Welcome Finance - Is This Enforceable??

[emanevs]

hello everyone,

 

The Supreme Court - Case details

 

Have a gander at this,

 

Oh, and hello again all you Welscum guests, I hope you find my link useful

 

ha,ha,

[postggj]

I Did Not Think Notingham Had That Many Staff Any More

[postggj]

Thats Brill

 

Appeal Granted

 

Tough Luck Welcome

 

And The Judgement Will Be Retrospective

[emanevs]

:D:D

 

Everyone cross everything!!!

 

As I say, what goes around, comes around.......

 

Must be a good reason for the appeal to have been granted by the Supreme Court???

 

If they loose this, could finally put them to bed!!

[postggj]

Whats This

All Guests Gone All At Once

 

Did Notingham Have The Power Cut Off For Not Paying The Bill

[emanevs]

ha,ha,

 

Perhaps they are just upset of the fact that its coming..........

[beyondhope]

Oooo not too long to wait either!!

[emanevs]

well.........

 

The FOS DID NOT UPHOLD MY COMPLAINT!

 

Can you believe this?

[wannabedebtfreesoon]

The fos are a waste of space!! What on Earth can their reasons possibly be for justifying this????

[emanevs]

What a joke!

 

THIS IS A COMPLETE WASTE OF TIME COMPLAINING TO THE FOS, AND I AM GOING TO TAKE THIS FURTHER, AND GET AN OMBUDSMAN TO LOOK AT THIS, IN ADDITION TO EMPLOYING A BARRISTER.:mad:

 

here it is

 

1) Welcome provided internal documents proving that the loan agreements were sent out at least seven days after the date I signed:eek:

 

2) They have totally ignored the fact that I cannot pay off the loan as stated in the agreement.

 

3) They have ignored the charges, such as MIF, and acceptance fees.

 

4) Not even responded to the MIF.

 

5) They said that I applied for any had the benefit of money and that I did not dispute this?????

 

6) For the reason that I applied for and had the benefit of money, the FOS do not believe it would be fair or reasonable for the FOS not to take further action if payments are not maintained.

 

7) The enforceability of the agreement is not a matter for the FOS!!

It is possible that a Court - which is not bound by S228 of the Financial Services and Markets Act 2000 as the FOS is, would reach a different view with regard to the enforceability of the debt.

 

8) FOS do not agree that this should not have been applied to my loand as it was secured, and in essence a mortgage. As I did not raise a complaint about this at point of sale or around the time!!

 

9) The FOS is not a court of law:eek:

 

10) The FSA document in respect of the use of rule 78 relates to Blemain Finance Ltd ONLY THE FOS ALSO STATE THAT PENALTY INTEREST OF £900 DOES NOT SEEM UNREASONABLE IN THE CIRCUMSTANCES - EVEN THOUGH MY LOAN WAS ONLY JUST OVER 3 MONTHS OLD!!!!

[emanevs]

W*nkers!!!!!

[wannabedebtfreesoon]

So what exactly do the fos do then???

Make moral judgements from their perch???

 

The upside is you've had a final response from fos so you can safely say you have exhausted all other possibilities of getting this sorted!

 

Court it is then!!!

The very best of luck to you

[emanevs]

unbelievable.

 

Whats does postggi think of this then?

[wannabedebtfreesoon]

So obviously the "new" way of dealing with problem lenders via alternative resolution is a complete load of hits!!!

[emanevs]

or bull*hit

[beyondhope]

IMO the fos is up the 'arris of welcome atm they arent upholding far too many complaints they either dont want the hassle orrrr is there something more sinister???

[emanevs]

well I am not letting this go.

 

Time to go up another gear.....

 

Where is Posggi's mate in the FOS???

[emanevs]

Hi,

 

Does anyone know what legislation clearly states HOW MANY DEFAULT NOTICES YOU CAN BE SERVED WITH?

 

I think its only one, but I have been served two.

 

Is this an unlawful recission of contract, whereby

 

EFFECT OF FAILURE TO DEFAULT AND TERMINATE AN AGREEMENT CORRECTLY

 

Failure of a Default or Termination Notice to be accurate not only invalidates such Notice, (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998 ) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, (Wilson v First County Trust Ltd [2003] UKHL 40, Wilson v Robertsons (London) Ltd [2006] EWCA Civ 1088, Wilson v Pawnbrokers [2005] EWCA Civ 147) but would also give the Claimant a claim for damages in the sum of £1,000. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

[wannabedebtfreesoon]

I'm not sure of legislation but from what I have read I believe it to be that they can serve as many DNs as they like UNLESS they terminate the account. They cannot serve any further DNs post termination because the obligation to pay by instalments has ceased therefore no further "arrears" can be included.

Just my take on it

[Sand-Dancer0191]

This is something I copied for my own ref...it may help.

 

steven4064’s thread:-

 

 

The contention advanced by ABC's lawyers was that if the DN was ineffective, the termination which ABC subsequently brought about in reliance upon that ineffective DN, was itself ineffective. In support, ABC said that since the law did not permit a creditor to terminate an agreement unless there had been serivce upon a debtor of an effective DN, by extension therefore, rather than having been terminated, the agreement endured.

 

The law in support of this proposition was Consumer Credit Act 1974 section 87(1)(a) which says:

 

(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 (a) to terminate the agreement

ABC went on to say that owing to the agreement enduring, ABC were therefore at liberty to serve a second DN.

 

At first blush, that looks quite a convincing argument. The Act itself forbids the creditor the right to terminate save in certain circumstances. So if the required circumstances were not present, how could the law regard the agreement as having terminated?

 

[1] Termination of a Contract and General Principles

A good place to start would be to dispel the myth that the law will not tolerate contract breaking. On the contrary whilst not actively ncouraging it, the law will tolerate it. The courts will rarely impose upon one party an obligation to perform under a contract against its will, to do what it failed to do or redo what it tried and failed to do. Instead, what the law will do is on the one hand restrain the contract breaker from procuring the benefits it would have enjoyed had it fulfilled its contractual obligations and on the other, enable the injured party to recover damages flowing from the breach.

 

In Golden Strait Corporation v Nippon Yusen Kubishka Kaisha [2007], Lord Bingham said:

 

'The repudiation of a contract by one party ("the repudiator"), if accepted by the other ("the injured party"), brings the contract to an end and releases both parties from their primary obligations under the contract. The injured party is thereupon entitled to recover damages against the repudiator to compensate him for such financial loss as the repudiator's breach has caused him to suffer. This is elementary law.

The damages recoverable by the injured party are such sum as will put him in the same financial position as if the contract had been performed.'

What's more, the law will not merrily award whatever loss the injured party says he suffered. The court will require the injured party to prove his loss and further, will expect the injured party to take steps to mitigate the loss.

 

'An injured party such as the owners may not, generally speaking, recover damages against a repudiator such as the charterers for loss which he could reasonably have avoided by taking reasonable commercial steps to mitigate his loss.' [Lord Bingham in Golden Strait Corporation.]

 

Further still, in assessing damages the law will not even award what the parties may at formation of the agreement have agreed should be payable as liquidated damages in the event of breach. The court will not permit the recovery of liquidated damages unless the damages represent a fair pre-estimate of what loss might flow from the breach. If the liquidated damages are shown to be excessive and unrepresentative of the sactual loss suffered the law will readily declare the liquidated damages as a penalty and unenforceable.

 

In short, not only does the law tolerate contract breaking, but also, it will not tolerate the injured party taking advantage of the wrongdoer. The law does not pounce on the contract breaker to teach him a lesson. The court only awards the innocent party what damages truly flow from the breach. That admits of the possibility that a contract breaker can get away with it. If the injured party is unable to show resulting loss, the injured party may get nothing.

 

'One must look at the contract as a whole, and if it is clear that the innocent party has lost nothing, he should recover no more than nominal damages for the loss of his right to have the whole contract completed.' [Edmund Davies LJ in 'The Mihalis Angelos' (1971)]

 

[2] Termination in Non-Conformity with section 87.

The contention I advance is that an ineffective DN does not prohibit the creditor from terminating the agreement. Termination after service of an effective default notice is lawful termination, but as we have seen, a party may still terminate an agreement and be in the wrong for doing so. The law operates on a wrongful termination to offer to the injured party the choice of accepting the termination or to hold the contract breaker to his promise.

 

In the world of consumer credit, I contend a termination of the agreement by a creditor in terms whereby he announced he would no longer permit the debtor time to repay the credit, was a creditor in repudiatory breach of the agreement, unless in leading up to termination, the creditor complied with the requirements of the Act in circumstances where the debtor was in first breach of the agreement.

 

Further, and it is worth remembering, the Act is an Act for the purpose of consumer protection. The purpose of the Act is not to preserve the rights of creditors in contracts and to protect them from misadventure where for example, they terminated an agreement where it subsequently transpired the termination had not been in their interests. If that were so, the Act would have been an Act for the better protection of financiers.

 

In a proper case, the law will come to the aid of the vulnerable to protect them from the consequences of their contracts (for example the unsound in mind, children, those under duress or undue influence). To suggest financiers fell into that bracket and the Consumer Credit Act

operated to protect them and not the consumer, was absurd. The civil law does not come to rescue the misadentures of the sain and the savvy.

 

The clue to the position of the creditor on termination is in the use of the word 'entitled' in section 87(1). 'Entitled' connotes a right or a benefit. The Act therefore confers rights, conditional upon the provisions of section 87(1) being fuilfilled. Fail to fulfill the condition and the entitlements do not become available.

 

In the case of a contract entered into by a person under duress and who then breaks the contract the law will come to that person's aid by recognising that person's plea that the contract was made under duress. If that person seeks a declaration of the court that the contract was made under duress the court wil readily declare the contract void.

 

If the Act had intended that a creditor's termination in circumstances where section 87(1) had not been fulfilled by the creditor and was to be of no effect, the Act would have declared that termination void. It doesn't. The termination is voidable at the option of the debtor.

 

[3] The Debtor's Point of View

Third, let us look at the position from the ordinary man as debtor's point of view in a consumer credit situation.

 

The DN is defective for failing to conform to the prescribed terms, or gives misleading information or at worse is plain nonsense so that the debtor does not know precisely what he has to do in order to comply with it and is consequently disadvantaged. Should the law disregard the fact that the creditor put the debtor at a disadvantage and thereby at risk the creditor might lawfully terminate the agreement?

 

'This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage. The contract is likely to be in standard form and relatively complex with a number of detailed provisions. If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take what Mr Gruffyd conveniently referred to as "the next step". [per Kennedy LJ in Woodchester v Swayne [1998]]

 

Moving on, if the debtor receives a notice from the creditor in which the creditor expressly states the contract is terminated, what is the debtor supposed to think? Would the law regard him as likely to think the creditor had terminated the contract or would the law regard him as thinking it had not terminated because strictly speaking, the creditor had served a default notice which was not in accordance with prescribed terms?

 

Or where perhaps the creditor did not expresly terminate but sent the bully boys over to demand the keys to the car. What was the debtor to think then? Would the debtor think the creditor had terminated?

 

It seems to me on the basis of the passages below, the courts will be ready to hold a creditor to his words and actions.

 

"... 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)]

 

'.. a man cannot escape from the consequences, as regards innocent third parties, of signing a document if, being a man of ordinary education and competence, he chooses to sign it without informing himself of its purport and effect..'

[per Scott LJ in Norwich & Peterborough Building Society v Steed (1992)]

 

In short, the creditor is bound by his deed. All that is required is for the debtor to accept the creditor's termination. He can write saying 'thank you I accept you termination' or he can conduct himself in a way in keeping with that termination. Not paying the instalments would be in keeping with an acceptance of the termination.

 

[4] The fiction of the Second DN and the Enduring Obligation

The service of any second default notice, at a time when the contract is terminated, owing to the wording of the DN in its prescribed form, would perpetuate the fiction that the contract endured. The same can be said owing to the provisions of section 89 of the Act.

 

The form of words in the DN incorporate text in order to meet the intention of section 89 of the Act which provides:

 

'If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or © the breach shall be treated as not having occurred.'

In other words, in serving the second DN, the creditor would be suggesting:

 

[a] an obligation had persisted post termination by which the debtor was bound to make instalment payments (ie post-termination 'arrears'), and

that if payment of those 'arrears' was made, an obligation to make future instalment payments would endure.

 

The obligations at [a] and are obligations enduring during the currency of the agreement. Besides maintaining the fiction of the enduring agremeent as I say, it seems to me any second DN would be bound to be defective for over-stating the sums due. The creditor can not state as an amount due for 'arrears' of instalments that which he said in consequence of his termination was no longer due and payable by instalments. If the creditor sought to use a form of DN which made sense by getting round the fact the agreement had been terminated, the DN would not be in prescribed form.

 

The only way in which a second DN would be of value to the creditor would be where the contract had been re-instated. If the debtor has accepted the termination, re-instatement requires the consent of the debtor.

 

The net result of [1] to [4] is the agreement is terminated for all time. The creditor's remedy is now limited by section 87(1). All that is left for the creditor to recover is the sum truly in arrear at the date of the default notice.

 

Damage to Credit

A man's credit is damaged when it is impugned. He learns it is damaged when he seeks credit to fund a transaction and is turned away or when his creditors seek to call in debts. The effect can be simple embarrasment to being totally destabilising. A learned his credit was impugned when he was warned by his bankers. The damaging effect of the adverse reporting could have been a lot worse.

 

I had deliberately tried to keep my first post as simple and straight forward as I could. I hope this expanded version showing the way strands of law can intertwine to build a case is of assistance.

 

 

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ALSO:-

 

From Goodes

"This section, with CCA 1974, ss 88 and 89, governs the exercise by the creditor or owner of: (i) a remedy expressly provided by the terms of a regulated agreement in the event of a breach by the debtor or hirer; and (ii) a remedy available to him under the general law by virtue of such a breach (eg to terminate the agreement by reason of a major or repudiatory breach). Thus none of the steps listed in sub-s (1), paras (a)–(e), may be taken before the service and expiry of a default notice complying with CCA 1974, s 88 (but see note ‘Exceptions’ below). Once the notice expires without remedial action by the debtor (see CCA 1974, s 89) the creditor may take any of these steps.

The creditor’s position is slightly different where he wishes to demand accelerated payment. Before he may do so, he must give warning of his intention in a default notice: sub-s (1) and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (see III[13.61]). The payment does not fall due automatically when the notice expires, however; the creditor is then merely entitled to make the demand"

[wannabedebtfreesoon]

That's where I got it from

[emanevs]

What if the creditor, just issues a correct default notice?

[IainHL]

There is no limit to the number of default notices they can issue prior to termination. After all, you might miss some payments, get a default notice, take the action required to remedy the account as stated in the default notice, miss some more payments, etc...

[beyondhope]

Unless the account is terminated they can issue as many as they like incorrectly or correctly just means the default on cra date would change

 

(just my understanding)

[emanevs]

How or when is it terminated?