Invalid Default Notices

[Bigdebtor]

H

 

 

would like to challenge again this idea of accepting a termination. A termination cannot be accepted or declined if it could you could declined it and they would not be able to enforced.

A termination is either bilateral or unilateral the former is imposed on the party in breach (usually) the latter is by mutual consent.

You cannot “hold the creditor to his word” if he terminates our account, even if he where entitled to do so( which he is not if he has issued an ineffective default). When surface agent referred to this he was treating the termination as a repudiatory breach of contract, in this he was mistaken as most contracts on a consumer credit agreement have the contractual right to be terminated at any time.

Lastly I agree it is unfair that the creditor should issue an incorrect DN unfortunately it seems the courts would consider it more unfair for the creditor to loose entitlement to his money because of it

 

peter

 

Peter

 

Thta is NOT what I said. The OC had indisputably shown a "desire to terminate" or "made an offer to terminate" by his TN (whether dodgy on non-dodgy) and the debtor had accepted - two consenting adults - bound by their written word - so why should any Act interfere with two adults doing something that they ARE alowed to do?

 

Tell me where ANY Act dictates that something taking place that two people are allowed to do - with no effect on anyone else - CANNOT (or more technically correct - MUST NOT) be done?

 

BD

[Peterbard]

Not just my view, but missing instalments is not classed as repudiatory breach, just a breach. It does not go to the root of the contract as per the definition of repudiatory breach.

From Lacors:

 

 

kind regards,

Elsa x

 

 

 

 

Hi

With respect that is not what this says. It says a late payment is not a repudiatory breach. DNs are not usually issued on a late payment only after many missed payments.

We know that the creditor can sue for all liabilities under the contract so the breach must be repudiatory.

Peter

[Peterbard]

Peter

 

Thta is NOT what I said. The OC had indisputably shown a "desire to terminate" or "made an offer to terminate" by his TN (whether dodgy on non-dodgy) and the debtor had accepted - two consenting adults - bound by their written word - so why should any Act interfere with two adults doing something that they ARE alowed to do?

 

Tell me where ANY Act dictates that something taking place that two people are allowed to do - with no effect on anyone else - CANNOT (or more technically correct - MUST NOT) be done?

 

BD

 

Hi

First if the default notice is ineffective the debtor is not entitled to terminate because of the breach so there is no breach termination to accept. Section 87 says on the breach of the agreement not when the debtor feels like it.

He has a contractual right to terminate of course but he may not to use it if it denies him a course of action for the debtors repudiatory breach he certainly cannot be compelled to use it.

Second The act of accepting the termination is absolutely irrelevant, because it does not remove the rights of the creditor to recover liabilities under common law due to the original breach of the debtor.

Termination is not a breach of contract in itself no matter who does it.

The debtor can unilaterally terminate the contract any time he likes it does not remove his liabilities or the right for the creditor to sue for them.

Peter

[Peterbard]

Hi

Could someone please tell me whether this is valid in an agreement:

 

Depends on whether it is true or not would have to see the agreement.

 

peter

[Undercover-Elsa]

Sorry Peter, I can't agree with you there. However many missed payments-it's not repudiation. It can be remedied, hence the insistance by the CCA that a chance to do this is given via the DN. A repudiatory breach by definition is one which goes to the root of the agreement.

 

With reference to Stocznia Gdynia SA v Gearbulk Holdings Ltd I'm unclear how this either proves or disproves your theory. To quote one law firms published summation :

 

This case confirms that the starting position is that a contractual termination clause, however detailed, will not exclude an innocent party’s common law right to treat a contract as discharged and seek damages, following a sufficiently serious breach. Typically, the circumstances in which termination is permitted under the contract will be regarded as events that the parties have decided correspond with breaches that the common law would recognise as giving rise to similar rights.


Clear words are needed to exclude the common law rights. However, they are capable of exclusion, for example by a clause stating that the remedies specified in the contract displace any rights or remedies in law (provided that the clause satisfies statutory reasonableness tests, if applicable). 


Where termination under the contract and treating a contract as discharged at common law give rise to identical consequences, a termination notice will not necessarily have to specify which is relied upon. An election may, however, be necessary where the contract and common law give rise to alternative rights and different consequences.

 

kind regards,

Elsa x

[Undercover-Elsa]

If anyone wants to wade through it, here's the link:

 

Stocznia Gdynia SA v Gearbulk Holdings Ltd

[Peterbard]

Peter

 

Your penultimate sentence in post 5081 is most revealing "with amounts owed written off".

 

Was the HP company being charitable or just recognising a legal inevitability?

 

That is the crux of what many of us really want to know.

 

I suspect most of us DON'T REALLY CARE if the contract/agreement "terminates" or "endures" - or if the "debt" does or does not "disappear" in certain circumstances as discussed at length here recently .

 

I suspect most of us really only care about how much of the remaining balance we can be forced to pay if the Creditor issues a dodgy DN and then a TN - whether the TN is effective/compliant/legal or not.

 

BD

 

Hi

I think the writing off part was down to the dealership having a brown trouser moment.

The car was a MG worth about 20k the debtor owed about 1800 on the agreement I think, they obtained default judgement whilst he was in hospital having a kidney transplant.

They “collected” the car off his drive without a warrant, so many errors.

Peter

[Peterbard]

Sorry Peter, I can't agree with you there. However many missed payments-it's not repudiation. It can be remedied, hence the insistance by the CCA that a chance to do this is given via the DN. A repudiatory breach by definition is one which goes to the root of the agreement.

 

With reference to Stocznia Gdynia SA v Gearbulk Holdings Ltd I'm unclear how this either proves or disproves your theory. To quote one law firms published summation :

 

 

 

kind regards,

Elsa x

 

It is the statute that introdeces the idea of remedy as it does many others, for action to recover to commence their has to be a breach now if you dont wish to call it repudiatory thats fine, does iot make a differenc, it is still this that entitles the creditor to sue.

 

Peter

[Peterbard]

Sorry Peter, I can't agree with you there. However many missed payments-it's not repudiation. It can be remedied, hence the insistance by the CCA that a chance to do this is given via the DN. A repudiatory breach by definition is one which goes to the root of the agreement.

 

With reference to Stocznia Gdynia SA v Gearbulk Holdings Ltd I'm unclear how this either proves or disproves your theory. To quote one law firms published summation :

 

 

 

kind regards,

Elsa x

 

 

 

Hi

I think the case that an agreement that has been terminated can still be actiond for breach is relevant to this discussion.

Peter

[Undercover-Elsa]

Hi Peter,

In my view it does matter, if trying to establish which of two parties was the first to commit repudiatory breach under common law. It matters very much.

 

Elsa x

[Undercover-Elsa]

Much as I'd love to continue this discussion which is an interesting one and thankfully staying nice and polite, I have livestock to feed so I'm off for a bit.

 

Have fun, be nice y'all !

 

Elsa x

[Peterbard]

Hi Peter,

In my view it does matter, if trying to establish which of two parties was the first to commit repudiatory breach under common law. It matters very much.

 

Elsa x

Hi you mean that the debtor not paying may be missundertod by the court as`being the fault of the creditor.

 

interesting

[Peterbard]

Hi Peter,

In my view it does matter, if trying to establish which of two parties was the first to commit repudiatory breach under common law. It matters very much.

 

Elsa x

 

 

 

Hi

No I get it know.

You are saying that the failure to repay the repayments would not be regarded by the court as a repudiatory breach because it is not important enough.

But the intended termination of the agreement, no hang on we have decided that any one can terminate at any time so cant be that, the demanding early payment then is a breach of core terms. To the extent that the debtors trivial default wil just be ignored

Again interesting

Having a lot of success with this are you.

Peter

[Bigdebtor]

Peter

 

In response to your post 5089 I still think the issue of the TN (after a dodgy DN) shows the OC wanted to terminate. The Debtor simply accepts this on face value. I beieve NOTHING can stop two parties agreeing to terminate or one party choosing whether to comply with (or reject) the first party's clear desire to terminate,even thoughbthe first party was not entitled to terminate UNILATERALLY (due to dodgy DN). We then get into whether the debtor is due to pay arrears only - or the full amount by so accepting the creditor's desire to terminate.

 

I repeat - even the most expense-sodden of MP's could not have wished to end up with the situation where the OC could simply keep re-issuing DN's until he got it right whilst continuing to trash the debtor's Credit Reference File and deprive the debtor of knowing exactly what was required to remedy his breach - without having to pay the penalty for such basic errors.

 

THAT is why I believe the only JUST outcome of dodgy DN followed by TN is the debtor only has to pay lawful arrears less damages - not the full outstanding balance.

 

Otherwise as I said above it is akin to the drunk driver who quite fortuitously "caused no harm" getting off Scot free - and only punishing drunk drivers who actually cause harm. On a similar vein there is a crime of "attempted murder" (i.e. failed - ineffective - result not as intended) as well as (successful) "murder".

 

BD

Edited October 14, 2010 by Bigdebtor

[Bigdebtor]

Much as I'd love to continue this discussion which is an interesting one and thankfully staying nice and polite, I have livestock to feed so I'm off for a bit.

 

Have fun, be nice y'all !

 

Elsa x

 

Elsa

 

Unfortunately some responses to you seem to be getting less polite now. I say "seem" since the poor grammar makes it pretty difficult to understand precisely what is meant. I think you might be winning now?

 

BD

[Peterbard]

Peter

 

In response to your post 5089 I still think the issue of the TN (after a dodgy DN) shows the OC wanted to terminate. The Debtor simply accepts this on face value. I beieve NOTHING can stop two parties agreeing to terminate or one party choosing whether to comply with (or reject) the first party's clear desire to terminate,even thoughbthe first party was not entitled to terminate UNILATERALLY (due to dodgy DN). We then get into whether the debtor is due to pay arrears only - or the full amount by so accepting the creditor's desire to terminate.

 

I repeat - even the most expense-sodden of MP's could not have wished to end up with the situation where the OC could simply keep re-issuing DN's until he got it right whilst continuing to trash the debtor's Credit Reference File and deprive the debtor of knowing exactly what was required to remedy his breach - without having to pay the penalty for such basic errors.

 

THAT is why I believe the only JUST outcome of dodgy DN followed by TN is the debtor only has to pay lawful arrears less damages - not the full outstanding balance.

 

Otherwise as I said above it is akin to the drunk driver who quite fortuitously "caused no harm" getting off Scot free - and only punishing drunk drivers who actually cause harm. On a similar vein there is a crime of "attempted murder" (i.e. failed - ineffective - result not as intended) as well as (successful) "murder".

 

BD

 

Hi i agree tat this would be an ideal scenario.

 

Unfortunatelt the court will not allow the creditor to loose title to his money in this way.

 

Yhe reasons tey will not have been gone through ad infinitum but the bottom line is it just aint going to happen.

 

Peter

 

Peter

[Peterbard]

Elsa

 

Unfortunately some responses to you seem to be getting less polite now. I say "seem" since the poor grammar makes it pretty difficult to understand precisely what is meant. I think you might be winning now?

 

BD

 

 

Yes when people start critisising my grammer or spelling it is usually a sign that they are running low on argument

[Peterbard]

Elsa

 

Unfortunately some responses to you seem to be getting less polite now. I say "seem" since the poor grammar makes it pretty difficult to understand precisely what is meant. I think you might be winning now?

 

BD

 

wonder if the Caggers elwhere on this site that have followed this line of reasoning think you are winning?

Edited October 14, 2010 by Dodgeball
oops misspelt a word must be wrong then

[Gallahad]

wonder if the Caggers elwhere on this site that have followed this line of reasoning think you are winning?

Well here is one that sure does

G

[Bigdebtor]

Hi i agree tat this would be an ideal scenario.

 

Unfortunatelt the court will not allow the creditor to loose title to his money in this way.

 

Yhe reasons tey will not have been gone through ad infinitum but the bottom line is it just aint going to happen.

 

Peter

 

Peter

 

Peter

 

I'm glad we seem to agree on something - but I cannot agree with your final sentence.

 

Let's hope the Appeal Court will see the justice in holding Creditors accountable for their mistakes and not letting them off the hook every time until they finally produce a valid DN whilst leaving the debtor in limbo throughout.

 

The current situation (if you are indeed correct - and I am not at all certain of that - but, taken in isolation, the preverse Bannion verdict certainly seems to support your view currently) CANNOT be what Bennion intended in a Law enacted to PROTECT the CONSUMER.

 

If Justice prevails in the Appeal Court I'll even buy you a dictionary (both for help with spelling and to understand the vital difference between words like CAN'T and SHOULDN'T) AND a book on Punctuation AND a book telling you which form of spelling (loose or lose, there or their etc. ) to use in what circumstances.

 

Come to think about it, applying the same meaning to two totally different words or using the wrong form of spelling in the wrong context is not too different from what the Judge did to get to the apparant status quo which you seem to be defending?

 

Maybe both of you didn't go to the same school? (Think about it!).

 

Having said all of that, you have probably done us a favour by alerting us to the fact it is not as cut and dried as we had previously thought for most of this excellent thread - but equally I cannot believe it will end up as cut and dried in the converse direction as you suggest.

 

The fat lady has still to sing on this one!

 

BD

[Peterbard]

Hi just a quick question

I have my spell checker on BD so you should be able to understand it..

Creditors actions in recovering all liabilities under the contract is not the result of the debtor repudiating the contract, then what is the mechanism used it is not a contractual feature or it would have to be in the terms of the agreement, so what is it. What is it that the act regulates, what was it before 1985 what is it on unregulated agreements.

Now there’s a thing

Peter

[Peterbard]

Well here is one that sure does

G

 

I look forward to being supprised could you point me to your winning thread

[Peterbard]

Peter

 

I'm glad we seem to agree on something - but I cannot agree with your final sentence.

 

Let's hope the Appeal Court will see the justice in holding Creditors accountable for their mistakes and not letting them off the hook every time until they finally produce a valid DN whilst leaving the debtor in limbo throughout.

 

The current situation (if you are indeed correct - and I am not at all certain of that - but, taken in isolation, the preverse Bannion verdict certainly seems to support your view currently) CANNOT be what Bennion intended in a Law enacted to PROTECT the CONSUMER.

 

If Justice prevails in the Appeal Court I'll even buy you a dictionary (both for help with spelling and to understand the vital difference between words like CAN'T and SHOULDN'T) AND a book on Punctuation AND a book telling you which form of spelling (loose or lose, there or their etc. ) to use in what circumstances.

 

Come to think about it, applying the same meaning to two totally different words or using the wrong form of spelling in the wrong context is not too different from what the Judge did to get to the apparant status quo which you seem to be defending?

 

Maybe both of you didn't go to the same school? (Think about it!).

 

Having said all of that, you have probably done us a favour by alerting us to the fact it is not as cut and dried as we had previously thought for most of this excellent thread - but equally I cannot believe it will end up as cut and dried in the converse direction as you suggest.

 

The fat lady has still to sing on this one!

 

BD

 

Well some slight acknowledgement of what i am doing better than nothing

[Bigdebtor]

Hi just a quick question

I have my spell checker on BD so you should be able to understand it..

Creditors actions in recovering all liabilities under the contract is not the result of the debtor repudiating the contract, then what is the mechanism used it is not a contractual feature or it would have to be in the terms of the agreement, so what is it. What is it that the act regulates, what was it before 1985 what is it on unregulated agreements.

Now there’s a thing

Peter

 

Peter

 

I couldn't begin to attempt to answer what you say is a question. I do not understand any of the post and would not even have known it was a question without such prior warning.

 

Thanks for using your spell checker but can you also use sentences with conjunctions and punctuate with apostrophes, periods or question marks as appropriate?

 

If it is indeed a question (or several) and you do know the answer(s) then would it not be more helpful to provide the answers to those of us who, whilst perhaps not so grammatically challenged, are nevertheless apparently not so well informed?

 

After all, shouldn't our key (only?) objective be to provide any relevant information we possess for the benefit of other CAGGERs?

 

BD

[cymruambyth]

Grammatical criticisms do not always help (I am sure I have read somewhere that peterb has dyslexia) and can deter some people from posting. It also detracts from an important debate for many caggers.