Invalid Default Notices

[Bigdebtor]

H

 

 

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

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

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

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

 

peter

 

Peter

 

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

 

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

 

BD

[Bigdebtor]

Peter

 

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

 

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

 

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

 

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

 

BD

Edited October 14, 2010 by Bigdebtor

[Bigdebtor]

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

 

Have fun, be nice y'all !

 

Elsa x

 

Elsa

 

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

 

BD

[Bigdebtor]

Hi i agree tat this would be an ideal scenario.

 

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

 

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

 

Peter

 

Peter

 

Peter

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

The fat lady has still to sing on this one!

 

BD

[Bigdebtor]

Hi just a quick question

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

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

Now there’s a thing

Peter

 

Peter

 

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

 

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

 

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

 

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

 

BD

[Bigdebtor]

Fair point - I would not ever wish to deter those who genuinely need help from seeking it, no matter how badly worded their questions were.

 

However I do not believe that to be the case here and I do believe the poster knows the answers to the questions apparantly posed. I do not as I do not even understand the post. If you can understand his post number 5107 perhaps you can paraphrase it for the benefit of those of us who do not understand it?

 

Also, if there is or are one or more questions in it then I do think it is incumbent on those who know the answers to the questions posed to provide them and not leave the rest of us wondering.

 

BD

[Bigdebtor]

Shadow et al

 

I am sorry if I have caused any offence - that was not my intention.

 

I am genuinely trying to contribute to the debate by ensuring all possible information is given to CAGGERs. Asking a question or questions to which one knows the answer or answers and then leaving the rest of us wondering what such a post was all about is NOT contributing - it is hindering the debate.

 

I shall make no further comment in response to this matter as I do not wish this to become an unnecessary and unpleasant diversion. To this end can we have no further comments on this - other than possibly some clarification of the post in question (and answers) if possible?

 

BD

[Bigdebtor]

DB

 

I wouldn't help them any more (or any earlier) than you must - just tell them you dispute the validity of the DN and wait on them asking why.

 

Good luck!

 

BD

[Bigdebtor]

I have been speaking to a number of people, Qc down, and only one supports the view on repudiation

PT - Can you clarify what you mean by this? Was it a QC (I accept no names can be given) who supported this view?

 

but the problem is conceded that there is a statutory prohibition on termination unless a default notice is served , setting aside an de minimis points.

 

The Act also clearly states NO SANCTION CRIMINAL OR CIVIL but for that provided by the act, so i think you may struggle there, as the act does not allow acceptance of termination

 

We will know more when we get the Brandon appeal heard

 

PT

 

Is your one person (above) perhaps giving us a glimmer of hope? Can you please clarify this further - as much as you're allowed to do?

 

I understand the point about any TN on the back of a dodgy DN perhaps not being unilaterally enforceable by the creditor on the debtor. However it is surely evidence that the creditor WISHES to terminate - and if the debtor ALSO WISHES TO TERMINATE and DOES NOT CHALLENGE the OC's intention to treat the agreement as ended and agrees there is a mutual desire to terminate then surely both cannot be forced to remain bound to the agreement against the stated wishes of both?

 

It's a bit like banning divorces and not only forcing a warring couple to remain married - but insisting they continue to live together and conjugal activities must continue as before "until death do us part".

 

As I said earlier I can't believe either Bennion or our expense-sodden MP's intended to foist this situation on us? It has been said many times the CCA was to PROTECT the DEBTOR - not shield the Creditor from the consequences of mistaken non-compliance.

 

Given this then surely the Courts could interpret the invalid TN as not only an ineffective intention to terminate (as in Brandon) - but also an irrevocable evidence of the desire of the creditor to terminate? If the debtor then agrees to the termination, then it was done by mutual consent - no one party foisted it on the other party!

 

If so, the agreement is terminated by mutual consent. Thereafter, given the original DN was not valid, no further (valid or invalid) DN could be issued as the agreement had been mutually terminated at that point in time when the debtor agreed to do so. The debtor would just need to pay the arrears (less damages) and then walk away from the outstanding balance, which would only have been due over time under an enduring agreement - not due right now in one lump sum.

 

Surely this would be an equitable outcome with the debtor being relieved of his obligation to pay the outstanding balance (only arrears less damages to be paid) in return for the Creditor having wrongly issued the invalid DN and thus not given him the necessary information or time to remedy the default, unjustly screwed his credit rating and removed his right to draw further credit?

 

Surely this would not be a SANCTION or PENALTY on either side - just a trade off of respective loss of rights enjoyed under the (now dead) agreement - which is surely what Parliament meant to have as an outcome?

 

I accept the debt does not disappear - but surely the balance is not collectable since the faulty DN removed the creditor's right to collect it - and given the mutual agreement to terminate no further DN can be issued?

 

I believe what am I saying is simply natural justice and common sense - and I cannot see how this could possibly be against the will of Parliament.

 

BD

Edited October 15, 2010 by Bigdebtor

[Bigdebtor]

BF

 

I would wait to see what happens in the Brandon appeal before doing anything further - unless you are being forced into earlier action?

 

OTHERS:

 

Can anyone update us on if/when such an appeal is being heard?

 

Also, if we have very old (2-3 years ago) invalid DN's and a TN issued (too) shortly after that, is there any TIME LIMIT (apart from the 6 year SB) on the OC now exploiting the current "get out of jail" card and re-issuing a valid DN several years later?

 

If the OC can do so in the above case - what is the situation if the debt has been assigned (or sold) to a DCA (but no valid NOA received) - who tried chasing up for a few months but now appears to have given up - nothing heard for about a year or more? Can the OC still re-issue a new valid DN? Can the DCA do so?

 

If no further payments have been made (thus accepting the TN on face value "by deed") - does that alter anything from above?

 

BD

Edited October 15, 2010 by Bigdebtor

[Bigdebtor]

PT

 

Why is the ending of the agreement and the capability to only recover arrears a SANCTION?

 

Surely it's simply a trade off

 

- no further credit allowed any more (on rolling credit agreement) by creditor

v arrears accrued to date (less damages) payable now by debtor ?

 

Also shouldn't NO SANCTION work both ways - nothing to detriment of debtor either? However a poor credit rating which goes unrepaired - possibly for years - is surely a sanction for the debtor?

 

Can you also comment on my earlier post about the dodgy TN being a clear expression of the creditor's desire to terminate which the debtor then agrees with - so agreement terminated by mutual consent?

 

BD

[Bigdebtor]

PT

 

As I have said before - surely the creditor has expressed a DESIRE to terminate - so if the debtor agrees then it's ended by mutual agreement - so agreement over.

 

Surely it's not ILLEGAL for the creditor to terminate - he just can't do so unilaterally without either a valid DN or the debtor's agreement?

 

If the debtor then simply "grants his wish" then surely it;s agreement ended (by mutual consent) and the dodgy DN means the creditor can no longer claim the outstanding balance - only arrears less damages.

 

How can any law prevent the two parties acting as I've just said to end an agreement neither wants ton continue?

 

BD

[Bigdebtor]

Mot

 

Good point - sauce - goose and gander?

 

However I think you're probably making the same mistake as I seem to be making - using logic, common sense and fair play arguments - which the Law doesn't seem to recognise at all.

 

I have been making similar points for the last few days - but have had no answers yet.

 

I really can't believe this is how Bennion and Parliament meant it all to pan out some 36 years later - and I thought the judges had to interpret the words of the Act to mirror the "will of Parliament" - but no one has answered me yet to tell me whether I am right or not in this approach.

 

Good luck with your own crusades!

 

BD

[Bigdebtor]

Mol

 

As I said - sauce - goose - gander!

 

If the Brandon appeal fails and the Banks can then "undo" any dodgy TN's, "unwind" and start all over again then your situation should follow on with a full refund of everything paid over - except the arrears then due - and you then start to pay the monthly amounts again (if you can afford to do so - otherwise more DN's, TN's etc).

 

This is the logical, fair, common sense consequence of what has been argued here - but will it be enforced?

 

I very much doubt it!

 

BD

[Bigdebtor]

Fretful

 

I quite agree. I had hoped Vince Cable might have had a bit more gumption - and muscle - but he seems to have gone over to the dark side too!

 

- More old Etonians in Government now than in Harold Macmillan's time 50 years ago

- Banks flexing their muscles and seemingly now winning at every turn

 

Does anyone think there is any connection?

[Bigdebtor]

If you're a UK Banker there are over 60 million Santas giving you 7000 million reasons to make THIS CHRISTMAS as wonderful as ever - otherwise - sorry - you've more chance of finding a humble or honest Banker!

 

BD

 

PS - Did you see them all quaffing their Krug at the recent masked ball in the City?

[Bigdebtor]

If only we could systematically pick a bank, boycott it in every way and then move on to the next when it's on its knees. Will never happen - we'll all moan whilst paying money into it and as such we'll always allow them to retain the upper hand.

 

(

 

Emandcole

 

Totally agree! I thought there was a move afoot to set up a new basic simple "people's bank" which just held our money, lent us money at fair rates etc. - no casino operation etc. If this happens I for one will move straight over to it - leaving the current shower to "service" their own Eton alumni!

 

BD

[Bigdebtor]

(Not so) Dizzy

 

Excellet point!

 

The Brandon case does not deal with this issue AT ALL as far as I can see.

 

It deals with the much narrower issue where Amex threatened to do someting too early but in the end didn't do so - quite different from a case where the TN follows too soon after the dodgy DN.

 

BD

[Bigdebtor]

Hi

I wonder how many judges have to say that this argument is flawed before some of you get the idea.

Peter

 

Peter

 

Which specific argument do you claim to be flawed? There have been many very good arguments posted here over recent days which have not received any response from you.

 

Does this mean that you think just one of these many arguments is flawed? If so, can I assume the corollary that you accept the other arguments as sound (i.e. unflawed)?

 

Incidentally how many DJ's HAVE actually said the argument to which you (don't) specifically refer is flawed?

 

It would certainly appear the Bannion case rests on the fact that AMEX did not issue a TN until well after the 14 days - even though their DN had threatened to do so earlier - and thus in practice the debtor's rights had not been unduly prejudiced - a matter of opinion and IMHO highly contentious. After all who could say if the debtor might have been able to fix things if given the correct amount of time in the first place? Only the debtor knows the answer to this.

 

However many posters have averred in recent posts that they have clear evidence of cases where the TN was issued well before the 14 days were up - and the default reported to CRA's - so restoring the original status quo was no longer possible. How is Brandon relevent to such cases?

 

It seems to me that the circumstances which led to Brandon are far from typical - and even if the perverse judgement is not overturned at Appeal then there are so many specifics that need to be considered that this cannot become a "one size fits all" judgement. However if it is deservedly thrown out at Appeal then I might reconsider that last sentence!

 

BD

[Bigdebtor]

Privity of contract is a common law doctrine...NOW while common law judges are no longer taking notice of 'the higher law (statute) will they also no longer take note of their ''own'' law...

 

I think this doctrine [is safe]

 

m2ae

 

m2ae/ This privity of contract sounds interesting. Where can we find out more?

 

BD

 

PS - I take it it's nothing to do with hedge funds or hedging bets?

[Bigdebtor]

DB

 

I would post te draft up here so it can be checked to make sure you don't shoot yourself in the foot!

 

BD