Contracts, Termination, Repudiation and Rescission

[diddydicky]

Envince attention like that though what does it mean exactly in this context, hell in any context

 

the words used were to" envince an INTENTION " ( not an ATTENTION) -

 

you ask what it means

 

since it forms the basis of the act of repudiation....one wonders how you can pass opinion as to the legitimacy of the act of repudiation if you do not even understand the meaning of the wording

 

however as requested....................

 

what it means is that the party has made it clear to the other party that he no longer intends to perform under an agreement or contract.....................unlike a consumer in a CCA agreement who, for whatever reason finds himself unable to make a handful (out of possibly hundreds) of monthly payments on time

 

no where in his failure to make these payments- does the debtor "ENVINCE" his intention to no longer perform under the agreement

 

indeed in many cases (not that i personally agree with this strategy) the debtor has stopped making payments NOT because he does not intend to continue to perform. or even because he is skint.....but in protest at the creditor refusing to comply with a s78 request and ignoring the consumers complaints and ...in which case.....as can be seen by the raft of letters on the forum........... he makes the point in writing that the account is IN DISPUTE ....which is a million miles away from "envincing an intention not to perform"

 

 

i would also add that an unlawful repudiation actually occurs at THE POINT of the wrongdoer "envincing the Intention " (saying he is GOING TO) and not when he actually carries out the threat

 

for clarity- if the person makes a statement of his intention not to perform (as for instance the creditor does when, in an invalid DN he states that on a certain date he will terminate the agreement and demand repayment of sums not yet due) then the repudiation is complete AS AT THE TIME HE MAKES THAT DECLARATION....and since the creditor is "envincing an intention not to perform" in circumstances where he is not lawfully permitted to do so (invalid DN) - then so his actions- not being lawful....must therefore be Unlawful and the DN itself amounts to an unlawful repudiation

 

he may of course - as may any repudiator- UN REPUDIATE- but he must do so BEFORE the injured (performing) party is either prejudiced OR makes an election to accept the repudiation

 

the injured party not only has a duty to mitigate his losses ( and may therefore need to seek finance eleswhere) but also may take the decision to accept the unlawful repudiation on the basis that the repudiators actions- going as they do to the very heart of the agreement--clearly amount to a total breakdown of the relationship between the parties which cannot be recovered

 

once the performing party makes that election then, both parties now agreeing not to perform further under the agreement- it is effectively dead (save for the fact that the performing party will still have rights under the agreement to sue for losses) and can then only be ressurrected if BOTH parties agree to do so ...... and that sir, is why the service of a second DN, post termination- can never be valid....because the prescribed wording of a VALID DN is predicated on a live (Enduring) agreement

 

i am well aware that certain creditors will make the argument that as the DN was invalid then so (lawfully) the agreement was not in fact terminated

 

i would argue that

 

1/ Even were it to be the case that the creditor accidentally or unknowingly terminated the agreement- and claims he did so in "good faith"- if the debtor has formally accepted the termination- then it would be clear that both creditor and debtor have agreed to terminate the agreement......so it is terminated

 

i know of no clauses or terms of the agreement which say that the parties to the agreement cannot agree to it being amended

 

indeed in many agreements the creditor reserves a right to alter the terms of the agreement- so if the debtor agrees....job done

 

2/ Of course we all know (well all but one) that the act does not serve to take away rights from the consumer the protection that every other contract or common law has for a performing party- where the other unlawfully repudiates........ etc etc

Edited February 23, 2011 by diddydicky

[Peterbard]

Envince attention like that though what does it mean exactly in this context, hell in any context

 

the words used were to" envince an INTENTION " ( not an ATTENTION) -

 

you ask what it means

 

since it forms the basis of the act of repudiation....one wonders how you can pass opinion as to the legitimacy of the act of repudiation if you do not even understand the meaning of the wording

 

however as requested....................

 

what it means is that the party has made it clear to the other party that he no longer intends to perform under an agreement or contract.....................unlike a consumer in a CCA agreement who, for whatever reason finds himself unable to make a handful (out of possibly hundreds) of monthly payments on time

 

no where in his failure to make these payments- does the debtor "ENVINCE" his intention to no longer perform under the agreement

 

indeed in many cases (not that i personally agree with this strategy) the debtor has stopped making payments NOT because he does not intend to continue to perform. or even because he is skint.....but in protest at the creditor refusing to comply with a s78 request and ignoring the consumers complaints and ...in which case.....as can be seen by the raft of letters on the forum........... he makes the point in writing that the account is IN DISPUTE ....which is a million miles away from "envincing an intention not to perform"

 

 

i would also add that an unlawful repudiation actually occurs at THE POINT of the wrongdoer "envincing the Intention " (saying he is GOING TO) and not when he actually carries out the threat

 

for clarity- if the person makes a statement of his intention not to perform (as for instance the creditor does when, in an invalid DN he states that on a certain date he will terminate the agreement and demand repayment of sums not yet due) then the repudiation is complete AS AT THE TIME HE MAKES THAT DECLARATION....and since the creditor is "envincing an intention not to perform" in circumstances where he is not lawfully permitted to do so (invalid DN) - then so his actions- not being lawful....must therefore be Unlawful and the DN itself amounts to an unlawful repudiation

 

he may of course - as may any repudiator- UN REPUDIATE- but he must do so BEFORE the injured (performing) party is either prejudiced OR makes an election to accept the repudiation

 

the injured party not only has a duty to mitigate his losses ( and may therefore need to seek finance eleswhere) but also may take the decision to accept the unlawful repudiation on the basis that the repudiators actions- going as they do to the very heart of the agreement--clearly amount to a total breakdown of the relationship between the parties which cannot be recovered

 

once the performing party makes that election then, both parties now agreeing not to perform further under the agreement- it is effectively dead (save for the fact that the performing party will still have rights under the agreement to sue for losses) and can then only be ressurrected if BOTH parties agree to do so ...... and that sir, is why the service of a second DN, post termination- can never be valid....because the prescribed wording of a VALID DN is predicated on a live (Enduring) agreement

 

i am well aware that certain creditors will make the argument that as the DN was invalid then so (lawfully) the agreement was not in fact terminated

 

i would argue that

 

1/ Even were it to be the case that the creditor accidentally or unknowingly terminated the agreement- and claims he did so in "good faith"- if the debtor has formally accepted the termination- then it would be clear that both creditor and debtor have agreed to terminate the agreement......so it is terminated

 

i know of no clauses or terms of the agreement which say that the parties to the agreement cannot agree to it being amended

 

indeed in many agreements the creditor reserves a right to alter the terms of the agreement- so if the debtor agrees....job done

 

2/ Of course we all know (well all but one) that the act does not serve to take away rights from the consumer the protection that every other contract or common law has for a performing party- where the other unlawfully repudiates........ etc etc

 

I see

 

Debtor dont pay just a bit bad creditor terminates very bad.

 

Debtor wins dont pay nuffin

Got it

 

Ever worked?

[diddydicky]

well, yes actually- you do seem - in your own inimitable way....to be getting a handle on the whole thing

 

the CCA is the modern day equivalent of the moneylenders act.where the govt acts to protect the unsophisticated consumer against the might and muscle of the big bad moneylender...

 

the act "punishes" the creditor for not getting things "spot on" ( because with all the legal and financial power at their behest they are EXPECTED to act with precision)

 

and the act "protects" the consumer- and it has been recognised by the house of lords- that sometimes- for the greater good- individual debtors will indeed gain a windfall at the expense of the creditor

 

all we have to do now is to pursuade a handful of "iffy" (in any context you want to take it) lower court judges to apply the CCA as it was MEANT to be applied and not to their own idea of what the CCa is about

 

 

many (most) victories for debtors will not necessarily be in court- but in the discontinuance of claimants faced with the proper arguments-

 

unfortuneately many debtors go off "half cocked" with their defence and their ignorance of the act and their lack of understanding shines through like a beacon to the creditor

 

but that does not mean that we should throw in the towel (as is your philosophy) and not keep trying

 

the moral of the story being...........that the creditors are big and powerful enough to get all their ducks in a row...first time out and if they dont.........tough titty

[Peterbard]

well, yes actually- you do seem - in your own inimitable way....to be getting a handle on the whole thing

 

the CCA is the modern day equivalent of the moneylenders act.where the govt acts to protect the unsophisticated consumer against the might and muscle of the big bad moneylender...

 

the act "punishes" the creditor for not getting things "spot on" ( because with all the legal and financial power at their behest they are EXPECTED to act with precision)

 

and the act "protects" the consumer- and it has been recognised by the house of lords- that sometimes- for the greater good- individual debtors will indeed gain a windfall at the expense of the creditor

 

all we have to do now is to pursuade a handful of "iffy" (in any context you want to take it) lower court judges to apply the CCA as it was MEANT to be applied and not to their own idea of what the CCa is about

 

 

many (most) victories for debtors will not necessarily be in court- but in the discontinuance of claimants faced with the proper arguments-

 

unfortuneately many debtors go off "half cocked" with their defence and their ignorance of the act and their lack of understanding shines through like a beacon to the creditor

 

but that does not mean that we should throw in the towel (as is your philosophy) and not keep trying

 

the moral of the story being...........that the creditors are big and powerful enough to get all their ducks in a row...first time out and if they dont.........tough titty

 

 

ever worked?

[Peterbard]

http://www.consumeractiongroup.co.uk/forum/showthread.php?282931-off-topic-arguements-that-dont-help-members-thread/page4

 

post 66

[diddydicky]

ever worked?

 

worked for me with nationwide- they discontinued!

[Peterbard]

worked for me with nationwide- they discontinued!

 

Discontinued, congratulations for now.

[emandcole]

Worked for me too, GE unlawfully sold an account to Link Financial having failed to include a tariff of default charges in their T&C's and sulking when I asked them about the charges they'd gone on to apply anyway. Yes, I'd been late now and then but having returned to uni for three years I anticipated some tight financial times.

 

At no time did I intend not to perform out of spite but on some occasions out of necessity, I did expect however that the charges they were to saddle me with whilst also updating my credit file would be rights they'd correctly reserved and in my case they had not so of course I challenged them. This was not repudiation, I was exercising my right to be treated within the confines of our agreement, just as they expect me to do.

 

Instead of dealing with my legitimate concerns they sold the account to link who discontinued 3 months after my arguments were examined in court at an application hearing I'd funded and the DN was rejected as invalid. Link 'went off to make a new one' and when I asked how they intended to do that when it was quite clear the account had ended as expressed to me both in writing and by conduct strangely they didn't come back with one. Notice of discontinuance arrived in a lovely white A4 envelope asking me to accept whilst bearing my own costs.

 

Peter, I do see your angle and try to adopt an open mind to all arguments proposed but I don't see how a creditor appears able to sidestep their termination, which as in my experience was both in writing and in conduct (so their intentions could not have been clearer) and then ask permission of the court if it's ok for them to have another go at making a statutory notice, as many times as they like until they accidentally create a valid one.

 

I would therefore ask you in sincerity - If you are the claimant and seek the support of the courts to apply the law to your benefit should you not have all of your own documents in order before you go running off complaining about the faults of the other party?

 

I'd also ask - If the creditor states the agreement will be operated within the confines of the CCA how are they able to effectively ignore sections later on when it suits them? Either it is regulated or it isn't. The agreement doesn't say this loan is regulated in part by the CCA 1974 does it?

Edited February 24, 2011 by emandcole

[Peterbard]

I dont think the creditor is sidestepping anything. I congratulate you but you where lucky there is no law to support this contention and many on here have had DNs represented. As indeed could yous anf i think LDs unless a judgement was made.

I think encourageing people to follow this is irresponsible.

 

I went to pains to to de bunk the continually quoted reference to the woodchester case earlier in this thread no one has challengd my conlusions with reasoned argument.

 

Any way there seems to be a high court judgement coming up that i hope will settle the mattr

 

Peter

[Peterbard]

Worked for me too, GE unlawfully sold an account to Link Financial having failed to include a tariff of default charges in their T&C's and sulking when I asked them about the charges they'd gone on to apply anyway. Yes, I'd been late now and then but having returned to uni for three years I anticipated some tight financial times.

 

At no time did I intend not to perform out of spite but on some occasions out of necessity, I did expect however that the charges they were to saddle me with whilst also updating my credit file would be rights they'd correctly reserved and in my case they had not so of course I challenged them. This was not repudiation, I was exercising my right to be treated within the confines of our agreement, just as they expect me to do.

 

Instead of dealing with my legitimate concerns they sold the account to link who discontinued 3 months after my arguments were examined in court at an application hearing I'd funded and the DN was rejected as invalid. Link 'went off to make a new one' and when I asked how they intended to do that when it was quite clear the account had ended as expressed to me both in writing and by conduct strangely they didn't come back with one. Notice of discontinuance arrived in a lovely white A4 envelope asking me to accept whilst bearing my own costs.

 

Peter, I do see your angle and try to adopt an open mind to all arguments proposed but I don't see how a creditor appears able to sidestep their termination, which as in my experience was both in writing and in conduct (so their intentions could not have been clearer) and then ask permission of the court if it's ok for them to have another go at making a statutory notice, as many times as they like until they accidentally create a valid one.

 

I would therefore ask you in sincerity - If you are the claimant and seek the support of the courts to apply the law to your benefit should you not have all of your own documents in order before you go running off complaining about the faults of the other party?

 

I'd also ask - If the creditor states the agreement will be operated within the confines of the CCA how are they able to effectively ignore sections later on when it suits them? Either it is regulated or it isn't. The agreement doesn't say this loan is regulated in part by the CCA 1974 does it?

 

Hi just re read this, it seems that you did not repudiate so they were wrong to issue a default in the first place,this would be a legitimate contractural terminatin and as such not actionable.

This is a different argument entirely. In fact it illustrates my earlier post.

 

I would advise any one who has been taken to court after a contractural termination to fight, as you say this would not be a repudiation.

 

Peter

[Peterbard]

Hi

Well we finally have a case that has gone to court using the acceptance of repudiation argument here it is

 

Well judgement has gone against me today. I am disappointed but not surprised. The DJ was very nice and treated me kindly and said I had fought a valiant battle and that my documents were all in excellent order. In his opinion "the Defendant's fatal flaw was to accept the repudiation of contract" meaning that I still owe the remaining balance. I do have right of appeal of course and I am also considering bringing a counter claim for damages caused by the repudiation. I shall take legal advice on that point. The DJ agreed the DN was a travesty. When I get the full judgement I will consider posting it up. He felt my argument was attractive but the fact I accepted the rescission in writing brought matters outside the CCA and into normal laws relating to debt.

NO it was deffinately

As you can see the judge not only threw it out but found for the creditor because the debtor had repudiated the agreement. The stinger in the tail is that if she had not followed the advice given the case would have been found in her favour as the creditor had already admited the DN was defective.

Needless to say there is multiple back peddling and re writing of history going on now but the tuth is now out, it was never going to work it was a fantassy as i turned out a dangerous fantassy.

Problem is that there are many cases like this waiting to come through all advised by the same jolly band.

 

Lets hope they have time to ammend their deffences before they suffer the same fate

 

Peter

[diddydicky]

QUOTE and many on here have had DNs represented UNQUOTE

 

an opinion surely and no evidence from the forum to support the opinion

 

in fact i would disagree and say VERY FEW creditors have served second DN's

[diddydicky]

Hi

Well we finally have a case that has gone to court using the acceptance of repudiation argument here it is

 

Well judgement has gone against me today. I am disappointed but not surprised. The DJ was very nice and treated me kindly and said I had fought a valiant battle and that my documents were all in excellent order. In his opinion "the Defendant's fatal flaw was to accept the repudiation of contract" meaning that I still owe the remaining balance. I do have right of appeal of course and I am also considering bringing a counter claim for damages caused by the repudiation. I shall take legal advice on that point. The DJ agreed the DN was a travesty. When I get the full judgement I will consider posting it up. He felt my argument was attractive but the fact I accepted the rescission in writing brought matters outside the CCA and into normal laws relating to debt.

NO it was deffinately

As you can see the judge not only threw it out but found for the creditor because the debtor had repudiated the agreement. The stinger in the tail is that if she had not followed the advice given the case would have been found in her favour as the creditor had already admited the DN was defective.

Needless to say there is multiple back peddling and re writing of history going on now but the tuth is now out, it was never going to work it was a fantassy as i turned out a dangerous fantassy.

Problem is that there are many cases like this waiting to come through all advised by the same jolly band.

 

Lets hope they have time to ammend their deffences before they suffer the same fate

 

Peter

 

you have this version of the matter- and i am sure you have had others- make of them what you will

[Peterbard]

QUOTE and many on here have had DNs represented UNQUOTE

 

an opinion surely and no evidence from the forum to support the opinion

 

in fact i would disagree and say VERY FEW creditors have served second DN's

 

ALmost eery creditor i have come across that has seervd a defective DN has remedied with a corrected one ther are lots on here use the search tool

 

Peter

[Peterbard]

you have this version of the matter- and i am sure you have had others- make of them what you will

 

 

Not my version is it see the big red letters its the poor sod that followed your advice.

 

Peter

[Peterbard]

Many more of this mobs victims will be coming tio the fore now and when they do i will post them on here .This may be the longest thread on the forum.

[Peterbard]

ALmost eery creditor i have come across that has seervd a defective DN has remedied with a corrected one ther are lots on here use the search tool

 

Peter

 

hee current postition is that we should present evidence to our contentions this person has had three default and accepted the termination three times needless to say she was advised by DD perhaps he forgot, it took me 45 seconds to find there are many many more.

 

Peter

[rebel11]

Hi Guys

 

You really aren't doing yourselves any justice, your intelligent people there is no doubt there, the whole idea of this site is to help and advise people, not to turn it into

a 'Punch and Judy' show, so can we respect each other going forward. Thank you in advance for your co-operation.

[Peterbard]

HI This is a statemint froma solicitor who was asked to defend using this

 

Hi y'all

I have read the above case statement, and I believe it is in complete support of what we, as a consumer, are using to defend ourselves, i.e. Faulty DN's. However, can we use this information as part of our defence? There was other case Law I used in my initial defence, that stated the you could not simply re-issue another new DN as it predjudiced the defendent. (Can't quite remember the case in question right now). I have just spoken to a solicitor who was working on another loan of mine, and he stated quite clearly that he would not defend on the back of a faulty DN as it is on 'Rather tenuous ground'. He said the banks can just re-issue a new one. So, where do we stand?

I have RBS who took me to court and failed initially, yet are going to court again on the same argument, I have Egg cards and an MBNA card (with PPI on it I have just found out) and a Barclay Loan that all have unenforeceable credit agreements on them. Do I defend on the original credit agreements now.........or persue the faulty DN route?

[Peterbard]

Hi this is a judje from welshperson3 thread

 

Just got back from court it was adjourned.

 

The judge was not impressed; the reason was that they were going to rely on authorities that I have not received.

 

They say that they posted them on Monday but I don’t think they did as the court only received them this morning.

 

But I also was in the wrong (I put my bundle in to court late) my reasons were that as I had sent a part 18 request off to them and was waiting for a reply and was also waiting for a reply as to the judges order that they should send a response to my claim, but as the judge pointed out that he had made a order and this was no excuse.

 

And my first point about an invalid default notice

The judge then went on to say that he had read the arguments and he thinks that they can issue a new default notice to rectify their mistakes.

 

Not postinga ny more unless i come across them but finding these took me no time at all

 

Peter

Edited March 16, 2011 by Dodgeball

[Peterbard]

Hi Guys

 

You really aren't doing yourselves any justice, your intelligent people there is no doubt there, the whole idea of this site is to help and advise people, not to turn it into

a 'Punch and Judy' show, so can we respect each other going forward. Thank you in advance for your co-operation.

 

Just reporting the facts in order to prevent future repeats of this.

Peter

[Peterbard]

Thought this may be of use on here

 

1

Most if all consumer crerdit agreements contain a contractual termination clause.

2

There is no requirement within the act as to what form this term takes, although the new EU directive does say that if the creditor is to terminate he must give two months’ notice and give a reason for doing so. In the case of the debtors breach then no notice is necessary.

3

There is nothing in the act that prevents the debtor from terminating at any time. As above there may be terms in the contract that modify the way the debtor terminates, or imposes conditions on that termination but that is strictly down to the contract there is nothing in statute that prescribes the form of the term.

4

A contractual termination is not enforcement. It cannot be used to enforce the agreement.

5

If the creditor terminates via term in the contract and the debtor has not breached, the section there will be no cause to issue a section 87 notice so enforcement cannot take place.

6

If a debtor terminates that also is not cause for enforcement. If however she fails to pay the liabilities of the agreement upon that termination or undertakes not to repay then that would be repudiation and the court would be allowed to enforce, with or without a section 87.

7

The default notice issued after the default is a statutory requirement and the commencement of the enforcement process. it differs from the the contractual termination, it will usually say ,”You have failed to comply with the DN of (date) and therefore your account has now been terminated and enforcement has commenced.”

This ties it to the DN so if the default is defective then this document is defective also. A contractual termination will say “your account has been terminated under section** of your contract “it may also give a reason for the termination. As said this is not a route to enforcement. In CCA agreements in the normal course of events.

 

8

As said the contractual termination is not a route to enforcement. The debtor has a perfect right to continue making payments as under common law and the court would not enforce .

A contractural termination can howecver be used after a valid DN to ensure the account is termianted in order for the rest of the enforcement proccess to conrinue. Brandn, section10(2) Woodchester

9

If however the debtor stops paying then the creditor is perfectly within his rights to issue a default notice and enforce the terminated agreement.

I know this is difficult to understand for some, but a terminated agreement is not a void or dead. It cannot be because it still has liabilities under it.

The act recognises this. Various sections refer to “under an agreement” this refers to an agreement that may is still active and not one that has been terminated.

10

Section 87 refers to an executed agreement, it does not say” under an agreement” or “on an active agreement”. This has to be the case, many agreements are enforced following a Dn after they have been contractually terminated and re assigned to anew creditor if it were not true this could not happen.

11

Section 87 does not have to give the option of remedy. There are situations where the agreement cannot be remedied, (take the example mentioned in the previous paragraph) this is mentioned in section 88 so it is not necessary for the notice to give a method to remedy. In such a case the section In section 89 says something like, “if the action is taken then the breach will be considered not to have happened” this simply means that the enforcement would not continue.

12

When a breach can be remedied and the debtor does what is prescribed then it is as if the breach never occurred section 89.

This does not mean that the default did not occur .The debtor does not have to reissue you credit on a credit card there is no effect on you CRA record, the CRA file is a record of your payments and is not reliant on section 87. Section 89s “breach will not have occurred”, refers to the contents of section 87 and the fact that it says “by the breach of the debtor the creditor is entitled” .If the breach Is remedied the creditor is no longer entitled to enforce, because the breach is considered not to have happened that is all it means.

13

There is no sanction for a debtor issuing a fault DN other than, he has to re issue a correct one and give the statutory period for remedy again.

The act says that there should be no sanction for a breach of one of its provisions other than those that are listed within the act itself (section 173), the removal of the ability for the creditor to reclaim his money would be a sanction.

 

If there are queries about the above or if people don’t agree or don’t understand could they just ask the question on the particular item, Copy on your reply.

It gets very messy if you reply on my post to multiple points if you wish me to respond please lets do it one at a time

 

Many thanks

Peter

[mills1]

ALmost eery creditor i have come across that has seervd a defective DN has remedied with a corrected one ther are lots on here use the search tool

 

Peter

 

Well I am still waiting for Egg to remedy almost a year later.

I am of the opinion that once a company sends out a faulty DN then terminates the agreement that the faulty DN referred to then the alleged debtor should just bide their time and see Egg in court.

[toymaker1]

Thought this may be of use on here

 

1

Most if all consumer crerdit agreements contain a contractual termination clause.

2

There is no requirement within the act as to what form this term takes,

 

Peter

 

IMO The reason there is no requirement within the act as to what form (i.e. prescribed form) this term takes is because such a term is a void term within the meaning of S173 of CCA, and as such would clearly not require a prescribed form.

 

 

Regards.

[Peterbard]

IMO The reason there is no requirement within the act as to what form (i.e. prescribed form) this term takes is because such a term is a void term within the meaning of S173 of CCA, and as such would clearly not require a prescribed form.

 

 

Regards.

 

Your opinion is contry to Goode,Benniun,and more case law than i could ever state on here and most of all common logic

 

If you were correct every credit agreement ever writen(virtualy) contains a void term. Not only that but this void term is constantly being exersised by creditors and the courts.

 

Peter