Unlawful Recission of Contract

[Moral Dilemma]

I realise Bill you have said when it gets to the hearing claimant can say, sorry Sir, typo it should be this date.

 

But given info in their Witness Statement that would affect all their dates and their stated timeline, would that look good in front of a judge?

[heliosfa]

OK, that letter demanding payment for sums that we obviously not due would help alot. As they have demanded money not due prior to a Default Notice, then that backs up the Unlawfull rescision aspect.

 

As for the no signatures, have the court ordered them to produce the original agreement? or are they going down what you "would" have signed?

 

Also, could you post the POC please? and an outline of your defence?

 

Helios waves at the guests - HELLO!

 

Thanks,

H

[Viscount Stair]

Lack of arrears notices doesn't help their case any. Section 86D!

[Bill Shidding]

Hi MD, I asked about the rescission of contract because;

If they do not have a signed agreement, and you claim "unlawful rescission of contract" by extension you are admitting to the agreement.

As VS says, they cant change their claim (at court) without first serving arrears notices.

If the natural loan term has not ended yet, they will be unable to claim all sums outstanding as arrears, instead.

Hope my post makes sense!

 

Bill

[Viscount Stair]

And even if they do serve the arrears notices, they cannot claim any interest or charges for the period during which they have failed to serve arrears notices (in practice, from some time between mid November and mid December depending on the due date of the repayment).

[Bill Shidding]

I agree with VS.

MD you should be aware that the law has now changed, regarding arrears.

I know that this is not the point of contention you have requested to be answered on this thread. You MAY find that if your creditor feels they have not complied with section 87/88 of the CCA1974, they are now able to claim for ALL the arrears instead (with a few previsos, to adhere to).

If they did that, they would need your admittance to the agreement or the executed agreement itself, and little else. Please be careful.

 

By far your strongest point of defence/attack is there is no agreement. The Judge will decide if the agreement they are relying upon is enforceable, or not.

 

Bill

Edited April 2, 2009 by Bill Shidding

[Last of the Mohicans]

I agree with VS.

MD you should be aware that the law has now changed, regarding arrears.

I know that this is not the point of contention you have requested to be answered on this thread. You MAY find that if your creditor feels they have not complied with section 87/88 of the CCA1974, they are now able to claim for ALL the arrears instead (with a few previsos, to adhere to).

If they did that, they would need your admittance to the agreement or the executed agreement itself, and little else. Please be careful.

 

By far your strongest point of defence is there is no agreement. The Judge will decide if the agreement they are relying upon is enforceable, or not.

 

Bill

 

Just out of interest, can this particular aspect be backdated to an agreement signed prior to both the 08 and 06 changes, or is there a cut off point for the agreement having been signed before which its excluded?

[Bill Shidding]

Hi LOTM,

This applies to pre- and post commencement agreements.

Commencement took place on the 1st October 2008.

I found the CCA2008 "amendment" with Viscount Stairs' gracious help.

 

Bill

[Last of the Mohicans]

Hi LOTM,

This applies to pre- and post commencement agreements.

Commencement took place on the 1st October 2008.

I found the CCA2008 "amendment" with Viscount Stairs' gracious help.

 

Bill

 

Thanks Bill

 

Mo

[Moral Dilemma]

OK, that letter demanding payment for sums that we obviously not due would help alot. As they have demanded money not due prior to a Default Notice, then that backs up the Unlawfull rescision aspect.

 

As for the no signatures, have the court ordered them to produce the original agreement? or are they going down what you "would" have signed?

 

Also, could you post the POC please? and an outline of your defence?

 

Helios waves at the guests - HELLO!

 

Thanks,

H

 

They are currently using the what you "would" have signed line.

 

Attached to AQ daft order for directions for claimant to produce original agreement, but did not get anywhere.

 

Claimant has stated in WS they no longer have the original.

 

POC as follows:

 

"The Claimants claim is in respect of monies due under an agreement between the claimant to the Defendant and the claimant claims:

 

1. £X,XXX.XX

 

2. Interest pursuant to County Courts Act 1984 (S69)

 

Now in their WS they stated they no longer sort interest pursuant to County Court Act 1984 (S69).

 

However when I served on them my WS I pointed out they are not entitled to claim interest under S69. I served on them my WS on the date (Friday) as ordered by court, Claimant's served 4 days later (Tues).

[Moral Dilemma]

Hi MD, I asked about the rescission of contract because;

If they do not have a signed agreement, and you claim "unlawful rescission of contract" by extension you are admitting to the agreement.

As VS says, they cant change their claim (at court) without first serving arrears notices.

If the natural loan term has not ended yet, they will be unable to claim all sums outstanding as arrears, instead.

Hope my post makes sense!

 

Bill

 

Bill,

 

So in that case if nothing forthcoming about signed agreement NO mention of "Unlawful Rescission of Contract" in any Skeleton Argument/Argument for trial.

 

However if they then claim "Oh look we've finally located the original signed agreement" (which seems to be the case with a number of claims just a few days before trial) consider "Unlawful Rescission of Contract"

 

MD

[Bill Shidding]

Hi MD.

If they can't produce the CCA - don't bring up rescission.

If they do produce the genuine signed CCA, or if the Judge enforces the relied upon (unsigned) CCA - do.

 

If you get 10mins, please read my thread "fiddlesticks". This may give you the heads up at what might happen if you successfully challenge their docs.

 

Bill

[Moral Dilemma]

I agree with VS.

MD you should be aware that the law has now changed, regarding arrears.

I know that this is not the point of contention you have requested to be answered on this thread. You MAY find that if your creditor feels they have not complied with section 87/88 of the CCA1974, they are now able to claim for ALL the arrears instead (with a few previsos, to adhere to).

If they did that, they would need your admittance to the agreement or the executed agreement itself, and little else. Please be careful.

 

By far your strongest point of defence/attack is there is no agreement. The Judge will decide if the agreement they are relying upon is enforceable, or not.

 

Bill

 

So what we could start to see happening is instead of DN's being issued, creditors may just right and say you've missed your payments and every 6 months you get a "your arrears are £XXXX.XX" statement. - OR do they still have to issue DN's just not terminate/end your agreement.

 

Creditor waits until natural end of term of loan (as long as within 6 years of your last payment) then issue claim for full arrears.

 

Or in case of credit card until amount of arrears is equal to full balance due (as long as within 6 years of last payment) and then issue claim for full arrears.

 

And along as they have a signed agreement with all prescribed terms - your stuffed.

[Moral Dilemma]

So if people start to receive Statement of Arrears and no Claim Forms it could signal a change of track by creditors.

 

I would have thought they would wait until arrears close to amount outstanding before issuing claim forms.

 

Additional thought 07/04:

 

If no DN or Termination Notice issued, if account holder then received statement of arrears, say 2 years after last payment, and then paid full amount of arrears - Would that then mean account would no longer be in breach as full payment of arrears rectifies that breach?

Edited April 7, 2009 by Moral Dilemma
Additional thought 07/04

[Moral Dilemma]

Bump

[Viscount Stair]

In one sense, that's not so different from how things are at the moment.

 

Some creditors run straight to termination, others issue DNs but don't terminate, which protects the position

 

This only works, though, under the new system if Arrears Notices are served at the right times, in the right format and accompanied by the right information sheets (and, presumably, state the right amounts too by analogy with Woodchester v Swayne).

 

The consequences of getting Arrears Notices wrong are set out in section 86D and not only is the agreement unenforceable until they are got right but no interest or charges can be claimed during any period of default.

 

Egg has already had to refund interest and charges after issuing a batch of incorrect ANs.

[Bill Shidding]

Hi MD, please read my thread "fiddlesticks" when you get 10 mins. That will explain why I advise caution, with your current position.

Just to re-iterate;

DN/TN ALL relate to earlier/future repayments.

ANs relate to repayments already missed.

You will not get a DN/TN if your creditor waits to the end of your loan term, and claims all sums as arrears instead. Additionally, any DN/TN or F/D issued by your creditor becomes "irrelevant" when the claim is for arrears.

Subject to the A/Ns being in order and correct, and you have either admitted the debt or, they have your enforceable agreement or, the Judge enforces the agreement.

 

The answer to your question is YES they can. However, I was up against a high flyer from the smoke. I don't think the average sol will know too much about the new regs (yet).

 

Bill

[Moral Dilemma]

Bill

 

Had a quick read of "Fiddlesticks" the other day and printed it off, will sit down over weekend and read it again.

 

Understand and appreciate your advise of caution.

 

At present am looking at them not have produced copy of signed agreement, but have noticed on some threads about claimant - having previously stated they are unable to locate original - turning up at hearing with original (or copy of signed original).

 

MD

[Bill Shidding]

Hi MD,

 

At present am looking at them not have produced copy of signed agreement, but have noticed on some threads about claimant - having previously stated they are unable to locate original - turning up at hearing with original (or copy of signed original).

 

I have also heard about this cheap trick. Did you hear the one about the claimant turning up at the hearing with the cut up credit card? The Judge asked the defendant if he recognised/signed the card, and that was game over.

Judges are always unpredictable anyway, like everybody else. Up until now you could make a strong case by using the claimants own docs against them, but what happens if the claimant/Judge dispenses with or dismisses the docs? Such as in my case, and is a possibilty in yours. Your defence has gone but the claimant can claim the arrears instead. I know that the only defence that cannot be dismissed is the non existent CCA.

 

IMHO;

At present you have a claimant whom has claimed total compliance with the CCA74 + section 87/88.

The defences/options you have are TTBOMK;

1) That the dates on the F/D (and the claimants paperwork) are wrong. This will be fairly easily changed with the courts permission.

1a) The claimants dates are correct, but they unlawfully rescinded the contract by issuing an F/D. Thereby you automatically admit the agreement/debt. They will then argue that the F/D D/N T/N was ineffective, and that the agreement endured. +Claiming arrears afterwards.

2) (My choice) There is no CCA, and you have not admitted to the agreement/debt.

 

At the end of the day, the Judge decides the outcome. Nobody knows where he stands legally/morally or otherwise! You probably wont know where the claimant is going with this case until you receive their skeleton argument and even then, they can change tack at the hearing. So the more informed/prepared you are, the better.

 

Regards Bill.