RBS Mint Loan - Court Action Started & Dodgy DN issues

[diddydicky]

Would people please stop using the word rescission. No debtor would wish to rescind their agreement - that would mean putting everyone in a position before the agreement was entered into. That would be a very complicated accounting excercise.

 

What we are alleging the creditors have done by terminating without the s87 entitlement is repudiation and may be anticipatory repudiation, i.e. a failure to perform or even a declaration not to perform in future.

 

your are 100% correct- but bear in mind that as a LIP the judge should and must give the benefit of the LIp getting their words mixed up in such a situation and not seek to try to make a finding on such a "technical" error on the part of the debtor-- the tone of the debtors letter makes it perfectly clear to a legally trained person that the word rescission was innocently and mistakenly used instead of repudiation

 

if the judge has used that alone to say that the debtor terminated the agreement then ill bet a years salary that she is knocked back in an appeal court

 

the judge opens up and entirely new avenue for debtors to get out of CCA agreements- since if taken at face value- what the judge is saying is that a debtor can terminate a CCA agreement by simply writing to the creditor and making that election

 

I SAY that the ONLY way a court would accept that a debtor could unilaterally terminate an agreement- (and the only way that a creditor would ever accept the termination) is if the debtor paid the entire balance owing to the creditor at the time of his "termination"

 

 

 

THIS judge- on the face of it gives all debtors the right to terminate their agreements- without paying anything back to the creditor! i dont think so judgy

[Peterbard]

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?

 

This refers to enforcement. THe creditor can termiante he can even right to the debtor and demand payment he cannot enforce however well he could try.

 

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)]

 

So are you saying that under a credit agreement if the creditor signs an agreement he is bound to supply the goods or money, because if you are you are wrong the act also protects creditors i am affraid as before see section 57.

'.. 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)]

 

Third parties ?is this relavent

 

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

This is not true i am affraid i know that this has been repeated parrot fassion since Surfaceagent wrote it in 08 but it was not true then and it is equally flawed now in regards to credit agreements and particulairily on issues of default

.

 

I cannot see how not paying can be regarded as acceptoing a termoination or even a repudiation, the obligation to pay is part of the agreement the liablity to pay remains wether the debtor repays or not.

This is being confused with contract law where the failure of performance by one party has to be accepted by the other party in orde to prove repudiation

 

Peter

[diddydicky]

HICar

 

THe OP was pretected aginstthe enforcement of the agreement by secton87 of the act.

BY terminating the agreement she opted to end that agreement , there is nothing in the act that says she cannot do so as indeed can the creditor. Therefore there is no protection within the act for this action.

 

The enforcement was not made because of the breach, in fact it couldnt. BUt there is nothing as i said within the act that prvevents enforcement for a none bereach situation, no notice is required. There is no protection within the act for someone who voluntarrily decides to cease performing, nor could there be.

 

 

Peter

 

 

but there is something in the AGREEMENT which prevented PH from terminating the agreement!!

[Peterbard]

your are 100% correct- but bear in mind that as a LIP the judge should and must give the benefit of the LIp getting their words mixed up in such a situation and not seek to try to make a finding on such a "technical" error on the part of the debtor-- the tone of the debtors letter makes it perfectly clear to a legally trained person that the word rescission was innocently and mistakenly used instead of repudiation

 

Well n ot really, if the repudiation of the agreement would have been possible (which it wasnt) then the court would have rescinded the agrement (it can be , and usually is used as remedy). so it does not treally matte which term she used the point is she wished to terminate

if the judge has used that alone to say that the debtor terminated the agreement then ill bet a years salary that she is knocked back in an appeal court

 

the judge opens up and entirely new avenue for debtors to get out of CCA agreements- since if taken at face value- what the judge is saying is that a debtor can terminate a CCA agreement by simply writing to the creditor and making that election

 

If the debtor terminates and makes it plain that she is not going to repay i think the court is justified in enforcing the agrement and ther is nothing in the act to say they cannot do it.

I SAY that the ONLY way a court would accept that a debtor could unilaterally terminate and agreement- is if they paid the entire balance owing to the creditor at the time

 

Well yes that is what the court ordered the dentor to do?

THIS judge- on the face of it gives all debtors the right to terminate their agreements- without paying anything back to the creditor! i dont think so judg

 

NO he is enforcing the agreement in order to get the debtor to repay isnt that the point?

 

y

 

See abive

 

Petr

[Peterbard]

but there is something in the AGREEMENT which prevented PH from terminating the agreement!!

 

SO the debtor is not able to terminate a credit agreement?

 

What is that then why wasnt the DJ aware of it, i think this is very important please tell us

 

Petr

[emandcole]

On the basis of all of the above I see absolutely no purpose for the CCA or in fact even for an agreement. Once the creditor has placed the funds in your account they can do as they wish, the overriding objective of awarding their money back howsoever and whenever requested being the objective of the court.

 

In effect the CCA is little more than a nice guide to aim at if anyone can be arsed. Would explain why it's taken nearly 4 decades to get the composure of a DN right wouldn't it, and still they get it wrong, not that it matters.

[Peterbard]

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

 

 

Well here yuo have a valid point.

Although i think she certainly had the right to terminate, and her motives for attempting this are ot going to be popular with the court. It is true that she was under a false premise that this was a legally viable option, i would have expected that as a LIP she wuould have been given more leeway and perhaps advised the same.

In have a feeling that this particular DJ was trying to make a point.The question is can that be used as reason for challenging the descision.

 

Personally i do not think so but it is an arguable point.

 

Peter

[diddydicky]

This goes to the heart of the debate, who broke the contract?

 

Why does a creditor issue a default notice in any event? lets stop and think about it, maybe its because the debtor fails to pay the amounts due under the contract.

 

There is nothing in law that says a creditor is bound to accept lower amounts and thus no breach of contract occurs, and id suggest that failing to pay goes right to the heart of the contract.In fact there is case law that says payment of a smaller sum in consideration of a larger sum is not good consideration (see Re Select-move) One could argue that the payment clause of a CCA agreement is of utmost importance as can be seen by it being made a statutory prescribed term.

 

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.

 

So i cannot see how this repudiation argument can work, indeed i have heard of around 7 cases now and each time its failed

 

no, he doesn't- not until he gives the debtor the opportunity - by way of a valid DN to remedy the alleged breach

 

which is precisely what we are talking about - he didn't - so he is NOT allowed to sue for sums not yet due under the agreement

 

The creditor in this case has made it clear that he does not intend to continue to perform BEFORE he has given the debtor the opportunity to remedy the alleged breach- and has demanded payment of sums not yet due when he is not entitled to do so

 

the debtor , in the meantime, deprived of the ability to make monthly payments and faced with a demand for a large sum of money- does some research ( we are not suggesting she does a 5 year law degree before challenging what the creditor has done are we? ) and realises that the creditor has not acted in accordance with the CCA and has repudiated (refused to perform)

 

she could , as some have said, done nothing (and then found herself in court - as the creditor would have blindly continued to pursue), or she could point out (which she did in her letter) that the creditor was wrong and had unlawfully repudiated and she therefore elected.

 

now it may well be that some part of the act precludes this course of action..............and i say it was encumbent upon the judge to correct this in court (not by a "wink and a nod" as some have suggested) but to use the phraseology we so often hear from judges AGAINST a defendant when the talk of people using "technical arguments" to avoid their responsibilities- and should have turned that same rhetorci and logic against the creditor)

 

the judge (as in your case recently) could easily and simply have said to the creditor-- " whatever the debtors response- and whatever the arguments as to repudiation/rescisson ) the fact is that you did not serve a valid DN- did not correct the invalid DN - even though the debtor alerted you to its deficiencies- therefore you are not entitled to terminate the agreement or claim immediate payment of sums not yet due under the agreement

 

furthermore- having as i said, been alerted to your failings in respect of compliance with CCA s87- the costs in continuing your action when you were clearly not in a position to do so- are for your own account.

 

perhaps, from your day to day dealings in court , you have become "too polite" to point out to the judge that this is supposed to be an act to PROTECT the consumer- not to ensure that the creditor gets paid.

 

I say that the onus is on the CREDITOR (as the judge said in BOS v R Mitchell)- and that having been alerted by the debtor (or anyone acting for the debtor) to their mistake- it was they who should have stopped the action they had undertaken and rewind back to the start

 

the counsel acting for PH should have told the judge so in no uncertain terms (IMO)

Edited March 9, 2011 by diddydicky

[Peterbard]

On the basis of all of the above I see absolutely no purpose for the CCA or in fact even for an agreement. Once the creditor has placed the funds in your account they can do as they wish, the overriding objective of awarding their money back howsoever and whenever requested being the objective of the court.

 

In effect the CCA is little more than a nice guide to aim at if anyone can be arsed. Would explain why it's taken nearly 4 decades to get the composure of a DN right wouldn't it, and still they get it wrong, not that it matters.

 

I think we must remember that the act is for consumer protection.

It is not a device for evading payment. Iduing a faujlty DN is not reason for a loan to be writen of either in law, or morrally.

 

Petr

[car2403]

Is the issue with the questions around unfair relationships not that these were not pleaded in the original defence, though? You can't bring new arguments to the table just like that.

 

Eggs in one basket comes to mind, when we should have had an arsenal at our disposal here.

[emandcole]

I think we must remember that the act is for consumer protection.

It is not a device for evading payment. Iduing a faujlty DN is not reason for a loan to be writen of either in law, or morrally.

 

Petr

 

I agree, and would not advocate the widespread denial of funds to a creditor, however there is a growing gulf developing where the debtor is expected to play by all of the rules and will be punished harshly if they do not, whereas that same state of play does not apply to the creditor at all who appears able to sidestep supposedly pre-agreed 'rules of play' mid game and come out the winner.

 

All I expect is fair play and this is not a moral issue, any more than the morality of someone being charged £60 for a parking ticket as they were slightly late back to the car. Rules are the rules, except it seems where the CCA is concerned and that's what bothers me. If the creditpr is not to be bound by the CCA they should never have proposed they would be in early negotiation.

 

Quite simply the debtor, when faced with financial problems is quickly plunged into a myriad of confusion and cannot rely on the protection supposedly afforded and promised to them under the CCA. Morals are the last issue for banking to introduce, this is a technical issue of applying the law as it is written and whovever has not observed those rules should not be allowed to prosper over the other.

[DonkeyB]

if you are saying that there are a number of cases where a creditor has re presented a bad DN during proceedings- then kindly identify them

 

I don’t think Peter necessarily meant re-presenting a DN during proceedings. This could only happen if the claim was stayed and the DN reissued, otherwise a discontinuance would be necessary and my question about CPR 38.7 becomes valid. But at least with a re-presented DN the debtor would then have the chance to respond to the DN or raise other issues.

[diddydicky]

I cannot see how not paying can be regarded as acceptoing a termoination or even a repudiation, the obligation to pay is part of the agreement the liablity to pay remains wether the debtor repays or not.

This is being confused with contract law where the failure of performance by one party has to be accepted by the other party in orde to prove repudiation

 

Peter

 

for the life of me- i fail to understand why you keep banging on about forcing creditors to lend- no one except you has ever mentioned this!!

 

the HOL rulings above are relevant.

 

one the one hand you are telling us that the debtor "wrote and rescinded" so her written word is binding upon her- and in the other telling us that if the creditor writes and terminates - he is not liable for his words

 

i'm not even going to go to "third parties" - with respect you are just looking for silly distractions from the argument

[Peterbard]

"Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective Notice in prescribed form post-termination of the agreement. Any such second Notice would necessarily state a date by which action would be required, after which in default the agreement would terminate. Any second Notice would therefore contain the fiction that the agreement endured when that could not be the case.

Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that termination of the agreement by the Claimant was an unlawful rescission resulting in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early repayment of a sum that was, prior to termination, not yet due."

From the deffence statement.

Need i say more

Petr

[diddydicky]

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

 

QUOTE from PB This is not true i am affraid i know that this has been repeated parrot fassion since Surfaceagent wrote it in 08 but it was not true then and it is equally flawed now in regards to credit agreements and particulairily on issues of default UNQUOTE

 

Ok Lord Justice Scott is the authority for this being true

 

who is the authority for it being not true?

[DonkeyB]

"Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective Notice in prescribed form post-termination of the agreement. Any such second Notice would necessarily state a date by which action would be required, after which in default the agreement would terminate. Any second Notice would therefore contain the fiction that the agreement endured when that could not be the case.

Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that termination of the agreement by the Claimant was an unlawful rescission resulting in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early repayment of a sum that was, prior to termination, not yet due."

From the deffence statement.

Need i say more

Petr

 

Yes Peter, we’re aware of this, and that was a problem with the defence (as I have now learned), but I don’t understand your comment of ‘need I say more’ – we’re trying to help the OP, not rub her nose in it. You should be saying more. Please use your undoubted knowledge to help the OP.

[car2403]

Thread reopened after forced edits being required.

 

Please refrain from posting if you are not helping the OP - any posts that aren't will be removed and repeat offenders will be placed on moderation. The last thing the OP needs, here, is for this thread to be locked and left that way because of the amount of time site team have had to spend editing it.

[pt2537]

Well for the record,

 

Ive made my views clear here, i do not intend to go back over them only to say read section 75 of Harrison, we pleaded that the default notice was bad and thus not effective and thus rendered the counterclaim in difficulty and the judge agreed

 

Recission repudiation etc, just read the kettering magistrates case, Goode, Lloyd & Guest etc on the effects of s170 and you see the common law arguments fall away

 

If you dont believe me, look up Arrow Global Vs Devlin Court of Appeal Ruling

[gh2008]

http://i685.photobucket.com/albums/vv213/pumpkinhead50/Mint%20Loan/CCAExcerpt.jpg

 

Goode confirming that even though a creditor may not be able to terminate, they can rescind (and not just at inception)

[gh2008]

and some info on rescission de futuro

http://www.lawofcontract.co.uk/discharge/1003.php

 

AND I am still interested in how the creditor became entitled to accelerated payment at termination? - just a simple question ....

[DonkeyB]

I think it’s a rather good thread, not least because I’m learning a lot. But I’d still like to see referral to real cases on CAG where we can look at the implications of these judgments further, as well as the issues raised in this case. So, if you state there are lots of instances of something in your argument, please point them out. As I state often, I prefer to look at real-world scenarios and how these judgments will or may apply. I don’t believe it’s always as black and what as is often claimed.

 

Going back to Peter B’s highlighting of the misplaced defence in post 768 – was this the defence entered prior to their repleading their claim? If so, surely the OP had a right to amend the defence?

 

I shall re-read from the start to see what happened and when. Might take a while – back in a couple of weeks...

[gh2008]

First 10 pages contain everything needed.

Then skip forward to the hearing

Then skip forward to here.

 

Lots of interesting arguments on here - BUT they don't seem to be the ones relied upon by the Claimants ...

[Undercover-Elsa]

The part I'm struggling with in this judgement is that (as I mentioned earlier), S 87 states termination and enforcement as two seperate options requiring a valid DN.

Hence irrespective of termination by whoever, this was still a default situation hence while the money due to the creditor may still be owed, enforcement should not be possible without the valid DN.

 

To put it another way, according to the judge, the accrued rights of the creditor under the agreement were not extinguished by the termination.

If that is so, the rights of the debtor under the agreement should also not be extinguished by the termination, those rights being that as no valid Dn has been issued, while the money may still technically be owed, enforcement by a court is still prohibited.

 

just my thoughts...

[Pumpkinhead]

With reference to gh's post 773 I remember counsel for the Claimant banging on about this at the hearing. Along the lines that although this excerpt in Chitty referred to "agency for receiving notification of rescission", it showed that rescission was possible.

[pt2537]

yes rescinding a contract is a common law remedy provided for by the act though isnt it in certain circumstance. the point is, there is no sanction provided for by the act for a duff default notice