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!

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

for the benefit of animal lovers and the PC brigade..............it was ONLY an analogy!!

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!

but a lot unscrupulous about a creditor- who having been pointed out to him that he attempted to terminate and demand earlier repayment of sums not yet due- rather than admit his error and do the "decent thing" and say to the debtor- "sorry got it wrong- as you were" instead says to himself "ah well he has dropped himself in the sh*t entirely due to my error- so what the hell- lets take advantage of the fact anyway " as i pointed out in another post...........bankers and finance companies have long since lost/given up their right to be regarded as "honest" and "ethical"

there you go yet again- always making the point that a debtor who has been subjected to being sent erroneous DN and TN notices- and tries to assert his rights - is assumed to be seeking to "evade" the debt. what he is doing is seeking to "AVOID" having to pay back immediately, that which the creditor is claiming immediate payment of- and which- until the creditors mistake he was repaying in monthly instalments-

QUOTE He is not bring asked to pay for te mistake though ,is he?Surely he is being asked to repy the money he loaned UNQUOTE so, being terminated when he had done nothing wrong and being made to repay several thousands of pounds at once- which he had thought he would be allowed to pay in amounts of his own choosing (subject to a small mimimum payment) is not "paying for the creditors mistake"?

QUOTEThis is untrue. There is no requirement for the agreement to be "live" as you put it before a default notice is served. Section 87 just says a regulated agreement,it does not say "under an agreement "or an "unterminated agreement". DNs are regularrilly nissued by assignees who have a terminated account assigned to them. UNQUOTE well well, how revealing! i am not going to quote the exact wording since you can look it up yourself, however briefly s87(1) default notice A DEFAULT NOTICE MUST BE SERVED BEFORE[/U] THE CREDITOR IS ALLOWED TO CLAIM ENTITLEMENT TO THE BENEFITS BLAH BLAH H=BLAH One of which is to terminate the agreement what part of BEFORE is difficult to comprehend? the creditor must state "with precision" what the debtor has done wrong and what he must do to put it right the creditor must state a date- that date not being less than blah blah blah by which the debtor must remedy the alleged breach and must set out what action the creditor will take in the event that the debtor fails to remedy the breach in the time given In EVERY DN i have seen - the creditor states that he WILL or MAY terminate the agreement and/or demand some or all of the other entitlements under s87 IF THE DEBTOR FAILS TO REMEDY THE BREACH it goes on to say that if he DOES remedy the breach then it will be as if the breach had never occurred i said the s87 (1) notice was PREDICATED on the agreement being live or enduring and the text is in "PRESCRIBED FORM" how then, can a valid DN purport to allow the creditor to terminate an agreement if the debtor fails to remedy - WHEN THE CREDITOR HAS ALREADY TERMINATED THE AGREEMENT (irrespective of what reason he has terminated it for) how can the debtor return to a position as if the breach had never occurred (s89) when if he pays the arrears demanded- the agreement is still TERMINATED . i suggest you read fully the regulations surrounding a default notice in prescribed form- it is UNDENIABLY predicated on the fact of the agreement to which it refers being a live and current agreement- in any other event the prescibed text would make no sense if the creditor had terminated the agreement under some other pretext- and several months later he serves a DN- how would the arrears of payments in the DN be accurate since the creditor would be claiming arrears of monthly payments which a few months previously he had said (by virtue of terminating the agreement) were no longer payable by monthly instalments? i have a JCB you can borrow if you find the manual digging hard!!

Not me always mention it unless io forget,but it is obvious ah em, pardon me.................. the ommission i would argue would be obvious only if preached to the converted...........problem being that most new caggers are not yet converted and such an ommission would NOT be obvious and "stand on me john" i would say that you omit to mention more times than you do mention

with respect that is on another thread and this discussion is in general about s87(1) (b - please try to leave out PH's problems as they have nothing to do with this thread

why do you keep talking about an agreement that was "already terminated by the debtor"- this is NOT the same thread- we are talking a hypothetical case where a debtor has done NO WRONG and has simply breached the agreement by missing 4 months payments i then asked you specifically if you believed that the creditor could- in the knowledge of the debtors breach terminate the agreement without using the s87 procedure and to cite any authority You replied that he could- under a contractual clause terminate the agreement despite the breach and that he could do this "any time he liked" Quote from post 23 A contractural termination can be issued at any time even when the agreementis in breach. Unquote you said in post 39 QUOTE He could terminate first undner a conrtractural breach but he would not be able to enforce because of the statutory requirements of the act Unquote I then asked you, i[/b] If, as you say, he could terminate under a contractual clause AFTER he knew that the debtor had breached- WHAT the creditor would put in his POC- to substantiate his claim- 1/ the fact that the debtor had breached OR 2/ that he was entitled at any time (as you have said)to terminate irrespective of whether the debtor had breached or not? You have not answered that question yet- and when you do give a simple answer to the simple question- we can then see the problems that he would have in whether he chooses to use 1/ or 2/ you have now contradicted your earlier claim (which i have highlighted and underlined above by stating in this post- You are asking me how a crediotr could enforce under a contractural termination. Well it is not really relevant to tis disscuson in the case of default he couldnt therefore in one post you admit that in a breach situation on the part of the debtor- the creditor cannot terminate other than via s87 and in another you say the opposite can you not see the confusion your statements cause?

no- it doesn't work like that abuse is abuse is abuse leaving it in abeyance- there may well in future be a COA ruling which might open up a previously closed door for them get it out of the way, one way or the other is my advice

TBh i think that if you "instruct" and estate agent, verbally or in writing- and he confirms that he cannot market the property until the HIp is commissioned- it follows that you know there is a cost involved and i presume, like most folk- you left it to the estate agent to do that rather than tell him you were going to organise it yourselves. normally the HIP is part of the selling costs and so would be invoiced at the sale end of the transaction if however, for whatever reason- the estate agent feels or is told that the property is going to be withdrawn from sale- he would have every right to demand payment for the HIP what i dont un derstand is why the solicitor is suing you as the claimant is the estate agent and solicitor one in the same? normally the estate agent would arrange the HIP to be done and pay the inspector directly- so it should be the estate agent suing you

now you need to search on the site to find the library of mbna terms and conditions and check yours- you may be able to establish which year they relate to- obviously if they are later than 1994 they will be looking a bit sick have you ever made a s78 request for a copy of the argeement BTW?

did you instruct the estate agent to sell the property? if you did, verbally or otherwise then you entered into a contract with him did he explain that it is unlawful (at the time)l to market a property without a HIP being commissioned (i find it very hard to beleive that he would not do so to be honest) if you did not enter into a contract with the estate agent then who did- what is their relationship to you and to the ownership of the property in question

what is the amount they are claiming what is the (true) current value of the house what is the amount of loans secured against it who occupies the house now +++++++++== in the meantime NO you will not be able to transfer the charge to your mums house- No, your partner cannot get you off the deeds until you satisfy the Charging order (unless he wants to lend you the money to do so) it would not in any event be a good idea for your ex to pay off the mortgage and bring the property back into positive equity the creditor will not get an order for sale if the house is in negative equity if you are still paying half the mortgage then you are entitled to a half share in its equity- so surely your partner should be "buying out" your share- not paying off the mortgage and taking the whole of the equity? You should complete an I & E (CCCS site and download theirs) and make an offer you can afford to restons (even if it is only a £5) if they do not accept then apply to the court for a redetermination and send THEM the I & E if the house is in negative equity then a court will not order its sale- since nothing would be achieived and a Charging Order is not a "punishment"

if they have sold the debt to marlin- then marlin have bought the dodgy DN as well!! silly billies nice to see the creditors ripping the dca's off as well as us!

first= have you checked your first statement in 1994 to see that the interest charged on the statement is the same as detailed on the agreement? second is the amount claimed in the DN to remedy the full amount owed to mbna or just arrears (have you checked to see if the figures are right) third- it is likely that the agreement they sent you is a cut and paste job para 8 has nothing to do with paying arreas- it is about termination by either party so either they made a mistake or they have used t & C's on the back of your agreement that were not there when you signed it are there any printers codes on either side of the copy agreement can you post the front of it up- does it refer to the terms and conditions on the reverse or is it an application form were you advised as to the PPI payments- did they ask questions as to your eligability or were you led to beleive that the card was conditional on taking out the PPI- you have to make positive assertions not ifs and maybe's

personally i would seek an order of the court- without a hearing - to strike out the claimants claim as they have failed to comply with the court directions/or in the alternative an unless order my guess is that the court will not do so- but instead issue an unless order giving them one last opportunity to file an ammended defence or be struck out

no they are not- it is a total try on i would write to them and say that if they do not formally withdraw their demand you will report them to the OFT and report them to any court hearing the case for gross misconduct and abuse of the court they would get a VERY SEVERE rebuke from any court they attempted to petition the last one £1000 you need to be sure that you have paid nothing for 6 years NOR admitted the debt in writing during that time ( at the worst- in any event you would need only to pay £250 off it to bring it below the £750 bankruptcy threshold

definately not- you are not their filing system manager if you have your copies and they dont have any- then they are up sh*t creek without a paddle let them blunder on my advice would be to sit tight and WAIT for them to issue proceedings if they have re issued on the same facts (which is almost certain) if you submitted a defence then they cannot start a new action on the same facts- without the PRIOR permission of the court they are so arrogant that they will think you know nothing of this and will start the action BEFORE asking permission of the court THEN you can put in a defence and apply for a strike out with costs since by then they will have dropped themselves in the doo doo if they at that point attempt to apologise to the court for their error and ask permission after the event to start a new action and state that they beleive the facts to be different (which is the only way they could) from the first claim- then you can get hold of their short an curlies and ask them to explain to the court HOW they know the facts to be different- when they have admitted that they have no knowledge or paperwork from the first action!

more appropriate to your situation is the Harrison V Link/MBNA case recently in which the judge ruled that bad DN = no enforcement. clear cut- if the DN is bad then unless it is put right by the service of a valid dn then any legal action brought on the back of the invalid dn will fail you can use the comments of the judge in the harrison case viz mbna's incorrect contentions re first class service if you already have been served with court papers- then they have already gone with the invalid DN- so your defence - apart from any other defects in their case needs to refer to this case and the fact that they do not have a cause of action i would apply for a strike out myself on this basis as to continue would be a waste of everyones time and expense no doubt others will advise

ok for those watching the debate i will disclose where i was trying to lead the conversation to:- 1/ If the creditor terminates after a breach by the debtor- and then attempts to serve a DN (which he would have to do if he were to rely on the debtors breach in his POC), then the DN would necessarily be invalid as soon as the creditor wrote it- since the DN 's prescribed text is predicated on the agreement to which it is being served- being a live and enduring agreement- which of course it could not be if the creditor has already terminated it (for whatever reason), thus the recipient could not comply with it and obtain the benefit of s89 for doing so the creditor could hardly set a deadline for terminating the agreement within a DN - which if the debtor fails to remedy by the stated date gives the creditor the right to terminate............when the creditor already terminated before he served the DN 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 3/ similarly, a creditor who serves an invalid DN (or none at all) and declares that under s87 he will terminate/do those things which s87 entitles him to do- and then seeks to "switch" the reason for the termination to a contractual termination in order to get him out of his mess- will (IMO) before a judge with half an ounce of common sense- get short shrift. The current thinking is that a creditor is ruled not to have terminated where he has failed to serve a DN (or has served an invalid DN) even though he claims he has terminated- and even though he may be unaware- for quite some time- that he has not actually terminated By the same token therefore it must be as sure as hell that the same ruling would be applied (IMO) to any termination by the creditor - following a breach by the debtor- who was clearly trying to circumvent s87 I understand that others may say - "ah but he may terminate if and when he feels like it - - but then concede that he cannot legally enforce" -(or worse KNOW that he cannot legally enforce- but omit to mention that important bit) To me (and i suggest most caggers) such a statment is a total irrelevance-and distraction since i doubt that many caggers would be interested in what the creditor could "threaten to do- without authority" - and are more interested in what a creditor could do and which he could "legally enforce" This is absolutely nothing to do with attempting to avoid debt- but merely establishing that if the creditor terminates an agreement- when the debtor has done nothing wrong- whether by mistake or deliberately- then the creditor at the very least- cannot expect the debtor to pay for the creditors own mistake nor can he demand immediate repayment of sums that otherwise would not yet have been due, in front of a judge who has his brain in gear- since the judge would in these circumstances (IMO) hold not only that the creditor was trying to circumvent the provisions of the act which protect the consumer - but to penalise or prejudice the debtor for actions or words the debtor may have wrongly used in response to being misled by the creditors words or deeds and which would never have occurred but for the creditors mistakes To attempt to hold the debtor accountable for technical mistakes in his response to an unlawful or misleading act or statement by a creditor- is about as perverse as one could imagine The CCA was CLEARLY drafted based on the proposition that the debtor is likely to be unsophisticated and confused by the technicalities of both the meaning of the terms and conditions of a credit agreement and the regulations surrounding the CCA and therefore needs "protection" from unscrupulous lenders so what could be more unscrupulous than a creditor writing invalid and misleading DN's to a debtor, terminating agreements he is not allowed to terminate- and then using the debtors response as a technicality for getting his way- this is the VERY thing the act was drafted to prevent IMO

gone quiet then!

why have you suddenly switched to using the word "enforcement" instead of termination- we are not at the "enforcement" stage yet you have stated quite clearly that the creditor can - if he wishes contractually terminate the agreement even if the debtor is in breachr so please follow the logical question i have posed IF THE CREDITOR DOES terminate the agreement under a clause in the agreement AFTER the debtor has terminated (instead of via s87) What does the creditor use in his POC- the fact that he is entitled to terminate under a term in the agreement OR that the debtor defaulted? YOU raised the possibilty that the creditor could act in this way so it is incumbent upon you to say what the creditor would use as his cause of action.