Dissecting the Manchester Test Case....

[RobinWayRobinme]

I do agree BTM. Even collecting arrears IMO is enforcement and if debtor claims agreement is unenforceable must still prove it is not iredeedmably unenforceable etc.

[diddydicky]

A DN does not bring an agreement to an end on it's own.

 

The issueing of a non complient DN, has huge ramifications on the creditor if he then goes on to act post DN. By doing so, he is claiming the benefit of s87 and to do so, he must issue a complient DN. End of storey. He is allowed to terminate the agreement and demand his money back.

 

With a non complient DN followed by action on behalf of the creditor, you then move out of the CCA into contract and common law.

 

 

spot on vint- and i totally fail to see how a judge could then rule against a defendant who has excercise his right to accept the creditors unlawful repudaition

 

the horse has to come before the cart

 

in football terms- once the referee has blown for a throw in- if the attacker is then fouled in the penalty area - he cannot give a penalty as he has already stopped play for the previous infringement

 

a judge who rules that as the debtor did nothing to remedy an invalid default notice - and therefore rules the DN as valid- is blatantly mis directing himself

 

 

unless if course he can show me any amendment which states

 

In the event that the debtor does not attempt to pay the amount demanded in an invalid DN - either at the time or months later- and instead only excercises his right to accept an unlawful repudiation- then the creditor shall be absolved of the need to provide a valid DN and may claim entitlement to the benefits of s87

Edited June 28, 2010 by diddydicky

[Et Contra Pacem Regis]

I must agree with Antigone on the defective Default Notice.

 

Section 87(1) prohibits termination of the agreement without the service of a valid Default Notice. The creditor cannot effectively terminate the agreement until one is served. Suppose a creditor serves a defective notice and then purports to terminate the agreement:

 

1. The agreement, clearly, does not end. It continues as before.

 

2. The creditor has indicated that it will not continue to honour its obligations under the agreement. This is a breach of contract. You might call it a repudiation, but that is merely a breach of contract.

 

3. The standard remedy for breach of contract is damages. The damages are "expectation" damages - the amount of money necessary to put you into the position you expected to be, but for the breach. It is therefore unlikely that the debtor will actually suffer any damage as a result of the breach of contract.

 

4. If the debtor "accepts" the repudiation, then the contract is terminated at that point. That cannot effect monies which have already fallen due (arrears) or the money already owing. Accepting a repudiation would merely put the debtor in the same position as if a valid default notice had been served and the agreement properly terminated by the creditor. The only difference between the two situations is who terminates: creditor or debtor. There is no reason why the effect of termination should differ depending on who terminated.

 

5. There is no reason why a valid default notice could not be served after termiantion. The wording does not require that the agreement must be subsisting.

 

6. It would however, be largely pointless to serve a valid default notice after the debtor has accepted a repudiatory breach, because the creditor will no longer be interested in doing any of the things listed in section 87(1), save perhaps enforcing a security. Section 87 is not a bar on enforcement without a default notice, only a bar on specified courses of action. Termination by the debtor relieves the creditor of the need to take any of the actions listed in Section 87.

 

That, or something likely it, is a chain of reasoning which would allow a judge to find against someone who accepts a repudiatory breach. By "accepting" the breach, the debtor has himself termianted the agreement with the same effect as if the creditor had terminated it.

[Lord_Alcohol]

3. The standard remedy for breach of contract is damages. The damages are "expectation" damages - the amount of money necessary to put you into the position you expected to be, but for the breach. It is therefore unlikely that the debtor will actually suffer any damage as a result of the breach of contract.

 

He will probably suffer from the consequences of adverse data (a 'default') being recorded on his credit file for 6 years, or until he is able to remove it. He may also have goods removed, where that entitlement is not lawfully available to the OC.

 

4. If the debtor "accepts" the repudiation, then the contract is terminated at that point. That cannot effect monies which have already fallen due (arrears) or the money already owing. Accepting a repudiation would merely put the debtor in the same position as if a valid default notice had been served and the agreement properly terminated by the creditor. The only difference between the two situations is who terminates: creditor or debtor. There is no reason why the effect of termination should differ depending on who terminated.

 

Are you saying that s87(1)(b) does not apply where the contract is ended following issue of a defective DN? CCA seems to be clear here, that the OC may not claim 'sums unpaid' without compliance with s88.

 

5. There is no reason why a valid default notice could not be served after termiantion. The wording does not require that the agreement must be subsisting.

 

How can an agreement that is ended be breached?

 

LA

[diddydicky]

I must agree with Antigone on the defective Default Notice.

 

Section 87(1) prohibits (LAWFUL) termination of the agreement without the service of a valid Default Notice. The creditor cannot effectively terminate the agreement until one is served. Suppose a creditor serves a defective notice and then purports to terminate the agreement:

 

1. The agreement, clearly, does not end. It continues as before.

 

2. The creditor has indicated that it will not continue to honour its obligations under the agreement. This is a breach of contract. You might call it a repudiation, but that is merely a breach of contract. ( i would argue that at that stage it is an unlawful repudiation- since at that point the creditor has not breached the contract- he has merely threatened to do so)

 

3. The standard remedy for breach of contract is damages. The damages are "expectation" damages - the amount of money necessary to put you into the position you expected to be, but for the breach. It is therefore unlikely that the debtor will actually suffer any damage as a result of the breach of contract.( not so)

 

4. If the debtor "accepts" the repudiation, then the contract is terminated at that point. That cannot effect monies which have already fallen due (arrears) or the money already owing. Accepting a repudiation would merely put the debtor in the same position as if a valid default notice had been served and the agreement properly terminated by the creditor. The only difference between the two situations is who terminates: creditor or debtor. There is no reason why the effect of termination should differ depending on who terminated.(in accepting the unawful repudiation the performing party does NOT terminate- they merely excerise the right to releive themselves of their continuing obligations under the agreement- a big difference)

 

5. There is no reason why a valid default notice could not be served after termiantion. The wording does not require that the agreement must be subsisting. (poppycock)

 

6. It would however, be largely pointless to serve a valid default notice after the debtor has accepted a repudiatory breach, because the creditor will no longer be interested in doing any of the things listed in section 87(1), save perhaps enforcing a security. Section 87 is not a bar on enforcement without a default notice, only a bar on specified courses of action. Termination (is one of those actions that the creditor cannot take without first serving a valid DN)by the debtor relieves the creditor of the need to take any of the actions listed in Section 87.

 

That, or something likely it, is a chain of reasoning which would allow a (biaised or unkwowledgable) judge to find against someone who accepts a repudiatory breach. By "accepting" the breach, the debtor has himself termianted the agreement with the same effect as if the creditor had terminated it.[/quote

 

===================================================================================

 

 

point 3- the CCA is different from other legislation and it has already been ruled in the house of lords that the remedy is not simply limited to damages- nor does the normal rules of unjust enrichment prevail- for the lords have ruled that in this act- it is acceptable for individuals to be unjusty enriched for the greater good

 

 

In one instance a judge awarded damages of £1000 to a defendant in such circumstances without any proof of loss

 

point 4 the agreement is not technically "terminated" upon acceptance of the unlawful repudiation- if it did then it would deny the injured party the ability to sue for damages- but it does bring to and end the primary re

sponsibilites of both parties under the agreement

 

point 5- as you say no reason why a creditor cannot serve a default notice post termination - however it would do him no good whatsoever and would be entirely useless since it would be impossible for the purpose and intent of the DN to be realised- the debtor could never comply

 

If the creditor has already demanded immediate repayment of those sums that were not yet due under the agreement, and the agreement is effectively terminated by the debtors accetance of it- how can the creditor state-with any accuracy the sums due to remedy the default notice - since that which he would attempt to claim as arrears outstanding- in respect of monthly payments - are those which he previoulsy stated were immediately due and were no longer payable in monthly instalments!

 

Further, how may the debtor be able to remedy the alleged default contained in the default notice and then return to the "status quo" which is stipulated in s89-

 

ie:- to act as if the breach had never occurred!!

 

an agreement that has been terminated by the consent of both parties- whether lawfully or unlawfully- can only ever be re instated if both parties agree to do so

 

therefore post termination a valid default notice can never be served and the creditor is left with only the genuine amount of arrears that were oustanding as at the time the agreement ended

 

your conclusion, with respect is perverse- you seem to imply that faced with an unlawful repudiation- the performing party is unable to elect without losing- ie head the creditor wins and tails he loses

 

this is simply not the case

 

the creditor cannot claim entitlement to the benefits of s87 (sums not yet due) unless he first serves a valid DN

 

if the creditor then unlawfully repudiates the agreement and the performing party accepts- then the creditor can NEVER claim entitlement to those sums that were not yet due since in order to do so he must serve a valid DN which he now cannot do!

 

the judge would therefore not be entitled to take any view at all since the claim before him-by the creditor for immediate payments of sums that were not yet due under the agreement must fail since by virtue of the creditors failure to first serve a valid default notice- he is not entitled to claim entitlement to and he has no cause of action to claim these sums and therefore his claim in this respec must fail

 

 

any proposition that he could then commence a succesful action for these sums by simply sidestepping the cca on account of the non existence of the agreement would be fanciful

 

 

apologies for the red- after all this time i have only just found out how to answer points within the quoted text!!

Edited June 29, 2010 by diddydicky

[Lord_Alcohol]

Completely agree DD.

 

All I would say in addition would be that the wording of the DN does in fact require an extant agreement, so by issuing one after termination (which the debtor has accepted) is utterly meaningless.

 

The requirements of s88 are that the debtor has a period for remedy, which is wholly inoperable where the agreement is ended.

 

It may be that issue of a DN subsequent to termination is the OC's way of attempting reinstatement of the contract, in which case the debtor merely needs to write to reject the offer as being insufficient to remedy the OC's earlier breach of contract.

 

LA

[Old Cogger]

what if account sold to DCA in dispute & no DN issued or notification from creditor?? only DCA?

[diddydicky]

what if account sold to DCA in dispute & no DN issued or notification from creditor?? only DCA?

 

anyone who buys a debt regulated by the CCA buys it lock stock and barrel

 

warts and all

[BeauBrummie]

anyone who buys a debt regulated by the CCA buys it lock stock and barrel

 

warts and all

 

Except in the case of Cabot Financial who are hell bent on making you believe that they are allowed to remove the warts and bleed the poor person on the end of their drivel correspondence dry!!

 

Beau

[banker_rhymes_with]

Hello Folks!

 

The Debt Industry hates The Consumer Credit Act 1974, and wishes, with all of its rotten little cold heart, that the Act should be ignored. It would much prefer to have these issues dealt with under Common Law instead of the significantly harsher and pro-Consumer environment that the Act ultimately imposes.

 

At County Court/Circuit level, it is, sadly, comparatively easy for the banks and DCAs to buy what they want, using a combination of money, English language manipulation, money, inapplicable Common Law, money, smoke and mirrors, money, cunning exploitation of the ever present Judicial bias, money, ambush tactics, money and an invariably polished and expensive massaging of the widespread Judicial ignorance of the Act.

 

The only effective counter to the above, even with the best Defence in the world, is to either pay for your own Barrister, or keep your fingers crossed that you win the Judge Lottery on the big day.

 

Given the above, it is hardly surprising that, to a great extent, they have been quite successful at convincing pro-bank and/or easily persuaded lower Court Judges that the Act is actually there to protect dull greedy bankers (who can afford expensive lawyers-for-rent) as opposed to Consumers (who can't).

 

However, when it comes to pre-CCA 2006 Agreements, all of this boils down to just two main issues:

 

 

(1) Is there a properly executed Regulated Credit Agreement...or not.

 

(2) When they had their one chance to Terminate the Agreement, did the Creditor secure the necessary and key benefits of s87(1) before doing so...or not.

 

 

The High Court Carey and McGuffick cases do not help them on (1), much as they would like us to think so. In any event, these Judgments can and will be ignored, if needed, once this goes further up the Judicial food chain and their cunning but weak arguments are inspected with an electron microscope by people with more elaborate medieval outfits and longer wigs.

 

Amazingly perfect Agreements re-created with glue, scissors and bits of string that are wholly reliant upon Witless Statements made by employees who were aged 12 at the time the Agreement was actually made, won't cut the mustard, no matter how strong the carefully crafted Balance of Improbabilities are that they present in order to get the Turkey off the ground.

 

The bankers are currently trying to play Carey for all it is worth, in an effort to extend the four corners of the Agreement, until it covers the four corners of the desk upon which the original Application Form was signed.

 

Once the four corners have been retrospectively pushed out to encompass the whole desk, their next trick is to place other recently created documents onto that desk, that were simply not there at the time.

 

All they need to make this work is to employ Dr Who and his fecking Tardis, and this cunning ploy will hang together!

 

But, back to reality. Contracting out of the Act and into banking wonderland is specifically excluded because of s173(1), so there's no magic banking life-line there either. Thus, any attempt to ignore s87 and replace that with more favourable Common Law arguments is not going to be an option for them, for the same reasons.

 

Woodchester v Swain currently nails them on (2) and blows away their favourite cop out de minimis argument, i.e. once that Judgment is read carefully, then it's clear it most certainly does not condone any s87(1) Default Notice errors. The Act and Statute demand that the Notice must be sent in paper form, as prescribed with absolutely no room for error. The default sum must be stated with precision because there are no permitted tolerances as there are with, say, the APR. Furthermore, the Court has absolutely no Judicial leeway when it comes to s87 and s88 (unlike other Sections where the Court has a limited amount of room for manoeuvre).

 

Peering at cases through rose-tinted banker's goggles only goes so far, and their twisted interpretation only works with those who have the necessary banking faith.

 

They need (1) to get past Go, and they need (2) to collect anything beyond those sums already due prior to Termination. Sums payable in the future stay payable in the future unless they secure a right to demand early payment before jumping out of the Agreement in a buggers rush. If they Terminate without securing s87 benefits, then they can jolly well bend over, grab their ankles and kiss those future payments goodbye.

 

All of the recent talk suggesting an Agreement cannot be ended unlawfully because the Law does not tolerate law breakers is as absurd now, as it was when x20 first covered this so well. Likewise, weasel words that suggest a Debtor's acceptance of Termination via a repudiatory breach on the part of the Creditor will somehow cure an earlier invalid Default Notice is, again, just an attempt to confuse issues that are already clear.

 

Furthermore, talk that suggests Terminated Agreements somehow endure after Termination, and other comments that suggest there's nothing wrong with having multiple stabs at getting a Default Notice right after Termination based upon some fiction that the Agreement endures, just tells us they are getting pretty desperate.

 

It looks to me that they have despatched Trolls who can do joined-up writing, in an effort to stir things up a bit to try and shake out tactics that will be used against them when this issue inevitably filters up to the more senior Courts.

 

Once this gets into the Supreme Court (it will, because the banks will always Appeal if they can pay to have another final crack) then, all bets are off, and all the lame County Court Judgments they have bought to date thus far, won't actually help them one bit.

 

In any event, expect a significant rise in Troll activity on CAG from now on.

 

 

Cheers,

BRW

[Lord_Alcohol]

Absolutely brilliant BRW!

 

I particularly enjoyed "Dr Who and his fecking Tardis". I might use that (if you don't mind) in my next defence

 

LA

[Rhia]

Antigone eh? Et contra pacem regis eh? Good to see we have posters with a knowledge of the classics. So many schools drop them these days.

 

As a grammar school gel myself, with a passing knowledge of both Greek and Latin, I see we have the tragic offspring of Oedipus' incestuous relationship.

 

As for "et contra pacem regis"...this is the classic law of tort something to do with a writ of trespass against persons armed and tooled up (not a classical phrase) against the King's peace.

 

Not both lawyers by any chance are you?

 

Back to you BRW with your excellent work. (Apologies for the "aside"). Prefer "Dr Who and his fecking Tardis" myself.

[Undercover-Elsa]

Ditto above!

Interesting name..et contra pacum Regis....

"against the King's Peace" As in the tort of trespass?

[Undercover-Elsa]

Ha..snap Rhia..

 

PS.Methinks the spelling errors preclude lawyers.

[Old Cogger]

Hello Folks!

 

The Debt Industry hates The Consumer Credit Act 1974, and wishes, with all of its rotten little cold heart, that the Act should be ignored. It would much prefer to have these issues dealt with under Common Law instead of the significantly harsher and pro-Consumer environment that the Act ultimately imposes.

 

At County Court/Circuit level, it is, sadly, comparatively easy for the banks and DCAs to buy what they want, using a combination of money, English language manipulation, money, inapplicable Common Law, money, smoke and mirrors, money, cunning exploitation of the ever present Judicial bias, money, ambush tactics, money and an invariably polished and expensive massaging of the widespread Judicial ignorance of the Act.

 

The only effective counter to the above, even with the best Defence in the world, is to either pay for your own Barrister, or keep your fingers crossed that you win the Judge Lottery on the big day.

 

Given the above, it is hardly surprising that, to a great extent, they have been quite successful at convincing pro-bank and/or easily persuaded lower Court Judges that the Act is actually there to protect dull greedy bankers (who can afford expensive lawyers-for-rent) as opposed to Consumers (who can't).

 

However, when it comes to pre-CCA 2006 Agreements, all of this boils down to just two main issues:

 

 

(1) Is there a properly executed Regulated Credit Agreement...or not.

 

(2) When they had their one chance to Terminate the Agreement, did the Creditor secure the necessary and key benefits of s87(1) before doing so...or not.

 

 

The High Court Carey and McGuffick cases do not help them on (1), much as they would like us to think so. In any event, these Judgments can and will be ignored, if needed, once this goes further up the Judicial food chain and their cunning but weak arguments are inspected with an electron microscope by people with more elaborate medieval outfits and longer wigs.

 

Amazingly perfect Agreements re-created with glue, scissors and bits of string that are wholly reliant upon Witless Statements made by employees who were aged 12 at the time the Agreement was actually made, won't cut the mustard, no matter how strong the carefully crafted Balance of Improbabilities are that they present in order to get the Turkey off the ground.

 

The bankers are currently trying to play Carey for all it is worth, in an effort to extend the four corners of the Agreement, until it covers the four corners of the desk upon which the original Application Form was signed.

 

Once the four corners have been retrospectively pushed out to encompass the whole desk, their next trick is to place other recently created documents onto that desk, that were simply not there at the time.

 

All they need to make this work is to employ Dr Who and his fecking Tardis, and this cunning ploy will hang together!

 

But, back to reality. Contracting out of the Act and into banking wonderland is specifically excluded because of s173(1), so there's no magic banking life-line there either. Thus, any attempt to ignore s87 and replace that with more favourable Common Law arguments is not going to be an option for them, for the same reasons.

 

Woodchester v Swain currently nails them on (2) and blows away their favourite cop out de minimis argument, i.e. once that Judgment is read carefully, then it's clear it most certainly does not condone any s87(1) Default Notice errors. The Act and Statute demand that the Notice must be sent in paper form, as prescribed with absolutely no room for error. The default sum must be stated with precision because there are no permitted tolerances as there are with, say, the APR. Furthermore, the Court has absolutely no Judicial leeway when it comes to s87 and s88 (unlike other Sections where the Court has a limited amount of room for manoeuvre).

 

Peering at cases through rose-tinted banker's goggles only goes so far, and their twisted interpretation only works with those who have the necessary banking faith.

 

They need (1) to get past Go, and they need (2) to collect anything beyond those sums already due prior to Termination. Sums payable in the future stay payable in the future unless they secure a right to demand early payment before jumping out of the Agreement in a buggers rush. If they Terminate without securing s87 benefits, then they can jolly well bend over, grab their ankles and kiss those future payments goodbye.

 

All of the recent talk suggesting an Agreement cannot be ended unlawfully because the Law does not tolerate law breakers is as absurd now, as it was when x20 first covered this so well. Likewise, weasel words that suggest a Debtor's acceptance of Termination via a repudiatory breach on the part of the Creditor will somehow cure an earlier invalid Default Notice is, again, just an attempt to confuse issues that are already clear.

 

Furthermore, talk that suggests Terminated Agreements somehow endure after Termination, and other comments that suggest there's nothing wrong with having multiple stabs at getting a Default Notice right after Termination based upon some fiction that the Agreement endures, just tells us they are getting pretty desperate.

 

It looks to me that they have despatched Trolls who can do joined-up writing, in an effort to stir things up a bit to try and shake out tactics that will be used against them when this issue inevitably filters up to the more senior Courts.

 

Once this gets into the Supreme Court (it will, because the banks will always Appeal if they can pay to have another final crack) then, all bets are off, and all the lame County Court Judgments they have bought to date thus far, won't actually help them one bit.

 

In any event, expect a significant rise in Troll activity on CAG from now on.

 

 

Cheers,

BRW

 

 

Interesting info thanks.

[diddydicky]

"damnant quodnom intelligunt"- me thinks

[bustthematrix]

#2830 ...Much agreed DD.

 

Latin or no latin, folk should not try to be authoritative on subjects they clearly know little about...unless they're willing to quote relevant authorities!

 

#2835....BRW, you da man! Only you can say it like that...

[nohappybunny]

They are allowed to omit you name, address and signature but if they took you to court, they would have to provide the original agreement (pre 2007)

 

I think you hit the nail on the head with your last statement

 

 

-- Can some one tell me , what happens now once you send a CCA request, if they cannot produce the original, but your loan was POST 2007 , does this now mean for all loans after 2007 , loan companies now do not need to produce or have the original document and can still take you to court (and to the cleaners?)

 

I thought I had a basic grasp of this CCA stuff, and now I have no clue... and there seems to be so many differing opinions..

[Et Contra Pacem Regis]

He will probably suffer from the consequences of adverse data (a 'default') being recorded on his credit file for 6 years, or until he is able to remove it. He may also have goods removed, where that entitlement is not lawfully available to the OC.

 

He may be damaged by a credit reference default. Then the issue is whether a credit reference default can be entered without service of a Default Notice. Credit reference defaults are not mention in section 87(1) so no specifically prohibited.

 

Are you saying that s87(1)(b) does not apply where the contract is ended following issue of a defective DN? CCA seems to be clear here, that the OC may not claim 'sums unpaid' without compliance with s88.

 

Section 87 prohibits the demand of "earlier payment", not "sums unpaid" - creditors can require payment of sums which have already fallen due (i.e. arrears) at any time. The arguement would be that payment of the outstanding balance falls due on termination, and that termination is brought about by the debtor's acceptance of the creditor's repudiation, so that it is the debtor who terminates the agreement. Section 87 does not limit the debtor's ability to terminate.

 

How can an agreement that is ended be breached?

 

LA

 

The creditor could rely on breach of the agreement prior to the issue of the Defective Default Notice. Just because the agreement ended after the breach, that does not preclude the creditor from relying on that breach.

 

ECPR

[Lord_Alcohol]

He may be damaged by a credit reference default. Then the issue is whether a credit reference default can be entered without service of a Default Notice. Credit reference defaults are not mention in section 87(1) so no specifically prohibited.

 

Or specifically allowed. Why do you favour the creditor's use of this tactic?

 

Section 87 prohibits the demand of "earlier payment", not "sums unpaid" - creditors can require payment of sums which have already fallen due (i.e. arrears) at any time. The arguement would be that payment of the outstanding balance falls due on termination, and that termination is brought about by the debtor's acceptance of the creditor's repudiation, so that it is the debtor who terminates the agreement. Section 87 does not limit the debtor's ability to terminate.

 

News to me. "payment of the outstanding balance falls due on termination" is not something covered by CCA (unless s88 is properly complied with) and is not in any credit agreement I have (or have seen). It is only due, in my understanding, when the OC complies with s88.

 

The debtor in no way terminates the agreement. He accepts the OC's termination.

 

The creditor could rely on breach of the agreement prior to the issue of the Defective Default Notice. Just because the agreement ended after the breach, that does not preclude the creditor from relying on that breach.

 

This is the OC's argument. The issue is that a s87 notice must comply with s88 in order that the debtor is given his lawful right to remedy. If this is not given, and the OC terminates, the debtor is within his rights to then accept termination.

 

The specific point is that there was a breach, but the opportunity to remedy that breach was compromised by the defective DN. This is recognised by the Woodchester judgement - the need for an accurate DN - as it impacts on the potential remedy of the breach. The OC is, in effect, denying the debtor the full lawful right to remedy.

 

Are you brave enough to reveal your true interest in this ECPR? Your views seem very pro-industry.

 

LA

[Et Contra Pacem Regis]

I must agree with Antigone on the defective Default Notice.

 

Section 87(1) prohibits (LAWFUL)(it remains my view that the creditor cannot effectively terminate the agreement without service of a valid default notice) termination of the agreement without the service of a valid Default Notice. The creditor cannot effectively terminate the agreement until one is served. Suppose a creditor serves a defective notice and then purports to terminate the agreement:

 

1. The agreement, clearly, does not end. It continues as before.

 

2. The creditor has indicated that it will not continue to honour its obligations under the agreement. This is a breach of contract. You might call it a repudiation, but that is merely a breach of contract. ( i would argue that at that stage it is an unlawful repudiation- since at that point the creditor has not breached the contract- he has merely threatened to do so)(refusal to perform a contractual obligation is known as an "anticipatory breach" - See for example White and Carter v McGregor [1962] AC 413)

 

3. The standard remedy for breach of contract is damages. The damages are "expectation" damages - the amount of money necessary to put you into the position you expected to be, but for the breach. It is therefore unlikely that the debtor will actually suffer any damage as a result of the breach of contract.( not so)(LA made a good point regarding this, however, what other damage are you saying is suffered by the creditor's refusual to perform obligations?)

 

4. If the debtor "accepts" the repudiation, then the contract is terminated at that point. That cannot effect monies which have already fallen due (arrears) or the money already owing. Accepting a repudiation would merely put the debtor in the same position as if a valid default notice had been served and the agreement properly terminated by the creditor. The only difference between the two situations is who terminates: creditor or debtor. There is no reason why the effect of termination should differ depending on who terminated.(in accepting the unawful repudiation the performing party does NOT terminate- they merely excerise the right to releive themselves of their continuing obligations under the agreement- a big difference)(how is ending the obligations of each part to perform the contract not a termination? see below)

 

5. There is no reason why a valid default notice could not be served after termiantion. The wording does not require that the agreement must be subsisting. (poppycock) (citation?)

 

6. It would however, be largely pointless to serve a valid default notice after the debtor has accepted a repudiatory breach, because the creditor will no longer be interested in doing any of the things listed in section 87(1), save perhaps enforcing a security. Section 87 is not a bar on enforcement without a default notice, only a bar on specified courses of action. Termination (is one of those actions that the creditor cannot take without first serving a valid DN)(see the rest of this sentence the debtor can terminate the agreement) by the debtor relieves the creditor of the need to take any of the actions listed in Section 87.

 

That, or something likely it, is a chain of reasoning which would allow a (biaised or unkwowledgable)(better arguements than the Default Notice arguement lost in Heath v Southern Pacific Mortgages and Walker v Southern Pacific Loans before the court of appeal. Were they unknowledgable or biased?) judge to find against someone who accepts a repudiatory breach. By "accepting" the breach, the debtor has himself termianted the agreement with the same effect as if the creditor had terminated it.[/quote

 

===================================================================================

 

 

point 3- the CCA is different from other legislation and it has already been ruled in the house of lords that the remedy is not simply limited to damages- nor does the normal rules of unjust enrichment prevail- for the lords have ruled that in this act- it is acceptable for individuals to be unjusty enriched for the greater good

 

 

In one instance a judge awarded damages of £1000 to a defendant in such circumstances without any proof of loss A citation of this case would be useful so that everyone can see what you're referring to.

 

CCA is different, however, its remedies are very narrow. The Act specifically provides that it gives no remedies but those expressly set out in the text. However, this arguement is not really about the remedies provided under the Act, but rather what their effect is in this particular situation.

 

point 4 the agreement is not technically "terminated" upon acceptance of the unlawful repudiation- if it did then it would deny the injured party the ability to sue for damages- but it does bring to and end the primary re

sponsibilites of both parties under the agreement

 

It is perfectly normal for an injured party to terminate a contract when the other party refuses to perform his obligations (i.e. repudiates the contract or commits a "repudiatory" breach). Sometimes the injuried party has to do so in order to mitigate his loss. Terminating the agreement after a breach has taken place does not prevent the injured party from bringing a claim for breach of contract.

What is the difference between "bring to an end the primary responsibilities of both parties" and "terminate"?

point 5- as you say no reason why a creditor cannot serve a default notice post termination - however it would do him no good whatsoever and would be entirely useless since it would be impossible for the purpose and intent of the DN to be realised- the debtor could never comply

 

If the creditor has already demanded immediate repayment of those sums that were not yet due under the agreement, and the agreement is effectively terminated by the debtors accetance of it- how can the creditor state-with any accuracy the sums due to remedy the default notice - since that which he would attempt to claim as arrears outstanding- in respect of monthly payments - are those which he previoulsy stated were immediately due and were no longer payable in monthly instalments!

 

Further, how may the debtor be able to remedy the alleged default contained in the default notice and then return to the "status quo" which is stipulated in s89-

 

ie:- to act as if the breach had never occurred!!

 

To this I would say that the new Default Notice would have to be based upon whatever breach led to the service of the first Default Notice and if the requirement of the Default Notice were fulfilled the Debtor and Creditor would have to continue as if no breach had occured, as the Act requires. This is no stranger than what you are proposing - that debts under an enforceable agreement can somehow vanish if the creditor serves an invalid default notice.

 

an agreement that has been terminated by the consent of both parties- whether lawfully or unlawfully- can only ever be re instated if both parties agree to do so

 

therefore post termination a valid default notice can never be served and the creditor is left with only the genuine amount of arrears that were oustanding as at the time the agreement ended

 

Has the agreement at this point been terminated, or not? If it has been terminated why is the outstanding balance not due (which, after all, is the main point of termination for the Creditor)?

 

your conclusion, with respect is perverse- you seem to imply that faced with an unlawful repudiation- the performing party is unable to elect without losing- ie head the creditor wins and tails he loses

 

this is simply not the case

 

Your conclusion seems equally perverse to me. Unenforceablity under section 127(3) is very clear remedy. What you are proposing would give similar effect to section 87, and effect which is not evident on the face of the Act. I am not proposing that the debtor looses either way, only that he can get damages, and not avoid the bulk of the debt.

 

the creditor cannot claim entitlement to the benefits of s87 (sums not yet due) unless he first serves a valid DN

 

if the creditor then unlawfully repudiates the agreement and the performing party accepts- then the creditor can NEVER claim entitlement to those sums that were not yet due since in order to do so he must serve a valid DN which he now cannot do!

 

My position remains that the outstanding balance would fall due on termination of the agreement, whether termination is by the creditor or by the debtor. I can see no reason why the effect should be different as between the two.

 

the judge would therefore not be entitled to take any view at all since the claim before him-by the creditor for immediate payments of sums that were not yet due under the agreement must fail since by virtue of the creditors failure to first serve a valid default notice- he is not entitled to claim entitlement to and he has no cause of action to claim these sums and therefore his claim in this respec must fail

 

any proposition that he could then commence a succesful action for these sums by simply sidestepping the cca on account of the non existence of the agreement would be fanciful

 

see above, I think that the sums are due. Sidestepping of the CCA would only take place if the Debtor "accepted" the creditor's repudiation and agreed to the termination of the contract. That is the debtor's choice.

 

apologies for the red- after all this time i have only just found out how to answer points within the quoted text!!

 

no apologies necessary

 

As to the rest, I have not claimed any more authority for my arguements than anyone else here. That my opinions are different from the majority here does not make them incorrect. Until the point is authoritatively decided, it remains an open arguement. Other views exist, and even if we all agreed, that would be no guarantee that the courts would find in our favour. Even If there is no devil's advocate here, there will certainly be one in court some day.

 

I have not claimed to be a lawyer, because that would not be true. I have some legal education, but I am not qualified to practice. If I were I would probably not be posting here.

 

This isn't really the place to discuss legal history, but yes, trespass vi et armis etc is the ancestor of modern tort law.

[stevehatesbankers]

Many of us on here would probably agree in that we have at times overspent and are paying the price for this, however, crippling hikes in interest rates and the despicable behaviour of banks and credit card companies have brought the world to its knees. Hopefully the courts will do the honourable thing and teach these thieving financial institutions a lesson. Even where they have a valid enforceable agreement, the courts should force them to return interest rates charged on a card be returned to a sensible affordable amount.

Having spent hundreds of hours on this brilliant forum researching and trying to learn what to do and what not to do, the biggest concern for most of us will be if we have to go to court to defend ourselves. I, for one, would gladly contribute into a fund to pay for legal representation for someone from CAG who is confident and competant to represent us in court should the situation arise. At least this way, any cases won should hopefully improve on success rates for others on CAG with similar cases. Hopefully, anyone who wins a case and has an agreement deemed unenforceable could make a donation from the money saved to help fund future cases. Apologies if this has already been mentioned before or if its just wishful thinking that this could work

[Et Contra Pacem Regis]

Or specifically allowed. Why do you favour the creditor's use of this tactic?

 

I don't particularly. I just can't see anything to prevent it in section 87. If it is unlawful for the creditor to register a default without having served a valid default notice, for example, if the default entry leads people reading it to think that the valid notice has been served, or that the agreement has been terminated, then the debtor might have an action for defamation. That is fair enough. I just don't think that invalid default notices have the effect contended for.

 

News to me. "payment of the outstanding balance falls due on termination" is not something covered by CCA (unless s88 is properly complied with) and is not in any credit agreement I have (or have seen). It is only due, in my understanding, when the OC complies with s88.

 

The debtor in no way terminates the agreement. He accepts the OC's termination.

 

I still do not think that the creditor can terminate without a valid default notice. section 87 seems to me to expressly prohibit termination, not merely render the termination unlawful. The creditor's actions after termination could simply be a breach of contract. By accepting that repudiatory breach the debtor could effect termination of the contract.

 

Looking, for example, at a set of Cahoot terms and conditions, at 14.4: "where we or you end the agreement and close a cahoot account (a) you must repay all amounts you owe under the agreement". Some Captial One terms circa 2005 are rather more vague, stating (to paraphrase) that the creditor can end the agreement in exceptional circumstances (which is wrong, of course) and that the debtor must then pay all amounts owing. Although the agreement is silent as to what happens in the event of termination by the debtor, it would then be a matter of how one construes the contract.

 

There might, I suppose, be an issue if there is no such clause in the contract as it exists at termination; that requires more thought.

 

This is the OC's argument. The issue is that a s87 notice must comply with s88 in order that the debtor is given his lawful right to remedy. If this is not given, and the OC terminates, the debtor is within his rights to then accept termination.

 

The specific point is that there was a breach, but the opportunity to remedy that breach was compromised by the defective DN. This is recognised by the Woodchester judgement - the need for an accurate DN - as it impacts on the potential remedy of the breach. The OC is, in effect, denying the debtor the full lawful right to remedy.

 

Yes, the Debtor has been denied an effective right to remedy the breach. That is why the creditor has to serve a new, correct, default notice before continuing. If they don't they are in breach of contract and the debtor can recover damages should they suffer any.

 

Are you brave enough to reveal your true interest in this ECPR? Your views seem very pro-industry.

LA

I am not, nor have I ever been, as you seem to imply, employed by a bank, debt collector or one of their solicitors. If I were, I would've had the courtesy to respect the forum rules and post in the section for bank employees.

 

My attitude to CCA comes from experience as a paralegal working for a solicitor's firm which joined the great CCA feeding frenzy. Thankfully the firm has turned to other work now. I saw plenty of behaviour on both sides which was pretty disgusting and I've seen plenty of arguements consigned to the dustbin, by District Judges or the Court of Appeal. That, basically, is why I am advocating for the Devil here - because, in this case, I think that whatever the morals of the point, the creditors will win in court.

[eagleforms]

Strange ECPR, that you worked as a paralegal and ever learned how to spell argument?

[JonCris]

On the internet its very bad form to comment on a posters spelling/grammar & doing so shows a distinct lack of class