RBS Mint Loan - Court Action Started & Dodgy DN issues

[Peterbard]

making an "amendment" to an agreement which is what you are suggesting- rather than outright termination of the whole of it- requires not only the consent of both parties- but the CCA requires in this case a new and signed agreement to reflect the amendment to the original agreement

 

the parties cannot simply "agree" to amend the agreement

 

"Ammend an agreement" sorry not with you

[diddydicky]

Not sure which section ogf the CCA prohibits thetermination,could you point it out

 

try s87

[gh2008]

 

Some may forget whilst trading insults - that this thread concerns what may be a life changing issue for the OP

[emandcole]

Ok, I will give it a go as NO-ONE else seems to want to

 

(and yes, I hate arguing for 'the other side' )

 

Not having an entitlement to DEMAND sums not yet due, does not necessarily mean that they are not ENTITLED TO BE PAID sums not yet due.

 

So, they have an entitlement to be paid the sums, just not an entitlement to demand them

 

 

 

EDIT and yes, I will be mightily peed off if others now jump on this saying Oh but I've been saying that all along - as I have read the whole thread from start to finish and it has never been said.

.....

 

Well done taking that on, perhaps now the gates are open a touch? My view based on that is that the CCA still requires them to jump through the hoop, doesn't matter if they demand, are they actually permitted to recover that money with the help of the court or not? Yes, they are entitled, but not 'just because' as although they are entitled they must still do something to see that entitlement through...and that's create a valid DN.

 

Similarly, I am entitled to go past a cinema usher to watch a movie as I've paid for a ticket. However, in order to gain the benefit of that ticket I must first present that ticket to the usher...I cannot just stomp through based on the simple fact I've paid for the ticket, I must gain entitlement by using it in the way expected.

[gh2008]

I agree with X20's post - the ONLY dispute are to the debtor's liabilities at the termination

 

Does the breach by the creditor release the debtor from their future liabilities

OR does does the breach have no consequences (other than to open teh creditor up to a S140 claim and/or damages for that breach)

 

(I am swaying toward the latter)

[Peterbard]

S76 & S87 depending on whether the debtor was in breach or not (Fixed term agreement)

 

NO these say taht notice must be given i the creditor terminates not the debtor

[DonkeyB]

Ok try here

http://www.consumeractiongroup.co.uk/forum/showthread.php?257032-RBS-Mint-Loan-Court-Action-Started-amp-Dodgy-DN-issues&p=3329897#post3329897

 

I’m not sure a link to a posting in the same thread is an example.

 

Anyway, in PH’s case I think a crux of this argument is whether or not the judge was correct to accept PH’s letter as termination. While pt2537 has stated he thinks this is what the judge has decided, I would aver that there may be flaws in the judge’s reasoning – as mentioned on several occasions now, if there was no rescission/repudiation, how can that letter be accepted?

 

According to PeterB, if it was based on no fact at all, then it is not even evidence and should be ignored, so no termination by PH has actually taken place.

 

So both parties are at square one, with no DN and no termination.

[Peterbard]

I agree with X20's post - the ONLY dispute are to the debtor's liabilities at the termination

 

Does the breach by the creditor release the debtor from their future liabilities

OR does does the breach have no consequences (other than to open teh creditor up to a S140 claim and/or damages for that breach)

 

(I am swaying toward the latter)

 

Problem with this is that there is no bereach by the creditor

 

Peter

[gh2008]

GH the problem is PH has it seems in the judges view, accepted the creditors request as we shall call it to terminate

 

What should have occurred was the creditor being told to sod off, on the back of the bad notice

 

However, even with a bad notice a party can consent to enforcement being allowed and it seems this is what the judge concluded had occured here

 

That is my reading of it

 

 

now we are getting perilously close to the unlawful repudiation scenario............. people being able to act on "bad "notices ( acts done that are not lawful under the CCA)!

 

Not sure which section ogf the CCA prohibits thetermination,could you point it out

 

S76 & S87 depending on whether the debtor was in breach or not (Fixed term agreement)

 

There is the trail. You WERE referring to creditor termination

[Peterbard]

I’m not sure a link to a posting in the same thread is an example.

 

Anyway, in PH’s case I think a crux of this argument is whether or not the judge was correct to accept PH’s letter as termination. While pt2537 has stated he thinks this is what the judge has decided, I would aver that there may be flaws in the judge’s reasoning – as mentioned on several occasions now, if there was no rescission/repudiation, how can that letter be accepted?

 

According to PeterB, if it was based on no fact at all, then it is not even evidence and should be ignored, so no termination by PH has actually taken place.

 

So both parties are at square one, with no DN and no termination.

 

Well no net really

YOU have had evidence on her in the courts and elswere no ammount o experiances is going to convince you as i say they are on here but i am araid it is up to you to find them i you are interested in the truth

 

Really this is the wrong way arround isnt it? YOU are putting orward an unproven theory it is not up to me to dispsove it it is ujp to you to prove surley.

I mean i could say anything , say there are pink pixies on the moon, now according to your logic this must be true because you cannot prove otherwise ,you see what i mean

 

Peter

Edited March 10, 2011 by Dodgeball

[DonkeyB]

Well no net really

YOU have had evidence on her in the courts and elswere no ammount o experiances is going to convince you as i say they ar3e on here but i am araid it is up to you to ind them i you are interested in the truth

 

Really this is the wrong way arround isnt it? YOU are putting orward an unproven theory it is not up to me to dispsove it it is ujp to you to prove surley.

I mean i could say anything , say there are pink pixies on the moon, now according to your logic this must be true because you cannot prove otherwise ,you see what i mean

 

Peter

 

What on earth are you on about?

[Bigdebtor]

True bcause the OP term8inated,

 

A: Peter - surely the OP could ONLY have terminated if she also at that time paid the outstanding liabilities? Surely by not paying these then no termination from the OP can be effective?

 

i will keep saying it till it sinks in.

 

A: Peter - it is this type of snide throw away comments from you which inflame others and probably cause subsequent posts to need editing. Can you please find some less emotive/insulting language to re-inforce your points or emphasise repetition of points already made by you? .

 

She offered the Repudiation as part of her deffence i would say the creditor was merly react9ing to that error

 

See answers A: above and below in bold.

 

A: Peter - Who started getting it wrong? The CCA allows for the OP missing payments - but the Claimant screwed things up after that - and surely it was the OP who did the "reacting" to wrong or invalid or unlawful claims from the Claimant - not the creditor reacting to the OP's "error"?

Edited March 10, 2011 by Bigdebtor

[gh2008]

Problem with this is that there is no bereach by the creditor

 

Peter

 

Well, I would like you to back that up showing me how the behaviour of the creditor in removing PH's right to make repayments as per the agreement, was not a breach of the agreement

 

I would also like you to show how issuing a termination notice, and demanding sums not yet due were also not breaches of the CCA (and possible the contract as the contract also states they cannot terminate or demand unless a 'proper notice' is served which one could take to be a notice complying with the relevant Law regulating the said agreement)

[Peterbard]

There is the trail. You WERE referring to creditor termination

 

irstly oi thionk you said prohibits termination the sections you describe do not they sim,ply ask or notice.

Also i you exmnine them closely you will see that no notice is required in the case o breach.

 

Any way it was not the creditors termination that is important here it is the debtors

 

Peter

[Peterbard]

Well, I would like you to back that up showing me how the behaviour of the creditor in removing PH's right to make repayments as per the agreement, was not a breach of the agreement

 

I would also like you to show how issuing a termination notice, and demanding sums not yet due were also not breaches of the CCA (and possible the contract as the contract also states they cannot terminate or demand unless a 'proper notice' is served which one could take to be a notice complying with the relevant Law regulating the said agreement)

 

See previous answer

[DonkeyB]

Anyway, in PH’s case I think a crux of this argument is whether or not the judge was correct to accept PH’s letter as termination. While pt2537 has stated he thinks this is what the judge has decided, I would aver that there may be flaws in the judge’s reasoning – as mentioned on several occasions now, if there was no rescission/repudiation, how can that letter be accepted?

 

According to PeterB, if it was based on no fact at all, then it is not even evidence and should be ignored, so no termination by PH has actually taken place.

 

So both parties are at square one, with no DN and no termination.

 

So you are saying that the judge got it spot on and may not have made an error in interpreting PH’s letter as ‘evidence’?

[emandcole]

NO these say taht notice must be given i the creditor terminates not the debtor

 

The creditor terminated, they took the OP to court. The OP is allowed to view the actions of the creditor as termination, are they to ignore court papers as well 'as this isn't really happening and nothing will happen to me as they're not allowed to do this'? SJ quicker than a quick thing.

 

Problem with this is that there is no bereach by the creditorPeter

 

As they didn't issue a crappy DN, didn't issue a termination, didn't demand the whole lot right now or else and didn't take the OP to court as the termination never really happened? Exemplorary example of creditor behaviour, don;t know why any of us have problems with them at all.

 

I too am perhaps risking moderation now and feel pretty hacked off that the OP is gaining very little from this. I too will not be posting further on here to avoid the wrath of site team. In what world is the creditor perfect?

[Peterbard]

Copied it or you just in case

 

6) Subsection (1) does not apply to a right of enforcement

arising by reason of any breach by the debtor or hirer of the

regulated agreement.

[Peterbard]

The creditor terminated, they took the OP to court. The OP is allowed to view the actions of the creditor as termination, are they to ignore court papers as well 'as this isn't really happening and nothing will happen to me as they're not allowed to do this'? SJ quicker than a quick thing.

 

 

 

As they didn't issue a crappy DN, didn't issue a termination, didn't demand the whole lot right now or else and didn't take the OP to court as the termination never really happened? Exemplorary example of creditor behaviour, don;t know why any of us have problems with them at all.

 

I too am perhaps risking moderation now and feel pretty hacked off that the OP is gaining very little from this. I too will not be posting further on here to avoid the wrath of site team. In what world is the creditor perfect?

 

 

I think perhaps you should be thnking about what the OP has lost rom this and try not to compound the error

[Peterbard]

So you are saying that the judge got it spot on and may not have made an error in interpreting PH’s letter as ‘evidence’?

 

rom what i have seen i think the judge took her at her word as he was ully entitled to do

[DonkeyB]

Let me put it another way for the avoidance of doubt in what I am asking:

 

Peter argues that a bad DN is not evidence because it is not a proper document.

 

PH put in a letter that was based on bad law – the facts were misstated.

 

According to peter’s logic, this letter’s significance should have been dismissed by the judge as its legal argument was flawed and therefore its contents should not stand.

 

Why should PH not be entitled to use this as an argument – and where is the flaw in the argument, which is based on peter’s arguments which he clearly deems to be 100% watertight?

[DonkeyB]

I think it cased omn the act that she terminated the agrement

 

Sorry the OP must make her own mind about this my main concern is that no one else follows this "Advise" i think anyone reading this thread if they have a reasonable grasp of the act should see that this was a mistke and hopeully not follow in the OPs actions.

I will leave you continuing to try and justify this reopudiation nonesense

 

Peter

 

Peter, right now we’re not talking about repudiation.

 

You conveniently have suggested the OP makes her own mind up just when we need your answers to questions based on your own logic, and the admissibility or not of PH’s letter as evidence. Please stay the course and help the OP, like the rest of us are trying to do.

[gh2008]

It pains me to have to do it again, but again I will further the creditor's argument

 

173 Contracting-out forbidden.

(1) A term contained in a regulated agreement or linked transaction, or in any other agreement relating to an actual or prospective regulated agreement or linked transaction, is void if, and to the extent that, it is inconsistent with a provision for the protection of the debtor or hirer or his relative or any surety contained in this Act or in any regulation made under this Act.

 

(2) Where a provision specifies the duty or liability of the debtor or hirer or his relative or any surety in certain circumstances, a term is inconsistent with that provision if it purports to impose, directly or indirectly, an additional duty or liability on him in those circumstances.

 

(3) Notwithstanding subsection (1), a provision of this Act under which a thing may be done in relation to any person on an order of the court or the [F1OFT] only (i.e. termination) shall not be taken to prevent its being done at any time with that person’s consent given at that time, but the refusal of such consent shall not give rise to any liability.

 

This is the section of the CCA, which allows termination.

 

It was hinted at by PT amid the noise so credit obviously goes to him

[DonkeyB]

Indeed – the creditor tried to terminate but couldn’t as the DN was faulty, and the debtor tried to terminate but couldn’t as there was no rescission.

 

Where’s the flaw? Was the judge right to accept termination by PH? Had PH in fact terminated?

 

There may well be a flaw – let’s find it!

[pumpytums]

Let me put it another way for the avoidance of doubt in what I am asking:

 

Peter argues that a bad DN is not evidence because it is not a proper document.

 

PH put in a letter that was based on bad law – the facts were misstated.

 

According to peter’s logic, this letter’s significance should have been dismissed by the judge as its legal argument was flawed and therefore its contents should not stand.

 

Why should PH not be entitled to use this as an argument – and where is the flaw in the argument, which is based on peter’s arguments which he clearly deems to be 100% watertight?

 

I agree with Peter the Paper marked Default notice can not be classed as such and cannot be taken as a statutory notice, hence is useless.

 

PH put a statement in a letter that was based on a legal impossibility namely the UNLAWFUL termination and demand of the full balance with legal enforcement rights which we know cannot happen as only a lawful termination can demand the full balance with legal enforcement rights.

 

The case should have found in the Defendants favour as the Claimant had no legal enforcement rights at all. The Defendant should be allowed to counter-claim for the Claimants actions in bringing a vexatious litigation with no grounds whatsoever.

 

Pumpytums