Repudiation of Contract

[Turnaround]

Hi, just a quick question I hope.

 

I would be grateful of some advice regarding an invalid default notice, reclaiming charges and a miss-sold PPI, all with the same credit card.

 

I have sent a CCA and SAR to the OC and am now in the process of producing a spreadsheet for my claim/claims.

 

My problem is in which order do you proceed. I would prefer not to be engaged in a court battle, although I appreciate that they may well back down at the last minute.

 

a) It is my understanding that if I claim the charges and PPI back first, with contractual interest, it will clear the principal and arrears, if refunded in full. So there might be no need to except the repudiation of contract.

 

b) If I except the repudiation of contract first, because of the invalid default notice, I then only have to pay the arrears. Can I then reclaim the charges and PPI to pay the arrears and have some left over.

 

c) Do I do it all at once and it gets sorted out in the wash.

 

Thank you in advance

 

Regards….Turnaround

　

Edited October 2, 2010 by Turnaround
typo

[Turnaround]

Bump.....

[pt2537]

if you breach the contract, by witholding payment, please explain how the company is either repudiating or giving intention to repudiate?

 

are you not the contract breaker? are you not showing an intention that you no longer intend to abide by the contract?

 

Seems to me that the default notice point is a difficult one to get over, also significant counsels opinion is that if the default notice is invalid at law, then there can be no termination as the statute doesnt allow it, unless s87(1) is satisfied.

[Turnaround]

Thank you for your input pt2537.

 

I think I need to explain the default issue first.

 

In March 10, an invalid default was issued.

a) It did not contain the OC’s name & address.

b) The prescribed statements are in lower case and one is reworded.

c)The principal amount shown includes charges and miss-sold PPI.

 

In Aug 10, a demand for the full amount was received.

 

It is my understanding that, by issuing an invalid default notice followed by a demand for the full amount, a repudiation of contract occurred. As the agreement was unlawfully rescinded, they forfeited any right to payments due after the date of unlawful rescission in accordance with Section 87 (1) of the Consumer Credit Act 1974.

 

A reminder of the original question:

a) It is my understanding that if I claim the charges and PPI back first, with contractual interest, it will clear the principal and arrears, if refunded in full. So there might be no need to except the repudiation of contract.

 

b) If I except the repudiation of contract first, because of the invalid default notice, I then only have to pay the arrears. Can I then reclaim the charges and PPI to pay the arrears and have some left over.

 

c) Do I do it all at once and it gets sorted out in the wash.

 

Which is the best or more beneficial course to take?

 

Regards…Turnaround

[pt2537]

the default isnt an issue, this is the problem,

 

you are implying a sanction for breach of the act which is not prescribed by the Act.

 

See s170 CCA http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&title=consumer+credit+act+1974&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&parentActiveTextDocId=436428&ActiveTextDocId=436644&filesize=6047

 

Secondly, your point doesnt consider the (wrongly decided) case of brandon v Amex which is a High Court authority. It is clear that the points you raise, would leave the lender , assuming the court accepts the default notice is invalid, with a right to recover outstanding arrears on the account, see woodchester v Swain

 

In short, i do no see you have merit in your arguments, however, you may have merit in your case, these are two totally different things, and should not be confused,

 

I say again, did you stop paying? if you did then you are the contract breaker, and therefore you are in trouble with the recission / repudiation arguments, sorry if its not what you wanted to hear, but you can of course wait for someone to come along and agree with you, and that is of course your right, i am merely conveying my experience and the advice i have been given from the leading barristers in the world of CCA law, and of course my experience of advocacy with my clients

[Turnaround]

Thank you again pt2537.

 

I was regularly paying a pro-rata payment that I could afford up until June 10. Even though this was not the minimum amount required, could it be construed that I had stopped paying?

 

Regards..Turnaround

[pt2537]

yes, as you had breached the terms of the agreement, it seems from what you are saying

[Turnaround]

Its not what i really wanted to hear, but do understand the issues you raise.

 

Thank you for your time and respected views.

 

Regards....Turnaround

[pt2537]

now then

if there is ppi, was it conditional or a requirement of the loan or was it truly optional?

 

how is the ppi included on the agreement

 

these points may be more fruitful

[Bill Shidding]

Hi Turnaround,

 

Pt is well positioned to feel the pulse of the courts at this time. In the light of Pts comments, and the invariable risk of the judge lottery, I would like to add;

 

If you cannot do this -

 

It is my understanding that if I claim the charges and PPI back first, with contractual interest, it will clear the principal and arrears, if refunded in full.

 

And you have written this -

 

I would prefer not to be engaged in a court battle, although I appreciate that they may well back down at the last minute.

 

You may want to consider this option, if all else fails -

 

http://www.nationaldebtline.co.uk/england_wales/factsheet.php?page=06_time_orders

 

Bill

[Turnaround]

When I applied for the card the PPI was recommended, even though I was self employed, and remained so up to my recent retirement

[Bill Shidding]

Hi,

 

Have you exhausted the companys PPI complaints procedure?

 

If so, it would be appropriate to approach the FOS now.

 

I assume you have already requested a copy of the agreement, under CCA74?

[Turnaround]

Hi Bill,

 

I had not even considered this and could be an option. Thank you for this heads up.

 

Regards…Turnaround

[Turnaround]

Bill,

 

I have submitted a CCA and no agreement was forthcoming. Also done a SAR for my charges and miss- sold PPI and hopefully a copy of the agreement.

 

I haven’t approached the companies PPI complaints procedure yet as I have only just received my data back.

 

Regards….Turnaround

[Bill Shidding]

Ok, I would start to get the ball rolling with their complaints dept.

 

It may/should hold them off starting a claim, if there is an ongoing dispute.

 

Post again if you get stuck!

 

All the best,

 

Bill

[Turnaround]

Thank you Bill.

 

Thank you pt2537

Edited October 3, 2010 by Turnaround
added pt

[Guest]

hi

 

just some info re repudiation.

it has been said that 'the essence of repudiation is an intention to abandon the contract or refuse further performance', and where someone attempts to adhere to a contracts terms re termination, (and therefore the issue of a dn for eg?), it may not necessarily be regarded as a repudiation even if the 'attempt' is unjustified. it depends on the circumstances.'

 

any thoughts on this view? thanks.

Edited October 4, 2010 by Ford
typo

[Turnaround]

Hi Ford,

 

Thanks for the input.

 

The news from pt2537 has thrown me a little, regarding having no merit in my argument but might have merit in my case.

 

I thought I understood the process, from hours of reading the boards, but gave little thought to any argument and assumed from the OC’s actions that they had indeed cancelled the contract. This scenario is well documented on the various boards, as you will be aware.

 

I have always respected pt2537’s views and I’m currently trying to research what he was getting at, but must admit it’s tending to confuse me more than helping at the moment.

 

I’m not sure I can air a view to your post, at this moment in time but I am intrigued and a little confused.

 

I understand your interpretation of the term "repudiation"

You write

 

　

and where someone attempts to adhere to a contracts terms re termination, (and therefore the issue of a dn for eg?), it may not necessarily be regarded as a repudiation even if the 'attempt' is unjustified. it depends on the circumstances.'

 

Is that someone me or the OC?

 

Please don’t think I’m making light of your post, I can see that you have helped many others, like me also in the past. It’s just that I don’t fully understand.

 

Regards.....Turnaround

Edited October 4, 2010 by Turnaround
typo

[Guest]

hi turnaround

 

the view posted is just a 'general' view re repud'n and 'termination', but with the dn issue in mind. so, in that context, the 'someone' could be regarded as the creditor. but, in general, the 'someone' could be any party to an agreement.

Edited October 5, 2010 by Ford
typo

[Turnaround]

Hi Ford,

 

Thank you, I will mull on that and get back.

 

Regards.....Turnaround

[Turnaround]

Hi Ford,

 

Thank you so much for potentially creating a "eureka" moment.

 

As I understand it, and correct me if I’m wrong, the answer is basically about morals.

 

A debtor borrows money, signs an agreement to repay over a period of time. The debtor then becomes unable to repay in line with the agreement and therefore is the first party to break that agreement. The creditor then has to issue a default notice, inline with CCA 1974. The debtor has a prescribed amount of time to rectify the issue, after which the creditor is then able to claim the full amount owed.

 

Now the morality bit. Does a debtor use the fact that, a creditor makes an error or two during the process of enforcing CCA 1974, and then uses this to his/her advantage to evade repaying the debt.

 

Rightly or wrongly my personal view is that, it depends on the conduct of the creditor during and after the term of the agreement. Some are very helpful and constructive during times of hardship, whilst others are not. For those that are not, it ends up as a personal choice as to whether you exploit their failings to gain a form of compensation/redress for all the distress and heartache caused.

 

This particular creditor initially decided to exploit a position of trust, by miss-selling me an expensive product, fully aware that I couldn’t use it. Then decides to apply unlawful charges. When I fell on hard times they refused to accept pro-rata payments, preferring instead to harass, threaten and cause heartache.

 

The only compensation/redress that I would have to this unwarranted behaviour would be to exploit their errors, you can’t always turn the other cheek.

 

I hope that I have grasped this correctly and that you consider my views to be lawful, fair and balanced

 

Regards….Turnaround

[AndyOrch]

I would say you have grasped it perfectly Turnaround .Laws are in place to protect the debtor also.

 

Regards

 

Andy

[Guest]

hi

 

I would say you have grasped it perfectly Turnaround .Laws are in place to protect the debtor also.

 

Regards

 

Andy

 

ditto

 

Hi Ford,

 

Thank you so much for potentially creating a "eureka" moment.

 

As I understand it, and correct me if I’m wrong, the answer is basically about morals.

 

A debtor borrows money, signs an agreement to repay over a period of time. The debtor then becomes unable to repay in line with the agreement and therefore is the first party to break that agreement. The creditor then has to issue a default notice, inline with CCA 1974. The debtor has a prescribed amount of time to rectify the issue, after which the creditor is then able to claim the full amount owed.

 

Now the morality bit. Does a debtor use the fact that, a creditor makes an error or two during the process of enforcing CCA 1974, and then uses this to his/her advantage to evade repaying the debt. i would prefer to describe it as avoidance rather than evasion.

 

Rightly or wrongly my personal view is that, it depends on the conduct of the creditor during and after the term of the agreement. Some are very helpful and constructive during times of hardship, whilst others are not. For those that are not, it ends up as a personal choice as to whether you exploit their failings to gain a form of compensation/redress for all the distress and heartache caused...and any poss redress for any breaches by the cr themselves (a breach example being a failure to comply with the cca (and therefore the agreement that it regulates). such as s87/88 for eg, if in issue.)

 

This particular creditor initially decided to exploit a position of trust, by miss-selling me an expensive product, fully aware that I couldn’t use it. Then decides to apply unlawful charges. When I fell on hard times they refused to accept pro-rata payments, preferring instead to harass, threaten and cause heartache.

 

The only compensation/redress that I would have to this unwarranted behaviour would be to exploit their errors, you can’t always turn the other cheek.

 

I hope that I have grasped this correctly and that you consider my views to be lawful, fair and balanced

 

Regards….Turnaround

 

also consider the poss use of s140 cca (as amended) in your favour.

 

imo

Edited October 5, 2010 by Ford

[The Mould]

Would it not be a matter of common justice to penalize the creditor for his failure to comply with legislation contained in the CCA (as amended) regarding the issuing/serving of Default Notices, simply because there is no civil or criminal sanctions available under the said act for such failure by the creditor, is it just to ignore the fact that creditors are well positioned and fully furnished with what they must do before Terminating the agreement and proceeding with enforcement action.

 

Yes, the debtor breaks the contract by not performing his obligations (for whatever reason), but it is a matter of law that the creditor is not entitled to something unless he first complies with legislation and accurately does so comply.

 

How can it prejudice a creditor if he is told you failed with your legal obligation (the prescribed format for issuing DN's and Termination), you have Terminated the agreement, therefore your failures have cost you because that mistake is your mistake and all mistakes cost, it is a matter for the two parties to the agreement to decide whether or not they agree to reinstatement because the Court has no right to force the hand of the debtor to sign an acceptance of reinstatement.

 

If the creditor Terminates the agreement, but it later turns out that he did so on the foundation of an invalid/defective Default Notice, that does not delete the fact that the agreement has been Terminated, it is irelevant that there are no civil or criminal sanctions imposed by the said act because that does not invalidate the Termination.

 

What do you think?

 

Kind Regards

 

The Mould

[The Mould]

OK,

 

What I am saying in the above post is - A defective Default Notice merely prevents the creditor from his entitlement to the full balance, it does not extinguish the Termination.

 

So a simple letter to your creditor accepting his Termination of the agreement is all that is required from the debtor, in the case of a defective Default Notice being served upon him and Termination thereafter by the creditor.

 

The creditor's own actions (of his failure(s)) have taken the ground from beneath him, the Termination is good in law, there is no sanction being imposed upon the creditor, he has extinguished his own rights of entitlement.

 

The actual (correct) amount of arrears, the debtor is still liable for and no other amount (maybe Court costs).

 

Kind Regards

 

The Mould