RBS Mint Loan - Court Action Started & Dodgy DN issues

[Peterbard]

Because that would mean the creditor would win BOTH ways - either by staying within the rules - or by going outside the rules (without any penalty whatsoever).

 

Two opposites surely cannot have the same effect - WET is not DRY and WRONG is not RIGHT.

 

BD

 

Looking at this again, wouldnt the court consider that the debtor had done something wrong by defaulting the account.

Isnt tht the real cause for action not the DN or anything else.

 

Are you saying that the creditor should be penalised for pursuing a delinquent account.

I am trying to see yhour moral high ground here but i must admit i am finding it very difficult.

 

If you are saying that the crediotr should not have been able to enforce because the notice was bad i would agree, he neede to issue a new notice.

Every thing else that happened seems to me happened because of the actions of the debtor (sorryPH).

 

Was the debtor entitled to terminate or accept a termiantion, i suppose that is a point,but i think at the end of the day it was quite clear that the debtor wished the agreement to end. I am sure that is what any judge will say anyway.

 

Peter

[gh2008]

The response to the informed and sophisticated decision of the creditor was to end the agreement, both in writing and in deed, their intent could not be clearer.

.....

The rest of us have to abide by laws with harsh penalty for breaking then and strict 'do' and 'do nots' but the creditor with all their money and supposed intelligence do not? It's this kind of arrogance that has surely led to the need for CAG in the first place and no doubt a major contributor to the banking meltdown is it not?

I won't quote the whole post but :clap2:

[Peterbard]

I am not saying they do not have a right to be repaid.

 

I am saying they do not have a right to any accelerated repayment over and above what was agreed in the executed agreement.

 

After all, the creditor has benefited greatly in this case. Earnt well over and above expected income over a very short period of time!!

 

Doesnt really hold water if the debtor wanted to continue to repay by installement surely she would have rejected the idea of termkination of the agreement wouldnt she. As for the profit made on the loan, yes i know but if they didnt make a profit they wouldnt provide the loan unfortunatley the world we live in:|

 

Peter

 

Peter

[gh2008]

Gee whizz... **head spinning**

 

I think what the last 10 pages or so proves is that there are grounds for appeal here, as the law appears to have been misintrepreted for one reason or another, but I have to say I think it's questionable whether PH will get a positive outcome if an appeal was to be held - unless we get a decent Judge who knows the crack and can read between the lines, the risk is just outweighing the benefits IMHO.

 

I totally agree

 

and a few months ago, Costa was in the same position and being hammered on here for his losing in Court, with no one willing to take his case on.

 

However Harrison puts a whole new light on Costa's case now doesn't it ...

 

The interpretation of the Law is fluid. always has been, always will be

[Peterbard]

I won't quote the whole post but :clap2:

 

Yes rather the point he couldnt have teminated though could he , he had a dodgy default.So who did.

 

Peter

[gh2008]

Yes rather the point he couldnt have teminated though could he , he had a dodgy default.So who did.

 

Peter

 

Maybe, I am sure that point will be raised in any appeal on behalf of PH

If they were not permitted to do something then the DJ was very wrong to accept that it was done

 

and in that case obviously PH would have a very good argument for an Unfair Relationship bearing in mind what they have done which they were not permitted to do

[Peterbard]

I totally agree

 

and a few months ago, Costa was in the same position and being hammered on here for his losing in Court, with no one willing to take his case on.

 

However Harrison puts a whole new light on Costa's case now doesn't it ...

 

The interpretation of the Law is fluid. always has been, always will be

 

So you agree an appeal is not agood idea for PH?

[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?

[Peterbard]

Maybe, I am sure that point will be raised in any appeal on behalf of PH

If they were not permitted to do something then the DJ was very wrong to accept that it was done

 

and in that case obviously PH would have a very good argument for an Unfair Relationship bearing in mind what they have done which they were not permitted to do

OK

[gh2008]

So you agree an appeal is not agood idea for PH?

 

I have not expressed an opinion on here.

 

I have by PM

 

I certainly haven't even made up my own mind yet, and without seeing the transcript it would be very difficult

 

You will note I have advised how to go about getting the Order redetermined and how to apply for a stay pending appeal

I think that sums up my thoughts at the moment.

 

Just because i make an argument for 1 side or the other doesn't mean I believe it is 'right'? I could just as easily argue from your viewpoint, if I wanted to

 

I am sure if you go over the threads of yours that I have had debates with you on before you will see that ...

[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.

[Peterbard]

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?

NOt get past the first bit .

When did the HOL say a crediotr was not entitled to his goods. The only ruling that i can think of that involved the HOL was Wilson and they found the opposite to be true.

 

Peter

[volvodriver]

NOt get past the first bit .

When did the HOL say a crediotr was not entitled to his goods. The only ruling that i can think of that involved the HOL was Wilson and they found the opposite to be true.

 

Peter

 

Peter, please try again, this time read the post properly BEFORE you comment on it.

[gh2008]

NOt get past the first bit .

When did the HOL say a crediotr was not entitled to his goods. The only ruling that i can think of that involved the HOL was Wilson and they found the opposite to be true.

 

Peter

 

Maybe this was teh passage being referred to

49. I consider, however, that there is no relevant restitutionary remedy generally available to a lender in the circumstances now under consideration. The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched. That would be inconsistent with the parliamentary intention in rendering the entire agreement unenforceable. True, the Consumer Credit Act does not expressly negative any other remedy available to the lender, nor does it render an improperly executed agreement unlawful. But when legislation renders the entire agreement inoperative, to use a neutral word, for failure to comply with prescribed formalities the legislation itself is the primary source of guidance on what are the legal consequences. Here the intention of Parliament is clear.

[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.

[Peterbard]

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.

 

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

 

Not sure what the rest means sorry

 

Peter

[emandcole]

Thanks GH, believe it was Dimond v Lovell?

[Peterbard]

Maybe this was teh passage being referred to

 

 

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

Edited March 8, 2011 by Dodgeball
doh

[diddydicky]

I've looked at the agreement again. It says that I have a right to settle at any time by giving notice in writing and paying off the amount I owe under the agreement which may be reduced by a rebate. It also says that the Creditor if:

 

• I fail to make an instalment repayment within one month of its due date, or
  
• I provide inaccurate information
  
• I die/become insolvent etc
  

then we shall become entitled after the expire of proper notice to demand immediate payment of the loan plus interest and charges on default less (on payment any applicable rebate).

 

There is nothing on the agreement specifically about my rights to terminate the agreement which I think is odd given that it was an agreement discussed over the phone and had to have been subject to the distance marketing regs. Why didn't I get a cooling off period for example?

 

There is nothing in the agreement that says the Creditor can terminate at any time without one of the exceptions I've listed above occuring.

 

I am very grateful for your pledges of funding and for all your interest and support. I have decided to get a copy of the Judgement.

 

thats ok- not to worry about that

[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

[pt2537]

Just a brief observation if a company lends money to an individual a debtor that is regulated by the CCA 1974 how can a debtor opt out of a act of parliament?

(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 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. Thats how

 

All my loan and CC agreements are regulated by the CCA 1974 I see no term that allows me to opt out of the CCA 1974. I can terminate the agreement but I have to pay it all off. If I don't pay I don't terminate it simple as that.

 

The point I'm trying to make is that a Creditor is bound by the CCA 1974, for example on my CC agreement their are terms that state the following with regards to demanding the full payment.

 

"Before making any demand we will take all the steps we are required to take by law for

your protection."

The magic words there are protection and law, if a creditor then chooses to ignore a term & condition in our agreement what as a simple debtor am I supposed to do?

 

Another term states

 

TRANSFER OF RIGHTS AND DUTIES

We may transfer any of our rights and duties under this Agreement (including but not limited to

our duty to lend to you) to any other person without giving you prior notice. No such transfer

will affect any rights you have under this Agreement, or any of your statutory nghts.

Again as a simple debtor with no legal training if I receive a letter from a random company saying they have bought my account do I believe that said company will behave fairly and legally? What if they don't?

 

At what point do you believe that the creditor had made a serious repudiation or recession of contract (Until a few years ago I had never even heard of these words and I read alot) Ok the debtor PH used the wrong word but the gist of the letter remains the same. The creditor had no wish to be bound by the contract/agreement both parties signed.

 

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

 

Recession is anyone's guess http://www.lawofcontract.co.uk/discharge/986.php interesting reading.

 

I'm not arguing about the use of each word we all know what was meant and that's the important bit.

 

So the creditor broke the agreement they admit this, how do we work the damages out how serious was their breach?

 

Pumpytums

 

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

[Peterbard]

Just a brief observation if a company lends money to an individual a debtor that is regulated by the CCA 1974 how can a debtor opt out of a act of parliament?

 

All my loan and CC agreements are regulated by the CCA 1974 I see no term that allows me to opt out of the CCA 1974. I can terminate the agreement but I have to pay it all off. If I don't pay I don't terminate it simple as that.

 

The point I'm trying to make is that a Creditor is bound by the CCA 1974, for example on my CC agreement their are terms that state the following with regards to demanding the full payment.

 

"Before making any demand we will take all the steps we are required to take by law for

your protection."

The magic words there are protection and law, if a creditor then chooses to ignore a term & condition in our agreement what as a simple debtor am I supposed to do?

 

Another term states

 

TRANSFER OF RIGHTS AND DUTIES

We may transfer any of our rights and duties under this Agreement (including but not limited to

our duty to lend to you) to any other person without giving you prior notice. No such transfer

will affect any rights you have under this Agreement, or any of your statutory nghts.

Again as a simple debtor with no legal training if I receive a letter from a random company saying they have bought my account do I believe that said company will behave fairly and legally? What if they don't?

 

At what point do you believe that the creditor had made a serious repudiation or recession of contract (Until a few years ago I had never even heard of these words and I read alot) Ok the debtor PH used the wrong word but the gist of the letter remains the same. The creditor had no wish to be bound by the contract/agreement both parties signed.

 

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

 

Recession is anyone's guess http://www.lawofcontract.co.uk/discharge/986.php interesting reading.

 

I'm not arguing about the use of each word we all know what was meant and that's the important bit.

 

So the creditor broke the agreement they admit this, how do we work the damages out how serious was their breach?

 

Pumpytums

 

YOu have to remember that the creditor despite what is currently being said is not acting unalwfully by terminating after a default even if it proven to be defective.

THe termination is merely inafective.

NO court wil find that a creditor acted unlawfully in trying to recover liabilities under a contract and how else is he to do it given the constraints of the act if he does not issue a default and terminate.

Are we saying the crediotr should be penalised for following the proceedure itemiised in the act.

And please dont go intot the moral outrage nonsence about the creditor being responsible for abusing the debtor the court will not wear it it is simply a case of an incorrect notice of action all that is needed is for the creditor to present a correct one.

 

Personally i do not see how a creditor can repudiate an agrement, to me this means denying the existance and how can he do that if he has liabilities under it. I think this is a simmilar scenario to a contractural termination which of course can never be considered repudiation.

I have read quite a few cases histories where repudiation has taken place now and to date i have yet to see one where there are actuall liabilities stilll under the contract, there are obligatios sure, obligations to perform that are not met but no actiual liabilities.

THis cannot be used to "write of" actual liabilities please show me the cases that demonstrate otherwise.

 

Also there is a missconception about the action of statute, the CCA regulates the contract, it isnt the actual contract. If something in the contract is not mentioned in the act it does not mean it is unlawful it just means that it is unregualted,there is no reason why the debtor cannot terminate within the act, but if they do they losse their rights under the agrement under the contract.

It is not a question of stepping outside of the act, i dont know who coined that phrase but it is totally missleading

It is just a question of the act not covering a particular aspect of either the contract or modifyhing common law as in section 87.

Peter

[gh2008]

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

 

Does it not come down to the type of breach?

 

PH's breach was material and rectifiable (even now if the creditor had not terminated - and even now, today, upon service of a valid DN, PH could recitfy the breach and it would be treated as though it had never happened)

The creditor did NOT server a valid DN however (as in Woodchester) ! important point is that in Woodchester the creditor did not realise teh error until litigation had started. PH informed the creditor of their error very clearly way before any claim was issued.

 

The creditor's breach was fundamental. The consequences of a fundamental breach is that the contract comes to an end.

This breach is far more severe and it is this breach which led to the contract coming to an end.

[pumpytums]

Got it so the CCA regulates the contract but it's not the contract sounds fair.

 

So what happens if a creditor does something that is expressively against what's written in the contract?

 

I agree PT if a debtor breaks the contract then the creditor should be able to recover their money providing they follow the rules laid down in the contract and the CCA that regulates the contract. After all terms are written into the contract that tell the debtor what will happen should they fail in their obligation to pay the monthly amount these as I stated above are that the creditor will take the steps required of them. At the end of the day a DN is the final wake up call rectify the breach or face the hell and high-water.

 

I'm not looking for a magic bullet by the way, I just want to know if a creditor abuses the rights of a debtor (as clearly laid down in the contract) what can they do?

 

Pumpytums