What is Unlawful Rescission/Repudiation and What's the Next Step?

[DontPushMe]

I have read plenty of cases where the Debtor has been able to claim UR of one sort or the other and that the Debtor should write to the Creditor accepting their UR but I am getting a little confused so I thought that I should pose the question:

 

What is the difference between Unlawful Rescission and Unlawful Repudiation? Once you establish that either act has taken place what's the next step for the Debtor and what's the next step for the Creditor?

 

DPM

[Deb T]

If an account is defaulted and the default notice is found to be defective and the creditor then goes on to terminate the account then you should write to them accepting the termination of the contract as soon as you can. ..As in accepting their unlawful breaking of the contract thus the term unlawful recission.

 

 

For me the unlawful recission is your interpretation of them breaking the contract in the manner in which they did (defective default notice) and repudiating although much the same is the acceptance of said recission and that you do not consider yourself bound by the contract any longer.

 

Diddydicky has a better grasp of it than I but this is how I interpret it.

[DontPushMe]

Thanks for that Deb, just trying to get a handle on the terminology. Is your letter classed as the repudiation of the contract due to their rescission? After you accept their rescission is the complete debt written off? Or just the balance? What action will the OC take after the acceptance letter? Presumably they will deny their rescission and continue to try and enforce the debt. Does the debtor resign themselves to continually getting letters and phone calls from follow on DCAs?

 

DPM

[Peterbard]

I have read plenty of cases where the Debtor has been able to claim UR of one sort or the other and that the Debtor should write to the Creditor accepting their UR but I am getting a little confused so I thought that I should pose the question:

 

What is the difference between Unlawful Rescission and Unlawful Repudiation? Once you establish that either act has taken place what's the next step for the Debtor and what's the next step for the Creditor?

 

DPM

 

 

 

HI

Good question.

Rescission of contract is the method a court can use to return the agreement to its original state ie. make the agreement as if it had not been made.

Cant really see how this would apply in a credit agreement where a sum was still outstanding unless the balance was returned to the creditor.

Unlawful rescission is usually a term used in contract law precursory of a claim for damages. Usually it happens when a contractor fails to perform and as a result one of the parties looses out, the contractor has acted as if no agreement has existed therefore rescission.

Repudiation is a term which means a fundamental breach of contract a breach of the core terms if you like or failure to perform a contractural duty to the other party.

Again difficult to see how this would apply in this case. Unless it is the suggestion that the termination fits this description. Unfortunately a credit agreement can be terminated at any time by either party, without notice in the case of an open ended agreement.

If a contract was repudiated the injured party would be entitled to accept the repudiation and terminate the contract, but that is the debtor who would be terminating cant really see the accepting the termination thing.

Peter

[Guest HeftyHippo]

Recession is the process of turning the clock back to the point before the contract existed, and returning all parties to the status quo that existed at that time.

 

Repudiation is the breaking of the significant parts of a contract such that it is substantially not being (or won't be) fulfilled. (its nice to see some posters have actually recognised they have previously been incorrect about these differences). A contract can be broken in a minor way and be considered to be still effective. If a contract is broken in a major way, the innocent party can choose to consider the contract ended and not to be held to the contract any longer. ie, if they break the contract, there is no reason why you should uphold your part of it.

 

The thing is, if you are not seen to act as though the contract is over (ie you don't accept the repudiation), the guilty party can say that you intended the contract to continue and opted to ignore their breach. That then gives them the right to enforce teh contract at a letter date,

 

In the terms of which you probably mean, you feel a bank has repudiated the agreement. If you accept the repudiation, and tell them you consider all agreements betyween you are now ended, then in the eyes of most of us here, the agreement is ended, and under contract law, because they broke teh contract, they cannot enforce the remainder, future parts of it. ie, you are not liable for future payments of a loan etc.

[DontPushMe]

... in the eyes of most of us here, the agreement is ended, and under contract law, because they broke teh contract, they cannot enforce the remainder, future parts of it. ie, you are not liable for future payments of a loan etc.

 

But what would the judge say?

 

DPM

[Guest HeftyHippo]

But what would the judge say?

 

DPM

 

he'd say the answer was 42

[cerberusalert]

he'd say the answer was 42

 

I doubt whether he's read/seen 'Hitchhikers Guide To The Galaxy'.

[DontPushMe]

I doubt whether he's read/seen 'Hitchhikers Guide To The Galaxy'.

 

He may well have, don't underestimate a judge. They're a lot smarter than most of us and not all of them are living in the 18th century!

 

DPM

[Guest]

........Unfortunately a credit agreement can be terminated at any time by either party, without notice in the case of an open ended agreement.....but note s98A(3) which states that notice is required! also, s98 refers to 'non default cases'.

.........

 

Edited September 29, 2010 by Ford
typo

[DontPushMe]

Why is everything so narrow? I'm seeing everything as though it's in a newspaper column but there's a lot of space on either side. There's a lot of overprinting. Am I using the wrong browser? Or just the wrong settings on it? The log in fields at the top of the page are not working on my browser - I have to force an error to get a proper log in field. Anybody else have this problem?

 

DPM

[cerberusalert]

Scroll towards the top of the page and there's a box on the right saying 'Consumer Forums Menu' just click the >>

[Peterbard]

Recession is the process of turning the clock back to the point before the contract existed, and returning all parties to the status quo that existed at that time.

 

Repudiation is the breaking of the significant parts of a contract such that it is substantially not being (or won't be) fulfilled. (its nice to see some posters have actually recognised they have previously been incorrect about these differences). A contract can be broken in a minor way and be considered to be still effective. If a contract is broken in a major way, the innocent party can choose to consider the contract ended and not to be held to the contract any longer. ie, if they break the contract, there is no reason why you should uphold your part of it.

 

The thing is, if you are not seen to act as though the contract is over (ie you don't accept the repudiation), the guilty party can say that you intended the contract to continue and opted to ignore their breach. That then gives them the right to enforce teh contract at a letter date,

 

In the terms of which you probably mean, you feel a bank has repudiated the agreement. If you accept the repudiation, and tell them you consider all agreements betyween you are now ended, then in the eyes of most of us here, the agreement is ended, and under contract law, because they broke teh contract, they cannot enforce the remainder, future parts of it. ie, you are not liable for future payments of a loan etc.

 

Hi

 

Even considering that you were right and the court wold listen to such an argument, you must realise that this is really meant for use in commertial contract law when a party is not performing as they should, the obligations of the parties may well be removed by termination but the liabilities and the rights under the agreement can not

This is intended for the terminationn af contract when that termination results in rescission in a credit agreement it cannot unless the liability uner the contract is ended.

 

I would warn the OP about accepting the advice of people on heere just because it is widely agreed, a lot of time the arguments are recycled from just one source that may well be inaccurate, the only way to get an accurate picture is to get off here and do your own research.

My opinion

 

Peter

 

 

 

Peter

Edited September 29, 2010 by Dodgeball
spell

[DontPushMe]

Scroll towards the top of the page and there's a box on the right saying 'Consumer Forums Menu' just click the >>

 

Can't see it myself. I appreciate that the team are doing loads of mods so I'll be patient and find other ways of getting logged in.

 

Re the UR I tend to agree with PB. I thought I had a good case for UR because everybody says that an invalid DN followed by a termination will give you a case of UR but having taken advice it would appear not to be the case. So beware and do your research. Make sure it's relevant to your case and don't breeze in with UR. It's not that simple.

 

DPM

[cerberusalert]

Closing that box opens the rest of the page up and stops the posts being in a column.

[Guest HeftyHippo]

Re the UR I tend to agree with PB. I thought I had a good case for UR because everybody says that an invalid DN followed by a termination will give you a case of UR but having taken advice it would appear not to be the case. So beware and do your research. Make sure it's relevant to your case and don't breeze in with UR. It's not that simple.

 

DPM

 

so why bother asking us if you already knew?

[fightingback99]

PB are you saying you think it's the just the unlawful rescission part that doesn't count for Credit Card Agreements or do you also think a DN not being issued or being faulty doesn't count with Credit Cards.?

 

There's thread on this forum somewhere about someone who won their case due to the DN. Can't access it now, I lost all my links when the site was recently upgraded to new layout.

 

A faulty or lack of DN obviously upsets Cabot who have a Consumer Credit Licence. They take great pains in their claim statements to say the lack of a DN or faulty DN makes no difference because they are only trying to claim arrears? Quite sure Mr W. W's department wouldn't bother trying to cover their backsides with this little statement, misleading as it may or may not be ,if they didn't think it important?.

 

I've got a lettter from the RBS which states it's a legal requirement for them to issue a Default , although it wouldn't be the first time they got their facts back to front. Also discussed it with 2 legal representatives familiar with Consumer Credit Law from a large legal firm and they both agreed the lack of a DN does count.

 

Obviously each individual case will be based on slighty diffferent circumstances, and its' a bad idea for someone to just copy a sweeping statement into a defense without making sure its relevant to their circumstances, and they understand the reasoning and law behind it..

[DontPushMe]

so why bother asking us if you already knew?

 

Originally when I asked the question I didn't know the answer but since then I have sought advice elsewhere.

 

DPM

Edited September 30, 2010 by DontPushMe

[DontPushMe]

Scroll towards the top of the page and there's a box on the right saying 'Consumer Forums Menu' just click the >>

 

I do not see this box. Was it a floating menu? I remember seeing one some time back but I may have closed it down for good.

 

DPM

[cerberusalert]

..

[Abby25]

I think I've become a bit lost in the whole faulty DN area....

 

Is it now taken that:-

• a faulty dn (not enough time for remedy, asking for the whole amount - instead of arrears etc) has no real legal bearing ....
  
• that a faulty DN doesn't affect the creditors rights under s87 (entitlement to sums not yet due) - it simply has no effect
  
• and that really the only defence you will ever now have regarding a credit agreement ,is if you have an errant or faulty CCA
  

I had a faulty CCA, followed by a faulty DN & letter of termination, I responded accepting the creditors unlawful repudiation of the agreement, advising them that they had by virtue forfeited their future rights under s87.

 

They have never responded to this - but wonder now from reading this where the hell I stand.

 

Does the CCA74 regulations regarding compliant DNs mean nothing ???

 

Abs x

[DontPushMe]

Thanks Cerberus. I went off to watch the news - Lloyds topping the number of complaints - and when I came back I'd been timed out but the floating menu with the chevrons was there so I clicked the chevrons and got full width again. This floating menu seems to come and go. I opened another tab on my browser and it didn't have it either but it's appeared now. All very strange.

 

DPM

[DontPushMe]

Hey Abby, glad to see that I'm not the only person confused. It would appear that the banks are throwing lots of money at convincing the judiciary that the CCA doesn't apply to banks. The aggravating fact is that in many cases it's our money!

 

DPM

[Abby25]

In my case ... if any of mine ever get near a court room I have no intention of appearing as a LIP - but have a solicitor already lined up who specialises in Consumer Credit and offers a "no win no fee" service.

 

But, if by some virtue I ended up as a LIP - my arguement will be based on the regulations laid down by the CCA74 - which is a statue (i.e passed by and is an act of Parliment and sanctioned by the Crown) to ensure consumer protection ...

 

Which a DJ has neither the power or judicial support to ignore, over rule or twist to fit the Creditor's needs ..... if the DJ doens't know enough about the CCA74 - they should go away and study it before laying down in correct decisions .. the whole thing makes my blood boil !!!!

 

Abs x

[Peterbard]

PB are you saying you think it's the just the unlawful rescission part that doesn't count for Credit Card Agreements or do you also think a DN not being issued or being faulty doesn't count with Credit Cards.?

 

There's thread on this forum somewhere about someone who won their case due to the DN. Can't access it now, I lost all my links when the site was recently upgraded to new layout.

 

A faulty or lack of DN obviously upsets Cabot who have a Consumer Credit Licence. They take great pains in their claim statements to say the lack of a DN or faulty DN makes no difference because they are only trying to claim arrears? Quite sure Mr W. W's department wouldn't bother trying to cover their backsides with this little statement, misleading as it may or may not be ,if they didn't think it important?.

 

I've got a lettter from the RBS which states it's a legal requirement for them to issue a Default , although it wouldn't be the first time they got their facts back to front. Also discussed it with 2 legal representatives familiar with Consumer Credit Law from a large legal firm and they both agreed the lack of a DN does count.

 

Obviously each individual case will be based on slighty diffferent circumstances, and its' a bad idea for someone to just copy a sweeping statement into a defense without making sure its relevant to their circumstances, and they understand the reasoning and law behind it..

 

Hi

A Default notice is always necessary if a creditor wishes to enforce the agreement and recover all amounts due under it.

The creditor can use the DN as a method of recovering the same arrears as it would be stated on the notice as the amount needed to remedy the breach.

I have not been following the Cabot thing but if they are saying they do not need to issue a default because they are only chasing arrears, I would say that the arrears would only be due to be paid in the manor prescribed by the agreement.

In a credit card any arrears become part of the balance owed unless the agreement has been terminated and for that you need a DN, the method of repaying the balance is one of the prescribed terms as far as I am aware, like I say I know nothing about this case so there may be other issues I am unaware of.

　

Regards

Peter