RBS Mint Loan - Court Action Started & Dodgy DN issues

[Peterbard]

Interesting (and pleasing) to note we seem to have moved on from the assertion (by some) in pinky69's much missed thread that an agreement's early unlawful termination "cannot be accepted" by the other party into examining the "manner" or "nature" of such termination and th eother party's subsequent acceptance.

 

I believe this new approach is much more likely to generate benefits for the CAG community - delighted to see this sea change.

 

BD

 

This is no9t what happened, the curt considered the debtor and creditor to be agreed in the matter of terminating the agrement sso it was bilateraly ended.

 

Nothing was accepted the creditors attempt to terminate would have faild if the debtor had not decide to indicate that he was in agrement to the termination.

 

Peter

[Bigdebtor]

OK - but can you do the sums suggested? That should let you see the worst case scenario of what you would still need to pay back based on the rescission arguments.

 

If the Order comes through for much more then surely that's grounds for appeal on that point alone?

 

Also surely the rest of the case can be revisited at the same time (at no cost to you - since a wrong Order is not your mistake)?

 

In any case it shows how little clue the Judge had of "the Law" upon which he was supposed to be so "learned"!

 

BD

[gh2008]

Regarding Emandcole's question in post 368, I haven't as yet had the Order come through. Counsel also didn't have the calculation with them last week. The judge did allow them to claim interest under s69 but restricted the amount saying if the Claimant had got their POC right first time round it wouldn't have taken so long to sort out.

 

S69 interest - another reason to say that the debt is a common debt rather than a CCA one as no S69 payable on debts where a rate of interest already applies

 

SO you cannot have a debt with early repayment clause (i.e. one which has a rate of interest already) AND S69 !!! Grrrrr

 

Rather than appeal - you would need to challenge the figures once they are known - not sure of protocol (set aside as amount was/is clearly wrong or redetermination??) Or would it need to go to appeal as there was an error in Law ....

 

----

 

EDIT

I broke my own rule of saying something without backing up by Law

The S69 interest bit came up earlier in your thread I think

County Court Act - I will dig it out if necessary

http://www.consumeractiongroup.co.uk/forum/showthread.php?257032-RBS-Mint-Loan-Court-Action-Started-amp-Dodgy-DN-issues&p=3156492&viewfull=1#post3156492

Edited March 4, 2011 by gh2008
added edit

[Pumpkinhead]

Counsel's argument was that no interest had been charged on the agreement since Jan 2010 so they were allowed S69.

 

I wondering whether or not to splash out on a copy of the judgement.

[Bigdebtor]

OK - but can you do the sums suggested? That should let you see the worst case scenario of what you would still need to pay back based on the rescission arguments.

 

If the Order comes through for much more then surely that's grounds for appeal on that point alone?

 

Also surely the rest of the case can be revisited at the same time (at no cost to you - since a wrong Order is not your mistake)?

 

In any case it shows how little clue the Judge had of "the Law" upon which he was supposed to be so "learned"!

 

BD

 

PH

 

Have you done these sums yet - so you know the WORST case scenario?

 

BD

[gh2008]

PH

 

Have you done these sums yet - so you know the WORST case scenario?

 

BD

 

I think over the weekend, you need to re-read the thread, and then work out the figures for the 2 scenarios (I can do the refund one I think with DualCalc)

 

They have had interest up to the original final repayment date - they added up front to the balance grrr again!!!

[Peterbard]

Caro

 

You are right about the principal not being paid until the end - WHEN THERE IS AN AGREEMENT TO THIS EFFECT. However rescission "unwinds" the agreement back to the very start - as if it didn't ever exist - so no interest CAN be charged - so the "upfront" interest added on to the loan is no longer owed. PH only has to repay the balance of the principal - no interest at all - if she goes down the rescission route.

 

BD

 

 

 

Definition of rescinding a contract “de future”(in the future)

Taken from a summay by Sir Owen Dixon of McDonlak v Dennys Lascelles Ltd.

When one party to a simple contract, upon the breach by the other contracting party of a condition of the contract, elects to treat the contract as no longer binding upon him, the contract is not rescinded from the beginning. Both parties are discharged from the further performance s the contract, but the rights are not divested or discharged which have already been unconditionally acquired.

The original test here http://www.oup.co.uk/pdf/0-19-925011-1.pdf

As I said the rescission would not effect the liabilities already due on the contract

Peter

[Peterbard]

according to my dad:-

 

1/ If the DN is bad- and the argument is then that the TN is subsequently bad- then it follows that any "acceptance" of the TN by the debtor is also bad ......and the agreement endures

 

 

2/ If the argument is that the bad DN , followed by a TN amounts to an unlawful repudiation- then the debtors acceptance of the unlawful repudiation serves to releive him of any further obligations under the agreement and the creditor is left with only the arrears at the time of his unlawful termination

 

 

not seen the PH (?) case- but it would appear from what is said that the judge is trying to "mix and match" legistlation.....and if he has found the debtors acceptance of a "non possible" termination under a CCA agreement to be detrimental to the debtor-- then he is plainly wrong since EVERYTHING that flows (under assumption 1/) after the bad DN- other then the endurance of the agreement- is clearly not valid either

 

Yes the agrement would have endured because as you say at 1 the creditor was not entitled to terminate,unfortunatley that intitlement was restored when the debtor terminated.because then the termination became billateral.

initally thecreditors termination was stopped.

Shot in the foot

 

Peter

[caro]

Caro

 

You are right about the principal not being paid until the end - WHEN THERE IS AN AGREEMENT TO THIS EFFECT. However rescission "unwinds" the agreement back to the very start - as if it didn't ever exist - so no interest CAN be charged - so the "upfront" interest added on to the loan is no longer owed. PH only has to repay the balance of the principal - no interest at all - if she goes down the rescission route.

 

BD

 

I wasn't saying anything about recission but letting emancole know that the interest on loans is paid at the beginning.

 

Just wanted to ask about something that doesn't make sense to me.

 

I understand that if the termination comes after a DN that isn't right, for example by not allowing enough time to remedy the arrears, then the debtor can argue that the creditor has no right to terminate the amount. So the full amount isn't owing, although the arrears will still be due. In this instance the DN will have to be re-issued and so the debtor has more time to try and sort things out.

 

If the creditor says ok you terminate the agreement, and the debtor agrees then surely they've implicitly agreed to pay back all they owe when it was terminated despite the fact that they haven't had adequate notice.

 

It's only the creditor who has to wait 14 days to terminate the agreement. Surely the debtor can do that whenever they like - but of course that means they have to be able to pay the money back.

 

I believe that there would be terms in the contract to the effect that all monies owing would be due on termination of the agreement.

 

I don't understand how ending a contract by mutual consent means the debt no longer exists.

[Peterbard]

I wasn't saying anything about recission but letting emancole know that the interest on loans is paid at the beginning.

 

Just wanted to ask about something that doesn't make sense to me.

 

I understand that if the termination comes after a DN that isn't right, for example by not allowing enough time to remedy the arrears, then the debtor can argue that the creditor has no right to terminate the amount. So the full amount isn't owing, although the arrears will still be due. In this instance the DN will have to be re-issued and so the debtor has more time to try and sort things out.

 

If the creditor says ok you terminate the agreement, and the debtor agrees then surely they've implicitly agreed to pay back all they owe when it was terminated despite the fact that they haven't had adequate notice.

 

It's only the creditor who has to wait 14 days to terminate the agreement. Surely the debtor can do that whenever they like - but of course that means they have to be able to pay the money back.

 

I believe that there would be terms in the contract to the effect that all monies owing would be due on termination of the agreement.

 

I don't understand how ending a contract by mutual consent means the debt no longer exists.

 

Yes Caro

 

THe rescission argument is i believed settled by the last post i made on here. As i said all monies previously due on this type of rescission will still be due(ie)interet already paid. There fore the ealy payment regs , the details of whichj i have also proviede aply.

As for the mutual termination of the account yes you are correct the liabilities then have to be repaid. THe court may pass judgement for payment forthwith or in any other way it wees fit.

What iis happenng hereis that thee is con fusion between a consumer credit agrement where there are actual liablities iunder the contract ana busines contract wher the liablities are obligations.

 

If the liabilitie on either sides are just actions that should be taken under the agrement then the obligations to performe these actions can be ended along with the terminations.

This does not apply if there are actual liabilities and one side owes the other money, to return the agrement to its orriginal position theese must be repaid.

(The orriginal possiton of course is within the perramitors itemised in the description of recision de futuro ie less liablities allready incurred during the life of the contracdt before rescission(interest).)

 

Petr

[car2403]

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

[Peterbard]

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

 

Hi Car

THe OP was i believe rying to calculate the amount to be reayed after her action to render the agrment unenforceable was thrown out.

The information i am providing is an attemt to ensure she bases her calcuations on the correct informtion and therefore comes up with the correct figure

[pt2537]

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

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,

[Peterbard]

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

 

Hi

This is a valid question though. ”Does any of this discussion help the OP”

Please believe me I am not having a go at anyone here but the question is a valid one.

In fact it is questionable considering the outcome of this case if any of the discussion on here helped the OP at all.

Personally I think we fail the OP when the discussion is restricted, it has been proven over and over again that the major cause of continued misinformation on here comes about because poorly researched ideas are presented as facts and anyone who challenges those ideas is said to be “off topic” and excluded from the debate.

The forum has as I understand it a policy of presenting all information informed and otherwise and letting the OP decide which to accept.

This has to be the way to go, I cannot see any other. The problem arises when various popular ideas are adopted either intentionally of through well-meaning interference, and thus appear to be the view of the Forum itself.

Peter

[car2403]

Hi

This is a valid question though. ”Does any of this discussion help the OP”

Please believe me I am not having a go at anyone here but the question is a valid one.

In fact it is questionable considering the outcome of this case if any of the discussion on here helped the OP at all.

Personally I think we fail the OP when the discussion is restricted, it has been proven over and over again that the major cause of continued misinformation on here comes about because poorly researched ideas are presented as facts and anyone who challenges those ideas is said to be “off topic” and excluded from the debate.

The forum has as I understand it a policy of presenting all information informed and otherwise and letting the OP decide which to accept.

This has to be the way to go, I cannot see any other. The problem arises when various popular ideas are adopted either intentionally of through well-meaning interference, and thus appear to be the view of the Forum itself.

Peter

 

I'd agree, Peter. 'Eggs in one basket' is never the way to go, especially if you haven't got the DJ on your side early doors.

 

I'm struggling to see another way this OP can go, now, though, TBH.

 

What do you think you'll do next, Pumpy?

[Peterbard]

the basis of a rolling credit agreement such as a credit card is that the debtor repays in amounts of HIS choosing (not the creditors) the sums he has borrowed

 

NO i think the amounts to be repaid are set within the grement prepared by the crediotr ,The minimums anyway

 

(subject to a minimum)-but at a high interest rate as opposed for in stance to an overdraft which is at a much lower interest rate but is repayable on demand, or a secured loan which is fixed payments and a secured

 

Depends on the deal you get from you provider i have a number of zero interest cards in my wallet as we speak

 

if a borrower were to be eligible (on his credit references) for a credit card- he would CERTAINLY be eligible for an overdraft from his own bank

 

NO not true i hvae as i say a number of cards can i get an overdraft facility nope the Co op will not give me one.

 

thus ONCE LENT it is the debtor who determines how much he will repay and how long he takes to repay it not the creditor.

 

Not true again in a fixed sum loan the term is stated within the agrement , on a running account credit agrement the term depends on the amunt of minimum paymen( the amount taken off the ballance on each payment) this is set by the creditor in his terms and conditions. If you are talking about increased payments redyucing the term of the loan the same can be said of any tipe agrement .

 

where the consumer defaults- the creditor cannot simply demand repayment of sums not yet due (the entitlement that you refer to) until and unless he jumps through certain hoops (as you have acknowledged)

 

Yes he demand he just cannot enforce that demand

 

the talk of unlawful repudiation therefore is not about a lender refusing to lend to the debtor (as you say- the creditor could grant a card at £10,000 then reduce the limit the next day to zero) but about his conduct AFTER he has lent money to the consumer and the way that the consumer pays it back

 

Yes it seems to be unfortunately no action the creditor takes in respect of the loan he has made is unlawful under the act, unless you an point one out?

the "separate" clause in an agreement whereby either party, on notice can terminate the agreement- (and has been the source of disagreement between caggers ) may be valid insofar as the creditor can terminate- but that clause does NOT give him the right to demand immediate repayment of the funds already borrowed (in my opinion)

 

Yes as already waid he is entotled to demand see section 98/76 he just will not be able to enforce that demand often

 

if it did- then sects 87-89 of the CCA are defeated since the creditor will have "sidestepped" the requirements of the act and as far as i am aware no term or condition of a regulated agreement can serve to defeat the intent and purpose of the CCA

 

Yes

we all know that in brandon- amex- having already commenced through s87 then "changed tack" and used another clause in the agreement- but i think we all know (hence the court of appeal) that the judge in that case was either prejudiced, stupid or had a bad day at the office

 

well it remanis to be seen, but i would agree that the contractural termination could not be used as a termiantion if this where a business contract and therefore unregulated by the CCA, i cannot see myhself why this would make a difference but it is a factor that may raise its ugly head.

 

 

(my opinion- not my dads)

 

See above

Peter

[Peterbard]

so if the judge takes the view that one party (the debtor) can shoose to agree to accept the others (creditor) termination- then the judge has clearly accepted that the parties to an agreement can agree to amend the original agreement!

 

therefore- if the creditor says "i terminate" and the debtor "agrees" then the two parties to the agreement just amended the agreement!!

 

this would be just as much "outside" s87 as would for instance the creditor terminating under some other clause

 

Yes i think this is a good point.

The act is as silent(as the brandon judge put it) on this as it is on contractutral temination. There is no reason why both parties cannot agree to temeinate, there is no reason why the debtor can terminate unilaterally but given that all liabilities under the agrement would imediatley become due especially so when in a default and enforcement situation they would be ill advised (to say the very least)to do so.

 

Peter

[gh2008]

Definition of rescinding a contract “de future”(in the future)

Taken from a summay by Sir Owen Dixon of McDonlak v Dennys Lascelles Ltd.

When one party to a simple contract, upon the breach by the other contracting party of a condition of the contract, elects to treat the contract as no longer binding upon him, the contract is not rescinded from the beginning. Both parties are discharged from the further performance s the contract, but the rights are not divested or discharged which have already been unconditionally acquired.

The original test here http://www.oup.co.uk/pdf/0-19-925011-1.pdf

As I said the rescission would not effect the liabilities already due on the contract

Peter

 

Ok, I accept your change of tack

 

"liabilities already due on the contract" now at the point of rescission acceptance the creditor is NOT entitled to sums not yet due.

 

If you insist they are then please explain how they become entitled. (Remember this is NOT the debtor terminating/cancelling the agreement, it is the creditor)

[gh2008]

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,

 

I do agree, this is AFAIK the first time this argument has been used (in this way) at trial.

 

IMHO the outcome is wrong in that it seems to use part of the CCA (early settlement) and part common law (rescission) to come up with an outcome where the debtor loses out big time when the creditor made such huge blunders in attempting to comply with the CCA

 

The outcome is, in fact, identical to that, had the DN been compliant - they have become entitled to sums not due - HOW!!!

[Peterbard]

Ok, I accept your change of tack

 

"liabilities already due on the contract" now at the point of rescission acceptance the creditor is NOT entitled to sums not yet due.

 

If you insist they are then please explain how they become entitled. (Remember this is NOT the debtor terminating/cancelling the agreement, it is the creditor)

 

change of tack dont understand always said that the interest already paid would not be part of the calculation .That is the whole point of me posting the eary settlement regulation please explain,you could illustrate by posting my suposed changing opinion everything i have said is on here, or you could just admit you do not understand.

The agreement was rescinded by permission of the debtor on your advise i think,difficult to do that without terminating the agreement.

 

Peter

[gh2008]

I feel an important point to remember in this is that in terms of Contract Law Pumpkinhead is the 'innocent party'

 

WHY?

The creditor unlawfully removed PH's right to the contractual right of the repayment of the debt by payments spread over the agreed period.

The creditor did not have the right to do this - therefore it was a serious breach of the contract (missed payments are NOT a serious breach of contract as the S87 allows this breach to be rectified and treated as though it had never happened)

 

interesting link - http://www.lawofcontract.co.uk/discharge/1002.php and the cases referred to in that

[Pumpkinhead]

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.

[Peterbard]

I do agree, this is AFAIK the first time this argument has been used (in this way) at trial.

 

IMHO the outcome is wrong in that it seems to use part of the CCA (early settlement) and part common law (rescission) to come up with an outcome where the debtor loses out big time when the creditor made such huge blunders in attempting to comply with the CCA

 

The outcome is, in fact, identical to that, had the DN been compliant - they have become entitled to sums not due - HOW!!!

Nothing to do with iether.

The debtor refused to avknowledge the agreement abd to abide by its terms what was the court supposed to do , just say alright then keep the creditors m,oney?

 

Sectiopn87 lists all the actions that have to be caried out in order for enforcement on breach of the debtor.It does not say there cannot be enforcement for ant other reason.

 

This was enforcement because the debtor repudiated the agreement pure and simple.Nothing in the act says it cannot happen

 

Peter

[Peterbard]

I feel an important point to remember in this is that in terms of Contract Law Pumpkinhead is the 'innocent party'

 

WHY?

The creditor unlawfully removed PH's right to the contractual right of the repayment of the debt by payments spread over the agreed period.

The creditor did not have the right to do this - therefore it was a serious breach of the contract (missed payments are NOT a serious breach of contract as the S87 allows this breach to be rectified and treated as though it had never happened)

 

interesting link - http://www.lawofcontract.co.uk/discharge/1002.php and the cases referred to in that

 

No in the terms of contract law he didthat himself when he rescinded the cotract.

 

Perhaps the ludge was wrong, you think

 

Peter

[Peterbard]

I feel an important point to remember in this is that in terms of Contract Law Pumpkinhead is the 'innocent party'

 

WHY?

The creditor unlawfully removed PH's right to the contractual right of the repayment of the debt by payments spread over the agreed period.

The creditor did not have the right to do this - therefore it was a serious breach of the contract (missed payments are NOT a serious breach of contract as the S87 allows this breach to be rectified and treated as though it had never happened)

 

interesting link - http://www.lawofcontract.co.uk/discharge/1002.php and the cases referred to in that

 

Failure to repay is not a seriuos breech of the contract.

 

What is then?