RBS Mint Loan - Court Action Started & Dodgy DN issues

[gh2008]

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!

 

No flaw in that part.

They attempted termination - the CCA prevented termination without a valid DN

PH allowed them to terminate via S173(3)

 

Now, had PH not allowed them to, they could have served a valid DN and then taken her to Court for the FULL BALANCE

So, in effect, having the early payment rebate applied due to termination PH has benefited (albeit slightly at this point)

 

However S140 is still there (as is a claim for damages from teh creditor's breach) and a claim issued would not carry the massive risk of appeal costs

[pumpytums]

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

 

 

 

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

 

So basically that section of the CCA allows the Creditor to do anything providing the debtor agrees to it? is that right?

 

Pumpytums

[gh2008]

So basically that section of the CCA allows the Creditor to do anything providing the debtor agrees to it? is that right?

 

Pumpytums

 

That is certainly what it seems to say ......

 

Shame the Claimant didn't use the argument properly in their POC or Skelly though .....

[pumpytums]

This is a bit chicken and egg though isn't it. The Claimant terminated and PH accepted this termination on the grounds that it was unlawful and that only the arrears were owing.

 

So by the Claimant using PH termination as acceptance of their termination doesn't that mean the PH grounds are now valid? They can't have their cake and eat it can they?

 

It like me writing to a creditor saying I accept your termination providing you pay me £1000,000 for the next 5 years. And they say well pumpytums accepted our termination have I not now added a term to the agreement.

 

Could this be a good angle for an appeal?

 

Pumpytums

[DonkeyB]

No flaw in that part.

They attempted termination - the CCA prevented termination without a valid DN

PH allowed them to terminate via S173(3) But did she? She accepted an unlawful recsission – there was none! So it could not have been accepted, surely, and therefore not terminated? This is what I’m trying to clarify.

 

Now, had PH not allowed them to, they could have served a valid DN and then taken her to Court for the FULL BALANCE

So, in effect, having the early payment rebate applied due to termination PH has benefited (albeit slightly at this point)

 

However S140 is still there (as is a claim for damages from teh creditor's breach) and a claim issued would not carry the massive risk of appeal costs

 

I think what we’re asking is was the judge’s interpretation and acceptance of that letter as termination correct.

[gh2008]

It's a good point, the acceptance was almost 'on condition that ...'

 

Anyone know of a pro-bono DA Counsel who'd be willing to take it on??

PH hasn't found one yet, and it's NOT for lack of trying

 

Appeals are risky, the costs implication could turn a £5k Judgment debt into one several times that amount

 

An appeal would have to show exactly where the DJ misdirected themselves or erred in Law.

We will have to wait for the transcript to see exactly what the DJ did rule and how

 

IMHO, the arguments put forward on this thread are far more thorough than the claimant's own ones. (check their POC skelly and WS)

[pumpytums]

I think what we’re asking is was the judge’s interpretation and acceptance of that letter as termination correct.

 

I think the judge should have only accepted PH letter if he had accepted that she would only pay the arrears. Which to be honest in some cases wouldn't be that bad for the creditor.

 

It's worth noting that PH letter doesn't try to avoid the debt it simply accepts the Creditors wrong doings and gives them a slice of cake rather than the whole thing.

 

The error the judge made was to take PH letter at face value that she accepted the termination on the Claimants terms which obviously was never her intention.

 

Pumpytums

[gh2008]

I think what we’re asking is was the judge’s interpretation and acceptance of that letter as termination correct.

 

I do accept that point, and have argued now both for and against.

 

The alternative would be what? set aside the Judgment, throw the claim out and and rule that the agreement was never terminated. - That is a possible

 

The PH would be in the position of waiting for a new compliant DN to drop through her letterbox

 

(although she would still have an S140 claim imo )

 

The problem with a compliant DN, as I said earlier, is that failure to rectify teh breach would mean new claim for teh full amount WITHOUT early repayment refund

[DonkeyB]

I do accept that point, and have argued now both for and against.

 

The alternative would be what? set aside the Judgment, throw the claim out and and rule that the agreement was never terminated. - That is a possible

 

The PH would be in the position of waiting for a new compliant DN to drop through her letterbox

 

(although she would still have an S140 claim imo )

 

The problem with a compliant DN, as I said earlier, is that failure to rectify teh breach would mean new claim for teh full amount WITHOUT early repayment refund

 

Which would take the status back to that as if a claim had not been made, because if a set aside were granted, the amended PoC would now be meaningless as the letter would be of no effect.

 

But at least then PH would have the benefit of seeing if they issued a valid DN, and would have the protection offered by being able to respond to it or at least enter into negotiations.

 

The claimant would also have the issue of whether they were being vexations, whether CPR 38.7 applied (which I’ve asked about several times and not got an answer), or whether there was an unfair relationship scenario. I would aver that this is a better situation than she is now in.

[Bigdebtor]

GH

 

You raise a very valid point. With Credit Card (rolling credit) agreements then any interest owed is interest actually only accumulated month by month on the balance to date - whereas with a Term Loan the interest is typically bundled in upfront and equal monthly repayments repay it along with the amount lent over the full term.

 

What if someone defualted on a 7 year loan after only 3 months and the creditor (unusually) jumped through all the right DN and TN hoops and legally claimed the full liabilities due right now? If this is allowed then they would therefore have been paid interest meant to be paid for a loan borrowed over 7 years in only 3 months - i.e. making the actual apr 28 times as much.

 

I was about to ask - surely a creditor cannot gain so much at the expense of a debtor in trouble - then I rememebered the £39 charges for bouncing cheques or Direct Debits!

 

However I still ask - does the CCA actually allow the 28 times hike in the apr my scenario illustrates?

 

The relevance of this to PH is that surely even if the agreement was somehow resurrected and the Creditor issued a new valid DN which she couldn't satisfy, surely there should still be (in interest of fairness if nothing else) some rebate allowed if the debt is repaid in full any earlier than originally envisiaged?

 

BD

[gh2008]

Which would take the status back to that as if a claim had not been made, because if a set aside were granted, the amended PoC would now be meaningless as the letter would be of no effect.

That claim would fail and PH would get her costs in that claim

 

But at least then PH would have the benefit of seeing if they issued a valid DN, and would have the protection offered by being able to respond to it or at least enter into negotiations.

 

I would hate to think of the arrears at this point (no payments received since 09)

A compliant DN is not difficult quite how the creditors mess it up as they do astounds me ...

I doubt PH would be in a position to rectify a DN of 2+ years arrears

 

The claimant would also have the issue of whether they were being vexations, whether CPR 38.7 applied (which I’ve asked about several times and not got an answer), or whether there was an unfair relationship scenario. I would aver that this is a better situation than she is now in.

There has never been any hint of discontinuing in this case.

 

They did offer a stay in which to issue a new compliant DN if PH was to agree that the agreement was 'alive' (letter on thread)

[gh2008]

GH

 

You raise a very valid point. With Credit Card (rolling credit) agreements then any interest owed is interest actually only accumulated month by month on the balance to date - whereas with a Term Loan the interest is typically bundled in upfront and equal monthly repayments repay it along with the amount lent over the full term.

 

What if someone defualted on a 7 year loan after only 3 months and the creditor (unusually) jumped through all the right DN and TN hoops and legally claimed the full liabilities due right now? If this is allowed then they would therefore have been paid interest meant to be paid for a loan borrowed over 7 years in only 3 months - i.e. making the actual apr 28 times as much.

 

I was about to ask - surely a creditor cannot gain so much at the expense of a debtor in trouble - then I rememebered the £39 charges for bouncing cheques or Direct Debits!

 

However I still ask - does the CCA actually allow the 28 times hike in the apr my scenario illustrates?

 

The relevance of this to PH is that surely even if the agreement was somehow resurrected and the Creditor issued a new valid DN which she couldn't satisfy, surely there should still be (in interest of fairness if nothing else) some rebate allowed if the debt is repaid in full any earlier than originally envisiaged?

 

BD

 

I would guess this would be to recompense teh creditor for the (following non rectification of a valid DN) fundamental breach of contract by the debtor

 

The CCA does not disallow the creditor to claim damages over and above arrears following missed payments.

 

The DN gives details of S129 which is in place to help a debtor out in difficulties

 

BTW, I really don't like having to argue from 'this side of the fence'

Edited March 10, 2011 by gh2008
to add 'by the debtor' to clear any confusion

[DonkeyB]

Nothing wrong with both sides of the fence, as long as the rules are fair and the game is fair!

[Bigdebtor]

Nothing wrong with both sides of the fence, as long as the rules are fair and the game is fair!

 

DB - I agree. If you can't see both sides of the fence then how would you know what was the "right" side?

 

GH - I'm sorry to have to agree with you when you're "over there" - but thanks anyway for proving it IS possible to argue from the other side in a civilised manner!

 

BD

[gh2008]

Nothing wrong with both sides of the fence, as long as the rules are fair and the game is fair!

 

Just feel a bit rubbish that now the arguments have been properly explained I can see the issues. (if only the POC or even the amended had contained the arguments!!)

 

Still, I have a feeling that this is far from over

I also DO see a way forward for the accepting termination argument -

 

assuming Harrisons is interpreted as we believe it may i.e. DN can be reissued at any time prior to termination even after a claim is issued as that, in itself. is not enforcement.

 

So, by accepting termination a debtor can bring an agreement to an end, get an early settlement refund to the date of termination and only pay 8% stat from that point onwards rather than contractual.

 

(This is assuming an enforceable agreement and no other issues making the agreement irredeemably unenforceable)

 

Would certainly reduce the amount owed.

 

Possible claim for damages due to teh claimant's breach of contract - possibly shaky as the breach was accepted??

BUT, imho, there is a very clear unfair relationship, the initial termination notice and any demand are unfair as not permitted, nor would be any other demands DCAs or anything like that prior to termination be permitted.

[car2403]

Thread closed at the request of the OP