RBS Mint Loan - Court Action Started & Dodgy DN issues

[emandcole]

Great thread and some interesting arguments, always good to throw things about in order to help strengthen your own point of view. Think this is a very important thread given the current climate of consumer rights getting increasingly undermined so will be watching this closely. The Brandon v Amex farce should have been heard by then too so although there are differences the common theme of 'dodgy' default notices might work together very nicely and will hopefully aid your own arguments to some extent.

 

As Surfaceagent wrote some time ago now the law does tolerate contract breaking so any claim the claimant may try to force that RBS Mint issued a termination when technically it can't have done due to a dodgy DN (meaning the agreement endures) should be easily countered. The everyday person is not responsible for the failures of a bank and is perfecly entitled to take the banks word for it when the bank insists and acts as if the agreement is indeed terminated. Look forward to seeing how this goes and the very best to you Pumpkinhead.

[emandcole]

Just some thoughts for you to take or leave as you wish.

 

 

• At the inception of the agreement it was the claimant and not the defendant who proposed that this potential agreement was to be regulated and bound by the terms found within the CCA 1974. As such you expect the claimant to be bound by those terms fully and not seek to backtrack on that as they were incapable of following requirements within concerning the correct procedure to follow if they sought to terminate the contract using section 87.
  
• If the claimant had at any point stated that the agreement was to be regulated by the CCA 1974 'but we reserve the right to ignore various parts of this act if it suits us' then perhaps they can argue they had a right to bypass default and termination regulation but I suspect they didn't include any such term?! As such, if they had intended to bypass any part of the CCA 1974 they should have made this clear to you before the agreement was entered into and you would have had the choice of questionning such dubious practices and declined to enter into the agreement with them. They can't have it both ways, either it is regulated as they proposed or it isn't. To suddenly argue they can effectively remove your rights 'as it's unfair to them to lose out financially' is a nonsense, they should have got their documents in order and the fact they didn't caused prejudice to you first, not to them.
  
• Make sure you insist that prejudice was caused by their failure to abide by regulation. They may try to suggest there was no loss to you 'as you wouldn't have paid the default amount anyway, regardless of time allowed'. Rebut that completely, ensure that you politely insist that the time you were given was not enough and had you been given the time parliament decreed was necessary you would have been able to provide remedy and prevent the loss of the contract and the resultant litigation.
  
• You are 'allowed' to miss a payment, this is what the default system is for so don't allow them to suggest that it was your non payment that resulted in all of this and that it is your fault. The default system is a safety net, a buffer between the trigger response of the creditor thinking you have repudiated the agreement with non payment when actually all that may have happened is that the payment was late for any number of perfectly simple reasons.
  
• There is a penalty for you if you miss a payment, typically you will have been charged a sum of money that is often disproportionate to any real loss your missed payment may have caused the creditor and secondly the creditor will report your conduct to third party credit agencies where it will sit for 6 years. As such that is your punishment for missing a payment and that is more than enough for what might have been a simple oversight. Don't let them suggest you suffered no prejudice on this angle either.
  
• Don't allow them to ask the court if they can 'go and get another default notice'. The fact you're in court is complete confirmation that the contract has ended, they cannot mess you about with 'is it or isn't it' terminated confusion. The creditor quite clearly considers the contract to have been terminated as they advised you of that, then used debt collection agencies to threaten you before actually issuing court papers and then allowing you to submit a defence and actually turn up in the court before a judge to argue the matter to conclusion. If the judge even considers allowing them to get another default notive ask them how they are going to do that when there is no live contract for them to default and if they argue it wasn't terminated 'so they can produce another default notice' ask them why you are therefore in court right now defending their claim for the full balance when all you're contractually obliged to pay them is the monthly amount. This alone is enough to show they have repudiated the agreement, you can't just take people to court on a live agreement...they cannot have it both ways!
  

All the very best with this, don't let them undermine your rights and make sure your preperation is perfect. Most often people know their stuff but when they are questionned they go blank and can't reference the information they've brought with them as they get a bit flustered - just make sure you have a great reference system so that you don't need to rely as much on memory

[emandcole]

PM sent

[emandcole]

Well yes that is the way i see it but the debtor would have to remove the protection of section 87 by accepting that the account had been terminated after default.

 

Peter

 

Hi PB, have I read this right? Does the debtor responding to an invalid DN and accepting termination on the back of that remove the section 87 protection for the creditor as the post above reads? This of course is opposite to what I believe you've argued for many months as the termination can't exist due to the DN therefore nothing to accept on the part of the debtor. Have I misunderstood the context perhaps?

[emandcole]

An example of a high court judge upholding the CCA? We have it here with MBNA. Considering the debt was in excess of 20k I assume the bank would have lavished a sufficient amount of effort on obtaining good counsel, which begs the question...why did they not try to recover the debt under common law?

 

Presumably, they can't as there was no 'stepping outside of' the CCA? We have seen the attempt and success though using common law as a 'back up' when the creditor messes up so why not here?

 

http://www.bbc.co.uk/news/business-12622318

 

Also confirms the court can just wipe out the debt and deny the creditor even though it may be a touch harsh for the bank - they know the rules however and what is expected of them if they wish to play with the grown ups so refreshing to see a judge uphold the requirements and not remove consumer rights.

 

Given this approach is it too hard for us to believe a creditor who deprives you of your rights and terminates on a dodgy DN can also expect to lose their entitlement to sums not yet payable? After all, the act states that terms and conditions should be supplied, don't recall it saying they must be supplied but perhaps I'll go check that out and examine the terminology unless anyone else knows off hand?

 

The judge could have (in the style of a default notice issue post termination and during litigation) told the bank to hand the defendant a set of T&C's so that magically everything is alright, but he didn't. Clearly he recognised there is a procedure in place that must be followed in order with no skipping about to correct previous mistakes as we see in default and termination disputes. Here we actually see an order in how the creditor must have behaved and the judge deemed that order must have been followed.

 

We therefore end up with clarity and order so the letters of the law are lined up correctly to see A, C, E, F, R for example instead of the order we've seen recently concerning default and termination confusion that instead comes out as F, A, R, C, E.

 

[emandcole]

If PH accepted the termination then first of all we can establish that the court accepts the idea that termination can occur despite the CCA stating the claimant is not entitled to terminate until a valid DN has been served. This I believe is the main argument Peter Bard has supported for a long time if I'm correct Peter, correct me if I'm mistaken.

 

Personally I've always struggled to comprehend the difficulty between 'being told you may not do something' such as termination on a dodgy DN, and the reality of the matter where they terminate anyway and act in every way as if it is indeed terminated right through to litigation.

 

Picking up on GH's latest posts I am more inclined to accept that yes indeed, the creditor must gain entitlement in order to then demand sums not yet payable by adhering to the CCA, their 'right' to demand sums is not automatic but must be earned. An order is therefore followed.

 

So, if PH accepted the termination and the court had no bones with the concept how did the court also consider those sums not yet payable had been secured by entitlement? I assume the rub is that they had not?

 

Surely it then follows that if the creditor did not then use the CCA to recover their money that in itself is evidence enough that they had not secured the entitlement and they knew it. They had therefore first broken the contract to its heart so should not be able to benefit from their own breach to the detriment of the debtor by taking a large sidestep and using common law instead?

 

Seems a bit like smacking someone in the face and then prospering by selling them some 'cure all' ointment?! Section 140 must come into play or what is to stop any creditor acting in this way deliberately as they win both ways and the judiciary doesn't appear to have adopted an official line on how to respond to these cases. Accept or not to accept, you can't accept, you can accept, it's a mess.

[emandcole]

This would seem quite logical to me too. Either the contract exists resulting in either party obtaining something of value by participating in it or it doesn't, surely resulting in the opposite of that occurring?

 

Benefits - Interest for the creditor and monetary lump sum for the borrower.

 

If the contract is rescinded then the loss to each party must be that those benefits are removed resulting in no interest for the creditor and no right to that lump sum for the debtor.

 

As such unless anyone can demonstrate otherwise the court should find that the actual sum the debtor is liable for is the amount borrowed minus what they have already paid and not the total amount payable minus what they have paid. This makes sense right?

 

That being the case there is every possibility on loans that are closer to the end than the start that the principal debt has actually been paid, all the more so on a credit card and highly likely on a store card with perhaps an interest rate approaching 30%. That compounded interest soon rocks up after all!

 

Think the use of the words rescission and repudiation are not interchangeable in any way and a quick review of what these words mean might be helpful, hope I'm not being patronising.

 

Rescission -

 

The cancellation or annulment of a transaction or contract by mutual consent or by law.

 

Repudiation -

 

The rejection or refusal of a duty, relation, right, or privilege.

 

 

Repudiation of a contract means a refusal to perform the duty or obligation owed to the other party.

 

Think this is extremely pertinent, the rejection of a right or privilege, which might be for example the right or privilege the creditor should have secured in order to go on to demand sums not payable?

 

The refusal to perform the duty or obligation owed to the other party? Such as denying them enough time to seek advice and raise funds after issuing a DN? If they then terminate how can this not be repudiation? And if they have repudiated why not accept it, they are after all the breaching party are they not?

 

This then returns us to the question of what is actually outstanding at the point of that repudiation, an unfair act that as we've brushed on is also grounds for an accusation of it being an Unfair Agreement. How could you decalre it as a fair agreement when the creditor pulls your rights and shuts the whole agreeemnt down exposing you to full liability?

 

Also found the term Anticipatory Repudiation -

 

An act or declaration before performance is due under a contract that indicates that the party will not perform his or her obligation on the future date specified in the contract.

 

I have never seen a clause in a CCA regulated agreement that reserved any future right to bypass your rights by perhaps issuing a short DN and then terminating on it. Do we not expect the creditor to be bound by their word, they after all invite you to be constrained by the CCA so why can we not insist the letter of the law is followed? Would you be granted such leeway if you were caught driving 50 in a 30? No, and quite rightly you shouldn't expect any either.

 

Can you argue that by a creditor doing this, and importantly you can safely assume it may have done this to others, that the creditor was prepared to bypass your rights from the very off should it need to therefore constituting Anticipatory Repudiation?

 

Clearly, if the creditor is smug that the courts 'will look after us' and 'we can do as we please' there is a touch of anticipation in there should they need or wish to act in a way that deprives you of your rights...contentious suggestion I know but if the shoe fits?

[emandcole]

PH, have you worked out how much you have paid them and compared that to what you have been ordered to pay? Be interested in the numbers.

[emandcole]

More grounds for appeal then, you have to wonder at it all don't you?!

[emandcole]

GH has continually raised the most important question that no-one supporting the opposing argument has been able to answer. No entitlement has been secured. To date we've skipped around the puddle but no-one has actually jumped into it so can we look at how the important entitlement has been secured?

 

How, using the CCA, did the creditor become entitled to sums not yet due at termination?

 

Picking up on Undercover Elsa who refreshed our minds with what the act specifically states we find that:

 

(1)Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

(a)to terminate the agreement, or (!)

(b)to demand earlier payment of any sum, or

©to recover possession of any goods or land, or

(d)to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e)to enforce any security.

 

That little word OR is a biggie. I like the estoppel defence and when combined with others such as unfair relationships and the fact that the creditor has created a web of confusion for the debtor I can't see how the creditor can rise through all of this and run off into the sunset. Any takers?

[emandcole]

The creditor is alway right which creidtor is wrong the butcher the baker the banker.

We could not exist without creditors.

 

Politely and with respect 'the creditor is always right'? We can dispense with the CCA and CAG all together then can we not?

 

As for 'we could not exist without creditors' -

 

A) The country very nearly didn't without the taxpayer and

 

B) They could not exist without us either and let's face it, if they didn't exist we still would. They are therefore more reliant on us than we are on them. They merely facilitate access to 'stuff' that in most cases is only 'needed' as the side effect of the latest marketing campaign. Technically then the consumer should have greater rights than the creditor but this is not the case at all, deprived on may occasion of even the basics.

[emandcole]

Looks as if we have the start of something useful. How are we going to do this and is PH up for captaining our little boat?

[emandcole]

I might get in trouble but...

 

 

here's Super Nanny

[emandcole]

The creditor is always entitled to their money back?

 

House of Lords found otherwise as we already know.

 

If I lend someone £1000 do I have an expectation of getting it back?

 

I would have 'credit scored' them in my own mind to satisfy myself that I am indeed lending it to them and that they won't be legging it.

In the same way the creditor uses a CRA.

 

I shake hands with my mate and feel good I'm helping him out and all is peachy, I know he's good for it after all.

 

The creditor places the funds in my account and sits back to watch the loan mature with the interest providing a nice return.

 

My mate after 6 months states he thought the loan was a gift and can't pay it back, even though I need it. Things get sour.

The creditor isn't paid and issues a default notice looking to the CCA and their rights under s87 to possibly recover their money if it gets really messy in the future. They terminate and send the heavies in.

 

I eventually issue a claim against my former mate for the return of the money but have squat in the way of evidence to show how I was ever entitled to have that money back, my mate defends the claim stating it was certainly a gift.

 

The creditor finds he made a complete tosh circus of the paperwork and can't show how he secured entitlement under s87 to allow the court to find in their favour.

 

My claim is dismissed and I lose my £1000 and have to foot my own costs.

 

The creditor gets judgment for the whole lot plus costs and interest.

What happened there?

[emandcole]

surely she would have rejected the idea of termkination of the agreement wouldnt she.

 

Peter

 

How is PH any more able to reject a termination that they can accept it? If it doesn't exist PH can no more reject it than accept it. Or are we finding that actually PH was just along for the ride, the creditor slipping down the slope doing whatever they wanted safe in the knowledge that the nice judge would catch them and take them off for a burger and a hug?

 

PH had their rights stripped away by the aggressor and the aggressor was then rescued and rewarded. In any world that's an injustice.

[emandcole]

Thanks GH, believe it was Dimond v Lovell?

[emandcole]

No she need not have done either the creditor wold not have been able to enforce isnt that the point.

 

Sure, however had PH started to pay the monthly amount would the creditor have stopped all action?

 

If PH is under the very reasonable impression that it is too late, as indicated by the default dates and the termination intent, why would they have even thought this an option?

 

As it was terminated how would any future payments have been regulated or controlled?

 

If it wasn't terminated then why the involvement of the court?

 

All part of the confusion the creditor creates I believe.

[emandcole]

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

 

OK, thanks for the correction and update

[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.

[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

[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.

[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.

[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.

[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?