The intended meaning of S87(1)(b)

[diddydicky]

Termination does not of itself permit enforcement. Only termination after a complant DN can do that.The default termination is part of the enforcement process, the contractural termination need not be,and indeed cannot be, if the reason for enforcement is breach by the debtor(not withstanding 88 C)

 

The default termination will usually say something like "you have failed to comply with the notice given and therefore the agreement is terminated".This ties it to the notice and thus if the notice is defective so is the termination.The contractural termination however will say "you agreement has been termunsted under section** of your contract.

 

If a defective DN is served and a contractional termination is used after it, it will do the creditor no good, yes the account will be terminated, but the cout will not enforce because the act says a compliant notice is required.

 

The fact that the agreement is terminated after default is irrellevent it is the default and breach an the notice that enable the court to enforce

 

Peter

 

incorrect-QUOTE [u]yes the account will be terminated,[/u][/bUNQUOTE ] b the current situation is that if the court rules that the DN was invalid- then the agreement is NOT terminated- but still endures

Edited March 15, 2011 by diddydicky

[DonkeyB]

If you look at setion 88 it gives the proceedure for if the agreement is not capable of remedy.

In such a case as i have said, the onlyt function of the notice would to be preventing enforcemen by repaying all liabilities in full.

 

Peter

 

Section 88

(1) The default notice must be in the prescribed form and specify—

(a) the nature of the alleged breach;

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

© if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

 

Thanks Peter. More queries.

 

Is it purely up to the assignee, as creditor, to decide what the remedy might be? In the instance I’m thinking of, the assignee says that a 40% payment will amend the breach, but the quoted ‘breach’ is taken from the original contract with the OP. Otherwise they say they will terminate the agreement – surely there is no agreement to terminate with the assignee?

 

I’d post up an example if I could, so sorry if we’re going round in circles.

[diddydicky]

QUOTE Yes good point Unfortunately section 78 says under an agreement and section 87 just says a regulaed agreement,doesnt say an active one.UNQUOTE

 

 

 

the cruelty against animals act refers to Dogs, cats horses-etc ............ it doesnt say "live ones"

 

- but i think everybody knows they are not talking about "dead" ones!

[diddydicky]

No frankly could you restate the question

 

Peter

 

i don't think i need to.................. i think i will be able to leave it to folk reading the thread to sort out the facts from the fantasy

[Peterbard]

the debtor had breached the agreement

 

the creditor then contractually terminated

 

so you say " Only termination after a complant DN can do that."= how many times can the creditor terminate the same agreement?

 

if the agreement is already terminated by the creditor- then he cannot serve a valid DN and he cannot again terminate- following an unremedied DN- that which he has already terminated

 

 

i drown my dog in a bucket because it sh*t on the carpet

 

Later, i find that it bit the postman yesterday and i decide that the dog must die - unfortunately it would be pointless my shooting it- as it is already dead!

 

An ageemnt can only be terminated once.

The agreement could not be enforced after a contractiural termination, but when the default pre requisites where followed the enforcement could take place.

Authority in Brandon v Amex

 

Peter

[Peterbard]

Section 88

(1) The default notice must be in the prescribed form and specify—

(a) the nature of the alleged breach;

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

© if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

 

Thanks Peter. More queries.

 

Is it purely up to the assignee, as creditor, to decide what the remedy might be? In the instance I’m thinking of, the assignee says that a 40% payment will amend the breach, but the quoted ‘breach’ is taken from the original contract with the OP. Otherwise they say they will terminate the agreement – surely there is no agreement to terminate with the assignee?

 

I’d post up an example if I could, so sorry if we’re going round in circles.

 

Yes i would think so if the crediotr decides that a smaller amount will settle the contract and says so in the DN i do not see why that would not be binding on him and i do not see any reason why if the amount was paid the account would not not be con sidered discharged.

 

Peter

[diddydicky]

H

I will not respond to posts which are insulting or abusive.

If any one has a question that they think i may be able to answer i will otherwise do my best to answer it.

 

I am fully supportive of the new direction indicated by the site team on this

 

Peter

 

i am not aware that anyone (myself perhaps) has "insulted " you- (although i think i get the drift of what you are attempting to do)-

 

i too have signed up to the same direction - and have had the same letter which i think also involved implied that caggers must be prepared to accept a certain amount of robust debate (not insults) without "running to tell tales to the teacher (hitting the triangle!!) since this makes unnescessary work for the mods

 

If you make a "blanket post" complaining that someone has insulted you- but neither identify the post or poster- and if only YOU can see the "inslut"- then that leaves all of the other posters on the thread unsure as to who or what you are referring to!

 

so, if someone has offended you if you identify the matter or perhaps pm them as to what has upset you they can either apologise or stand by their comments

Peter

 

if you feel a post has insulted you- perhaps it would be a good idea to refer to exactly which one- so that we can sort out- perhaps by way of apology - if ones sensitivities have been insulted

 

by making a posting and without knowing which post you refer to- and if no one other than yourself considers something within a post to be an insult - then no one knows to who or what you refer and any opportunity to retract or apologise is lost- is it not?

[Peterbard]

incorrect-QUOTE [u]yes the account will be terminated,[/u][/bUNQUOTE ] b the current situation is that if the court rules that the DN was invalid- then the agreement is NOT terminated- but still endures

 

Hi

I was reffering of course to a contractural termination issued after a defective DN.If this happens the agreement will indeed be terminated.

Peter

[Peterbard]

if you feel a post has insulted you- perhaps it would be a good idea to refer to exactly which one- so that we can sort out- perhaps by way of apology - if ones sensitivities have been insulted

 

by making a posting and without knowing which post you refer to- and if no one other than yourself considers something within a post to be an insult - then no one knows to who or what you refer and any opportunity to retract or apologise is lost- is it not?

 

I hope the team will erase this but for the record

 

You i think are incapable of arguing a case intellegently you resort to abuse and rhetoric as soon as you sence that your possition is untenable.

You have demonstrated this in the last few posts on here far more elequently than i could ever put into words.

 

Peter

[diddydicky]

Hi

I was reffering of course to a contractural termination issued after a defective DN.If this happens the agreement will indeed be terminated.

Peter

 

i disagree for the reasons that i have already stated but repeat for clarity

 

if the creditor uses a contractual termination- following a failed attempt to obtain termination via s87- it will be seen for what it is

 

only ONE bad case has allowed this to happen and that was in a county court who we all know are prone to the occassional "foul up"

[diddydicky]

I hope the team will erase this but for the record

 

You i think are incapable of arguing a case intellegently you resort to abuse and rhetoric as soon as you sence that your possition is untenable.

You have demonstrated this in the last few posts on here far more elequently than i could ever put into words.

 

Peter

 

well, whilst i fail to agree with you (naturally)- i think that you should expect- on a forum of this nature- that you are going to be debating with folk from a wide variety of backgrounds

 

some will be able to converse and debate at a much higher level than others

 

some will be university educated, some will have had virtually no education

 

you yourself have a problem with dyslexia and i have not seen one person on the forum who does not take account of that in your postings

 

perhaps you also should make "allowances" for those not able to reach your high standards of clarity in debate

 

for the record i have not abused you, not sought to abuse you and have no interest in abusing you since we all received "the letter"

 

far from my "position being untenable"- i am sure that i "have you on the ropes" in terms of your propositions and arguments - therefore the idea that i needed to resort to any kind of other "tactics are far off the mark"

 

 

what i have come to realise is that i can show your SOME of your more outlandish arguments (which is what i am really interested in) for what they are by probing, searching and not letting you go off on tangents when you don't want to answer a particular point or where you are shown to have made contradictory statements

 

this has nothing to do with abuse or personal insults - it is about making sure that caggers have more than ONE opinion or viewpoint to consider

 

if i use simplistic scenarios to get my point across- and you consider me uneducated to your level- then i expect you to make the same concessions to me as i make to you for your dyslexia

 

thanks and lets move on

Edited March 15, 2011 by diddydicky

[Peterbard]

well, whilst i fail to agree with you (naturally)- i think that you should expect- on a forum of this nature- that you are going to be debating with folk from a wide variety of backgrounds

 

some will be able to converse and debate at a much higher level than others

 

some will be university educated, some will have had virtually no education

 

you yourself have a problem with dyslexia and i have not seen one person on the forum who does not take account of that in your postings

 

perhaps you also should make "allowances" for those not able to reach your high standards of clarity in debate

 

for the record i have not abused you, not sought to abuse you and have no interest in abusing you since we all received "the letter"

 

far from my "position being untenable"- i am sure that i "have you on the ropes" in terms of your propositions and arguments - therefore the idea that i needed to resort to any kind of other "tactics are far off the mark"

 

 

what i have come to realise is that i can show your SOME of your more outlandish arguments (which is what i am really interested in) for what they are by probing, searching and not letting you go off on tangents when you don't want to answer a particular point or where you are shown to have made contradictory statements

 

this has nothing to do with abuse or personal insults - it is about making sure that caggers have more than ONE opinion or viewpoint to consider

 

if i use simplistic scenarios to get my point across- and you consider me uneducated to your level- then i expect you to make the same concessions to me as i make to you for your dyslexia

 

thanks and lets move on

 

THis hs nothing to do with the debate at issue

Edited March 15, 2011 by Dodgeball

[Peterbard]

i disagree for the reasons that i have already stated but repeat for clarity

 

if the creditor uses a contractual termination- following a failed attempt to obtain termination via s87- it will be seen for what it is

 

only ONE bad case has allowed this to happen and that was in a county court who we all know are prone to the occassional "foul up"

 

 

I thought it was the debtor that terminated.

Isnt that why they could enforce the agreement.If the crediitor had there could have been no enforcement as the notice was bad

 

Peter

[diddydicky]

I thought it was the debtor that terminated.

Isnt that why they could enforce the agreement.If the crediitor had there could have been no enforcement as the notice was bad

 

Peter

 

no

[diddydicky]

THis hs nothing to do with the debate at issue

 

you are correct- it was in response to your post 84 which equally had nothing to do with the debate at issue- which is why i suggested we move on

[Peterbard]

HI

 

THer seems to be a problem with understanding how a contractural termination can be issued after a bad notice has been presented.

 

It is i think now accepted that a termination under a conractual provision can occur at any time in the life of the contract.

 

So what is the difference between a contract before the issue on a bad default and after.

Answer nothing, because it is a bad default.

 

It has no effect, so there is no reason anything that happened to the agreement before its issue could not happen to it after.

 

Peter

[Peterbard]

no

 

So it was the creditor termination that allowed the enforcement? HOw does that work after a bad dn?

 

Petr

Edited March 15, 2011 by Dodgeball

[diddydicky]

So it was the creditor termination that allowed the enforcement? HOw does that work?

 

Petr

 

with respect peter i think we have flogged that (PH) argument to death on the other thread-

 

you have your view (supported by what myself and others consider a very bad decision by a county court judge which should be appealed)

 

and we have ours- which is basically that the debtor became entrapped by the creditors errors

 

not only would it be pointless to re gurgitate the arguments all over again. but PH wished the thread and the discussion to be closed and asked the site team to lose down the thread

 

i think that we should respect her wishes and not seek to re- create her thread

[diddydicky]

HI

 

THer seems to be a problem with understanding how a contractural termination can be issued after a bad notice has been presented.

 

It is i think now accepted that a termination under a conractual provision can occur at any time in the life of the contract.

So what is the difference between a contract before the issue on a bad default and after.

Answer nothing, because it is a bad default.

 

It has no effect, so there is no reason anything that happened to the agreement before its issue could not happen to it after.

 

Peter

i think perhaps you wrongly Assume that others are in agreement with this statement

 

you have your views i and others have argued that a creditor attempting to terminate under a contractual provision- where a debtor has breached and /or the creditor has "mucked up" the s87 procedure- will be found to be "trying to pull a fast one" and ruled offside

 

again, you have stated your opinion and reasons why you think what you think

 

and myself and others have stated ours

 

what is the point in keep repeating the same arguments and counter arguments?

 

let people read the posts and made their decision would be a good idea -otherwise they will take forever to read a thread which consists of the same arguments needlessly repeated

 

unless of course someone raises a new point not already discussed

[Peterbard]

with respect peter i think we have flogged that (PH) argument to death on the other thread-

 

you have your view (supported by what myself and others consider a very bad decision by a county court judge which should be appealed)

 

and we have ours- which is basically that the debtor became entrapped by the creditors errors

 

not only would it be pointless to re gurgitate the arguments all over again. but PH wished the thread and the discussion to be closed and asked the site team to lose down the thread

 

Hi

 

Well you have yours i think the we bit is slowly evaperating. Funny how eveything that a cout does that dissagrees with you is because the judge is wrong, judicial system is a mess.

Peter

[Peterbard]

i think perhaps you wrongly Assume that others are in agreement with this statement

 

you have your views i and others have argued that a creditor attempting to terminate under a contractual provision- where a debtor has breached and /or the creditor has "mucked up" the s87 procedure- will be found to be "trying to pull a fast one" and ruled offside

 

again, you have stated your opinion and reasons why you think what you think

 

and myself and others have stated ours

 

what is the point in keep repeating the same arguments and counter arguments?

 

let people read the posts and made their decision would be a good idea -otherwise they will take forever to read a thread which consists of the same arguments needlessly repeated

 

unless of course someone raises a new point not already discussed

 

NO that is not good enough i have stated the reason why a contractural termination can be made after a bad default and that is because a bad default has no effect on the agreeement Now. none of this we have our opinions business,if you have a counter argument then lets hear it.

Please make it better than, the creditor mucked up so he should be made to pay,or if it is lets see the legislation that makes him pay, let me read it lets se how it works.

 

Peter

[diddydicky]

with respect peter i think we have flogged that (PH) argument to death on the other thread-

 

you have your view (supported by what myself and others consider a very bad decision by a county court judge which should be appealed)

 

and we have ours- which is basically that the debtor became entrapped by the creditors errors

 

not only would it be pointless to re gurgitate the arguments all over again. but PH wished the thread and the discussion to be closed and asked the site team to lose down the thread

 

Hi

 

Well you have yours i think the we bit is slowly evaperating. Funny how eveything that a cout does that dissagrees with you is because the judge is wrong, judicial system is a mess.

Peter

 

well if you can find a quote from me anywhere on this or any other forum where i have stated that the "judicial system is in a mess"- i will show my bum in burtons window

 

you are right that i have criticised some (especially county court) judges but your "embellishment " to include further reference to the judiciary- is 100% incorrect -

[Peterbard]

Hi just had to have a look at post41and the bit you mentioned

2/ If the creditor, in seeking to be sly, and obtain a termination without using s87 and ignoring the fact of the debtors breach- then terminates by way of a clause in the agreement which entitles him to-terminate any time he likes- without mention of any breach by the debtor then, regardless of any argument as to whether such a term would be unfair- the debtor would need only to show a court (IMO) that he had breached before the creditors termination (for no apparent reason)- and that the true intent of the creditor was to circumvent the provisions of s87

Is this it, "The creditor was sly".

Hardley Perry Mason is it

 

Peter

[Bigdebtor]

I thought it was the debtor that terminated.

Isnt that why they could enforce the agreement.If the crediitor had there could have been no enforcement as the notice was bad

 

Peter

 

Although I have quoted from a post by Peter I would also welcome answers from others who may also recollect the same post(s) and who may confirm my logic or point out any flaws in it.

 

I seem to remember Peter saying the Debtor could only terminate by settling the outstanding liabilities at that time. Do I remember correctly?

 

If so, surely that means that it is not sufficient for the Debtor just to say to the Creditor "I terminate" or even "I accept your offer to terminate".

 

Surely unless the Debtor pays up the outstanding liabilities at the same time as exercising the Debtor's right to terminate then the agreement or contract endures?

 

If so, then, if the agreement endures, surely the Debtor still has the right to continue to make monthly payments until and unless the Creditor correctly issues a compliant DN followed in the right time scale by a complaint TN?

 

If the answers to these questions is YES then surely if it is accepted (by a court) in such circumstances that the agreement has been terminated, then that termination must, by definition, be a UNILATERAL termination by the CREDITOR - as the Debtor could not terminate it before paying off the liabilities?

 

If the creditor terminates in such circumstances, (irrespective of whether the Debtor was in default or not - provided the Creditor has not properly followed the laid down procedures by issuing a correct and totally compliant DN followed by a TN in the correct timescales) then surely the Creditor loses all rights to any outstanding liabilities of the Debtor?

 

If so, then surely there is no way that the Creditor could side step this well-documented provision and terminate and demand full and immediate payment of all outstanding liabilities?

 

BD

 

PS - Nice to see these issues being discussed in a somewhat more civilised manner!

[diddydicky]

Although I have quoted from a post by Peter I would also welcome answers from others who may also recollect the same post(s) and who may confirm my logic or point out any flaws in it.

 

I seem to remember Peter saying the Debtor could only terminate by settling the outstanding liabilities at that time. Do I remember correctly?

 

If so, surely that means that it is not sufficient for the Debtor just to say to the Creditor "I terminate" or even "I accept your offer to terminate".

 

Surely unless the Debtor pays up the outstanding liabilities at the same time as exercising the Debtor's right to terminate then the agreement or contract endures?

 

If so, then, if the agreement endures, surely the Debtor still has the right to continue to make monthly payments until and unless the Creditor correctly issues a compliant DN followed in the right time scale by a complaint TN?

 

If the answers to these questions is YES then surely if it is accepted (by a court) in such circumstances that the agreement has been terminated, then that termination must, by definition, be a UNILATERAL termination by the CREDITOR - as the Debtor could not terminate it before paying off the liabilities?

 

If the creditor terminates in such circumstances, (irrespective of whether the Debtor was in default or not - provided the Creditor has not properly followed the laid down procedures by issuing a correct and totally compliant DN followed by a TN in the correct timescales) then surely the Creditor loses all rights to any outstanding liabilities of the Debtor?

 

If so, then surely there is no way that the Creditor could side step this well-documented provision and terminate and demand full and immediate payment of all outstanding liabilities?

 

BD

 

PS - Nice to see these issues being discussed in a somewhat more civilised manner!

 

Hi BD

 

it was PB who was suggesting that the letter from a debtor (whether or not accepting what the creditor had or had not done...amounted to them terminating the agreement

 

 

it was myself that pointed out that this was not possible unless the debtor first repaid everything owed to the creditor - and that no creditor would be mug enough to accept the termination and then try to get their money back off the debtor

 

My comment was as usual not accepted - "because this one particular judge" in a county court - decided otherwise

 

at the time i did not have an MBNA agreement lying around (all creditors termination clauses are much of a muchness to be honest)

 

however here is a typical MBNA contractual termination clause

 

QUOTE

 

Either of us may terminate this agreement by giving written notice to the other but this will only be effective once all cards issued on your account have been returned and destroyed and all liabilities under this agreement paid

 

UNQUOTE

 

it can be seem that no termination from a debtor is "effective" until all liabilities have been paid

 

in the case of PH the other day- yet another misdirection by the numpty judge

 

however, do stand by for the response- it should be interesting!

 

 

the problem for the debtor is that although they may WANT the agreement to continue(as they have not terminated it).....as soon as the creditor terminates- they will (almost universally) refuse to accept or acknowledge any further monthly payments from the debtor- since if they do - they fear they will be seen to have confirmed that the agreement endures

 

another reason why- after a long period of time- the creditor may well eventually be "told" by a court that the termination was not in fact a termination due to the dodgy DN- but in reality they not only DID terminate- but made it crystal clear through their actions- that they considered the agreement terminated and refused to perform.