RBS Mint Loan - Court Action Started & Dodgy DN issues

[Peterbard]

This is why there's talk of appeals, as no, that isn't right, although yes, it is the way that it seems to work.

 

I don't blame them, really, as Judges see vexatious defences against justified claims - it's a struggle to win them over, as these companies "surely aren't wrong", when this individual defendant can't possibly be "right about them".

 

Just a shame we don't have any Judges on CAG, in'nit?! (Or do we? Lol)

 

Hi

I am not so sure i think an argument could be made that since the termination was accepted then the debtor themselves permited the next step to be taken.

 

It is an arguable point.

 

Peter

[emandcole]

Well yes that is the way i see it but the debtor would have to remove the protection of section 87 by accepting that the account had been terminated after default.

 

Peter

 

Hi PB, have I read this right? Does the debtor responding to an invalid DN and accepting termination on the back of that remove the section 87 protection for the creditor as the post above reads? This of course is opposite to what I believe you've argued for many months as the termination can't exist due to the DN therefore nothing to accept on the part of the debtor. Have I misunderstood the context perhaps?

[pumpytums]

Just a thought wasn't Pumpkin accepting the termination on the principle that only the arrears were owing?

 

A creditor at the end of the day terminates an agreement with the belief that they have done everything correctly and to the letter of the law, we all know that this isn't always right. They can get a second go so why can't we.

 

Pumpytums

[Pumpkinhead]

I just want to say that no-one on CAG has ever forced me to accept their opinions. I class myself as a pretty bright individual and certainly old enough to make my own decisions as to whether I accept other people's advice or not. I felt it was worth a "gamble" this time for want of a better word.

 

Having looked at the posts since Friday, I must admit I've found it difficult to understand what some of these are really saying. So please humour me and remember that I am after all a LIP. I am unclear as to whether or not it might be worth launching an appeal in my case.

[gh2008]

I just want to say that no-one on CAG has ever forced me to accept their opinions. I class myself as a pretty bright individual and certainly old enough to make my own decisions as to whether I accept other people's advice or not. I felt it was worth a "gamble" this time for want of a better word.

 

Having looked at the posts since Friday, I must admit I've found it difficult to understand what some of these are really saying. So please humour me and remember that I am after all a LIP. I am unclear as to whether or not it might be worth launching an appeal in my case.

 

Well, IMHO you can only make that decision on what went on on Friday, the amount awarded and the argument used for that amount.

 

It may be that you will need a full transcript of the hearing to properly assess the situation.

 

Remember that anybody's opinion, not backed up by caselaw or Law itself is just that opinion, some will remind others of that all the time, whilst some may well forget to remind readers that they are offering an opinion rather than fact.

 

I for one know how you took this case on and you were aware of the fact you were 'pushing at boundaries'

 

Of course the other side were also fully aware of every aspect of your argument before you walked into the room, which is also a distinct disadvantage.

 

This case tested a theory put forward over several years - is that theory dead? maybe, maybe not, difficult without a transcript to really know how solid an argument there was.

 

Just my rambling thoughts ....

[Peterbard]

Hi PB, have I read this right? Does the debtor responding to an invalid DN and accepting termination on the back of that remove the section 87 protection for the creditor as the post above reads? This of course is opposite to what I believe you've argued for many months as the termination can't exist due to the DN therefore nothing to accept on the part of the debtor. Have I misunderstood the context perhaps?

 

Hi

Well it seems so in pumpkins case. This is a possibility i proofered some months ago.

In truth i connot reconcile this action with my understanding of the cca.It seems to me to chort circuit the requiremeent of

 

To me section 87 says far more than just terminate it goes on to say demand early repayment, even if the debtor fills the termination reqiuirement himself i cannot see how the court can go on to carry out the rest of the enforcement without a valid DN.

I think what happened here is that the DJ saw a way of getting the case dealt with, he had a default that was not in question he had a legal termination, so he thought why not.

I would like more information abouit what was actually said, i think it is something to bare in mind though before accepting a termination

 

Peter

[Peterbard]

Interestingly, for those that have read the WS, the Claimant was not relying on their DN faulty as it was. They accepted it was faulty and accepted they terminated without the benefit of S87

 

They then argued that whether they comply with S87 or not they still have Common Law right to the repayment of the debt.

 

The Defendant argued that they did not

 

The Claimant won and therefore as far as this DJ is concerned there is no need for a DN at all as the Creditor can terminate at any time and at the time of termination has the full rights to immediate repayment of the balance outstanding.

No need for S87 notice

No need for S99 notice

 

Just terminate & make the demand.

 

And, as far as explicitly accepting termination, as PH was unable to pay she would have implicitly accepted by her actions anyway

 

Well, that's how I see THIS case, so jmho

 

Is the WS on here. Was it produced after the termination was accepted by the OP?

 

Peter

[Peterbard]

Just a thought wasn't Pumpkin accepting the termination on the principle that only the arrears were owing?

 

A creditor at the end of the day terminates an agreement with the belief that they have done everything correctly and to the letter of the law, we all know that this isn't always right. They can get a second go so why can't we.

 

Pumpytums

 

Hi

There is no justifiation for thnking only arrears are owing on a credit accout, all the lianilities under it are alway due.

When a debtor defaults and enforcement occurs he loosees the right to repay by the method itemised in the agrement(installment) that is all.

 

If the arrears are poaid as per the Default notice then the creditor cannot enforce, the enforce procedure commences with termination.If the court finds that the notice was defective then the enforcement is not justified and the hearing should come to an end,by whatever means the court decides.

 

The main thing is that the debtor must then be given the correct information to nremedy and a further 14 days before any other enforcement can commence again starting with a termination.

This is i think what should happen, i suspect that short cuts have ben made in this area for some time in the lower courts.

 

Peter

[Peterbard]

Hi

OK then domt see why i cannot reproduce this from the judgement

HHJ Chambers QC

"The notice of enforcement was a statutory pre-condition of enforcement. It was a bad notice and enforcement cannot be attempted in dependence upon it. However, bad notices can often be remedied by the service of good notices and I see no reason why that should not be so in respect of credit agreements"

Section 75

[Pumpkinhead]

Precis of Judgement by DJ.docI've typed up a rough precis of the DJ's judgement from Friday and this is now attached.

[gh2008]

Ok, so they terminated - that is agreed

The DN was invalid - that is agreed

 

The claim is made NOT ON THE BACK OF A DN or relying on a DN at all - important point!!

 

The claim has now been made purely as a Common Law debt - fair enough

 

The BIG question is what is lawfully owed??

 

With a CCA the creditor is NEVER entitled to earlier repayment of any sum (Unless by way of service of a valid DN or valid notice of termination giving requisite notice etc etc - and even teh latter is a bit dodgy)

 

SO imho at the end of teh agreement, creditor had not become entitle to repayment of teh capital or the balance, but only sums already due to that point.

 

 

Now please argue against me, but back up arguments with facts rather than just opinions. I have stated why I think teh creditor never became entitled to more than arrears at termination.

I accept that by Common Law that amount is owing, however I do see how any more can be owing

[Peterbard]

[ATTACH]25470[/ATTACH]I've typed up a rough precis of the DJ's judgement from Friday and this is now attached.

hi

Is there ny chance you could copy and paste it on the thread, i am unable to open attached files on here

 

Peter

[gh2008]

Is the WS on here. Was it produced after the termination was accepted by the OP?

 

Peter

 

original POC, amended POC and WS are all on the thread.

 

Claimant accepted DN was invalid and therefore claim did not rely on it at all

They are claiming that their benefits did not cease at termination (accepted) what is being argued is the amount they are entitled to at Common Law at terimation

 

i.e. at the point of termination, whatever was lawfully owing became a simple debt

But how much was that simple debt??

 

It is actually a very interesting argument ....

[gh2008]

Hi

OK then domt see why i cannot reproduce this from the judgement

HHJ Chambers QC

"The notice of enforcement was a statutory pre-condition of enforcement. It was a bad notice and enforcement cannot be attempted in dependence upon it. However, bad notices can often be remedied by the service of good notices and I see no reason why that should not be so in respect of credit agreements"

Section 75

 

My highlight

 

In THIS case the Claimant is NOT depending on the DN at all - they accept it was invalid

[Bigdebtor]

original POC, amended POC and WS are all on the thread.

 

Claimant accepted DN was invalid and therefore claim did not rely on it at all

They are claiming that their benefits did not cease at termination (accepted) what is being argued is the amount they are entitled to at Common Law at terimation

 

i.e. at the point of termination, whatever was lawfully owing became a simple debt

But how much was that simple debt??

 

It is actually a very interesting argument ....

 

GH

 

Another very good point (as usual!). BTW can anyone remind me when the Brandon appeal is due to be heard?

 

I'm so confused now that I'm not sure if this will help Pumpy or not - but it should surely overturn the Brandon verdict - which was totally perverse!

 

BD

[Peterbard]

Ok, so they terminated - that is agreed

The DN was invalid - that is agreed

 

The claim is made NOT ON THE BACK OF A DN or relying on a DN at all - important point!!

 

The claim has now been made purely as a Common Law debt - fair enough

 

The BIG question is what is lawfully owed??

 

With a CCA the creditor is NEVER entitled to earlier repayment of any sum (Unless by way of service of a valid DN or valid notice of termination giving requisite notice etc etc - and even teh latter is a bit dodgy)

 

SO imho at the end of teh agreement, creditor had not become entitle to repayment of teh capital or the balance, but only sums already due to that point.

 

 

Now please argue against me, but back up arguments with facts rather than just opinions. I have stated why I think teh creditor never became entitled to more than arrears at termination.

I accept that by Common Law that amount is owing, however I do see how any more can be owing

 

 

HI i dont know if this is addressed to me but anyway.

 

I to have a problem with the logic of how the court could alow an order for early repayment without a vaid DN.

I can understand that the agrment was terminated ther was mintion of reudiation perhaps the court thought that this none acceptance of the contract by the debtor enabled them to enforc the recovery of liabilities as per common law.

I dont know

 

Peter

[Peterbard]

GH

 

Another very good point (as usual!). BTW can anyone remind me when the Brandon appeal is due to be heard?

 

I'm so confused now that I'm not sure if this will help Pumpy or not - but it should surely overturn the Brandon verdict - which was totally perverse!

 

BD

 

Wish you would get over my spelling probems, i did 50 years ago.

 

I wanted to know why you thought the recent verdict affected or was likely to have an effect on the brandon case.

 

peter

[Bigdebtor]

Eman

 

Totally agree!

 

BD

Edited March 3, 2011 by Bigdebtor
Clarification

[gh2008]

Peter, I fully understand your view on termination.

HOWEVER, n-one (including you) has answered my question as to how and when the creditor becomes entitled to the earlier repayment of the debt when they terminate (under contractual law)

 

I still do not see how they gain that entitlement. The CCA is quite clear they are NOT entitled to it, unless they accurately go through a few hoops.

The contract does NOT state that from Day 1 the debtor is liable to reapy the debt any faster than the contract states (unless by debtors agreement, or on proper notice governed by the CCA etc)

 

So, this contract does NOT allow a demand for earlier payment at all.

 

Under the terms of the contract how does the debtor suddenly become liable for the capital/balance ???

 

(IMHO this argument is the main argument of both PH's case AND all the others regarding terminating under Common Law)

 

BTW I accept teh debt becomes an 'ordinary debt' - it is how much that 'ordinary debt (or liability) is'

[Peterbard]

Peter, I fully understand your view on termination.

HOWEVER, n-one (including you) has answered my question as to how and when the creditor becomes entitled to the earlier repayment of the debt when they terminate (under contractual law)

 

I still do not see how they gain that entitlement. The CCA is quite clear they are NOT entitled to it, unless they accurately go through a few hoops.

The contract does NOT state that from Day 1 the debtor is liable to reapy the debt any faster than the contract states (unless by debtors agreement, or on proper notice governed by the CCA etc)

 

So, this contract does NOT allow a demand for earlier payment at all.

 

Under the terms of the contract how does the debtor suddenly become liable for the capital/balance ???

 

(IMHO this argument is the main argument of both PH's case AND all the others regarding terminating under Common Law)

 

BTW I accept teh debt becomes an 'ordinary debt' - it is how much that 'ordinary debt (or liability) is'

 

Hi

You are correct the creditor cannot enforce after a termination under a contractural provision that is not what i said with respect i said he can demand payment , he can under section 76, and on running account credit i think there is even a template for this in the regs.But he cannot enforce without first issuing a compliant DN

 

Peter

[Peterbard]

Peter, I fully understand your view on termination.

HOWEVER, n-one (including you) has answered my question as to how and when the creditor becomes entitled to the earlier repayment of the debt when they terminate (under contractual law)

 

I still do not see how they gain that entitlement. The CCA is quite clear they are NOT entitled to it, unless they accurately go through a few hoops.

The contract does NOT state that from Day 1 the debtor is liable to reapy the debt any faster than the contract states (unless by debtors agreement, or on proper notice governed by the CCA etc)

 

So, this contract does NOT allow a demand for earlier payment at all.

 

Under the terms of the contract how does the debtor suddenly become liable for the capital/balance ???

 

(IMHO this argument is the main argument of both PH's case AND all the others n Law)

 

BTW I accept teh debt becomes an 'ordinary debt' - it is how much that 'ordinary debt (or liability) is'

 

Sorry missed yhour question about how the debtor becomes liable for the full ballance. The answer is he always was these are actual liabilities under thr contract, real money owed. They are not genuine pre estimate of costs or damages or future liabilities, that cannot be claimed on a contractural termination they are actual liabilities.

They will be due and payable however the agremnt is terminated until they are repayed.

 

Peter

[basa48]

Peter, I fully understand your view on termination.

HOWEVER, n-one (including you) has answered my question as to how and when the creditor becomes entitled to the earlier repayment of the debt when they terminate (under contractual law)

 

I still do not see how they gain that entitlement. The CCA is quite clear they are NOT entitled to it, unless they accurately go through a few hoops.

The contract does NOT state that from Day 1 the debtor is liable to reapy the debt any faster than the contract states (unless by debtors agreement, or on proper notice governed by the CCA etc)

 

So, this contract does NOT allow a demand for earlier payment at all.

 

Under the terms of the contract how does the debtor suddenly become liable for the capital/balance ???

 

(IMHO this argument is the main argument of both PH's case AND all the others regarding terminating under Common Law)

 

BTW I accept teh debt becomes an 'ordinary debt' - it is how much that 'ordinary debt (or liability) is'

 

I preface this comment by saying I am no expert on common law debts or contracts, but I think in common law a party would probably be awarded all sums it could prove were reasonably owed. In this day and age and with the judiciary so obviously in favour of the banks I would expect them to be awarded every penny they allege is owed via the accounts statements.

 

However I do not believe common law can EVER be used in argument in a regulated agreement and all credit debts must by definition be so regulated.

 

PS: I am not convinced creditors can arbitrarily terminate a non-defaulted running-account by giving notice. Why would they need to when the can restrict or defer credit. I believe such 'convenience' clauses may fall foul of the fairness section of the Act.

Edited March 2, 2011 by basa48

[Peterbard]

I preface this comment by saying I am no expert on common law debts or contracts, but I think in common law a party would probably be awarded all sums it could prove were reasonably owed. In this day and age and with the judiciary so obviously in favour of the banks I would expect them to be awarded every penny they allege is owed via the accounts statements.

 

However I do not believe common law can EVER be used in argument in a regulated agreement and all credit debts must by definition be so regulated.

 

PS: I am not convinced creditors can arbitrarily terminate a non-defaulted running-account by giving notice. Why would they need to when the can restrict or defer credit. I believe such 'convenience' clauses may fall foul of the fairness section of the Act.

 

oft post contract infomation

 

 

6.8 Under section 98 of the 1974 Act, the creditor is not entitled to

terminate a regulated agreement (in non-default cases) unless he

provides the debtor with a notice of his intention to terminate at least

seven days before taking such action.

6.9 Enforcement and termination notices are not needed where an

agreement is for an indefinite duration or where notice is served at the

end of the period specified in the agreement for its duration.

[emandcole]

An example of a high court judge upholding the CCA? We have it here with MBNA. Considering the debt was in excess of 20k I assume the bank would have lavished a sufficient amount of effort on obtaining good counsel, which begs the question...why did they not try to recover the debt under common law?

 

Presumably, they can't as there was no 'stepping outside of' the CCA? We have seen the attempt and success though using common law as a 'back up' when the creditor messes up so why not here?

 

http://www.bbc.co.uk/news/business-12622318

 

Also confirms the court can just wipe out the debt and deny the creditor even though it may be a touch harsh for the bank - they know the rules however and what is expected of them if they wish to play with the grown ups so refreshing to see a judge uphold the requirements and not remove consumer rights.

 

Given this approach is it too hard for us to believe a creditor who deprives you of your rights and terminates on a dodgy DN can also expect to lose their entitlement to sums not yet payable? After all, the act states that terms and conditions should be supplied, don't recall it saying they must be supplied but perhaps I'll go check that out and examine the terminology unless anyone else knows off hand?

 

The judge could have (in the style of a default notice issue post termination and during litigation) told the bank to hand the defendant a set of T&C's so that magically everything is alright, but he didn't. Clearly he recognised there is a procedure in place that must be followed in order with no skipping about to correct previous mistakes as we see in default and termination disputes. Here we actually see an order in how the creditor must have behaved and the judge deemed that order must have been followed.

 

We therefore end up with clarity and order so the letters of the law are lined up correctly to see A, C, E, F, R for example instead of the order we've seen recently concerning default and termination confusion that instead comes out as F, A, R, C, E.

 

[Peterbard]

An example of a high court judge upholding the CCA? We have it here with MBNA. Considering the debt was in excess of 20k I assume the bank would have lavished a sufficient amount of effort on obtaining good counsel, which begs the question...why did they not try to recover the debt under common law?

 

Presumably, they can't as there was no 'stepping outside of' the CCA? We have seen the attempt and success though using common law as a 'back up' when the creditor messes up so why not here?

 

http://www.bbc.co.uk/news/business-12622318

 

Also confirms the court can just wipe out the debt and deny the creditor even though it may be a touch harsh for the bank - they know the rules however and what is expected of them if they wish to play with the grown ups so refreshing to see a judge uphold the requirements and not remove consumer rights.

 

Given this approach is it too hard for us to believe a creditor who deprives you of your rights and terminates on a dodgy DN can also expect to lose their entitlement to sums not yet payable? After all, the act states that terms and conditions should be supplied, don't recall it saying they must be supplied but perhaps I'll go check that out and examine the terminology unless anyone else knows off hand?

 

The judge could have (in the style of a default notice issue post termination and during litigation) told the bank to hand the defendant a set of T&C's so that magically everything is alright, but he didn't. Clearly he recognised there is a procedure in place that must be followed in order with no skipping about to correct previous mistakes as we see in default and termination disputes. Here we actually see an order in how the creditor must have behaved and the judge deemed that order must have been followed.

 

We therefore end up with clarity and order so the letters of the law are lined up correctly to see A, C, E, F, R for example instead of the order we've seen recently concerning default and termination confusion that instead comes out as F, A, R, C, E.

 

 

HI

Yes the verdict is indeed heartning , it shows that at lastr the courts are recognising that debtors rights to fair treatment continue deven after they fall upon hard times.

It also demonstrates that the act functions perfectly well within its own peramiters. It does not need and infact does not permit interference in its opperation.

 

The default notice works perfectly well within the confines of the act it does what it does, no one is saying it is a pontless esercise to challenge a DN, but if it found to be incorrect the court can re issue that is fact.

Now a lot can haopen if the time it takes the creditor to reissue so agin it is not pointsell to challeng but you must do it within the confines of the act,it is after al just a feature of it.

Accepting terminations and talking about repudiations of creditors is just not going to da anyone any good , it will ruin your credinlity with the court and may even backfire as it did in pumpkinheads case.

 

Peter