Old HSBC case taken up by MKDP LLP. When is a Default Rectified?

[Peterbard]

Dodgeball, If what you say was true, then any Credit Card company could commit any breach of the agreement and then demand the full balance, if the debtor did nothing, they could say that the debtor had accepted their termination of the agreement by acting as if the agreement had continued, and then sidestep the requirements of the CCA which were supposed to be there to stop things like this from being possible!

 

Not with you sorry, how would a creditor breach the agreement after he had given the loan ?

 

He could fail in statutory duty by not providing the correct notices I suppose, but that would hardly entitle the debtor to refute their duties under the contract. Certainly there is no sanction within the CCA which permits such a thing.

[colin21958]

In order to recover sums once under contract it is true that it must first be terminated, it is the sums that were under the contract which are claimed as damages.

 

 

 

So you want me to believe that a creditor can terminate a contract illegally, and then demand the money owed back, as if they were the injured party? If they terminated the contract (which they did, I only accepted their termination of it), then I am the injured party, as they have taken away my rights under the contract. So, why should I be penalised? Your argument doesn't make any sense!

[Peterbard]

Dodgeball, Do you have any legal training in this field?

 

 

Dodgeball has no legal training whatsoever,

[colin21958]

Not with you sorry, how would a creditor breach the agreement after he had given the loan ?

 

He could fail in statutory duty by not providing the correct notices I suppose, but that would hardly entitle the debtor to refute their duties under the contract. Certainly there is no sanction within the CCA which permits such a thing.

 

 

But this is exactly what they have done! They have failed to follow a procedure which is laid down in the Act and thereby breached the CCA. Any creditor could similarly, just send a demand for the full amount, this would clearly be a breach of the CCA and a repudiation of the agreement, if the debtor did nothing, then they would be regarded as having accepted this repudiation and would have to pay the full balance if what you are saying was true... They would therefore have sidestepped the CCA completely. Since the CCA was designed to protect consumers, do you honestly believe this could happen?

[colin21958]

Dodgeball has no legal training whatsoever,

 

 

I guessed as much! I do have some...

[Peterbard]

So you want me to believe that a creditor can terminate a contract illegally, and then demand the money owed back, as if they were the injured party? If they terminated the contract (which they did, I only accepted their termination of it), then I am the injured party, as they have taken away my rights under the contract. So, why should I be penalised? Your argument doesn't make any sense!

 

Yes creditors can terminate credit agreements when they like(subject to statutory notices),Nothing illegal about it.

 

The question is can they enforce an action for damages, if they terminated without cause no, but then they didn't, you did.

[colin21958]

Yes creditors can terminate credit agreements when they like(subject to statutory notices),Nothing illegal about it.

 

The question is can they enforce an action for damages, if they terminated without cause no, but then they didn't, you did.

 

 

No, I didn't terminate the agreement, they did terminate without cause!

[colin21958]

Yes creditors can terminate credit agreements when they like(subject to statutory notices),Nothing illegal about it.

 

 

Please provide a reference to the part of the CCA which allows a creditor to terminate a regulated credit agreement when there has been no breach by the debtor.

[Peterbard]

But this is exactly what they have done! They have failed to follow a procedure which is laid down in the Act and thereby breached the CCA. Any creditor could similarly, just send a demand for the full amount, this would clearly be a breach of the CCA and a repudiation of the agreement, if the debtor did nothing, then they would be regarded as having accepted this repudiation and would have to pay the full balance if what you are saying was true... They would therefore have sidestepped the CCA completely. Since the CCA was designed to protect consumers, do you honestly believe this could happen?

 

 

Anyway good luck with this and please let us know how you get on

[citizenB]

Hi CitizenB,

 

What is your opinion with regard to this and the issue about me accepting their termination of the agreement? I would welcome your comments, especially in view of the comments made by Dodgeball. Thanks,

 

 

Regards,

 

 

Colin.

 

TBH, I simply do not know the answer, this termination busines has always confused me

[Peterbard]

Please provide a reference to the part of the CCA which allows a creditor to terminate a regulated credit agreement when there has been no breach by the debtor.

 

Sorry missed this

 

sections 98 98a section 76

 

Section 98a was introduced in 2011 but before this open ended agreements could be terminated just by a term in the contract, case law available on here and elsewhere.

 

There does not need to be permission of course in order for an agreement to be terminated, if the statute does not forbid it.

 

Now I must really leave you to it.

 

[colin21958]

Sorry missed this

 

sections 98 98a section 76

 

Section 98a was introduced in 2011 but before this open ended agreements could be terminated just by a term in the contract, case law available on here and elsewhere.

 

There does not need to be permission of course in order for an agreement to be terminated, if the statute does not forbid it.

 

Now I must really leave you to it.

 

 

 

Both these sections relate only to fixed term agreements, not open ended credit card agreement and the creditor can only withdraw the facility, not terminate the agreement. I have never seen a Credit Card agreement with a term which allowed the agreement to be terminated by the creditor. Under the CCA the debtor of course can terminate the agreement without breach, but then the full balance would become payable.

[colin21958]

TBH, I simply do not know the answer, this termination busines has always confused me

 

Hi CitizenB,

 

Thanks for your reply. Do you know of anyone else on here who might have any ideas that I could invite to the thread? Thanks,

 

Kind regards and Happy New Year!

 

Colin.

[Peterbard]

Both these sections relate only to fixed term agreements, not open ended credit card agreement and the creditor can only withdraw the facility, not terminate the agreement. I have never seen a Credit Card agreement with a term which allowed the agreement to be terminated by the creditor. Under the CCA the debtor of course can terminate the agreement without breach, but then the full balance would become payable.

 

http://www.legislation.gov.uk/uksi/2010/1010/regulation/38/made termination open ended agreements

 

Also see brandon vs Amex.

 

"The CCA is silent on the matter of termination therefore it is a matter for the contract".

[Peterbard]

Hi CitizenB,

 

Thanks for your reply. Do you know of anyone else on here who might have any ideas that I could invite to the thread? Thanks,

 

Kind regards and Happy New Year!

 

Colin.

 

There are people on here who could help, but not with these misguided notions, personally I have the feeling that you would not take any advice because you think you already know the answers.

 

I dare say someone will come along and tell you that you are right, but really you have to start again and re-examine your options.

[citizenB]

Colin, I have left a message on the site team notice board for you, it is the best I can do.

 

Happy New year to you as well

[Mike_hawk]

Colin

 

Particulars of its claim may assist

[colin21958]

There are people on here who could help, but not with these misguided notions, personally I have the feeling that you would not take any advice because you think you already know the answers.

 

I dare say someone will come along and tell you that you are right, but really you have to start again and re-examine your options.

 

 

I don't have any misguided ideas, I am trying to determine the facts, I just find what you have said hard to believe (especially as you have misquoted all the sections of the Act). So, what in your opinion are my "options"?

[colin21958]

Colin

 

Particulars of its claim may assist

 

 

Hi Mike,

 

in what way do you mean? The particulars of claim are very vague.

 

Regards,

 

Colin.

[colin21958]

Colin, I have left a message on the site team notice board for you, it is the best I can do.

 

Happy New year to you as well

 

 

 

Thanks.

[Mike_hawk]

Hi Mike,

 

in what way do you mean? The particulars of claim are very vague.

 

Regards,

 

Colin.

 

Without sight of them nobody but you know's which prescribed method of termination it is relying on

[colin21958]

Without sight of them nobody but you know's which prescribed method of termination it is relying on

 

 

 

Hi Mike,

 

 

The POC says that the claimant claims the sum due to the them under a regulated agreement. It states the number of the account and further states that the account has been assigned to them by the OC. It says the debtor has failed to make payments in accordance with the terms of the agreement and a default notice has been served pursuant to CCA 1974. They claim the amount plus costs. They also say that "the claimant has complied, as far as is necessary, with the pre-action conduct practice direction.

 

 

That's it... So, clearly they are relying on the DN (issued on 04/12/09) which I can clearly show was rectified. They never issued another DN and demanded the full balance in July 2010.

 

 

Regards,

 

 

Colin.

[Mike_hawk]

It pleads a default termination so it could be used in defence........ I think [if it were me] I'd want something more substantial than a single technicality to argue though.

 

What's the value of the claim?

[colin21958]

Hi Mike,

 

 

The value of the claim is about £4,500. Its not the only point I have to argue, in addition to the DN failure, they also didn't send a Notice of Assignment, they have provided an application form, but no related terms and conditions; the application form is dated 2002, whilst the two sets of T&C's are dated 2005 and 2009. They have neither submitted, nor supplied any documents to support their claim, even though I have written to them asking for them since the claim was received. The application form refers to its back, but they have not provided that. As a result of this they are also still in default of a s78 request and cannot produce the original agreement; I have evidence from their own systems which confirms that they were unable to locate the original agreement. The application form has none of the prescribed terms on it and the reference to the back refers to the text next to a padlock sign, which was clearly Data Protection Act information, not prescribed terms.

 

 

Regards,

 

 

Colin.

[Mike_hawk]

Perhaps a new s78 request to the claimant would be helpful in reinforcing the point.

 

I assume you have a good grasp of part 31 requests for data along with filing dates for aos/ defence [assuming that is your intent].

 

Any other possible arguments for charges and/or PPI?