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    • Okay, it's turning out better than I expected. We can go over a resume of the situation when you get it back and see what you think might be outstanding and if you want to do anything about any of it.
    • Back home now - Not a wasted trip entirely but did not come back with the car. They took it in straight away at 8 to sort out the navigation which apparently is resolved.  Next was a health check again: 1. Battery = defective 2. Fuel Flap solenoid - Apparently this was on the MPC but I even missed this.  So another one to add to the list of not rectified but vehicle handed to us.  Worst case with this is the flap does not open. 3. Sun Visor - Requires replacing 4. Navigation - Resolved 5. Tyres - The low tread has been deemed as perished - again, I do not understand how this went through MOT the day before collection!  And they also found a nail in the tread - by the looks of it and the lack of miles we've covered, it's been in there a while.  Agreed front right is budget make.   Took a bit of to/fro but all points have been authorised by Sales for Servicing to carry out - essentially as Sales missed this (or were told it was good to sell), they foot the bill.  Internal politics and all fake/virtual money.   The bad news is despite a note to order the battery last week "just incase", it was not done so battery, solenoid, visor and tyres all will be ordered in for tomorrow and resolved tomorrow hence coming back without it today. Upside, after a bit of pushing, I did get an Automatic Q3 70 plate which was the salesmans own demonstrator.   Salesman also apologised for the way he had been/tone used last week so we've put all that in the past (if everything is sorted!)   Finally, raised the fact their MPC states various services need doing.  The service advisor agreed, checked and to my surprise, the day we picked it up, they were completed. I got a printout stating this which included the oil service (even though it was done in September), gearbox service, Haldex (for the quattro system) and brake fluid.   Only thing I need to ask tomorrow is the parts list does not state Gear Box filter which is part of the service on the s-tronics and gear oil seems to be 1x G060175A2.  IF I am reading this correctly, this is only a top up of 850ml and not a complete service which should be around 5-7 litres + filter.
    • as long as returning the car doesn't cost you ...yes. however you are not compelled to do so out of your own pocket. you simply write, if you need too, stating the car is ready for collection at anytime but please advise me first.   but of course, be a wee bit smart here, until/unless the judgement is actually satisfied, it goes nowhere! dx  
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    • Dazza a few months ago I discovered a good friend of mine who had ten debts with cards and catalogues which he was slavishly paying off at detriment to his own family quality of life, and I mean hardship, not just absence of second holidays or flat screen TV's.
       
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HFO Services/Capital/Turnbull barclaycard debt


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It is a term/condition! not a 'paragraph'! it is 'operative' as you say! :confused:

and it is what they rely on in court ie the formal demand and dn! plus it is consistent with statute (if done properly of course).

it also clearly shows their 'intention'. repudiation comes to mind, as has been discussed on cag.

 

You are missing the point... If it is a heading... it is only for information only... and not to be construed as anything else. If you want to get into the fact whether something is a term or not, then that is a different kettle of fish but the title of a paragraph, and I will re-iterate, paragraph as that is often used in contracts to explain a group of terms or representations is not a term. There is no authority that a title is a term and which is why most contracts have that clause in there.

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What about when the DN says if the arrears aren't paid by xx date, the contract will be terminated and full payment demanded? Surtely that should be sufficient?

THen follow up question, but you make very reduced payments, does this negate the termination?

Thamk you

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How about if they did it twice with defective DN's? and the agreement endured under duress :???:

 

Technically, if you did not accept the repudiation, then the contract survives.... the real world is not that simple though and there are other mitigating circumstances involved. The best thing is to accept the faulty DN as soon as you are aware of it.

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What about when the DN says if the arrears aren't paid by xx date, the contract will be terminated and full payment demanded? Surtely that should be sufficient?

THen follow up question, but you make very reduced payments, does this negate the termination?

Thamk you

 

I started something didn't I... :) by going against the doctrine of cag, I was kinda expecting this...

 

In that case, there is an intention of termination but when the letter for the full amount came, did it have termination in then... that is the key question. If no, and it just a demand, it can be argued that this was just a possible consequence of not adhering to the DN and that the Creditor is entitled to change their mind afterwards. Also, there is no statute requirement for how the final demand must look like and can even not have any amount in there.... there is case law on that.

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I started something didn't I... :) by going against the doctrine of cag, I was kinda expecting this...

.

 

It is better to be forewarned to hopefully have arguments to counter this. Just hope this thread is limited to genuine members of CAG;)

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My intention was not disparage or put off caggers... it was only for information... if the average DCA got a very competent barrister to argue the points of contract law as well as cca, then yeah, there would be an issue but most DCAs I have encountered via their counsel couldn't argue any of those points above. It is nothing to be concerned above but just shows that if repudiation is seen, it should be acted on immediately. It is better to go via the DN route rather than the above because using the above, you are still liable for the arrears whilst using the DN, enforcement is not attainable. :)

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You are missing the point... If it is a heading... it is only for information only... and not to be construed as anything else. If you want to get into the fact whether something is a term or not, then that is a different kettle of fish but the title of a paragraph, and I will re-iterate, paragraph as that is often used in contracts to explain a group of terms or representations is not a term. There is no authority that a title is a term and which is why most contracts have that clause in there.

 

imo, you're missing the point, not me. :) it is a term/condition that is relevant.

anyway, make of it what you will. :)

IMO

:-):rant:

 

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Technically, if you did not accept the repudiation, then the contract survives.... the real world is not that simple though and there are other mitigating circumstances involved. The best thing is to accept the faulty DN as soon as you are aware of it.

 

Ty :)

 

My duress involves another party not related to the agreement. I was only curious if another party agreed and provided a witness statement, then there may be a case for redress.................

 

Oh well..... looks like I may have a chance at a cheap shot, so I guess wth :-(

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Ty :)

 

My duress involves another party not related to the agreement. I was only curious if another party agreed and provided a witness statement, then there may be a case for redress.................

 

Oh well..... looks like I may have a chance at a cheap shot, so I guess wth :-(

 

Not sure I follow...?

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Not sure I follow...?

 

I have 2 DN's and up against an OC who has transferred the agreement, all rights and enforcement to another party.

 

http://yfrog.com/iynatloantransferp

 

My problem is that the DN's and the threat of legal action made me pay them instead of another party, who shall we say had greater rights to that money.

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Ok.. still not 100% clear...

 

Let's say you had a pot of money... and you owed the OC a certain amount of money. This OC (party A) assigned the debt to party B. Party B then demanded payment and you paid them from that pot of money you had.

 

Then come party C, who was also entitled to your pot of money but because you already paid B, you didn't have any? Am I correct? How did party C have greater entitlement to your pot of money than B or A?

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Ok.. still not 100% clear...

 

Let's say you had a pot of money... and you owed the OC a certain amount of money. This OC (party A) assigned the debt to party B. Party B then demanded payment and you paid them from that pot of money you had.

 

Then come party C, who was also entitled to your pot of money but because you already paid B, you didn't have any? Am I correct? How did party C have greater entitlement to your pot of money than B or A?

 

It's more like A gave me money then passed everything to B, then A issues a claim in the county court. The HMRC are C unfortunately, so I'd obviously rather owe more to B than C.

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Ok... interesting... when A passed it to B... was it a legal assignment, an equitable assignment or was it just as an agent of A.

 

B did not chase you for the money in the CC, A did and A won the judgement. Correct?

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Please clarify then which point I am missing... likewise :)I understood that you are referring to the heading which is a term? whatever you want to call it, it is relevant! :) as per my posts. all imo of course! :)

 

Edit: This is in reply to Ford. :)

 

anyway, don't want to get involved in a 'ding dong', so let's call it a day.:)

IMO

:-):rant:

 

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Ok... interesting... when A passed it to B... was it a legal assignment, an equitable assignment or was it just as an agent of A.

 

B did not chase you for the money in the CC, A did and A won the judgement. Correct?

 

Haven't filed a defence yet, it's still in the CC. I posted a link to the letter I received before the claim, looks like they've signed a deed so legal.

 

http://yfrog.com/iynatloantransferp

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Ok fair enough... :) but I have not seen any authorities which state that the title of a..

 

1.) section

2.) paragraph

3.) group of terms

 

... is construed as part of a term and I have not seen any arguments for or against the construction of a title. As an added caveat, the disclaimer mentioned above is put in there just to dispel any ambiguities in case one arises. :)

 

My advice is just be careful if you are going to use that argument and read the whole contract. :)

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Ok fair enough... :) but I have not seen any authorities which state that the title of a..

 

1.) section

2.) paragraph

3.) group of terms

 

... is construed as part of a term and I have not seen any arguments for or against the construction of a title. As an added caveat, the disclaimer mentioned above is put in there just to dispel any ambiguities in case one arises. :)

 

My advice is just be careful if you are going to use that argument and read the whole contract. :)

 

Yep! will do :)

 

I do have a section 86 section notice from A before the claim and now a section 86 notice from B.

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Oops.. sorry sickboy.. that was for Ford... :)

 

In your case, and by the way, this is based on a few minutes reading your case... if the assignment was done to Nationwide Building Society and Nationwide Trust Ltd is raising the CC, then based on what you have said, I would opt for a strike out because they have no title to sue you.

 

It would be better to raise a new thread and put all your info on it as it would be easier for caggers to advise you on it and talk about the double DN.

 

Ps... also mention which part of s 86 you received.. B/E... DN is s 87.

Edited by rhodium78
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Oops.. sorry sickboy.. that was for Ford... :)

 

In your case, and by the way, this is based on a few minutes reading your case... if the assignment was done to Nationwide Building Society and Nationwide Trust Ltd is raising the CC, then based on what you have said, I would opt for a strike out because they have no title to sue you.

 

It would be better to raise a new thread and put all your info on it as it would be easier for caggers to advise you on it and talk about the double DN.

 

Ps... also mention which part of s 86 you received.. B/E... DN is s 87.

 

lol ooops! :D

 

I have two section 86 notice of sums in arrears, which clearly state who is the creditor. Also the two section 87 DN's.

 

Keeping my thread quiet at the mo ;)

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This is a debt purchase agreement, not a deed. It states an agreement to transfer the creditor's rights, but is silent about obligations.

 

This bunch of comics have probably pleaded in their Statement of Claim that they acquired the creditor's obligations as well. They need to do so in order to qualify as a creditor under s189 of the CCA 1974.

 

If they've pleaded othere was a trandfer of bligations and the purchase agreement says not, then they're lying.

 

If you look at the assignment clause of the original credit agreement, and duties aren't assignable, they're buggered that way as well.

 

State in your defence that you neither admit nor deny any assignment. That puts them to proof.

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Breach of contract = termination when... and only when you have notified the creditor that they are in breach of contract. By not notifying the creditor, you are sidelining the breach of the faulty DN. There is no time limit on when a breach of contract has to be notified to the creditor BUT if by the debtor's actions, it leads the creditor to think that the breach of contract via the faulty DN has been elected to be disregarded by the debtor, then in contract law, it can be argued that the contract is still alive.

 

In essence, that leaves the debtor to only pay the arrears.

 

We are delving more into contract law and less into cca here.

If I may ask so that I can understand when a debtor having received a faulty DN

could accept (notify) the creditors breach of contract:

1) without needing to wait for anything in writing from the creditor whether or not specifically stating that the creditor had terminated?

2) or only on a receipt in writing specifically stating that the contract is now terminated?

3) or merely on a demand for the full balance of the contract, whether from the OC or a DCA?

4) or without the necessity of any of the above?

 

thx

Edited by mot22
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