RBS Mint Loan - Court Action Started & Dodgy DN issues

[gh2008]

and we have to remember, that if this case is right, then it does away with the need for a DN at all ......

 

all the creditor has to do is terminate and then demand and then off to Court.

The debtor will have deemed to have accepted the termination by stopping payments.

[gh2008]

id say the creditor is entitled to consider the contract at an end if you miss two payments

 

An interesting supposition, but one as you know has no basis in Law ..... (wrt to CCA regulated agreements)

[volvodriver]

Are we saying the crediotr should be penalised for following the proceedure itemiised in the act.

 

No we are saying that the creditor penalises himself for not CORRECTLY following the procedure itemised in the act.

 

The crux of the issue is what happens after the creditor terminates following the issue of a defective DN, and then issues a claim in court.

 

For me the defective DN precludes the creditor from raising the claim and it should therefore be struck out, and if any judgement has been made that alters that, that judgement was wrong.

 

I have an open mind about whether the creditor can raise a further DN - I subscribe to the dead parrot view - if the creditor has terminated it, then its dead, and no further DN can be raised on it, but am open to being wrong on this. Again I'd like to know how the ACT treats this situation, as well as any modifying judgements.

 

If we accept the creditor can reissue a DN and get it right, then I believe he has an uphill battle to get a court to let him reissue a claim.

 

Its tough on the creditor, but they are the sophisticated institutions who have the resource to get it right.

 

So who is going to give LEGAL argument against this position?

 

Ands if this position is wrong who is going to state definitively what should happen in court in the scenario I gavce above?

 

Vdr

[pt2537]

it has basis in common sense granted , but if the creditor considers the contract to be ended on the conduct of the debtor and the debtor accepts the contract is ended, then he has used the provision of 173(3) hasnt he.

 

The point is,

 

The regulated regime is there to offer protection by information, it is not some large hammer to use to beat the creditor with, you only need to review the crowther report to see that , the penalties are explicitly set out by the Act where parliament felt they needed to be.

 

 

There is also a case called R vs Kettering Magistrates Court which also confirmed the common law provisions in respect of contracts are not applicable unless the act provides them, by virtue of s170

 

I was took to appeal over a common law remedy we had sought and got judgment in the first instance and the Court of Appeal ruled that there could be no sanction for breach of the act unless the act provided it

 

 

From my point of view, these arguments are not succeeding in court, we are getting enquires from people who are losing their cases on these arguments and i am struggling to find counsel who accept these arguments each time referring me back to the same points i raise here

[pumpytums]

YOu have to remember that the creditor despite what is currently being said is not acting unalwfully by terminating after a default even if it proven to be defective.

THe termination is merely inafective.

NO court wil find that a creditor acted unlawfully in trying to recover liabilities under a contract and how else is he to do it given the constraints of the act if he does not issue a default and terminate.

Are we saying the crediotr should be penalised for following the proceedure itemiised in the act.

And please dont go intot the moral outrage nonsence about the creditor being responsible for abusing the debtor the court will not wear it it is simply a case of an incorrect notice of action all that is needed is for the creditor to present a correct one.

 

Personally i do not see how a creditor can repudiate an agrement, to me this means denying the existance and how can he do that if he has liabilities under it. I think this is a simmilar scenario to a contractural termination which of course can never be considered repudiation.

I have read quite a few cases histories where repudiation has taken place now and to date i have yet to see one where there are actuall liabilities stilll under the contract, there are obligatios sure, obligations to perform that are not met but no actiual liabilities.

THis cannot be used to "write of" actual liabilities please show me the cases that demonstrate otherwise.

 

Also there is a missconception about the action of statute, the CCA regulates the contract, it isnt the actual contract. If something in the contract is not mentioned in the act it does not mean it is unlawful it just means that it is unregualted,there is no reason why the debtor cannot terminate within the act, but if they do they losse their rights under the agrement under the contract.

It is not a question of stepping outside of the act, i dont know who coined that phrase but it is totally missleading

It is just a question of the act not covering a particular aspect of either the contract or modifyhing common law as in section 87.

Peter

 

I think what we are saying Peter is that the creditor should be penalised for not following the act and the contract. I agree a termination with an invalid DN is not unlawful as their is no law covering it. The termination as you have said is ineffective and the contract continues. But the creditor should be responsible for their actions.

 

The moral outrage nonsense as you call it can lead perfectly happy and sane people to do truly horrific and shocking things. Have you every lived in fear of phone calls, home visits, bailiffs, courts appearances losing your home, job etc.

 

I have.

 

I don't visit this site for fun and kicks may I add, I can't afford legal representation so unless I roll over like a good doggy when the claim form pops though my letter box what the hell am I supposed to do. I have tried to make reduced payments many of my creditors have accepted some don't.

 

I think it's been proved that moral outrages do occur.

 

At the end of the day you borrow money this doesn't give anybody the right to torture you with only one realistic way out.

 

Pumpytums

[gh2008]

The regulated regime is there to offer protection by information, it is not some large hammer to use to beat the creditor with, you only need to review the crowther report to see that , the penalties are explicitly set out by the Act where parliament felt they needed to be.

 

 

Unfortunately that 'protection by information' i.e. the default notice was NOT carried out!!

 

I do appreciate your point and your stance and the opinions you have sought from Counsel

 

I am just wondering how the creditors have managed to sidestep the requirement for a default notice now/

They can terminate, they can demand sums not due and they can get Judgment to that effect, all without service of a Default Notice.

 

just seems to go against the CCA and caselaw

 

I do appreciate that, it may not be a straightforward case as it would certainly be a precedent setting one whichever way it went (should it go to appeal) as will Brandon & Costa

 

But then in the case of Swayne, at the time of their CC Judgment - they must have felt pretty much the same (although they had the financial clout themselves to do something about it....)

 

EDIT

 

sorry meant to comment on sanctions for breach bit

 

PH is not contending that there are any sanctions for breach.

All she is contending are the rights which the creditor had acquired before their termination of the contract did NOT include accelerated repayment of the debt.

Edited March 9, 2011 by gh2008

[emandcole]

So, you fail to pay you breach the contract, the creditor becomes entitled to sue for damages doesnt he? even the default regs refer to damages,so id say the creditor is entitled to consider the contract at an end if you miss two payments for example. I know i would if someone didnt pay me when they were under a contract to do so.

 

Thanks for this PT. However, if the creditor isn't paid it's not as if the debtor gets away with it penalty free. There will be a cost in terms of an applied charge, the extra interest will be accumulating and the debtors conduct is reported for 6 YEARS to an external agency. This same sequence of events takes place whether the payment is merely an hour late into the next day or if no payment is offered at all, so no sliding scale of debtor breach, just a one size for all slap round the face. Hasn't the creditor arguably extracted their pound of flesh therefore with a consequence lasting for 6 years?! You can take someones life and be punished for lesser time than that!

 

Another factor more common in older terms and conditions was the failure of the creditor to supply a schedule of charges as required by the CCA Regulations 1983 I believe it is. I for one have been effected by this, spending over 14 months arguing their lack of right to have applied any charges before they finally relented and returned £800 to the account balance to leave the true debt sum of around £100.

 

In this situation especially it would have been the creditor who breached the contract first by abusing the relationship so given your post does that mean I could have automatically claimed they'd breached the contract to its heart and elected to leave the agreement as they were taking the proverbial?

[emandcole]

Given all of this pretty gloomy talk about how the creditor can essentially do as they wish are we not forgetting that all of this must open up various channels surrounding unfair contracts etc? After all, were you ever told that although we propose this loan is to be regulated by the CCA actually we'll just ignore parts of that in the future if we need to, now if you could just sign here...leave it if you haven't got a pen it'll be fine...

 

It seems to me that if I enter into a contract with someone I am now basically permitted to sidestep any part of that agreement if it doesn't suit me or if it results in me losing out, even if I fail to observe the express terms binding that contract I'd previously agreed to.

 

Where in law does it state that any party can ignore any part of an agreement or ignore statute regulating it if it suits?

 

So, what is the point of a regulated contract? Seems like a waste of time doesn't it? Where does it all stop? Shall I just stop paying my Sky subscription ignoring what I agreed to and tell them where to go safe in the knowledge that a court will tell Sky to do one if they attempt to claim for future losses under that breached agreement?

 

Why doesn't anyone with a mobile phone contract just stop paying as they've decided they now don't like the 18 month tie in? Seems the courts aren't that bothered with terms and conditions or the regulation supposedly governing it at all.

[volvodriver]

Given all of this pretty gloomy talk about how the creditor can essentially do as they wish are we not forgetting that all of this must open up various channels surrounding unfair contracts etc? After all, were you ever told that although we propose this loan is to be regulated by the CCA actually we'll just ignore parts of that in the future if we need to, now if you could just sign here...leave it if you haven't got a pen it'll be fine...

 

It seems to me that if I enter into a contract with someone I am now basically permitted to sidestep any part of that agreement if it doesn't suit me or if it results in me losing out, even if I fail to observe the express terms binding that contract I'd previously agreed to.

 

Where in law does it state that any party can ignore any part of an agreement or ignore statute regulating it if it suits?

 

So, what is the point of a regulated contract? Seems like a waste of time doesn't it? Where does it all stop? Shall I just stop paying my Sky subscription ignoring what I agreed to and tell them where to go safe in the knowledge that a court will tell Sky to do one if they attempt to claim for future losses under that breached agreement?

 

Why doesn't anyone with a mobile phone contract just stop paying as they've decided they now don't like the 18 month tie in? Seems the courts aren't that bothered with terms and conditions or the regulation supposedly governing it at all.

 

Because as any sane thinking person knows the gloomy talk is guff and obfuscation.

 

Cases have been lost that never should have, LIPs have jumped on bandwagons because they were so desperate and knew not where to turn. CMCs and Rankin muddied the water, and yes, regrettably some LIPs ended up com0letely out of their depth in court. (not suggesting that here). And then some pro creditor friendly posters have run us ragged when its really quite simple - has the creditor followed the procedure which enables him successfully to prosecute a claim?

 

I think I read DD saying somewhere that he would like to take some of these supposedly settled issues back into court.

 

I wish he would.

[emandcole]

Because as any sane thinking person knows the gloomy talk is guff and obfuscation.

 

Phew, good to have that confirmed. Shows the dark side can have effect on any of us

[gh2008]

The 'problem' with this case as I see it is that it could put too much power in the hands of the debtor.

 

The creditor makes a mistake and the debtor has found a way to hold the creditor to that mistake

 

On the face of it. the debtor has suffered little prejudice from the DN (Until any of the actions are taken by the creditor which they are not entitled to take as that goes into Unfair territory) That is the argument as per Brandon

 

Allowing the debtor to force the creditor to stand by their actions is that fair presuming the creditor was not malicious in their intent

 

Should this case go to appeal it would be setting a massive precedent - 1 faulty DN and then any action by creditor to enforce and "bang, game over for creditor"

very serious precedent ...

 

just my thoughts

Edited March 9, 2011 by gh2008
changing teh to the - damn my motor memory !!

[gh2008]

The other aspect now is to also consider

 

Is there an unfair relationship in respect of what the creditor has done whilst not entitled?

Is there a claim for damages due to breach of contract (as PH was told by the DJ there may be)?

[pt2537]

im not trying to be gloomy

 

We took Harrison to the High Court and won, we took Kotecha to the Court of Appeal and won,

 

We too Cresswell before the Court when everyone was saying it didnt have legs,

 

The point is, the arguments we ran, were logical and were approved by the Court. I have seen judgments given on these repudiation arguments and i am yet to see one win for the consumer

 

Yet we have taken peoples cases who have been looking at the repudiation point and driven them away from it, and run proper legal argument on statutory breaches etc, or the defects within the default notice and WON

 

We can all debate this till were blue in the face, but im sorry its a FACT that these arguments of Repudiation arent winning the day

[volvodriver]

The 'problem' with this case as I see it is that it could put too much power in the hands of the debtor.

 

The creditor makes a mistake and the debtor has found a way to hold the creditor to that mistake

 

On the face of it. the debtor has suffered little prejudice from the DN (Until any of the actions are taken by the creditor which they are not entitled to take as that goes into Unfair territory) That is the argument as per Brandon

 

Allowing the debtor to force the creditor to stand by their actions is that fair presuming the creditor was not malicious in their intent

 

Should this case go to appeal it would be setting a massive precedent - 1 faulty DN and then any action by creditor to enforce and "bang, game over for creditor"

very serious precedent ...

 

just my thoughts

 

Good thoughts, but I think that is exactly what the act as drafted intended. The creditor should get it right.

 

No claim taken to court by a creditor/DCA should ever fail.

 

The fact they do evidences that they got it wrong. Tough.

 

Would the banks and DCAs extend an olive branch if it was the other way round?

[volvodriver]

Paul

 

I think we may have moved on from aeguments about repudiation.

 

What we want to know, and keep asking is:

 

What should happen at court when a creditor issues a claim on the back of a bad DN, and says the agreement is terminated.

[pumpytums]

Phew, good to have that confirmed. Shows the dark side can have effect on any of us

 

'Those who stand for nothing fall for anything'

 

When I grow up I want to be a bank and get paid millions for been crap. Engineering, Art's, Architecture, Medicine stuff that go into law.

 

Pumpytums

[DonkeyB]

Firstley you do not have to be so formal Peter will do

 

Yes i do argue that the faulty DN cannot be evidence in the enforcement because the enforcemnt cannot happen the creditor is not initled to enforce.However that is a liitle beside the point. Yes any argument regarding a defaective DN is to an extent irrelavant because all the crediot has to do is re present,it only puts of the enforcement process it can never end it unless the credittor decides it should.

 

Peter

 

First, Peter, I disagree with your semantic argument about ‘evidence’. If a claimant puts a dodgy DN in to its case as evidence, it remains that – evidence. bad and useless evidence, but evidence nevertheless. The claimant will be told to go away because its evidence failed. Please don’t add extra bits to what you supposedly originally meant to wriggle out of it, you naughty boy. I’ll agree to disagree.

 

And yes Peter, we know that all the creditor has to do is re-present a compliant DN... but that in itself will not necessarily give rise to enforcement, just the next step on the road to enforcement id the debtor fails to comply, and will also give rise to the protection offered to the debtor who can then remedy the default. I think we’re agreed on that.

 

What I’d love is some answers to my questions about PRACTICAL situations – why should CPR 38.7 not kick in? The basis of the case is materially the same, surely. Reissuing a compliant DN does not alter the thrust of the case. Why should they be entitled to have another go? And are you aware of a case where it has happened and the claimant has won? That’s the discussion I’d like to see.

[diddydicky]

Yes rather the point he couldnt have teminated though could he , he had a dodgy default.So who did.

 

Peter

 

again the point being made- which kinda shoots your argument down in flames yet again- has nothing to do with the issues involved- merely that the DJ that you seem so keen to promote as being right all the time- yet again had his reasoning shot down in flames by an appeal!!

 

we all know full well what DJ's decide- but we also all know that many of them are "jacks of all (legal) trades- and masters of none! they can and are wrong in many instances- so unlike yourself - the rest of us dont always take "their word" as gospel!

[DonkeyB]

A small semantic point... if the OP had elected rescission of the agreement, and there was no rescission, then surely any termination by the OP is invalid as there was no rescission? (...or repudiation, or hatever...)

 

This is the logic of why a dodgy DN means no termination is possible, so surely an acceptance of something that hasn’t actually happened is just as invalid?

 

Think this may already have been mooted, so apologies if it has.

[Peterbard]

So, we've seen as in PH's case that the county court accepts that a debtor can accept rescission or repudiation if the creditor has defaulted and terminated - this has led us to the confusing question of entitlement to liability (had repudiation been indicated rather than rescission).

 

NO there has been no repudiation (cannot be)by the creditor. There is an an argument for saying that the debtor repudiated the agrement by saying that they were no longer bound by it.Because she would have no ilabilitites under it just the obligation to perform(repay the loan)

 

Other than entitlement there also seems to be uncertainty over termination as in - is it or isn't it?

 

I suspect most of us advocate the notion that if a default has been served and is then followed by formal notice of termination along with DCA threats for months and then topped off with a court summons that it is indeed very much dead. The common man is bound remember by his deeds, especially where he allows a document to leave his care.

 

I think somethng is missing her what about the loan that needs to be repaid and hasnt duriong all this creditor action.

THe bound by ther deeds argument is not going to do PH any god is it?

The only issue would be that another default notice cannot be issued on a dead agreement..or that shows the agreement is alive does it not? As in the excerpt Pumpy includes earlier...

 

75. 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.

 

I see that this particular paragraph makes no mention of when these notices can be re-issued as certainly yes, the creditor is perfectly entitled to correct their mistake before termination with a re-issue, however, did the court state that the same is true when the creditor has implied and acted in a manner supporting the agreement has actually ended, indeed as the judge sits there scratching their head?

 

Entitlement seems to me to be as confusing as the actual issue of termination. If the creditor has defaulted, terminated, demanded full payment, threatened via DCA and then issued court paperwork can they really excuse all that and act as if the agreement is conveniently still alive?

 

Clearly the implications are huge and being able to pin down what is and isn't termination would be very useful given the 'is it' or 'isn't it' we're all familair with.

 

I thnk termiation is when the contract terms no longer apply to the agreement. Sums under the termianted agreement are however still due.

 

Peter

[DonkeyB]

Bloody typos... apologies, can’t edit as I have been gelded...

[diddydicky]

Yes that was the one i was thinking of it was reffered todoh by the lords when they decided that the agreement was simply unenforceabe not that the sums were not owed and thus was not a breach of the creditors human rights.

Section 27 of the HOL judgement

 

Peter

 

well both these statements came from the HOL .... so if a creditor writes and tells a debtor that he has terminated the agreement and demands immediate repayment of sums not yet due -where in these two rulings does it say that they do not apply to signed documents in relation to

CCA agreements?

 

i've highlighted the pertinent points in order to assist you

 

 

"... a person who signs a document, and parts with it so that it may come into other hands, has a responsibility, that of the normal man of prudence, to take care what he signs, which if neglected, prevents him from denying his liability under the document according to its tenor".

[per Lord Wilberforce in Gallie v Lee (1971)]

 

'.. a man cannot escape from the consequences, as regards innocent third parties, of signing a document if, being a man of ordinary education and competence, he chooses to sign it without informing himself of its purport and effect..'

[per Scott LJ in Norwich & Peterborough Building Society v Steed (1992)]

 

In short, the creditor is bound by his deed. All that is required is for the debtor to accept the creditor's termination. He can write saying 'thank you I accept you termination' or he can conduct himself in a way in keeping with that termination. Not paying the instalments would be in keeping with an acceptance of the termination.

[Peterbard]

A small semantic point... if the OP had elected rescission of the agreement, and there was no rescission, then surely any termination by the OP is invalid as there was no rescission? (...or repudiation, or hatever...)

 

This is the logic of why a dodgy DN means no termination is possible, so surely an acceptance of something that hasn’t actually happened is just as invalid?

 

Think this may already have been mooted, so apologies if it has.

 

NO Appolocies needed.

THe debtor stated that she wished the agrement to be termianted, if she had not wished it she woujld not have soght to accept the termination.

 

By accepting it she sought to make the termiantion billateral, in effect it was not because the creditor was not entitled to terminatl, so it was just the debtor that termianted which of course is her right although as we saw not in her best interests

[diddydicky]

Sorry dont understand .Surely a lay person would have done nothing and recieved the protection of the act, the agreement would not ha ve been enforced .The court admited the DN was faulty.It was the debtor trying to exploit some loophle (recomende by some on here) that got here into trouble.

Peter

 

oh no it was not- it was a biased judge looking for a way to find for the creditor-- and if that is not overturned on appeal i'll show my ar*e in burtons window- (and it's not a pretty sight)

[DonkeyB]

NO Appolocies needed.

THe debtor stated that she wished the agrement to be termianted, if she had not wished it she woujld not have soght to accept the termination.

 

By accepting it she sought to make the termiantion billateral, in effect it was not because the creditor was not entitled to terminatl, so it was just the debtor that termianted which of course is her right although as we saw not in her best interests

 

I see where you’re coming from Peter, but if she sought termination on a FALSE basis, why should it stand?