Invalid Default Notices

[welshperson3]

Above are examples but how can a creditor making a statement in legal written document and not be bound by it? They have stated their intentions so I am at a loss to see how the law would allow them to take no responsibility for their actions

 

(It is widely agreed here that a creditor can send numerous DN's, but if the final DN is non-compliant and he then terminates the agreement, his goose is/was cooked.)

 

section 170 CCA is an issue now

Edited October 10, 2010 by welshperson3

[welshperson3]

Sorry welshperson3, took me a while to find this -

 

"... a person who signs a document, and parts with it so that it may come into other hands, has a responsibility, that of the normal man of prudence, to take care what he signs, which if neglected, prevents him from denying his liability under the document according to its tenor".

[per Lord Wilberforce in Gallie v Lee (1971)]

 

Bill

 

Exactly bill

There are enough examples to show that that they are responsible for what they send

But yet us unsophisticated debtors are supposed to allow them to keep sending dodgy DN until they hit on with a right one?

[welshperson3]

The Consumer Protection from Unfair Trading Regulations 2008

 

Aggressive commercial practices

 

7.—(1) A commercial practice is aggressive if, in its factual context, taking account of all of its features and circumstances

 

any threat to take any action which cannot legally be taken

 

 

Offences relating to unfair commercial practices

 

8.—(1) A trader is guilty of an offence if—

(a)he knowingly or recklessly engages in a commercial practice which contravenes the requirements of professional diligence under regulation 3(3)(a); and

(b)the practice materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product under regulation 3(3)(b).

(2) For the purposes of paragraph (1)(a) a trader who engages in a commercial practice without regard to whether the practice contravenes the requirements of professional diligence shall be deemed recklessly to engage in the practice, whether or not the trader has reason for believing that the practice might contravene those requirements.

[welshperson3]

if we have to deal with this within scope of the CCA then the only way i can see is if the creditor is bound by his words and actions,effectively tied to his first DN

 

so heads together and lets see how it can be done

[welshperson3]

 

 

This CCA s170 issue as is says (No further sanctions for breach of Act)

Now look at the

Definition of sanctions

4.

a. A law or decree.

b. The penalty for noncompliance specified in a law or decree.

5. A penalty, specified or in the form of moral pressure, that acts to ensure compliance or conformity.

6. A coercive measure adopted usually by several nations acting together against a nation violating international

So if a party to an agreement decides to terminate it then the other party accepts, how in law can this be seen as a sanction.?

If what you are relying on is just a dodgy DN and there has been no termination then yes no sanction part is applicable (no penalty for a dodgy DN)

As section 170 CCA says

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.

So when they terminate an agreement it is not (A breach of any requirement made by or under this Act) the breach is the dodgy DN

So if one party has shown by his words or actions that he no longer wishes be bound by the contract the other party then accepts this, how is this (a breach of any requirement made by or under this act)

When two party wish to end the agreement is this (a breach of any requirement made by or under this act)?

So you are not trying to impose a sanction on the other party you are only accepting what they want how can giving someone what they wanted be a sanction (penalty) ?

 

Factually you are not asking for a penalty for non compliance of a DN, you are only agreeing to end the contract so you are not asking for any sanctions, you are only agreeing to what the creditor wants, (TERMANATION)

REMEMBER A SANCTION IS A PENALTY FOR DOING SOMETHING WRONG if you just accept that the agreement is over with no claim for damages then then there is no sanction in play, the sanction would only come in if you wnated to claim damages.

Answers on a postcard to WP3

[welshperson3]

This is what I cant get my head around

dn is defective and therefore the ensuing termination is also not valid

section 170 mentions sanctions (PENALTYS) it says nothing about the agreement ensuing .

ending an agreement in my view is not a sanction

[welshperson3]

87 Need for default notice

(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,—

87 Need for default notice ok this says before he can become entitled.

He hasn’t complied so he has no entitlement to

(a) To terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e) to enforce any security.

So if he has not complied with this part then he has no entitlement under this section

It doesn’t say that it has to endure

As he has not complied with 87 the creditor is working outside section 87

He offers to terminate and you have accepted nothing to do with 87

[welshperson3]

if an agreement has not been terminated -n because the creditor was not entitled to terminate it - then naturally it endures- how can it do anything else but endure if it has not been terminated?

Yes it does endure until you accept

Under s87 it would continue but why wouldnt the following option be available to debtors?

 

 

A repudiatory breach of contract is a breach of contract that goes to the very root of the contract, evidences intention on the part of the party in breach that they no longer intend to be bound by an essential term of the contract.

Breach of a fundamental term in this way entitles the innocent party to accept the breach of contract (that is the repudiation of the contract) and bring the contract to end, or alternately affirm the contract.

If the innocent party wishes to accept the breach and terminate the contract, they must do so unequivocally and without undue delay. Delay in its own right is not fatal, provided the innocent party does not do anything to affirm the contract in the interim, and it is prudent to put it on the record that the innocent party objects to the conduct.

 

They are in breach of contract so why is this not a option I understand they cant terminate, but never the less they are in breach.

Edited October 11, 2010 by welshperson3

[welshperson3]

Section 87/88 CCA says they can’t do certain things that accepted.

The contract also says what is or isn’t allowed.

 

Now a breach of contract is doing something that is not allowed

 

Fact of the mater is that they have done something that is not allowed hence the breach.

 

If what is done was within the rules or the contract, then no breach and no option of accepting a repudiatory breach of contract

 

this is were the bad guys are relyind on section 170 CCA

 

but s170 CCA only says there should be no No further sanctions for breach of Act

accepting a repudiatory breach of contract isn’t a santion

Edited October 11, 2010 by welshperson3

[welshperson3]

Bigdebtor the above scenario is correct

The creditors are now trying to rely on s170 CCA and I have there argument in front of me

They argue that a termination was ineffective because s170 doesn’t allow it, so there fore it must not of happened.

And I think they are correct termination didn’t happen.

But when they withdrew all your rights under the contract, then a breach of contract occurred this is were the following applies

A repudiatory breach of contract is a breach of contract that goes to the very root of the contract, evidences intention on the part of the party in breach that they no longer intend to be bound by an essential term of the contract

S170 then saysNo further sanctions for breach of Act

I don’t think accepting a A repudiatory breach is a sanction (penalty)

Work in progress

[welshperson3]

WP3, if you're going through this argument right now

In 10 days time INVALID DN AND UNFAIR RELATIONSHIP

Judge has indicated after reading skeleton that he thinks i am wrong and the claimant is right on the DN but he then said it is up to me to try and show him otherwise

They are trying to get it thrown out as is is out of time but the judge indicated that he didn’t agree.

So the case is quite important as it involves invalid DN and unfair relationship

And check out the credentials of who they sent all the way to Wales

http://www.goughsq.co.uk/member-bala-r.php

[welshperson3]

WP3, if you're going through this argument right now

 

In 10 days time INVALID DN AND UNFAIR RELATIONSHIP

 

Judge has indicated after reading skeleton that he thinks i am wrong and the claimant is right on the DN but he then said it is up to me to try and show him otherwise

They are trying to get it thrown out as is is out of time but the judge indicated that he didn’t agree.

 

So the case is quite important as it involves invalid DN and unfair relationship

 

 

And check out the credentials of who they sent all the way to Wales

 

http://www.goughsq.co.uk/member-bala-r.php

[welshperson3]

The CCA says that something can’t be done, the law says that you can’t brake the speed limits.

 

So when something that the law says cant be done is in fact done is shows that what is meant is that it shouldn’t be done but once it is done then you are braking the law (THE RULES) what the creditor has done is broke the rules.

 

 

For braking the rules the in a contract regulated by the CCA then section 170 CCA comes into play which say that there is no sanctions outside of the CCA to be used for the punishment of rule braking

 

As your not asking for sanctions then section 170 is irrelevant,

 

Section 170 is the only thing that has changed from what was believed about a repudiatory breach what they are trying to do is confuse the judge as to them not being allowed to terminate so effectively the agreement continues.

 

And also on the point that 170 doesn’t allow any sanctions out side of the CCA

 

So if accepting a repudiatory breach is a sanction(penalty) then they are correct

 

But I am of the opinion that it is not a sanction

[welshperson3]

in brandon the creditor relied on this

98 Duty to give notice of termination (non-default cases)

(1) The creditor or owner is not entitled to terminate a regulated agreement except by or after giving the debtor or hirer not less than seven days’ notice of the termination.

(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),

the judge seams to think that DN irelevent as the creditor has a right under s98 CCA

[welshperson3]

Brandon v amex

 

In Mr Brandon’s case, the default notice was served on 19 June 2007 and demanded he made payment “within 14 calendar days from the date of this default notice”. As service was deemed after 19 June 2007, Mr Brandon argued that the time period for compliance was too short. It therefore followed, so Mr Brandon argued, that the default notice did not give the statutory period required by Section 88(2) and was therefore invalid. AMEX could not, therefore, rely upon it.

After hearing submissions, HHJ Roderick Denyer QC decided that because AMEX did not take any steps until 11 July 2007 (when it wrote terminating the agreement) and Mr Brandon was not prejudiced by a technical breach of Section 88(2), the default notice was valid and the agreement had been properly terminated.

 

 

I think i read somewhere that section 98 came in to is some were but i will check it out this is what i found so far

[welshperson3]

and this is a lenders view

 

 

HHJ Roderick Denyer QC’s decision is an extremely welcome one for any lender. The judge’s finding that a default notice, whilst technically non-compliant, will still be valid so long as the debtor suffers no prejudice is of crucial importance. Given its High Court status, it has far reaching implications and may mean that any technical non-compliance of a notice can be overlooked so long as there is no prejudice. Similarly, the judge’s refusal to interfere with the Deputy District Judge’s finding that the default charges were lawful is also very helpful. The customer plainly agreed to the default charges and the Court’s finding that if a debtor fails to pay on time then a lender does suffer loss is plainly right.

Going forward, lenders should ensure they are familiar with this decision to maximise their prospect of recovery. It is understood, however, that this decision has been appealed to the Court of Appeal and a hearing to decide whether permission to appeal should to be granted is currently listed for 6 December 2010. Given the difficulties with a second appeal, it will be interesting to see whether the application for permission to appeal fails at the first hurdle.

[welshperson3]

transcript of the brandon case

 

SCAN FORUM AMEX V BRANDON CASE[1].pdf

[welshperson3]

I think in Brandon, it wasn't so much S98 that the creditor considered should apply but that they were relying on their own T&Cs to terminate & demand the balance without giving statutory notice

 

 

you are right they did rely on the t&c

 

s98 was mentioned as well in paragraph 40 but you are right on the termination

[welshperson3]

As far as I can see non compliance with s87 (a faulty DN) only removes the creditors entitlement under the law of the CCA to terminate. It does not IMO stop him (maybe mistakenly) terminate or repudiate under common law and it does not stop the debtor from accepting such.

 

Common law does not override the Act, but the creditor stepped outside the provisions of the Act when he terminated (by action and in writing).

 

this is my view on the matter as well just hope i can convince a judge

[welshperson3]

well there is plenty to think about for tonight (i will have trouble sleeping now )

 

heads together again tomorrow and just maybe we can work this one out

 

night all

 

WP3

[welshperson3]

hi

s is a major miss conception.

Termination cannot be accepted if it could it could be declined.

.this process you are referring to is the acceptance of a repudiatory breach, which the aggrieved party the accepts and discharges the account.

This is not applicable for two reasons.

1 termination cannot be a breach on a credit card as the regulation allow for the creditor to terminate at any time.but it does not allow them to demand the full balance if you have a agreement to pay monthly

this is were the repudiatory breach occurs

2la default termination is a common law action taken by the creditor upon the repudiatory breach of the debtor the resulting termination is part of that action. If no default breach occurs the creditor is “not entitled”(section87) to terminate, therefore the agreement stands.again when he demands the full balance what are your rights ? I think you know the answer peter

there is case law here stocksnya gdynia sa v geaarbrook holdings ltd 2009

peter

 

wp3

[welshperson3]

A repudiatory breach of contract is a breach of contract that goes to the very root of the contract, evidences intention on the part of the party in breach that they no longer intend to be bound by an essential term of the contract.

Breach of a fundamental term in this way entitles the innocent party to accept the breach of contract (that is the repudiation of the contract) and bring the contract to end

When a creditor shows his intentions that he no longer wishes to be bound then the debtor has a choice to make .

Peter I agree that there is never a termination the fact is that the agreement is brought to an end thro mutual agreement

Creditor shows thro words or actions that he no longer wishes to be bound by the agreement debtor accepts this

Termination only occurs when the creditor works within the rules of the CCA

But ending an agreement in not same as terminating an agreement

But either way you look at is the agreement is over

repudiatory breach

[welshperson3]

be

 

Hi so you say demanding the full ballance is a breach of core terms.

 

the main advantage of a loan agreement th the debtor is the ability to pay monthly when this is removed then yes it is a core term

 

I cant agree, i dont think it is even a breach, a breach would have to be failure to perform or some action not an intention. Certainly there is no mention of intebntion to take an action in the deffinition of repuditory breach

 

withdrawing your rights to make monthly payments is not a breach by the creditor when he has no rights under law

can you explain why this is not a fundamental breach ?

And there again he is not entitled to do that either if he has a defective notice.

 

you are not entitled to drive to fast (speeding) have you ever done it

 

peter

 

 

wp3

[welshperson3]

Hi

Thinking bout this further you are saying that the section still enables the creditor to legally terminate even if defective(must be legal if you are going to accept it) but the same provision makes the demand for payment a breach.

Peter

 

 

forget the word termination peter i think you might be confusing yourself

 

its a repudiatory breach

[welshperson3]

 

So, if the creditor takes you to court (if we adopt the notion that although the creditor has sent you a letter terminating the agreement and that actually can't have happened as it was never available to them) what scenario can we expect?

 

apply to the court for sj explain they have no right of action as they have not complied with rules of the CCA fact is dodgy DN = no right of action in court

 

There seems to be a conflict here. It is accepted that a creditor cannot issue another DN on a terminated account, they can of course issue as many as they wish in a corrective manner before actually issuing the termination. Indeed, if a creditor does issue a DN on a terminated account (post termination) the OFT will intervene and you have cause to complain. It seems then that the process of termination is actually accepted by the courts as being an important step.

 

they cant terminate an account on the back of a dodgy DN.

Dodgy DN = no termination whatever the creditor thinks the account is still live

CCA don't allow termination on the back of a dodgy DN SO if its not allowed then it must be still alive

 

So, even if the DN provided by the creditor is invalid wouldn't we all agree that the act of litigation is itself a further act of termination, irrespective of history before this?

 

The CCA sets rules on what must be done before terminating an account.

the creditor is now arguing that as they didn't follow the rules then the account is not terminated.

they argue this so they can then send another DN if the account is not terminated.

 

If that's accepted how do we explain the following?

 

the act of litigation is not the same as termanation

it is a breach of contract on the part of the creditor, which then allows you a course of action

it may be a repudiatory breach if they are making demands which they are not entitelt to

As the DN itself is invalid how can it be that the act of termination the commencement of litigation undoubtably is doesn't cause issues (eg the creditor is not prevented from commencing litigation purely because they have a dodgy DN).

 

any one can start litigation

it is up to you to show they have no course of action,and then claim costs and damages

However, the act of termination they send you by way of letter and resultant threats and a final LBA are refused as viable options (as the option to terminate wasn't technically available to them due to the dodgy DN) and the court does not recognise your letter confirming your intention to also relieve yourself from obligation.

 

the above paragraph is were we are now

trying to convince a court is the hard bit

 

Seems a bit two sided (both in favour of the creditor who has not abided by the CCA through choice, convenience or ignorance) to say that termination is fine on a dodgy DN and the court will allow the creditor to get all the way to a hearing with no issues raised on the validity of their DN;

 

Whilst at the same time;

 

Letting you get to a hearing with the defence that you accepted their offer to end the agreement but as the same dodgy DN they used to litigate actually disallows the option of the termination they composed, signed and sent to you, you actually have no argument as the agreement still endures.

 

Either it's terminated allowing litigation or

 

It's not terminated and litigation (for the full balance at least) is prevented.

 

So, if a PofC turns up and you know the DN was dodgy (which means they had no right to terminate as it wasn't available to them) you should in theory be able to ignore the whole lot (as technically the court will not recognise their termination as being available to them due to the dodgy DN) and accordingly litigation on the back of that also isn't an option.

 

We all know if we did that we'd up with summary judgment before we knew it - and all on the back of an invalid DN that technically means the creditor had no right to terminate on (as it wasn't an option).

 

we see plenty of judges making strange disisions

wether it wasnt argued properly, or the judge bends the rules,just came to the outcome thet he wanted i dont know

Anyone explain this?

 

 

My view on this is that we should try and forget the word terminated.

As they are not allowed to terminate on the back of a dodgy DN so effectively termination never happened

As the agreement is still live then they have to comply with the terms of the agreement and their obligations under the CCA,

This is were it all starts to go wrong for the creditor,

As they think it is terminated they then start making all sorts of demands it is the demands (threats) that are the issue

Under the terms of the agreement the debtor has rights, but as the creditor thinks the agreement is over he withdraws all the rights and starts things like (court action demanding outstanding balance ect ect)

Now as in fact the agreement is not over (terminated) he shouldn’t be doing anything that is out side of the agreement.

It is the fact of creditors own action in doing something that the agreement doesn’t allow or that the CCA doesn’t allow is in fact putting the creditor in breach

As he (creditor) is now the one breaching the agreement then you (debtor) have a right to claim that their actions amount to a repudiatory breach of contract

And it is the actions of the creditor than now amount to a repudiatory breach of contract and you have right of action.

repudiatory breach of contract con only occurs if the contract is in force, as you can’t have a breach of agreement if there is no agreement

this is just my view on it all

WP3