RBS Mint Loan - Court Action Started & Dodgy DN issues

[DonkeyB]

Surely ANYTHING can be adduced as evidence. It does not become non-evidence because the judge kicks it out. It is just bad evidence, as it fails to support the case. This is taking semantics to a new level. A very low level! Which does nothing to further the debate.

 

If a claimant puts an invalid DN in as evidence to support a termination and thence enforcement, it should be thrown out because the evidence fails. What happens after that is a different argument altogether, and is a situation where I cannot think of an example (on CAG or in case law) where the claimant backs out, resubmits a valid DN then tries again, and succeeds. Of course at this point the defendant should be again given the protection of s87, ie. to remedy the breach... but again, that’s not a situation I’ve come across in the real world, where it has reached a conclusion in favour of the claimant. Doesn’t mean it hasn’t happened though, I’m just not aware of it.

 

It may be more useful to discuss why this section of CPR would not apply in such a situation:

 

38.7

A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if

(a) he discontinued the claim after the defendant filed a defence; and

(b) the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.

 

Is issuing a new DN really changing the facts of the case, and making a retrial fair? The original intentions and arguments are the same. Would such an approach not be vexatious?

 

I wish we could keep these arguments to what would and should happen in such real world situations. It would be so much more useful to to the OP.

 

Can I repost this? I think my questions are still relevant and need answering! Some of them are pertinent to the actions in this case, and the answers will certainly be useful to others. Please try and apply all this theory to real world situations, otherwise we’re going round in circles.

[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.

[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.

[DonkeyB]

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

[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?

[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.

[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.

[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...

[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.

[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?

[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’?

[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.

[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!

[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.

[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.

[DonkeyB]

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