RBS Mint Loan - Court Action Started & Dodgy DN issues

[Peterbard]

prospective maybe the key word re S57?? rather than executed

 

and it WAS a credit agreement, it was an HP agreement under the CCA and I think you will find they got to keep the copier ....

 

And no-one has answered my question for the OP

 

How and when did teh creditor become entitled to sums not yet due?

 

I will still keep coming back to this as this point is the 'point' of this thread

 

Hi wellno actually the key word is "made" According to Goode an agreement is made when some action is taken on it following execution

This would be the forwarding of the credit.

 

The act would hardley say that iether party could wthdraw before it was executed,that is a bit obvious.

 

Really kept the coppier didnt see that in the transcript.

 

Any way the point is that as a hire agreement,when the arrears where paid there were no further liabilities under the agreementThe hire would be up to date and no further action could be taken.

In a credit agreement the liabilities unde the agreement remin they are not writen off.The only reason they are in a hire agreement is ecause they are losses not liabilies.

 

If you default a credit agreement and the default is defective the liabilities are still due.

 

Peter

 

P

[Peterbard]

You cant kill something twice, once its a dead parrot it's dead, terminated, shuffled its mortal coil etc.

 

The claimant killed it. If anyone tries to effect further death on it they are bound to fail.

 

Its not me who is complicating it.

 

My point is very simple, and I believe supported by the judge in Harrison v Link.

 

If the DN is bad, the claimant has no rights under the CCA.

 

What part of that is:

 

a) incorrect

 

b) complicated

 

Vdr

 

Doesnt need any rights under the CCA, the CCA does not stop the court from enforcing after the voluntary terniat8ion of a debtor .

A default notice is only required if the creditor seeks to terminate on"breach of the debtor".This seems to be the view of the DJ also,

 

Peter

[volvodriver]

A default notice is only required if the creditor seeks to terminate on"breach of the debtor".This seems to be the view of the DJ also,

 

Peter

 

And is that not was relied on to bring proceedings in the first place?

 

And the DN was defective.

 

And the claimant lost their rights under the CCA.

 

Therefore anything after that is meaningless.

 

We need to get back to what I will call (probably wrongly) the cause of action - where did it start going wrong, and wind back to that, and address it.

[Peterbard]

And is that not was relied on to bring proceedings in the first place?

 

And the DN was defective.

 

And the claimant lost their rights under the CCA.

 

Therefore anything after that is meaningless.

 

We need to get back to what I will call (probably wrongly) the cause of action - where did it start going wrong, and wind back to that, and address it.

 

Thing is i do not believe it was decide wrongly.

 

The DJ admitted that theDN was defective.Really shee needed to do no more.

 

However as said if she decides she is not going to abide by the terms of the agreement the any protection she had under that ageement disapear.

 

I do however think that this was harsh treatment on a lip.

I know when Welshman mentioned this defence the judge tipped him the wink(i believe) that it was suicidal,fortunately he changed his deffence to suit

 

Peter

[car2403]

Well here we have a clear case of inarticulate drivel.

 

Where are the moderators?

 

If you feel that posts are breaching the forum rules, please report them using the exclamation triangle underneath each post. Site team will review it and act accordingly on each reported post.

[Peterbard]

And is that not was relied on to bring proceedings in the first place?

 

And the DN was defective.

 

And the claimant lost their rights under the CCA.

 

Therefore anything after that is meaningless.

 

We need to get back to what I will call (probably wrongly) the cause of action - where did it start going wrong, and wind back to that, and address it.

 

Sory idont understand what your reasoning is here.Why do you think by issuing a defective DN the creditor lost his rights uner he CCA he just lost the right to enforce on that occasion didnt he.

 

Anyway as i said earlier it is irrelavant,the CCA does not stop the court from enforcing in this case

 

Peter

[diddydicky]

Volvo You're probably right. However PH now seems to have posted up everything relevant - so we now actually have a ball to kick instead of just each other.

 

Can I therefore suggest that those who claim to have a lot of knowledge in these matters now study all the material carefully and advise PH on what her options now are, based on what has happened in her case? Let's forget about scoring points based on semantics and focus on helping PH!

 

My own (non-expert) view is that the other side (creditors) deliberately (and unfairly) manoeuvered her into a corner and that, as a lay person, she should be excused for the obvious interchange of the use rescission and repudiation - and should not be put at any unfair disadvantage because of this.

 

To my simple mind if you are invited to end an agreement - i.e. "call it quits" then that is what exactly what it means - "stop it here and now and nothing more to be asked for or given by either party".

 

Even if the creditor IS entitled to repayment of the principal in full PLUS interest "already earned" then it is a moot point as to what has already been "earned" as the interest rate charged was based on a 7 year agreement and not the truncated (3 year?) term imposed by the creditors. I raised a point in a post yesterday (which seems to have disappeared?) that it is not fair to charge the same (higher) interest rate on a SHORT TERM loan as charged on a LONG TERM Loan.

 

Look at the mortgage deals available now - much higher for 5 or 7 year fixed rate deals than for 2-3 year fixed rate deals. I believe it could be argued PH would not have agreed to the higher rate on the shorter term loan - and in that respect the Creditor has been unfairly advantaged whereas the failure to produce a valid DN should have had the opposite effect according to Francis Bennion's intentions.

 

I agree it would be far better if she were professionally represented in any appeal - and hopefully the recent ruling against Link in Wales may help her case now?

 

BD

 

BTW - does anyone know when the Brandon appeal is likely to be heard 9and ruled upon)?

 

rather than concentrate on what the other side did ( or did not do) i would concentrate on what the judge did (or did not) do- misdirect him/herself would be a good start

[car2403]

so those of mine that were removed can be put back?

 

do we get to spank the mods bums when they transgress?

 

LOL

 

Posts moderated aren't restored by the site team - any 'complaints' about how moderation is completed should be reported to site admin (admin @ consumeractiongroup.co.uk - remove the spaces, inserted by the forum software to remove spam attacks) who will review the situation and take appropriate action. Site admin may restore your posts if they don't agree with the moderation that has taken place. Similarly, they may agree with it and not restore them - that's more likely, as the mods work as a team and don't (generally) remove posts unnecessarily, contrary to popular beliefs. (We actually have better things to do, like discussing who has the key to the tea cupboard in the staff canteen or something)

 

good, this place is like the dentists and the morgue

 

if you dont have a laugh now and then youll go round the twist!

 

Indeed, or further around it for those numbers between us that are already there.

[emandcole]

Looks as if we have the start of something useful. How are we going to do this and is PH up for captaining our little boat?

[diddydicky]

Posts moderated aren't restored by the site team - any 'complaints' about how moderation is completed should be reported to site admin (admin @ consumeractiongroup.co.uk - remove the spaces, inserted by the forum software to remove spam attacks) who will review the situation and take appropriate action. Site admin may restore your posts if they don't agree with the moderation that has taken place. Similarly, they may agree with it and not restore them - that's more likely, as the mods work as a team and don't (generally) remove posts unnecessarily, contrary to popular beliefs. (We actually have better things to do, like discussing who has the key to the tea cupboard in the staff canteen or something)

 

 

 

Indeed, or further around it for those numbers between us that are already there.

 

[Bigdebtor]

Posts moderated aren't restored by the site team - any 'complaints' about how moderation is completed should be reported to site admin (admin @ consumeractiongroup.co.uk - remove the spaces, inserted by the forum software to remove spam attacks) who will review the situation and take appropriate action. Site admin may restore your posts if they don't agree with the moderation that has taken place. Similarly, they may agree with it and not restore them - that's more likely, as the mods work as a team and don't (generally) remove posts unnecessarily, contrary to popular beliefs. (We actually have better things to do, like discussing who has the key to the tea cupboard in the staff canteen or something)

 

 

 

Indeed, or further around it for those numbers between us that are already there.

 

Fair enough - but I don't see why the scary dominatrix picture was taken down. Can Site admin put it back up PLEASE??

 

BD

 

PS - Only to remind us not to be naughty again - honest!

[Bigdebtor]

rather than concentrate on what the other side did ( or did not do) i would concentrate on what the judge did (or did not) do- misdirect him/herself would be a good start

 

DD

 

I don't disagree that the judge was daft - but surely it's also quite valid to question how the creditor, by not doing things properly in the first place, managed to get PH to accept the termination (if that's actually what she did) and comes out of this smelling of roses? It actually reminds me of some "battles" on CAG where the "respondent" gets more hammered than the perpitrator (Joke - mods - honest!)

 

I also think there is a valid argument to challenge the interest deemed as "due" since common practice is to charge lower rates on shorter term loans - if all else fails.

 

BD

 

PS - I nearly wasn't going to reply to you as my Mum told me not to talk to boys who use naughty words like "bum" - even (especially?) when coupled with "spanked".

 

PPS - If that scary dominatrix picture was still up I wouldn't dare have said that!

[emandcole]

I might get in trouble but...

 

 

here's Super Nanny

[diddydicky]

you are more likely to get an appeal if it can be shown that the judge misdirected

 

the problem with what the creditor did is that those arguments should have been used from the off

[Bigdebtor]

Eman

 

Admit it - you WANT to get into trouble - don't you?

[gh2008]

On the thread you have the POC, initial defence

PH's app for SO

Claimant's app to amend POC last minute before PH's app

 

Amended POC and amended Defence

 

Both side's skellys

Both sides WS

 

summary of trial hearing

 

---

 

As I have said before, the arguments put forward by members of the site are actually better than those relied upon by the Claimant IMHO.

Read the Skelly again and see exactly what teh Claimant's said rather than what you think they should have been arguing.

 

The one bit of info that we need would be at least a transcript of teh Judgement (better for whole trial) as it is only then anyone would be able to assess exactly how the DJ came to their thinking.

 

PH has already been given leave to appeal (by the sounds of what she was told in Court by the DJ)

 

I am also interested on what grounds the DJ awarded costs against PH in a SCT trial.

PH's argument at trial was not new and she received positive 'vibes' from the DJ at the application hearing

[gh2008]

you are more likely to get an appeal if it can be shown that the judge misdirected

 

the problem with what the creditor did is that those arguments should have been used from the off

 

If PH didn't accept they were going to apply to stay proceedings and issue a new compliant DN

[gh2008]

I also think that there may be some useful info in the original Woodchester v Swain hearing. The one where the DJ ordered Swain to pay £13k (i.e. full rights as in PH's case) which was then overturned at appeal down to lawful arrears at termination (which was taken to be date of issue of the DN interestingly).

[Undercover-Elsa]

Don't know if it will help, but here's the link for pro bono lawyers:

 

http://www.lawworks.org.uk/index.php?cID=10354

 

I know they take on cases who don't qualify for legal aid, and also run advice clinics in different areas.

[Pumpkinhead]

Originally posted by Diddydicky ..... is stated that either party can terminate the agreement under a separate clause in the agreement (has anyone BTW checked this agreement for that clause- it aint in all of them)

I've looked at the agreement again. It says that I have a right to settle at any time by giving notice in writing and paying off the amount I owe under the agreement which may be reduced by a rebate. It also says that the Creditor if:

 

• I fail to make an instalment repayment within one month of its due date, or
  
• I provide inaccurate information
  
• I die/become insolvent etc
  

then we shall become entitled after the expire of proper notice to demand immediate payment of the loan plus interest and charges on default less (on payment any applicable rebate).

 

There is nothing on the agreement specifically about my rights to terminate the agreement which I think is odd given that it was an agreement discussed over the phone and had to have been subject to the distance marketing regs. Why didn't I get a cooling off period for example?

 

There is nothing in the agreement that says the Creditor can terminate at any time without one of the exceptions I've listed above occuring.

 

I am very grateful for your pledges of funding and for all your interest and support. I have decided to get a copy of the Judgement.

[Peterbard]

i accept your summing up of the position of the parties vis termination

 

however- it is clear from the claimants letter that she accepted the creditors first action which was termination

 

the creditor therefore was NOT entitled to payment of sums not yet due as it was the creditor NOT the debtor that terminated

 

you can argue till the cows come home that the creditor did not ACTUALLY terminate- because of a techicality- (the invalid DN)- and you would be right BUT.... i say again- if the creditor- with all their legal knowledge was unaware that thei termination was not valid, how in gods name was the debtor supposed to know?

 

the debtor was clearly misled by the creditors termination and clearly made a transactional decision ( to accept the creditors termination and all that goes with it) which she may well otherwise not have made had she not been misled by the creditor

 

 

 

There are strong grounds for appeal here

 

how far adrift of OFT guidelines does the creditor have to go!

 

Dont really uderstand why you think the creditor was not entitled to his money no matter who terminated

 

Peter

[Bigdebtor]

GH

 

I know you will be up to speed on this anyway (and it may well have been put more eloquently earlier on this thread) - but please just humour me.....I believe my point is relevant to PH if a bit rambling.....

 

In Woodchester, if the copier was not retained by the Law firm, then arrears would be all that was due - as no further benefit could be gained by the hirer - so why should they pay more in any case? However if it was kept by the Hirer (which I believe it was?) then the fact that Lawful arrears is all that is due is VERY significant - in that the dodgy DN denied the Claimant the right to any further benefits under the contract. Does anyone know what para of what statute it is that states this - and is it definitely applicable to contracts regulated by CCA?

 

I recollect this "lawful arrears only due" was a key thrust in the Pinky69 thread - but had cold water poured on it by some claiming that contracts "could not be unlawfully terminated " by either party - or even both! Also from memory I think this is also what was decided in the Brandon case - which is why the appeal is so important to many.

 

Relevance to PH? If a contact CAN be terminated on the back of a dodgy DN (which was not corrected first) then surely the same "arrears only" logic applies as in Woodchester? Are there any more recent cases dealing with CCA agreements with the same outcome?

 

Surely the key thing is not whether PH accepted their termination or not? Surely it is whether the termination COULD be made in the first place?

 

If it could and it was on the back of a dodgy DN then surely only arrears are now due?

 

If it couldn't be terminated by the creditor unilaterally (due to dodgy DN) then PH couldn't accept subsequently something that wasn't there in the first place?

 

BD

[Bigdebtor]

Dont really uderstand why you think the creditor was not entitled to his money no matter who terminated

 

Peter

 

Because that would mean the creditor would win BOTH ways - either by staying within the rules - or by going outside the rules (without any penalty whatsoever).

 

Two opposites surely cannot have the same effect - WET is not DRY and WRONG is not RIGHT.

 

BD

[Peterbard]

Because that would mean the creditor would win BOTH ways - either by staying within the rules - or by going outside the rules (without any penalty whatsoever).

 

Two opposites surely cannot have the same effect - WET is not DRY and WRONG is not RIGHT.

 

BD

 

So the creditor is not entitled to recover his money?

 

And really as said woodchester was a hire agreement the sums due where not actual they were futre earnings from the contract. These could only be claimed after the DN had been effectivley served and the court could then enforce the ageement for losses.

WHen the default was found to be innafective the creditor could not claim them, and when the arrears where paid they where no longer due because the acount was upto date.

THis is a loan agreement even when the arrears are paid the ballance of the liabilities are still there, whether they are paid of as per the contract or paid off immediatly they will have to be paid.

Peter

[gh2008]

in PH's case the contract was NOT terminated 'on the back of a DN faulty or not'

(the creditor could not have relied upon the faulty DN as Harrison has recently confirmed)

 

It was terminated by the creditor of their own free will. They refused to allow PH to repay teh loan as per contract, they withdrew her right to repay over another 3 or so years.

 

That termination was stated as being a fundamental breach of contract by PH

 

That termination was effective - there is no argument about that.

 

The argument is about what rights teh creditor had at the time of their breach of contract (termination). Simple as that.