RBS Mint Loan - Court Action Started & Dodgy DN issues

[caro]

Does any of this discussion really help the OP, here, though? It might need to be moved elsewhere...

 

I think so. Hopefully the discussion will help the OP decide if it's worth appealing and the arguments for and against recission, which would be useful in court.

 

well considering its debating the issue which seems to go to the heart of the matter, id say it would, but then again, who knows,

 

Agreed, and hopefully others who may be considering following the same course of action.

 

Still haven't decided what, if anything, to do yet. What puts me off appealing (apart from having a solid reason to) is having to argue it myself in court.

 

I think the solid reason is what you need to consider, and how best to deal with this now.

 

FWIW it makes sense to me that interest would be payable for the period that the loan was in force.

[diddydicky]

No it does not make the point irrelavant, if it did why have you been arguoing against it for the last 12 months.

 

because i thought (as i suspect many others did) in the absence of the bit i mentioned- that you were arguing that the creditor had a LEGALLY ENFORCEABLE right to simply terminate the agreement and claim immediate payment of sums not yet due

 

dont be sad...thats one long running argument out of the way:lol:

[diddydicky]

Had to answer this twice

 

Yes most if not all cases of repudiation revolve around the creditor failing to provide funds,what else would repudiation by a creditor involve? you suggeting he could terminate the agreement but contiue to provide credit? the one that you yourseld quotes so often is a case in point. These of course are of no relevance to CCA agreements but this doesnt seem to stop you quoting them.

 

Peter

 

really? i thought that most (in fact i would chance my arm and say 99.9999999999999% ) were about the creditor failing to allow the debtor to continue repaying funds he had ALREADY lent to the debtor- on a monthly basis as prescribed in the agreement itself!!

[Bigdebtor]

It looks to me as if there is not only strong "common sense" justification for PH to appeal - but strong legal grounds - now added to by UE's "estoppel" research.

 

I have always took the view that being told "legally" you CANNOT do something is not the same as physically preventing you from DOING it - i.e you physically CAN although it would be illegal or unlawful. The Law would not set out the consequences for doing something illegal or unlawful if it did not accept it were possible to do it.

 

It therefore follows that the creditor CAN (albeit unlawfully) repudiate a contract - and if the debtor accepts then that's it - contract dead - no resurrection possible even for the most fervent of believers - and the creditor should no longer benefit from the contract's terms and conditions.

 

Climbing back on my "logic" and "common sense" soap box, I think a suitable analogy to show how illogical it is that a creditor be "protected" from unlawfully terminating and thus avoid losing his rights (as AMEX was so protected in Brandon) is to consider a drink driving analogy:

 

A drink driver is a few miles away from the Pub (in Scotland the word Pub is revered - so always has a capital P) - and almost home when stopped by Police. Using Brandon as justification the driver argues that he hasn't hit anyone, didn't break any other traffic laws etc - so "no harm done". The Police (knowing the Law inside out of course) agree - but suggest the driver must not benefit from his "wrong doing" - so Police allow the driver to simply drive his car back to the Pub car park (so therefore deriving no benefit from the attempt to drive home drunk) and then walk home. All is fine - no one is "prejudiced" and no one "benefits" from the attempted wrong doing. That would be using the "common" definition of "rescission" - unwinding back to the status before anything happended - no drink driving took place - car back in Pub car park - driver weaving his weary way home. Clearly this would be an unacceptable outcome - so the Law DOES accept that what is illegal CAN still be done and has sanctions to deal with it.

 

However in both PH's case and the Brandon case the analogy has outcomes even worse!

 

Applying the same scenario to PH's case, it is likely that if this judge were a Policeman he would say - look - your home is just down the road - leave your car right here and walk home.

 

In the Brandon case the judge would rule "your home is nearer than the Pub - it's therefore safer for Joe Public if you just continue driving home rather than go all the way back to the Pub". Drive on - but carefully.

 

Clearly I don't mean this analogy to be taken TOO seriously - but surely it does raise the possibility of "logic or common sense" (and legal?) flaws in the verdicts reached in both Brandon and PH's case?

 

BD

[diddydicky]

Hi

Look this is i think gtting out of hand again.

The thinkg is that the OP has repudiated the agrement in the most basic trms he has said in writing that he does ot acknowledge the agreement whether he accepted the termination or whether he terminate first is totally irrellavant.In any case the liabilities are due to the creditor and the ability to pay by installment has been removed.

 

THe only issues are how much is owed and more importantly are their any other agreements in the pipline that are heading down the same track and what can be done to prevent the same outcome.

 

Peter

 

then i apologise- for i have not seen a transcipt of PH's letter and had not realised that she had simply refused to acknowledge the agreement and repudiated it

 

i was under the impression that she had referred to the creditors unlawful repudiation- and accepted that

 

slapped hand for me for not reading the actual letter ( i presume that you have!)

[Bigdebtor]

No it does not make the point irrelavant, if it did why have you been arguoing against it for the last 12 months.

 

because i thought (as i suspect many others did) in the absence of the bit i mentioned- that you were arguing that the creditor had a LEGALLY ENFORCEABLE right to simply terminate the agreement and claim immediate payment of sums not yet due

 

dont be sad...thats one long running argument out of the way:lol:

 

DD

 

Surely that IS what PB is arguing in post 441? - i.e that the creditor CAN have his cake and eat it?

 

BD

[Bigdebtor]

then i apologise- for i have not seen a transcipt of PH's letter and had not realised that she had simply refused to acknowledge the agreement and repudiated it

 

i was under the impression that she had referred to the creditors unlawful repudiation- and accepted that

 

slapped hand for me for not reading the actual letter

 

Has the letter been posted up here earlier? If so, on what post is it? Sorry I can't remember seeing any actual letter and I don't want to trawl through 450 posts for it.

 

BD

[Peterbard]

HI

Must admit to no having read the last few posts(sorry) I read the first bit but ,it seems to me that we are sat on a thread that illustrates that all this stuff does not work.

Simple as that .

Keep going over again and again why you think it should work is not doing anyone any good.

If there is evidence it works lets see it if not then we have the evidence to the contry right here.

So this is what we have to work with.

 

Peter

[Peterbard]

really? i thought that most (in fact i would chance my arm and say 99.9999999999999% ) were about the creditor failing to allow the debtor to continue repaying funds he had ALREADY lent to the debtor- on a monthly basis as prescribed in the agreement itself!!

 

NO usually it is about a bank not providing funds for a project and the other party loosing out because they were unable to either purchase equiptment or proceed. The debtor then sues the bank or creditor for repudiationg the agreement and for the losses involved in loss of ttrade.

 

The creditor faiing to let the debtor repay a loan as per the contract would be either termiation or breach of contract.

In a consumer credit agreement as we have allready established the creditor is within his rights to demand early payment any way. So it could not be the latter and as also established the former is allowed under the act?

 

 

Peter

[Bigdebtor]

Peter

 

Many important advances are only made after years of failure. The most brilliant surgeons are typically those with the highest death rate - since they take on the "hopeless" cases. Similarly good lawyers should always be pushing the boundaries - and accept some losses along the way. The SC verdict was not teh end of the unfair bank charges fight - as is evidenced by cases still currently being fought in Glasgow Sheriff Court.

 

We MUST continue to question "accepted wisdom" where it is illogical or against natural justice - even if apparently "legal".

 

If we simply accepted "things are as they are - and won't change" then we would not have the NHS, women wouldn't have the vote, we would never have had a woman prime minister - on the other hand, maybe you've got a point!

 

BD

[diddydicky]

NO usually it is about a bank not providing funds for a project and the other party loosing out because they were unable to either purchase equiptment or proceed. The debtor then sues the bank or creditor for repudiationg the agreement and for the losses involved in loss of ttrade.

 

where on this thread has anyone ever mentioned a dispute along the lines above?

 

 

come on peter- why are you talking about banks not providing funds for projects?

 

this is a consumer advice group which predominantly addresses consumer credit issues not commercial transactons

 

at least try to keep the ball in the field of play!

 

i cannot ever recall on this site- reading of a cagger who has attempted to claim that a creditor has unlawfully repudiated an agreement by invoking a general term allowing the creditor to terminate

 

In fact the ONLY time i have ever heard mention of it was in the Amex v Brandon case where the creditor "changed tack" mid Default stream in an effort (succesful at the moment) to win the day

 

the only ones i have ever seen (or commented upon personally) have been where the debtor has been in default and the creditor has mucked up the s87 process

 

with respect- it is yourself that is becoming circular in your arguments

Edited March 7, 2011 by diddydicky

[Bigdebtor]

In a consumer credit agreement as we have allready established the creditor is within his rights to demand early payment any way. So it could not be the latter and as also established the former is allowed under the act?

 

Surely not "any way" Surely ONLY when the creditor has CORRECTLY jumped through the right hoops in the right order?

[Peterbard]

Morning gh/ph

It strikes me that there are so many differing opinions at all levels, and even (a rather wonderful term I saw in a case summary) "a lack of judicial unanimity" which to me means the arguments are still wide open and could be changed by other judgements or defence strategies.

 

This has been buzzing round in my head so I want to throw it in here while it's still fresh.

 

Assuming a bad DN has been issued. Account Terminated. Court Action commenced.

As we all know:

(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, or (!)

(b)to demand earlier payment of any sum, or

©to recover possession of any goods or land, or

(d)to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e)to enforce any security.

 

This begs the argument that, irrespective of termination, the creditor cannot demand the full sum without issuing a compliant DN.

 

NO the crediotr can demand any time he wants , he just cannot enforce on the breach of the debtor

One the court did not enforce due to breach they enforced because of the termination of the contract in order to recover liabilites under the contract, nothing in the act that says the creditor cannot enforce for any other reason than a breach. Just that if he is enforceing in the case of breach he needs to present a secion87 first.

 

PH's agreement was made under CCA 1974. The judge does not have the authority to overrule statute and order payment of the full sum without a compliant DN because that clause, being "OR" not "AND" stands independant of termination.

 

See above

 

Turning to the opinion that the creditor could then reissue a valid DN and recommence proceedings.

Couldn't ESTOPPEL BY REPRESENTATION be pleaded, in that the debtor has changed their position in view of the statements made by the creditor that the account is terminated, and "a reasonable man" would be likely to have taken the statements and actions (summons/harrassment etc) as being the actual state of affairs, therefore the creditor must abide by those statements and actions.

 

we know he can

(Spencer Bower- The Law relating to Estoppel by Representation)

 

Therefore by pleading Estoppel

The account IS terminated despite their DN error.

They cannot issue a new DN on a terminated account as there is no possibility of returning the account to it's original state by remedy of breach.

They cannot enforce without a valid DN.

Stalemate.

 

Just hypothesising after doing some research, not stating it as fact

 

Elsa x

 

FAct is they do Elsa

[Peterbard]

Surely not "any way" Surely ONLY when the creditor has CORRECTLY jumped through the right hoops in the right order?

HI

NO i meant anyway of course nice one, really of course all he has to do is terminate and then demand repayment.

He could not enforce of course unless???

 

Peter

[Peterbard]

NO usually it is about a bank not providing funds for a project and the other party loosing out because they were unable to either purchase equiptment or proceed. The debtor then sues the bank or creditor for repudiationg the agreement and for the losses involved in loss of ttrade.

 

where on this thread has anyone ever mentioned a dispute along the lines above?

 

 

come on peter- why are you talking about banks not providing funds for projects?

 

this is a consumer advice group which predominantly addresses consumer credit issues not commercial transactons

 

at least try to keep the ball in the field of play!

 

i cannot ever recall on this site- reading of a cagger who has attempted to claim that a creditor has unlawfully repudiated an agreement by invoking a general term allowing the creditor to terminate

 

In fact the ONLY time i have ever heard mention of it was in the Amex v Brandon case where the creditor "changed tack" mid Default stream in an effort (succesful at the moment) to win the day

 

the only ones i have ever seen (or commented upon personally) have been where the debtor has been in default and the creditor has mucked up the s87 process

 

with respect- it is yourself that is becoming circular in your arguments

 

NOw your getting it it is contract law not consumer credit law.

 

Peter

[Peterbard]

NO usually it is about a bank not providing funds for a project and the other party loosing out because they were unable to either purchase equiptment or proceed. The debtor then sues the bank or creditor for repudiationg the agreement and for the losses involved in loss of ttrade.

 

where on this thread has anyone ever mentioned a dispute along the lines above?

 

 

come on peter- why are you talking about banks not providing funds for projects?

 

this is a consumer advice group which predominantly addresses consumer credit issues not commercial transactons

 

at least try to keep the ball in the field of play!

 

i cannot ever recall on this site- reading of a cagger who has attempted to claim that a creditor has unlawfully repudiated an agreement by invoking a general term allowing the creditor to terminate

 

In fact the ONLY time i have ever heard mention of it was in the Amex v Brandon case where the creditor "changed tack" mid Default stream in an effort (succesful at the moment) to win the day

 

the only ones i have ever seen (or commented upon personally) have been where the debtor has been in default and the creditor has mucked up the s87 process

 

with respect- it is yourself that is becoming circular in your arguments

 

Just another thought regarding this

 

The scenario i quoted was the one used as authority in surfaceagents orriginal post which is the foundation of this theory i believe.

Peter

[diddydicky]

Morning gh/ph

It strikes me that there are so many differing opinions at all levels, and even (a rather wonderful term I saw in a case summary) "a lack of judicial unanimity" which to me means the arguments are still wide open and could be changed by other judgements or defence strategies.

 

This has been buzzing round in my head so I want to throw it in here while it's still fresh.

 

Assuming a bad DN has been issued. Account Terminated. Court Action commenced.

As we all know:

(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, or (!)

(b)to demand earlier payment of any sum, or

©to recover possession of any goods or land, or

(d)to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e)to enforce any security.

 

This begs the argument that, irrespective of termination, the creditor cannot demand the full sum without issuing a compliant DN.

PH's agreement was made under CCA 1974. The judge does not have the authority to overrule statute and order payment of the full sum without a compliant DN because that clause, being "OR" not "AND" stands independant of termination.

 

Turning to the opinion that the creditor could then reissue a valid DN and recommence proceedings.

Couldn't ESTOPPEL BY REPRESENTATION be pleaded, in that the debtor has changed their position in view of the statements made by the creditor that the account is terminated, and "a reasonable man" would be likely to have taken the statements and actions (summons/harrassment etc) as being the actual state of affairs, therefore the creditor must abide by those statements and actions.

 

(Spencer Bower- The Law relating to Estoppel by Representation)

 

Therefore by pleading Estoppel

The account IS terminated despite their DN error.

They cannot issue a new DN on a terminated account as there is no possibility of returning the account to it's original state by remedy of breach.

They cannot enforce without a valid DN.

Stalemate.

 

 

 

Just hypothesising after doing some research, not stating it as fact

 

Elsa x

 

well said- i think if i may say- where alot of the "debate" has arisen is in the use of the term "the creditor may demand"

 

I am sure that most of us thought that folk who were saying that the creditor "could demand" meant that the creditor could "legally enforce" such a demand when in fact it now transpires that those folk do ACCEPT that the "demand" by the creditor is not legally enforceable.

 

of course a creditor can "demand" anything he likes- just like you and i can- its just that most of us make a presumption before making such statements that what we are talking about are legally enforceable, rather than fanciful demands-

 

if that makes sense

[diddydicky]

Just another thought regarding this

 

The scenario i quoted was the one used as authority in surfaceagents orriginal post which is the foundation of this theory i believe.

Peter

 

no. it was about his own personal experience whereby a creditor sought repossession of his car via a faulty DN

 

in any event if you beleived that you were referring to one mentioned in a surfaceagent post- that would hardly be the "Usual" reason for a DN- which is what you suggested

 

come on Peter- stop digging and concede a point when you know it is lost-

 

I know its hard to be humble- when youre perfect in every way ............

[emandcole]

GH has continually raised the most important question that no-one supporting the opposing argument has been able to answer. No entitlement has been secured. To date we've skipped around the puddle but no-one has actually jumped into it so can we look at how the important entitlement has been secured?

 

How, using the CCA, did the creditor become entitled to sums not yet due at termination?

 

Picking up on Undercover Elsa who refreshed our minds with what the act specifically states we find that:

 

(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, or (!)

(b)to demand earlier payment of any sum, or

©to recover possession of any goods or land, or

(d)to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e)to enforce any security.

 

That little word OR is a biggie. I like the estoppel defence and when combined with others such as unfair relationships and the fact that the creditor has created a web of confusion for the debtor I can't see how the creditor can rise through all of this and run off into the sunset. Any takers?

[Peterbard]

no. it was about his own personal experience whereby a creditor sought repossession of his car via a faulty DN

 

in any event if you beleived that you were referring to one mentioned in a surfaceagent post- that would hardly be the "Usual" reason for a DN- which is what you suggested

 

come on Peter- stop digging and concede a point when you know it is lost-

 

I know its hard to be humble- when youre perfect in every way ............

 

Look at the case authorities he quoted in his post

[pt2537]

GH has continually raised the most important question that no-one supporting the opposing argument has been able to answer. No entitlement has been secured. To date we've skipped around the puddle but no-one has actually jumped into it so can we look at how the important entitlement has been secured?

 

 

 

Picking up on Undercover Elsa who refreshed our minds with what the act specifically states we find that:

 

 

 

That little word OR is a biggie. I like the estoppel defence and when combined with others such as unfair relationships and the fact that the creditor has created a web of confusion for the debtor I can't see how the creditor can rise through all of this and run off into the sunset. Any takers?

Ok,

 

The reason was that there was acceptance of termination

 

You can step outside of the CCA by consent of the parties,

 

This is clear from Lloyd & guest.

 

So it seems to me the acceptance of the termination was the killer blow

[Peterbard]

If so, then is that not (at least partial - along with other arguments) grounds for appeal? Isn't the Law meant to work on a level playing field?

 

Surely if a judge could even be slightly suspected of (justifiable?) bias and not allowing the Debtor to clarify exactly what she meant then something is far wrong with our "justice" system? I would say "slightly biased" and "justifiable bias" should be considered in the same way as "slightly dead" - i.e. without the adjectives which are totally inappropraite and do not lessen the effect or mitigate the wrong.

 

BD

 

Yes i think this is the way to go if the op decides to appeal, He did after all have a defective DN, this was the main aspect of his case.

 

Peter

[Peterbard]

I bet there's no breath holding at the Wogan house today then

 

HI

i will double that if you can show one case of estoppell being used with a defective dn in the last 30 years that the act has been in force.

 

Perhaps no one else has thought of it Ya think

 

Peter

[diddydicky]

i notice PB that you are silent on the challenge to your contention that invalid DN's cannot be admitted as evidence

 

do i take it that you concede the point, or are you still thinking about a response

 

it IS important- for the sake of other caggers that this hitherto unknown but vital point of law you have raised ...is clarified as it could have enormous significance on the conduct of many cagger defences

[Peterbard]

Except that it is irrelevant as I believe Peter has confused estoppel by representation with Res judicata. E by R is a different horse entirely and not dependant upon prior court action, but on any statement or action leading to a change of position by the other party, if I understand it correctly.

 

 

No not at al, i man estoppel cant spellit but i know what it does.

 

Peter