Invalid Default Notices

[welshperson3]

i have posted this before.

it might be a bit heavy but if your going to court on a dodgy DN then this is well worth knowing.

 

I have highlighted relevant paragraphs, but you will need to brake it down and research it.

 

 

The election to affirm or terminate a

contract after breach

The Court of Appeal has considered the principles which govern whether a party

has exercised an election to affirm a contract following a repudiatory breach

by the other party, as well as the effect of a “boilerplate” clause that was

designed to preserve a party’s rights to enforce the contract despite delays on its

part in seeking to protect or enforce its position. The principal judgment was

delivered by Aikens LJ, with whom Ward and Richards LJJ agreed. The case

also dealt with other matters, but the discussion as to the doctrine of election

is the one that is important for present purposes.

The facts concerned a contract which one party (T) had breached in a

repudiatory manner, which would have entitled the other party (P) to terminate

the contract. With full knowledge of the breach, P did nothing and continued with

its own performance for almost a year. At that point, P purported to rely on its

right to terminate the contract. T alleged that P had elected to affirm the contract

and so had lost the right to terminate the contract and that, in consequence, P’s

purported termination had itself amounted to a repudiatory breach of the

contract which gave rise to a right in T to terminate and claim damages.

In answer, P claimed that it was entitled to delay in exercising its rights as it

could rely on a clause in the contract which provided that:

“In no event shall any delay, neglect or forbearance on the part of any party

in enforcing (in whole or in part) any provision of this Agreement be or be

deemed to be a waiver thereof or a waiver of any other provision or shall

in any way prejudice any right of that party under this Agreement”.

Aikens LJ summarised the principles that apply to determine if a party has

elected to affirm a contract, as they had been set out by Lord Goff in Motor Oil

Hellas (Corinth) Refineries SA v. Shipping Corp. of India (The

Kanchenjunga) [1990] 1 Lloyd’s Rep 391, at 397- 399, as follows (at [53]):

“(1) If a contract gives a party a right to terminate upon the occurrence of

defined actions or inactions of the other party and those actions or

inactions occur, the innocent party is entitled to exercise that right. The

innocent party has to decide whether or not to do so. Its decision is, in law, an

election. (2) It is a prerequisite to the exercise of the election that the party

concerned is aware of the facts giving rise to its right and the right itself. (3)

The innocent party has to make a decision, because if it does not do so

then ‘the time may come when the law takes the decision out of [its] hands,

either by holding [it] to have elected not to exercise the right which has

become available to [it], or sometimes by holding [it] to have elected to

exercise it’ [per Lord Goff in the Motor Oil Hellas case at 398, left side

of the report]. (4) Where, with knowledge of the relevant facts, the

party that has the right to terminate the contract acts in a manner which is

consistent only with it having chosen one or other of two alternative and

inconsistent courses of action open to it (ie. to terminate or affirm the contract),

then it will be held to have made its election accordingly. (5) An election

can be communicated to the other party by words or conduct. However, in

cases where it is alleged that a party has elected not to exercise a right, such

as a right to terminate a contract on the happening of defined events, it will

only be held to have elected not to exercise that right if a party ‘has so

communicated [its] election to the other party in clear and unequivocal

terms’ [per Lord Goff in the Motor Oil Hellas case at 398, right side of the page]”.

His Lordship said that it is a question of fact whether a party has elected to

terminate or affirm a contract in a situation where it is in the position that it

has to decide whether or not to exercise the right to terminate. The party has

elected either to affirm the contract or it has not done so. If it has not affirmed the

contract then the right to terminate will remain exercisable. In that light, he said

that the clause set out above was of no help to P, except in emphasising that a

clear and unequivocal communication is required of the exercise of an election to

abandon the right to terminate and to abandon its right to terminate or it did

not. If it did elect to abandon its right to terminate then the whole contract,

including the clause, would continue in existence. He said that, “The general law

demands that a party which has a contractual right to terminate a contract

must elect whether or not to do so”. His Lordship did say, however, that a party

which had elected to affirm the contract and not to terminate it might still have a

action for damages arising from the breach that had occurred.

Aikens LJ also said that, on its wording, the clause quoted above did not deal at

all with the issue of whether or not an election had been exercised. By way of

commentary, it is difficult to imagine how much more explicit the clause could

have been. From other comments that he made, it appears that his Lordship was

doubtful whether any clause could exclude the operation of the doctrine of

election and the requirements as to its exercise.

It is also interesting to note that in another part of his judgment, his

Lordship referred to the principle that if a party to a contract purports to

terminate it for the wrong reason but subsequently discovers facts which

would have justified its action in terminating the contract, the termination

will be valid. In that regard, he referred to Boston Deep Sea and Ice Co. v.

Ansell (1888) 39 ChD 339 and Lord Sumner in British and Benningtons Ltd

v. North Western Cachar Tea Co. Ltd [1923] AC 48, at 72. By way of

additional comment, in the context of the operation of an events of default clause

and the enforcement of security, see Byblos Bank SAK v. Al Khudhairy

(1986) 2 BCC 99549, Anglo Petroleum Ltd v. TFB (Mortgages) Ltd [2003]

EWHC 3125 (QB), Brampton Manor (Leisure) Ltd v. McClean [2006] EWHC

2983 (Ch), County Leasing Ltd v. East [2007] EWHC 2907 (QB), at [120]-[124].

Tele2 International Card Co. SA v. PostOffice Ltd [2009] EWCA Civ 9 (21/1/2009).

wp3

 

 

[welshperson3]

interesting

 

i think the key to this one however is

 

“(1) If a contract gives a party a right to terminate upon the occurrence of

defined actions or inactions of the other party and those actions or

inactions occur, the innocent party is entitled to exercise that right. The

innocent party has to decide whether or not to do so. Its decision is, in law, an

election.

do you have a contract ?

if the above is yes, then are you in a position were you have to elect whether to continue or end the contract ?

 

the general principle however with a credit agreement , which does not contain such clauses, has hitherto been that where the debtor does not elect to "opt out" he is assumed to have opted to affirm - and is made more difficult (but not impossible) by continuing to make payments or act in a manner suggesting he has affirmed

 

The clauses is immaterial

Aikens LJ also said that, on its wording, the clause quoted above did not deal at

all with the issue of whether or not an election had been exercised. By way of

commentary, it is difficult to imagine how much more explicit the clause could

have been. From other comments that he made, it appears that his Lordship was

doubtful whether any clause could exclude the operation of the doctrine of

election and the requirements as to its exercise.

 

as i see it the only hope in these circumstances for a debtor under a regulated agreement to argue a belated election to accept rescission - would be that he (genuinely) was unaware of the right

 

good point

but being able to show the judge that he still has the option open to accept the termination is another string to his bow.

 

it should be remembered that here we are "stepping outside" of the consumer credit act and into a minefield of general contract law which is designed more with commercial contracts in mind and that judges will naturally have it in mind that the debtor may be looking for "loopholes" .

 

what i have pasted is contract law, nothing to do with CCA

 

generally speaking Late changes of "tack" by debtors are likely to alert the judge to this possibility

 

Always open to the judges interpretation, but the more case law you show the less room for the judge to maneuver

 

IMO

 

wp3

[welshperson3]

(1) If a contract gives a party a right to terminate upon the occurrence of

defined actions or inactions of the other party and those actions or

inactions occur, the innocent party is entitled to exercise that right. The

innocent party has to decide whether or not to do so. Its decision is, in law, an

election.

 

 

The case law that is argued in what i have posted is about the election to confirm the contract.

the point of how you got in the situation whether to confirm or not is immaterial.

if you find your self in this position it doesn't mater how you got there its about accepting or not.

 

wp3

[welshperson3]

i don't really understand what your point is with this

 

it was predicated on a contract that contained clauses giving spefic instances in which the election could arise and which would not be contained in a credit agreement

 

The case law is about what to do when your in a position to accept the termination.

They are not on about how you came about being in the situation.

Why you do keep relating to the clause, the clause is why they were in a position of a breach.

the point is what you do in this position not how you got there

 

as i said- i think that the "real world" of debtors v creditors will be totally different to what you have quoted

 

The case law i posted came from the court of appeal can you show me a more "real world"

 

i think the post above refers to your arguments but it is ,as can be seen not clear cut as their is also case law to the contrary

 

I think the bank charges issue just showed us that nothing is as clear as we would like

[welshperson3]

well i can refer you to a cagger who lost on exactly this point a short while ago- that's about as real as it gets!

 

you have to realise that we deal in the majority of cases with district judges not appeal court judges

 

the vast majority of caggers who lose in the county court do not (cannot afford to) appeal their cases

 

and so they are stuck with life at the shallow end of the pool rather than in the nice warm jacuzzi at the other end

 

 

I have also read on one case were the judge says 13 days is acceptable because the debtor didn't have the money to pay so 14 days was irrelevant.

 

But this is all down to the knowledge of the debtor and how they argue the case, so the more case law they learn and have available the better they're chance.

 

What i have posted can be used when a judge says they didn't accept.

 

Not as a primary argument but as a good back up in a tight situation

 

WP3

[welshperson3]

hay DD if you got any spare time have a look at this thread,

 

Default Notices and Court dates...Please Help

 

the guy just about managed to get a set aside on a faulty DN, now he is defending the original claim, after reading his thread i think he could do with all the help he can get.

 

wp3

[welshperson3]

unlawful charges on the amount stated DO NOT MAKE a faulty DN

 

EXAMPLE

 

DN states £2000

unlawful charges =£1500

 

the above will not make the DN faulty

 

 

wp3

[welshperson3]

one of the rankine cases

 

1. The default notice is dated 2O December 2005. In my judgment, it cannot invalidate a default notice if elements of the sums claimed in that notice are subsequently found to be irrecoverable by virtue of other legislation, such as the Unfair Terms in Consumer Contracts Regulations 1999. The obligation imposed on the lender is to state the sums due on the face of the agreement. To impose any other requirement would remove any certainty from the process, since it would require lenders to anticipate and calculate, in advance, a Court’s likely view as to a fair sum to levy in respect of default charges. This is a virtually impossible task which Parliament cannot have intended that lenders would have to carry out when issuing default notices.
   
2. In my judgment, Mrs Rankine was deliberately seeking to be perverse and untruthful in seeking to avoid a substantial debt despite having all the benefits of equipment she expects the credit company to pay for on her behalf. Her behaviour in Court was perverse, argumentative and obstructive.
   
3. ConclusIon
   
4. In my judgment, the Claims by the Rankines do stand dismissed and the Claim by Tesco and counterclaim by HFC be allowed.
   

His Honour Judge Simon Brown QC

Sitting as a High Court Judge at Birmingham Civil Justice Centre

Authorised by Section 9 of the Supreme Court Act 1981

16th May 2008

[welshperson3]

Even more to thank the Rankine's for! They must be real heroes to the banks and DCA's now!

 

BD

 

 

If there is one thing for everyone to learn from the Rankine cases.

 

is how easy it is for a judge to interpret the law to fit the outcome he wants to achieve.

 

the judge shows he dislikes the Rankine's

 

and the point that they lost all the cases they brought i surmise is just a coincidence.

 

hate or love the Rankine's the point is the judicial system isn't as straight as they would like us to believe

 

wp3

[welshperson3]

Just helping on another thread and wanted to check something with you all if I may. HP Agreement, default issued for the whole balance so essentially a combined default & termination in one go.

 

Can the creditor do this or should they first provide a separate default before moving to termination? Believe they can do this but somewhere in my head this seems wrong for a regulated agreement?!

 

Your input appreciated as ever so I can pass this on

 

 

they can do this if the loan agreement has run its full term

 

example

 

10 year loan during them 10 years they add 2k in charges and you are behind with payments for another 1k, total 3k but after the loan agreement has run its original term they can claim the 3k paid straight away Without The need for a DN.

 

YOU ARE NO LONGER IN A AGREEMENT SO YOU HAVE NO RIGHTS UNDER THE AGREEMENT.

 

wp3

[welshperson3]

Of course you still have to get this through to the judge, I am in court tommorrow despite a totally invalid DN, they have even changed the details on the DN they have put with the witness statement despite me having the original which is completly different.

 

I have spelled it out in a witness statement of my own in the hope it would get thrown out or they would back down, less than 24hrs to go and nothing yet !

 

Cosalt

 

 

any news ?

[welshperson3]

More straw-clutching...

 

Vint is right; strictly speaking the contract will endure where the DN is faulty, because s88 has to be observed before the creditor can terminate under s87(1)(a). A valid DN is required, as Vint and others have repeatedly (and very helpfully) stated.

 

Acceptance of UR avoids doubt that the contract is ended.

 

However, I do not believe that acceptance of UR is essential. This is because both sides have shown a willingness to end the contract: the debtor by no longer wanting to be bound by the terms that require him to make payments; the creditor by issuing a DN and then terminating.

 

The debtor, therefore, wishes termination; the creditor obliges. Both sides want the same thing (termination). This position is identical to that which results following acceptance of UR.

 

Whether UR is accepted or not, it is the same. There has been a willingness to terminate on both sides, and at no stage has s88 been properly observed (where the DN is defective) and so s87(1)(a) [termination] has not been invoked.

 

If payments have since been made but the creditor has continued recovery action, then this cannot represent reinstatement of the contract (ie, a pretence that the contract endures) because both parties need to agree to this. It would be expected that the creditor would inform the debtor that the contract is reinstated anyway, yet this does not happen.

 

I would think that any payments made since UR that exceed the arrears should be reclaimable, because they were paid into an expired account which both sides wanted ended. As s88 was never properly complied with, s87(1)(b) cannot be invoked and so the creditor loses all rights to unpaid amounts.

 

LA

 

 

 

try this

 

vint any comments on this (good or bad) would be most welcome.

 

 

 

 

The election to affirm or terminate a

contract after breach

 

The Court of Appeal has considered the principles which govern whether a party

has exercised an election to affirm a contract following a repudiatory breach

by the other party, as well as the effect of a “boilerplate” clause that was

designed to preserve a party’s rights to enforce the contract despite delays on its

part in seeking to protect or enforce its position. The principal judgment was

delivered by Aikens LJ, with whom Ward and Richards LJJ agreed. The case

also dealt with other matters, but the discussion as to the doctrine of election

is the one that is important for present purposes.

The facts concerned a contract which one party (T) had breached in a

repudiatory manner, which would have entitled the other party (P) to terminate

the contract. With full knowledge of the breach, P did nothing and continued with

its own performance for almost a year. At that point, P purported to rely on its

right to terminate the contract. T alleged that P had elected to affirm the contract

and so had lost the right to terminate the contract and that, in consequence, P’s

purported termination had itself amounted to a repudiatory breach of the

contract which gave rise to a right in T to terminate and claim damages.

In answer, P claimed that it was entitled to delay in exercising its rights as it

could rely on a clause in the contract which provided that:

“In no event shall any delay, neglect or forbearance on the part of any party

in enforcing (in whole or in part) any provision of this Agreement be or be

deemed to be a waiver thereof or a waiver of any other provision or shall

in any way prejudice any right of that party under this Agreement”.

Aikens LJ summarised the principles that apply to determine if a party has

elected to affirm a contract, as they had been set out by Lord Goff in Motor Oil

Hellas (Corinth) Refineries SA v. Shipping Corp. of India (The

Kanchenjunga) [1990] 1 Lloyd’s Rep 391, at 397- 399, as follows (at [53]):

“(1) If a contract gives a party a right to terminate upon the occurrence of

defined actions or inactions of the other party and those actions or

inactions occur, the innocent party is entitled to exercise that right. The

innocent party has to decide whether or not to do so. Its decision is, in law, an

election. (2) It is a prerequisite to the exercise of the election that the party

concerned is aware of the facts giving rise to its right and the right itself. (3)

The innocent party has to make a decision, because if it does not do so

then ‘the time may come when the law takes the decision out of [its] hands,

either by holding [it] to have elected not to exercise the right which has

become available to [it], or sometimes by holding [it] to have elected to

exercise it’ [per Lord Goff in the Motor Oil Hellas case at 398, left side

of the report]. (4) Where, with knowledge of the relevant facts, the

party that has the right to terminate the contract acts in a manner which is

consistent only with it having chosen one or other of two alternative and

inconsistent courses of action open to it (ie. to terminate or affirm the contract),

then it will be held to have made its election accordingly. (5) An election

can be communicated to the other party by words or conduct. However, in

cases where it is alleged that a party has elected not to exercise a right, such

as a right to terminate a contract on the happening of defined events, it will

only be held to have elected not to exercise that right if a party ‘has so

communicated [its] election to the other party in clear and unequivocal

terms’ [per Lord Goff in the Motor Oil Hellas case at 398, right side of the page]”.

His Lordship said that it is a question of fact whether a party has elected to

terminate or affirm a contract in a situation where it is in the position that it

has to decide whether or not to exercise the right to terminate. The party has

elected either to affirm the contract or it has not done so. If it has not affirmed the

contract then the right to terminate will remain exercisable. In that light, he said

that the clause set out above was of no help to P, except in emphasising that a

clear and unequivocal communication is required of the exercise of an election to

abandon the right to terminate and to abandon its right to terminate or it did

not. If it did elect to abandon its right to terminate then the whole contract,

including the clause, would continue in existence. He said that, “The general law

demands that a party which has a contractual right to terminate a contract

must elect whether or not to do so”. His Lordship did say, however, that a party

which had elected to affirm the contract and not to terminate it might still have a

action for damages arising from the breach that had occurred.

Aikens LJ also said that, on its wording, the clause quoted above did not deal at

all with the issue of whether or not an election had been exercised. By way of

commentary, it is difficult to imagine how much more explicit the clause could

have been. From other comments that he made, it appears that his Lordship was

doubtful whether any clause could exclude the operation of the doctrine of

election and the requirements as to its exercise.

It is also interesting to note that in another part of his judgment, his

Lordship referred to the principle that if a party to a contract purports to

terminate it for the wrong reason but subsequently discovers facts which

would have justified its action in terminating the contract, the termination

will be valid. In that regard, he referred to Boston Deep Sea and Ice Co. v.

Ansell (188:cool: 39 ChD 339 and Lord Sumner in British and Benningtons Ltd

v. North Western Cachar Tea Co. Ltd [1923] AC 48, at 72. By way of

additional comment, in the context of the operation of an events of default clause

and the enforcement of security, see Byblos Bank SAK v. Al Khudhairy

(1986) 2 BCC 99549, Anglo Petroleum Ltd v. TFB (Mortgages) Ltd [2003]

EWHC 3125 (QB), Brampton Manor (Leisure) Ltd v. McClean [2006] EWHC

2983 (Ch), County Leasing Ltd v. East [2007] EWHC 2907 (QB), at [120]-[124].

Tele2 International Card Co. SA v. PostOffice Ltd [2009] EWCA Civ 9 (21/1/2009).

[welshperson3]

regarding what i posted in post 2686

 

this is just my opinion

firstly you must put in writing that you accept the UR as soon as you become aware of it.

 

what i have posted is not what you should be arguing,

but if you find yourself in front of a judge who says that by your actions (continuing to pay) then the contract continues.

 

at this point what would your reply be ?

 

what i posted could be handy in this scenario,not as a primary argument but a good reply if you find your back against the wall,and for this reason it is worth knowing.

 

 

WP3

[welshperson3]

Can anyone offer any help with this.

 

I am in court tomorrow and one of the points i have raised is a invalid DN,

the following paragraph is a reply which i received this morning to the point of a invalid DN.

 

quote.

As to the default notice,you are wrong in assserting that our client opted to terminate the agreement by serving a default notice. The default notice was served "to enforce our security" under section 87 (1) (e) of the consumer credit act 1974 (cca 1974). Our client has not enforced their security in the proerty and as such are only required to serve the default notice prior to enforcement of the possession order (i.e., prior to an eviction taken place). Without prejudice to the default notice that was served, our cient would be entitled to serve a further default notice to remedy any defects if any existed within the previous default notice. As such an invalid default notice (no admissions being made) does not extinguish our client's entitlement to possession.

end quote

 

I have a suspended possession order that i am trying to get removed so i think that they have enforced by trying to take possession and also removing the benefits of the agreement by demanding possession.

 

i have my own view on this and i think i have it covered but all suggestions would be more more than welcome.

 

WP3

[welshperson3]

hi cymruambyth

 

The DN is lacking on numerous points, not enough time for service, missing prescribed paragraph.

 

I am OK on the termination issue, i just wanted to post up the response i received from the solicitor representing them and see what others thought of it.

 

wp3

[welshperson3]

I am not worried by them, and i think they are grasping at straws they are Even trying to use the supreme court ruling (OFT V ABBEY AND OTHERS) to say the charges are fair.

 

wp3

[welshperson3]

johnny if your going for a set aside then i think this might help.

 

Forcelux Ltd v Binnie [2009] EWCA Civ 854

 

 

WP3

Edited August 23, 2010 by welshperson3
typo

[welshperson3]

have a look at this (dicky hope you like it)

 

Garside v Black Horse Ltd & Ors [2010] EWHC 190 (QB) (12 February 2010)

 

from paragraph 26

 

 

By virtue of section 10(7) of the 1973 Act, the implied term that the goods are of satisfactory quality is a condition as distinct from a warranty. This means that any breach of the term amounts to a repudiatory breach of contract entitling the innocent party – if he so chooses – to accept the repudiation by rejecting the goods. However, he loses this right to reject and thereby treat the contract as repudiated if he elects to affirm the contract and acts upon that election. Once an election to affirm has been made and communicated to the other party, then it is irrevocable. "Waiver by election is final and so has permanent effect" (Chitty on Contracts 30th ed. vol.1., para 24-008 citing Motor Oils Helles (Corinth) Refineries SA v Shipping Corp of India [1990]1 Lloyds Rep 391, 398);

 

 

On these facts, his Lordship held that up to that point

‘it cannot possibly be said .... that [G] with the requisite knowledge did anything which could

amount to an affirmation of the contract or the right to reject had been lost by the mere

passable of time

 

 

 

WP3

[welshperson3]

hello can anyone answer a question please? do penalty charges included on a DN make the DN defective?

 

 

HOPE THIS ANSWERS YOUR QUESTION.

 

[56] Mrs Rankine also asserts that there are errors in the form of the default notice and that the sums quoted were incorrect because they included default charges which were unfair. By her witness statement she makes further contentions as to alleged inaccuracies in the figures quoted.

[57] The default notice is dated 20 December 2005. In my judgment, it cannot invalidate a default notice if elements of the sums claimed in that notice are subsequently found to be irrecoverable by virtue of other legislation, such as the Unfair Terms in Consumer Contracts Regulations 1999. The obligation imposed on the lender is to state the sums due on the face of the agreement. To impose any other requirement would remove any certainty from the process, since it would require lenders to anticipate and calculate, in advance, a court’s likely view as to a fair sum to levy in respect of default charges. This is a virtually impossible task which Parliament cannot have intended that lenders would have to carry out when issuing default notices.

[58] In my judgment, Mrs Rankine was deliberately seeking to be perverse and untruthful in seeking to avoid a substantial debt despite having all the benefits of equipment she expects the credit company to pay for on her behalf. Her behaviour in court was perverse, argumentative and obstructive.

[59] Conclusion

[60] In my judgment, the claims by the Rankines do stand dismissed and the claim by Tesco and counterclaim by HFC be allowed .

wp3

[welshperson3]

Hi peter

 

i see your pointin the CCA regulalations not allowing termanation,but that dosnt stop a ilegal termanation.

[welshperson3]

Dicky i was in court yesterday it got adjourned but the judge did say on the point of a invalid default notice that he was of the opinion that they can issue another DN as it was adjourned before any arguments he also says that i would have to show him why they cant . he took this view on the skeleton argument.

 

i know the standard argument on this something solid to show the judge would help.

 

going out now back in 2 hours

[welshperson3]

just had a thought.

 

lets see what you think ?

 

 

76 Duty to give notice before taking certain action

(1) The creditor or owner is not entitled to enforce a term of a regulated agreement by—

(a) demanding earlier payment of any sum, or

(b) recovering possession of any goods or land, or

© treating any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred,

except by or after giving the debtor or hirer not less than seven days’ notice of intention to do so.

(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),

except by or after giving the debtor or hirer not less than seven days’ notice of intention to do so.

on the above paragraph it says notice of intention,

so if the creditor says i will terminate in 6 months time on the DN it is irrelevant as the notice that is required is a notice of intention

so effectively you have not received a compliant notice of intention just because they didn't carry out any enforcement until much later is irrelevant.

point i am trying to get at is a DN is a notice of intention not a enforcement notice

[welshperson3]

If a creditor states something in a faulty DN then i think this apples.

 

 

172 Statements by creditor or owner to be binding

(1) A statement by a creditor or owner is binding on him if given under—

section 77(1),

section 78(1),

section 79(1),

section 97(1),

section 107(1)©,

section 108(1)©, or

section 109(1)©.

[welshperson3]

After reading CCA section 170 I am of the opinion that we would have to work within the CCA rules so what do you think on the following?

 

 

 

Creditor issues an invalid DN he then takes court action.

When you get to court you then tell the judge that this case should not be there as the DN is invalid.

 

Judge says that you are right but you are only postponing the inevitable. As they can issue a new DN.

 

This is the important bit CAN THEY ISUE A NEW DN ?

 

76 Duty to give notice before taking certain action

 

(1) The creditor or owner is not entitled to enforce a term of a regulated agreement by—

 

(a) demanding earlier payment of any sum, or

 

(b) recovering possession of any goods or land, or

 

© treating any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred,

 

172 Statements by creditor or owner to be binding

 

(1) A statement by a creditor or owner is binding on him if given under—

 

section 77(1),

 

section 78(1),

 

section 79(1),

 

section 97(1),

 

section 107(1)©,

 

section 108(1)©, or

 

section 109(1)©.

 

(3) Where in proceedings before any court—

 

(a) it is sought to rely on a statement or notice given as mentioned in subsection (1) or (2), and

 

 

(b) the statement or notice is shown to be incorrect,

 

 

the court may direct such relief (if any) to be given to the creditor or owner from the operation of subsection (1) or (2) as appears to the court to be just.

 

 

Now the statement he has given (DN) is binding on him so how can he just issue a new DN if the first one is binding ?

 

A second DN is invalid as he is bound by the first.

 

THE RULES SAY THAT A CREDITOR IS BOUND BY HIS WORD UNLESS THE COURT GRANTS SUCH RELIEF

 

The first thing that a creditor would have to do is to try and get relief from his first DN if he don’t then he is bound and I cant see how a second DN is a valid DN if he has not sought relief from the first.

 

The argument would now have to focus on why he shouldn’t be granted such relief.

 

If I go in to all the argument this post will end up like a book but basically the CCA is for the protection of unsophisticated consumers and if he is allowed relief this would just defeat the object of the CCA.

[welshperson3]

My last post is based on the same principles as when a creditor sends out a settlement figure and you pay it, even if it is wrong they cant come back later and tell you the figure is Wrong and you owe us more.

They have to go to court to get relief from the settlement figure they sent out.

If they don’t get relief then its over

Edited October 10, 2010 by welshperson3