unlawfull repudiation/recission. aknowledge termination? im confused

[mak71]

Ive been reading the tale of a dodgy DN futher discussion thread with great interest,

 

However its left me more confused than when i first started:confused: (doesnt take much;-) )

Im concerned as my biggest debt has a fully compliant cca, but a DN that was invalid due to only giving 9 days to rectify the breach,and then a termination letter.ive been paying a token £1 a month on this one account just to keep tham at bay as i didnt relish the prospect of taking on some fancy barister in court with a dodgy dn ,especially as it has a fully compliant cca,I did call them when they issued the termination letter and fortunately record all my calls to creditors and they clearly told me it was terminated.would this count as me aknowledging the termination?

 

I was under the impression a dodgy dn was a full defense in law, and then only arrears on the DN could be legally chased,but from reading the other thread it would seem that its not as clear cut as that and creditors may be able to issue a new dn, tn after all if you dont formally accept the termination in writing/phone call or deed etc?

 

So is the general concensus that its best to let the creditor know you accept the termination but then run the risk of alerting them to their mistake ,or is it best to just sit it out and wait for them to start enforcement action and hope to get a decent judge who wont allow them to re issue a valid DN, TN, ?

Do the pros outweigh he cons in formally accepting the termination ,

what advantage does each senario have?

 

Which would suit my predicament the best,any help much appreciated

Edited July 24, 2009 by mak71

[spamheed]

My understanding is that:

 

when a default is recorded that the agreement is cancelled and is then subject to the enforcement process as laid out in the terms and conditions of the original credit provision.

 

However, if the Default is recorded incorrectly (as laid ou in statute) the the agreement is cancelled, but only the amount in arrears can be subsequently claimed against.

 

Given that the implication of this could be quite costly to them, I wouldn't expect them to give it up without a fight.

[mak71]

Spamheed. thanks that was my understanding too,

 

However on the very hotly debated thread "tale of a dodgy DN futher discussions" other caggers are now saying termination on the back of a invalid dn can be overturned and re issued unless the debtor specifically aknwoledges and accepts the termination notice formally ie in writing/phone/deed etc,

in which case it would appear we are then closing this little creditor loophole off allowing them to re issue, but at the same time risking alerting them to their mistake as well.guess its catch 22

 

Im really unsure how to play this one now, just when i thought i was getting to grips with it all something else pops up in the creditors armoury.

 

Im not sure if this was just a one off bad judgement by 1 judge or case law, i know others here have beat creditors on faulty DN"s,but if this is new crditor/dca tactics its rather worrying.

Edited July 24, 2009 by mak71

[mak71]

Any advice please

 

Mak

[Pinky69]

If you have a termination letter then that is it - it has been unlawfully rescinded. They cannot therefore issue a new DN on an agreement that no longer exists. The issue of a new DN only comes into play if there is no confirmation the agreement has been terminated.

[noomill060]

How about if they threw their toys out of the pram and cancelled card unilaterally, after stuffing them for PPI and forcing them to credit account leaving balance at £0 with an unchanged credit limit of £1700?

 

No termination, no DN. Just a note on credit report stating:

 

 

Settled xx/xx/09

 

account ended xx/xx/09

[spamheed]

If you have a termination letter then that is it - it has been unlawfully rescinded. They cannot therefore issue a new DN on an agreement that no longer exists. The issue of a new DN only comes into play if there is no confirmation the agreement has been terminated.

 

 

That would be my viewpoint also, thay cannot fudge the law if it is laid out in black and white.

 

Of course you do get the odd judge who doesn'tg know the entire legislation, but if the defence is correct you should walk away from this onebe able to

[spamheed]

How about if they threw their toys out of the pram and cancelled card unilaterally, after stuffing them for PPI and forcing them to credit account leaving balance at £0 with an unchanged credit limit of £1700?

 

No termination, no DN. Just a note on credit report stating:

 

 

Settled xx/xx/09

 

account ended xx/xx/09

 

unless i'm missing something it sounds like you've already won this one, keep a copy of the report for any chancers and contact them for a letter of clarification of the zero balance

[2Grumpy]

Your balance should have been zero because of a PPI payout / refund - Have they put any other comments on your cedit file before then? If so, I suspect that they should be removing them, as if the PPI payment occureed much earlier

[noomill060]

I did indeed win that one.

 

As stated above, they unlawfully ended the contract in that my card is no longer operational. They admit I have a credit limit of £1700, that I have a balance of zero but clearly dont want to do business with me.

 

I have no problem with their right to choose not to do business with me, but they must realise that there is a price to pay for breach of contract.

 

They simply cant say "bye!" just because they got found out over unlawful PPI .

 

The account offers 1% cash back on all spending, so (aside from removing all the other benefits, convienience and protections afforded by the card) I am losing out on 1% on every purchase I would have made using the card and will continue to do so, unless damages caused by their breach of contract are paid.

 

You dig what I'm saying.....?

 

Assuming spending of say, £3500 per year and that I live another 40 years, that adds up to a not inconsiderable sum.

[banker_rhymes_with]

However on the very hotly debated thread "tale of a dodgy DN futher discussions" other caggers are now saying termination on the back of a invalid...

 

Not everyone who is Registered on CAG is a Cagger.

 

Cheers,

BRW

[Pinky69]

Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but gives rise to a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

[pedross]

Ive been reading the tale of a dodgy DN futher discussion thread with great interest,

 

However its left me more confused than when i first started:confused: (doesnt take much;-) )

 

I think the right answers will be on that thread in the end. It's just heavy going getting there with lot's of diverse opinions as everyone debates the point. You just have to decide which ones help and which ones hinder.

 

Pedross

Edited August 15, 2009 by pedross
Time changes everything!

[mak71]

Thanks guys, all advice much appreciated,

 

Mak

[joemay]

subbing - mak71 I'm in the same boat, do you acknowledge don't you:confused: I agree the tale of dodge DN & discussion is great but it makes my head spin. I thought I'd learnt a lot - but when it comes to this I'm at a loss. I've had a few comments on my threads: http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/197540-bos-halifax.html and http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/211323-will-wont-i-your.html if you want to take a peak.

[Dipply75]

Hi Mak71, am at this point also! I have decided to send the letter accepting the termination, see how it pans out and just log what happens. May hopefully help the next cagger and we will eventually get somewhere - an action plan!

 

This is the letter suggested to me, in my case they have no CCA but remove that and it still does the job, telling them it was unlawful but doesn't spell out why - best of luck to you:

 

Re account XXXXXXXXXX Unlawful termination

 

I refer to your unlawful termination of the above agreement occasioned by your demand for me to pay the full outstanding balance of the account thereby unlawfully terminating the agreement.

 

You were not allowed under the CCA to demand any of the benefits of s87 without first having issued an effective default notice giving me an opportunity to remedy the alleged breach and pay any arrears claimed

 

Furthermore and notwithstanding the foregoing you were in any event prevented from enforcing the agreement by virtue of being in default of your obligations under s78 of the act

 

Even if an agreement existed, which you have stated that you have been unable to locate due to mis- filing, there was no lawful basis upon which the agreement could be terminated therefore I consider your termination of the agreement as being a repudiatory breach of contract and I formally accept the repudiation and, for the avoidance of doubt, confirm that as I have elected to accept the rescission of the contract I am therefore discharged from any ongoing liability under the former agreement. Your breach of contract gives rise to a claim for damages and Ilook forward to receiving your proposals

 

Yours faithfyully

[joemay]

Hi Dipply75

 

Do you have a thread if so can you post the link. When did you send the letter. It will be interesting to see what response you get and may give me courage to take the same course of action (I hope)

Good luck:)

[Dipply75]

Hi, thread is:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/207374-rbs-defaulting-me-no.html

 

ordinary letter stating this sent to 2 depts and recorded one sent today to the dept I THINK is now delaing with me...jsu to be sure!

[MAGDA]

Hi, think it is good that you started this new thread. I have found the other thread 'tale of a dodgy DN further discussion' confusing as well as it is full of contradictions. I think also that some of the comments are based on a couple of very poor judgements by a DJ, which although it is good to be alerted to this is not necessarily the norm. When the thread was initially started by X20 it was extremely informative with some very good advice for anyone wishing to defend on the basis on a 'dodgy' DN, but I feel it it sometimes now very off track. I am not saying for one minute that people are not entitled to their opinions, as of course they are. Just that I don't think it is always very helpful for anyone facing court proceedings to be confused in this way. Magda

[spartathisis]

The thread mentioned has got 2 opposite views arguing the same thing over and over:( The original thread as Magda states is, I think the one to follow.

 

i too am in a similar position with a very poor illegible copy of a CCa but a defective DN and termination letter, the case law is there for defective DN's as stated.

[teaboy2]

well i am of the veiw that regardless of weather they send you a true original copy of your CCA or not, that once they have issued you a invalid/ineffective DN followed by a letter of termination, which you duely write back accecpting the termination of agreement. then the debt can not be enforced, neither can the Creditor issue you with a revised DN. as in order to do so they would need to be an credit agreement in place. meaning that they would have to reinstate the agreement, but in order to do so the debtor has to agree to the CCA being reinstated.

 

So in the case of if you recieve a letter stating the agreement is being reinstated (which is highly unlikley) simply write back saying you do/did not agree to the reinstatement of the original CCA. and same for if they issue you with a revised DN after they have already terminanted the cca agreement in which you accepted such termination in writing. basically after you have accepted the termintaion of the agreement based on an ineffective/invalid DN then any actions they take to try and enforce the debt is unlawful.

 

I am also of the veiw that if they terminate the agreement of the back of an ineffective/invalid DN upon which you repsone with written acceptecne to the termniation then it is infact the creditor that is in breach of contract and you are then eligibly for compensation.

 

the following statement was found by another cagger on this site and passed onto myself upon my request. thanks to cleo4patra

 

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 199 but it 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 £1000 (Kpohraror v Woolwich Building Society (1996) 4 All ER 119).

lease be advised that I will only communicate with you in writing.

 

SO there you have it.

Edited August 16, 2009 by teaboy2

[teaboy2]

duplicate post

Edited August 16, 2009 by teaboy2

[noomill060]

"...but would also give the claimant a claim for damages in the sum of £1000 *plus the sum alleged in the void Default Notice*"

 

[teaboy2]

"...but would also give the claimant a claim for damages in the sum of £1000 *plus the sum alleged in the void Default Notice*"

 

 

yes it would but weather your likely to get all that remains to be seen

[noomill060]

yes it would but weather your likely to get all that remains to be seen

 

Nothing of the sort, teaboy- case law confirms this.