Invalid Default Notices

[Lord_Alcohol]

I have a DN giving me 14 days to rectify I also have a letter of termination dated the same day as the DN was issued, is this no good to me now? I also have from another card company another DN asking for the full amount but it seems the account was sold to DCA befor the expiry of the DN same question is this no good? I have been told on here that I have a good case with both DNs but from what I am reading is that now wrong?

 

Well, Peter Bard will say that your position is hopeless, but I will say that it is not.

 

Your lender has messed up. He needs to wait for remedy (or not) before terminating the agreement. He has removed your entitlement to remedy (an important part of CCA) and prejudged the outcome of any decision you may make.

 

The Act states that a compliant DN must be issued before an agreement can be terminated on breach by the lender, and s89 states that the lender must wait until the expiry date before taking the action set out in the DN.

 

I do not think that this line of reasoning is wrong. It is just that one or two recent cases have given the courts an easy way out.

 

Lastly, I would look to s140 if the lender fails to comply with the Act.

 

LA

[alangee]

What happens when the OC has issued an invalid DN, then sold your account to a DCA, then after the sale the OC no longer trades?

 

I am thinking of Monument and Goldfish accounts that were sold on before Barclays took on the their portfolios. Barclays state that they do not hold any info on these accounts because they were sold prior to any transfer to Barclaycard.

 

Any account that was sold to a DCA on the back of an invalid DN by one of these original creditors cannot have a valid DN re-issued as they no longer trade.

 

I expect PB to find a way around this for the DCA's, because he seems more interested in protecting them than helping people with contructive comments rather than concentrating on destructive comments by saying everybody is wrong except for him.

 

Alan

[oilyrag]

I am sorry Peter has taken the stance he has. Unfortunately with the threads I follow, particularly with the long complex ones, it appears to have become endemic amongst an element of the prolific posters/contributors to go round in circles, manipulate argument until it becomes meaningless and generally behave like the opposition we all have or will face from our tormentors. This is not good for CAG or good for the peace of mind we hope to offer to those in desperate need or indeed our own peace of mind. There is one long standing poster who now interleaves everything with Common Law (Contract), well OK Peter what are the principles here that we need to look for when a regulated CCA1974 has been terminated? CCA1974 no longer applies at this point and we are faced with this even deeper minefield. I am advised that some really deep principles are involved over many decades and not all to our detriment.

 

Regards

oilyrag.

[middenmess]

I am sorry Peter has taken the stance he has. Unfortunately with the threads I follow, particularly with the long complex ones, it appears to have become endemic amongst an element of the prolific posters/contributors to go round in circles, manipulate argument until it becomes meaningless and generally behave like the opposition we all have or will face from our tormentors. This is not good for CAG or good for the peace of mind we hope to offer to those in desperate need or indeed our own peace of mind. There is one long standing poster who now interleaves everything with Common Law (Contract), well OK Peter what are the principles here that we need to look for when a regulated CCA1974 has been terminated? CCA1974 no longer applies at this point and we are faced with this even deeper minefield. I am advised that some really deep principles are involved over many decades and not all to our detriment.

 

Regards

oilyrag.

 

Of equal concern is the recent absence of long standing posters to this and other threads.

 

Some have indicated that they will no longer post for various reasons but others seem to have disappeared into the ether.

[basa48]

HI

A default notice is a feature of the Consumer Credit Act and is used to supply n added degree of protection over an unregulated agreement in that it :

A ensures that the correct information is supplied to the lender for him to remedy the breach and

B gives time for him to pay

This is what it was designed to do and this is all it does.

Rally that is all there is to it

Accepting a termination is a pointless exercise and has no effect on the enforceability of the agreement or anything else, termination is not repudiation of the agreement, and if an agreement is terminated it is terminated acceptance or denial of the fact is hardly relevant.

Your written acceptance of a termination notice will I assure you go straight in the lenders solicitors bin s being irrelevant nonsense.

Peter

 

I find all this very confusing Peter !

 

A default notice may be for information about how the debtor can discharge the default. But that is NOT all it is. It is also a legal instrument that MUST be issued before the creditor can move on to claiming outstanding balances early.

 

No one here is advocating accepting terminations. As you say that is nonsense. What you seem to fail to grasp even though it has been explained repeatedly, is that once the creditor has terminated on the back of a faulty DN, he invariably ceases to perform the contract i.e. ceases to provide credit and also goes on to demand sums not yet due (since the DN is faulty no sums are due until he corrects the DN). It is this clear act of repudiating the contract that we accept and as others have said it then becomes a matter between the parties that a court should not be able to interfere with.

 

That's the theory anyway.

[middenmess]

Basa48

 

see my reply

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?196312-Invalid-Default-Notices&p=3168875&viewfull=1#post3168875

 

to pb's post

[basa48]

Basa48

 

see my reply

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?196312-Invalid-Default-Notices&p=3168875&viewfull=1#post3168875

 

to pb's post

 

Yeh I did read that, but my response was to add weight to that and add a few extra pointers myself.

[caro]

it appears to have become endemic amongst an element of the prolific posters/contributors to go round in circles, manipulate argument until it becomes meaningless and generally behave like the opposition we all have or will face from our tormentors.

 

I think there's something to be said for considering the arguments on CAG before fighting the real opposition in court. The fact of the matter is that judges are very often not dealing with people as we may think they should be in court, or even to the letter of the law, so people should seriously consider their best course of action to resolve their problems. I know many people have had good success fighting the technicalities in court, but many haven't, so people need to consider all the angles.

 

 

This is not good for CAG or good for the peace of mind we hope to offer to those in desperate need or indeed our own peace of mind.

 

 

Peace of mind comes later when the problems are resolved. While support is an important element of CAG and of great comfort to people who have felt alone in their battles, it is also about empowering people to help themselves, very often because they cannot afford the expert legal advice which many might prefer. Forewarned is forearmed.

 

 

There is one long standing poster who now interleaves everything with Common Law (Contract), well OK Peter what are the principles here that we need to look for when a regulated CCA1974 has been terminated? CCA1974 no longer applies at this point and we are faced with this even deeper minefield. I am advised that some really deep principles are involved over many decades and not all to our detriment.

 

Regards

oilyrag.

 

I firmly believe that people should be as informed as possible and consider all angles so they can make decisions about what is right for them.

[frettful38]

I wrote to HSBC accepting their unlawful rescission of my agreement...........but in the last few days I believe that the word rescission should not have been used and repudiation should. Is this true and if so have I made a poo poo of it?

 

This is what I wrote:

Dear Sir/Madam

 

Re account no: 5000000000000000 Unlawful Rescission.

 

With reference to the alleged debt to your company, I refer to your Default Notice dated 19th May 2009, posted second class and received by me on 23rd May 2009, and your subsequent actions confirming your previous written intentions to terminate the agreement. This termination has been recently confirmed to me as having taken place on 11th September 2009.

 

Notwithstanding that the default notice failed to give me the required statutory time in which to seek legal advice and/or remedy any alleged defect, as laid out in s87 of the CCA 1974. Your actions have resulted in insufficient time for me to even obtain an appointment with a solicitor let alone remedy the alleged default. Your actions have lead to you unlawfully rescinding the agreement.

 

I accept your unlawful rescission of the agreement I note that you are now entitled to claim those arrears genuinely due at the time of the termination (not including any unlawful charges ) and I would be obliged if you would advise me of the exact amount of those arrears, against which will be a claim for unlawful rescission

 

I look forward to hearing from you.

[middenmess]

I look forward to hearing from you.

 

 

My guess is that you'll be in for a veeeeeeeery long wait:!:

[frettful38]

Thanks MM, I did receive a letter to that and HSBC have written and deny that their DN is unlawful. Then things went quite for quite a while I then received a letter from DG Solicitors requesting I pay all or else they will pursue for a Charging Order.

 

I have one letter from HSBC which they stated that if I was not happy then I should instigate proceedings, yeah like I ain't got enough to do as it is LOL!!!!!!!!!!

[The Mould]

Frettful

 

They repudiated, it doesn't matter now what you wrote in your letter.

 

As we all know the 1974 Act does not impose any civil or criminal sanctions on the creditor if his actions constitute non-compliance with the said act, hence I advise not to use the word 'unlawful', because if something (whatever the thing is) is unlawful then there would be a penalty a punishment, civil or criminal, brought against the wrongdoer.

 

Let them commence with proceedings, and even though Peter states that there is no defence available in such cases of this type, I would suggest that you ignore what he says, as you can rely on the common law of contract for your defence.

 

Peter, I wholly disagree with you, these cases do so have a defence that [is] complete in law to such extent that the defence undermines the claimant's cause of action in its entiretry.

 

Kind Regards

 

The Mould

[The Mould]

Peter

 

Remember when you were wrong about the weather? (ho ho ho)

 

Be respectful if you will please, should you respond to any of my posts, by the way Peter, the Woodchester case, the tennant & landlord case, these cases between debtor and creditor (defective DN), are no different, a simply breech by the debtor does not go to the root of the contract, whereas the creditor's actions of terminating the agreement upon service of a defective DN, absolutely goes to the root (heart) of the contract.

 

As said before, the creditor's cause of action must be examined in these such cases.

 

Kind Regards

 

The Mould

[Undercover-Elsa]

Hi Elsa,

 

I don't read that in this way at all. I don't believe this section even applies to credit cards, but rather to fixed term loans? It states in subsection (2):

(2) Subsection (1) applies only where—

(a) a period for the duration of the agreement is specified in the agreement,

and

(b) that period has not ended when the creditor or owner does an act

mentioned in subsection (1),

 

Credit cards don't usually include a "...period for the duration..." as they are "open ended" as far as time is concerned.

 

I've examined the Act carefully and I have also contacted the OFT to find out if there is anyway a credit card account can be terminated by the Creditor when there is no breach, and it seems that there is none. They CAN withdraw the facility, but NOT the payment terms. i.e., they can "cancel" the facilty at any time they wish, but the debtor continues to repay the balance owed in accordance with the payment terms of the agreement; the creditor CANNOT demand the full balance EXCEPT following breach and the issue of a Valid Default Notice.

 

Regards,

 

Colin

 

Yep, you're absolutely right there Colin, got my knickers in a twist after wading through Brandon too many times!

My apologies for the confusion, should have read that as it's a credit card it will have an inbuilt clause allowing termination by either party at any time, but if the lender chooses to go down this route he should obviously do so formally in writing, quoting the relevant clause in the individual agreement.

 

(See, Peter, it is humanly possible to admit a mistake without choking on it LOL)

 

kindest regards,

Elsa x

[diddydicky]

HI

I know full well how some creditors and DCA behave when collecting debts but at the end of the day it is all down to the legislation and the courts. Hopefully the new regulations in the form of section140 will redress the situation.

I would like to challenge again this idea of accepting a termination. A termination cannot be accepted or declined if it could you could decline 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

 

are you sure??

[diddydicky]

HI

I know full well how some creditors and DCA behave when collecting debts but at the end of the day it is all down to the legislation and the courts. Hopefully the new regulations in the form of section140 will redress the situation.

I would like to challenge again this idea of accepting a termination. A termination cannot be accepted or declined if it could you could decline 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

 

Surfaceagent X20 was not mistaken. the CCA is an act for consumer protection and is biaised towards the consumer (not that recent cases would convince you) and which you often confuse for a contract in which both parties are equal in your posts

 

there is indeed a clause in most if not all running credit agreements for either side to terminated upon giving notice to the other- if it is the consumer he must pay any outstanding sums.

 

in the case of the creditor it is taken to mean that the continuation of the contract is terminated- and does not entail the consumer suddenly having to cough up the outstanding amount- in your argument you make the agreement into a repayment on demand overdraft facility-

 

that the consumer could "sign up" for a £10,000 limit credit card and then be met with a demand for immediate repayment by the creditor then terminating the agreement is a nonsense- and if it were valid then there would be no need of any other clauses in the act in relation to termination or eariler repayment of sums not yet due

 

the general clause re termination is OVERRULED by s88/87 when the consumer is in default

 

the act PERMITS and caters for consumer default ( mainly due to the ease with which an unsophisticated consumer could fall into that trap) whereas it does NOT permit the same lattitude to the creditor who is has been ruled in the house of lords "must be precise"

 

as far as prejudice is concerned, in almost EVERY case, by the time the creditor gets the consumer to court on the back of a dodgy DN - he has defamed the consumers credit reputation by lodging adverse information-

 

Indeed the creditor often lodges this information before his own falutly DN deadline.

 

if the creditor were allowed by the court to simply re calculate and re issue a DN after he has already trashed the consumers credit account- how can it be argued that the consumer was not prejudiced- the very means by which he might hope to raise further finance to satisfy the new DN - having been choked off by the creditor

 

How can the "status quo" (s89) be achieved by the consumer remedying the second DN, since by then the agreement and account have been terminated and closed by the creditor and the damage to the consumers reputation is done

 

removing adverse information from the consumers credit reference files can no more undo a libel than in any other case- once the offending statements have been broadcast

 

No lender- on seeing the information removed from the files- is going to overturn any decision not to lend - which was based on the previous adverse information - just because it has been removed

 

99.999% of lenders and reasonable minded people would realise that the removal of the adverse information was no more than a reluctant act on the part of the lender who put it there

 

the problem with brandon- as with other cases is not that the law was interpreted correctly by the judge but that (IMO) brandons side was not properly argued

[diddydicky]

thought this may be of more use here

 

Contracts, Termination, Repudiation and Rescission

Lately there has been much debate about the above , this is my take on it.

 

If we first look at an unregulated business contract we can perhaps define the terms a little more easily.

My simple definition of a contract is ; An agreement between two or more parties to provide benefits to all sides in equal proportion in consideration of there respective expectations.

These respective expectations are laid out in the terms of the agreement.

If we first look at an unregulated business contract we can perhaps define the terms a little more easily.

 

Worked example:

A window cleaner contracts to do your windows at a fee that you pay in arrears of service for instance.

This kind of an arrangement would not usually be documented but just humour me and lets say an agreement was drawn up.

The contract would say I the window cleaner do ,etc etc for the weekly fee of £*** .

So far so good but what happens if the customer fails to pay .

This is a simple contract and common law would say that the breach by the customer was a repudiation

of agreement and the window cleaner would be within his rights to accept that repudiation, terminate the contract and claim damages of the sum owed.

If this where to be litigated the court would seek to remedy by rescinding the agreement ,ie removing the liability of the customer by ordering repayment thus returning the relationship between the two parties to the time when no agreement existed.

 

Say now that the window cleaner had negotiated a contract with a housing association to clean all their windows, on a house by house costing and on the strength of this contract had invested in building his business to the degree where he could fulfil his obligations under the contract.

Since it would be some time until he could recoup his investment he would want to ensure the continued custom of the housing association so he includes a time element into the contract. The housing association agrees to an annual contract.

If the association now fails to pay then this would still be a core term breach and covered under the common law rights of repudiation, termination and recovery but in addition common law would allow the window cleaner to reclaim an amount which would represent the future loss of income(a genuine pre-estimate of loss).

Failure to perform of the window cleaner, also would be covered in the same way under common law.

Say then the window cleaner being a sound business man said what I need is the ability to terminate this agreement if for instance the number of houses referred to me dropped to the extent that it was no longer profitable for me to continue. This would not be a repudiatory breach of contract as none of the core terms would have been compromised, so the common law would not operate.

So he introduces a new term in the agreement saying that if the number of referrals drops to a certain level he has the right to terminate the agreement and includes that in this event all outstanding charges due at the time of termination would be due and payable.

So now the contract has two means of termination one is contractual and one is through repudiation and the common law rights of the aggrieved party to recover damages.

 

I think we should pause here and recap the difference represented by these two different types.

“Termination” means the withdrawal of all rights under the agreement this is unchanged, what is different is the actions that can be taken because of the way the termination is made.

The contractual termination(made under a term of the agreement) is not a core breach, the termination was made by the trader so he would not be able invoke common law and sue for future losses, in the case of a repuiatory breach whilst the trader still terminates, it is due to the actions of the association and termination would allow a claim.

Looking at it another way by invoking a term of the contract the trader has affirmed that the agreement still exists so he can not claim it has been repudiated.

 

Before applying these definitions to consumer agreements I would like to make a point. There has been much talk on here of contract law taking over when the act does not apply( by this I presume they mean common law). This is to my mind a basic misconception.

A consumer credit agreement was just a business contract until 1983 and it still is. Contract law still applies to the agreement in the same way it always has, it is up to the creditor to say what terms appear on the agreement and the debtor to agree or not just as it always was.

All statute does is place parameters on those terms in the intent of protecting consumers.

This is important to understand as it is not for the statute to permit or initiate actions under the agreement.

The act may require the creditor to take certain actions, provide copies , default notices, bit these are requirements of statute not of the contract.

So when someone says,” where does it say in the act that you can do such a thing ?” , the answer is, “it doesn’t” the act does not work like that.

The question should be,” where is the statute that limits the creditor to contractual right to do a thing?”

All this may seem to be off the original topic but I think when it comes to discussing default notices the connection will become clearer

Regulated agreements

In the knowledge that a regulated agreement is no different in essence from any other agreement we can apply the above definitions.

　

Termination under contract

This is usually a section contained in the contract(terms and conditions) which states the creditor may terminate at any time and on termination all sums due under the agreement become payable.

The common reaction to this is, ”They cant do that can they” well has we have previously established they can, the reason is that there is nothing in the statute that says they cannot.

But lets just consider what is being said the agreement is being terminated and all sums are due, it does not say immediately due it cannot because that would be breaching another term of the contract.

All that is being effectively terminated is the creditor obligations under the contract, the rights of the debtor to continue paying his instalments continues, only a breach on his part would alter that.

The liabilities under the contract are still there and common law would still expect them to be replayed In the manor originally required by the contract.

However having said that the agreement has been terminated, on a consumer credit agreement there is no real difference between a contractual termination and a termination under common law, because there are no issues of damages just recovery of liabilities currently under the contract.

 

 

Termination on breach of contract

 

The other cause for termination is breach by the debtor of one of the core terms of the agreement, the repayment schedule.

The act of not repaying the loan would be a repudiatory breach of the agreement and actionable under common law. If it where not for the act this repudiation would be accepted, the agreement discharged and procedures commenced to recover the liabilities due under the contract.

However as part of its function of consumer protection the act ensures that we have a chance to remedy before the agreement is discharged. (section 87)

In this respect the default notice could be considered as the acceptance of the repudiation.

As a consequence of this analysis it is plain that the associated termination /discharge of the agreement cannot take place unless the repudiation is confirmed (a correctly executed default is issued)therefore there can be no termination.

This conclusion is further compounded by the wording of section 87

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default

notice”) is necessary before the creditor or owner can become entitled, by reason of any

breach by the debtor or hirer of a regulated agreement

Notice it says “breach of an agreement” not, “ breach of a term of the agreement”

Also it says,” can be come entitled to “ this means that if there is no breach no repudiation there is no entitlement to terminate under this statute.

 

So the issue of whether a termination issued after a incorrectly executed notice is effective is solved because the contract cannot be terminated in that instance.

 

I have personal experience that supports this analysis. A few years ago one of our members (Credit union) was having trouble with a well known HP provider they had repossessed his vehicle for arrears of payment.

On examination of his default notice it was proven to be seriously defective in the amount of payment required for remedy.

One of our other members who is a solicitor was roped in to help.

We succeed in getting the case set aside and then our solicitor put a counter claim against the company for conversation (theft) of the vehicle.

The argument was that since the default was defective the termination of the account was also ineffective. That being the case the car was still the property of the purchases and the company had no right to take it.

The result was the case being dropped in short order the car returned and the account closed with amounts owed written off.

Source material for this post are to be found in Stocksnya Gdynia SA V Geaarbrook Holdings Ltd 2009

 

Consumer Credit Act 1974 Assoc SI

Best regards

Peter

 

 

and there lies the flaw in your arguments-and i may say of the judge in brandon - a regulated consumer credit agreement IS different from other agreements- it is an act for consumer protection and was/is intended by parliament to give bias to the consumer

[middenmess]

Hi DD

 

Good to see you getting your teeth into this8-)

[diddydicky]

basa

 

you are missing the point,

 

he cannot de-terminate something that he cannot terminate in the first place.

 

The act is clear on what must be done, common law, contract law, cannot defeat a statute, and the statute says you must do this before you can do that end off.

 

the act says that the creditor MUST serve a valid DN Before...............etc

 

but the judge in brandon has just ruled that one party (the creditor) can in fact avoid "having to do one thing- before he can do another" ( re the DN) therefore his judgement also surely sets a precedent that the provisions of the act can be avoided

 

presumably his decision that certain "must do's" in the act- must not necessarily "be done" applies to both parties else it comes under UTTR

[diddydicky]

until such time as a decision is reached in brandon appeal - i would suggest it might be useful to , after receiving a faulty DN for one to get a copy of their credit reference files and if erroneous information is shown from the creditor concerned- then immediately make several applications to finance companies for a loan in at least the amount of the arrears demanded in the DN

 

keep hold of the details of any refusals- that way- at a later date- you will have proof that the creditors actions have indeed prejudiced your ability to raise funds to remedy the alleged breach and that the the mere retraction and re issue of a new DN would have the same consequences since your credit rating has already been damaged

[emandcole]

Couldn't agree more. The very idea that a creditor can sign you up for a loan over a 5 year period and then without a care in the world demand it all back three months later 'or we'll trash your credit file and take you to court' is absurd. What Peter seems to bypass and what I have failed to understand from his posts is the fact that technically it is the creditor who first breaches the contract in a significant manner (to the root of the contract as has been said) when a dodgy DN is issued as they then typically invoke 3 of the 5 things specifically stated in s87 that they are not allowed to do having failed to issue a valid DN.

 

 

• They terminate the agreement (lawfully or otherwise makes no difference, their intention is clear)
  
• They demand sums not yet payable
  
• They remove the major benefit of the agreement to you (I'd call that repudiation for sure)
  

The breach of the consumer (within the CCA) may well instigate the response of the creditor but that does not excuse the resultant action of the creditor who fails to comply with the CCA by effectively stepping outside of it.

 

To suggest the consumenr is not prejudiced in any way as a result of this makes no sense at all and the notion proposed that in court the defecting creditor can seek the protection of the CCA over the consumer and effectively have their failures pushed aside to the detriment of the borrower is unbelievable.

 

I see no other argument that makes any sense when the question of who breaks the agreement first in a major manner is raised.

 

If the borrower breaks the agreement with non payment and then fails to respond to payment demands via a correct DN then certainly, the borrower has fundamentally broken the agreement by removing the major benefit to the lender.

 

However, if the borrower breaks the agreement and the lender issues a non compliant DN and then uses that to pull the major benefit to the borrower it is certainly the creditor who has fundamentally broken the agreement.

 

Why should a contract regulated by the CCA, an act specifically written (unusually) with bias towards one party over the other (the consumer over the creditor) be any different to any other form of contract?

[diddydicky]

170. No further sanctions for breach of Act.

— (1) A breach of any requirement made (otherwise than by any court) by or under this Act shall incur no civil or criminal sanction as being such a breach, except to the extent (if any) expressly provided by or under this Act.

 

 

paul,

 

surely this is referring to "sanctions" or penalites against the creditor for breaches- not "consequences" flowing from the breach

 

for instance- if i ride my bike down a steep hill and knock out two of my teeth- the law may well say there is no "sanction" on that particular hill for me rdiing my bike recklessly- but i still have to suffer the consequences (broken teeth) of my actions

 

surely in any event notwithstanding the above comments re sanctions v consequences- the law states that there must be SPECIFIC wording including in a contract in order to remove or overrides ones common law rights?

[diddydicky]

How the F**k can you accept something that is not available to the creditor?

 

I think the point was that if the parties to an agreement- were to mutually agree to amend, vary or terminate the agreement- then this would override any regulations covering the agreement

 

creditors -particularly banks- faced with the realisation that there is no equity available from a debtor for a specific debt- taken on by a creditor under a regulated agreement- will often agree to "write off" the whole debt- or part of it by agreeing a settlement figure to end the agreement=thus the parties to the agreement have agreed to terminate it- even though you say that the act does not allow the creditor to do so! or that the debtor can accept the termination

 

further- much has been made that the debtors missed payments are not a repudiatory breach and do not go to the heart of the agreement- therefore what is good for the goose must be good for the gander

 

If the creditor is seeking to use the argument that the debtor is in first (repudiatory) breach and therefore seeks to accept that breach by terminating the agreement (faulty DN or not)- then he is seeking to accept a breach which the act does not recognise as repudiatory- therefore the creditor cannot elect to act upon it by seeking to regard the agreement as terminated because of it

Edited October 21, 2010 by diddydicky

[gh2008]

paul,

 

surely this is referring to "sanctions" or penalites against the creditor for breaches- not "consequences" flowing from the breach

 

for instance- if i ride my bike down a steep hill and knock out two of my teeth- the law may well say there is no "sanction" on that particular hill for me rdiing my bike recklessly- but i still have to suffer the consequences (broken teeth) of my actions

 

surely in any event notwithstanding the above comments re sanctions v consequences- the law states that there must be SPECIFIC wording including in a contract in order to remove or overrides ones common law rights?

 

totally agree DD

 

Creditors can't pick and choose which breaches they have to stand by and those they can pretend didn't happen as they weren't supposed to do it.

 

An agreement MUST contain the prescribed terms - if they do not include them, does that mean the agreement didn't exist and therefore there are no sanctions??

If an incorrect copy of an agreement is sent in response to a s78 request and they MUST send a true copy - again does that mean because they can't do it it never happened?

In the same way they MUST not terminate etc BUT if they do then they have to live with the sanctions imposed by the CCA namely that they never become entitled to demand sums not already due.

 

all jmho

[diddydicky]

No, I really meant that s89 intends that the debtor is entitled to remedy the breach as though it never occurred. However, he cannot get himself into this position if he's been dragged through the courts and had his CRF mangled.

 

So, if the OC issues a new DN after these events, he breaches s89.

 

LA

 

rather than state that he "breaches" s89- i think it would be truer to say that the" purpose and intent of the Default Notice" is defeated - with particular regard to s89- which the debtor cannot achieve by compliance with the DN