall they claimed was for an amount that is 4.5 times my normal monthly payment.

 

When I rang to find out they said it was a mistake on their part, they could'nt explain how it had happened, but they did confirm last payment credited to account was on 01/06, next payment not due until 01/07.

 

And then finished off the call by suggest I visit my local branch as they had some very good offers on Personal Loans.

Edited April 2, 2009 by Moral Dilemma
added "NO" to DN or Formal Demand received.

[Moral Dilemma]

Sorry forgot to add, hearing due beginning of June

[Bill Shidding]

Hi MD, May I ask 3 questions?

 

Have you mentioned in your defence, W/S or other document the possibility of "Unlawful rescission of contract?"

 

When does the natural end of the loan term occur, or has it already?

 

Have you been recieving statements of arrears?

Edited April 2, 2009 by Bill Shidding

[Moral Dilemma]

Hi Bill,

 

1. Did not mentioned "Unlawful rescission of Contract" in my defence or Witness Statement.

 

2. Term of Loan should end in 2011.

 

3. Not received any statements of arrears (so far).

 

I'm thinking now with regards to my Skeleton Argument/Oral Argument for the hearing - should I suggest "Unlawful Rescission of Contract" with regards to them starting recovery proceedings prior to 1st missed payment?