RBS Mint Loan - Court Action Started & Dodgy DN issues

[car2403]

[Peterbard]

Now now Petr (sic)!

 

That doesn't seem very nice and I sure you don't really mean it!

 

I know I have asked for PH to throw her ball back on to the pitch so we have something to kick other than each other - but if some CAGGER's are going to behave like Messrs Lennon and McCoist did last wek then maybe the ball should be kept away until you all promise to behave and be polite to each other?

 

Otherwise it might be off to bed without any supper for one or more of you!

 

No i do really mean it because it is true

 

Petr

[Peterbard]

Hi

Some basic facts for you to think aboujt

 

THe crediotr cannot repudiate a consummer credit agreement.

 

The creditor cannot unlawfully termiante a consumer credit agreement.

 

The court will always primarily be concerned with the debt and the recovery of the creditors money.

 

If you challenge a default notice you are mearly putting of the point where the creditor can enforce.

 

Now if anyone can show me any case any where that dissproves any of these points i will never post on here again.

GO on must be worth you having a look

 

Peter

[gh2008]

GH

 

Can you give us some post nos to look at for these? There are a LOT of posts to trawl through otherwise.

 

BD

 

PH is going to repost the POC (amended) and the Claimant's trial WS.

 

I will try and collate the other relevant posts together tonight.

[gh2008]

Hi

Some basic facts for you to think aboujt

 

THe crediotr cannot repudiate a consummer credit agreement.

 

The creditor cannot unlawfully termiante a consumer credit agreement.

 

The court will always primarily be concerned with the debt and the recovery of the creditors money.

 

If you challenge a default notice you are mearly putting of the point where the creditor can enforce.

 

Now if anyone can show me any case any where that dissproves any of these points i will never post on here again.

GO on must be worth you having a look

 

Peter

 

Are these facts based on anything other than your opinion as always Peter??

 

1. disagree, the creditor could refuse to release the funds after executing the agreement. Creditor could refuse to accept repayment of the debt. There are many many ways in which a creditor can commit a serious breach (i.e. a repudiatory breach)

 

2. Agree, they can do it without entitlement 'of the CCA' but that does not make it unlawful - not sure who is arguing this - although you were arguing for years against it yourself!!

 

3. Very sad to hear that ..... I think the Courts would also fundamentally disagree

 

4. Disagree, Woodchester amongst many many others (including some of my own) and once they are outside of the limitation act I cannot see how that is 'putting off the point'

 

Please Peter argue with reasoning rather than just regurgitating your opinion and labelling it as fact and expecting everyone to swallow.

 

Now if anyone can show me any case any where that dissproves any of these points i will never post on here again.

GO on must be worth you having a look

 

Petter

 

Not expecting you to follow that through

BUT would be nice to have more evidence based rather than conjecture as conjecture doesn't help the OP or others

 

If we can pin down the answer to my original question then we will all actually learn something amid teh noise

[Peterbard]

Are you really iterested in facts?

Are these facts based on anything other than your opinion as always Peter??

 

1. disagree, the creditor could refuse to release the funds after executing the agreement. Creditor could refuse to accept repayment of the debt. There are many many ways in which a creditor can commit a serious breach (i.e. a repudiatory breach)

 

NO the crditor can refuse to release funds even after execution of the agreement section 55-59 its in there somewhere either party can withdraw before the bargain is made. Canyou think of anyhthing else nope cos there isnt anything.

T

2. Agree, they can do it without entitlement 'of the CCA' but that does not make it unlawful - not sure who is arguing this - although you were arguing for years against it yourself!!

??

3. Very sad to hear that ..... I think the Courts would also fundamentally disagree

 

NO the courts are there to do what they are asked to do in this case it is enforce agreements for creditors

4. Disagree, Woodchester amongst many many others (including some of my own) and once they are outside of the limitation act I cannot see how that is 'putting off the point'

 

Woodcheste was a hire agreement the only lablities due on the agreement were arrears, what you have here is a loan the liabilities are due on termination

Please Peter argue with reasoning rather than just regurgitating your opinion and labelling it as fact and expecting everyone to swallow.

 

I weill argue with reasoning if you do a little homework

[Peterbard]

Hi

Some basic facts for you to think aboujt

 

THe crediotr cannot repudiate a consummer credit agreement.

 

The creditor cannot unlawfully termiante a consumer credit agreement.

 

The court will always primarily be concerned with the debt and the recovery of the creditors money.

 

If you challenge a default notice you are mearly putting of the point where the creditor can enforce.

 

Now if anyone can show me any case any where that dissproves any of these points i will never post on here again.

GO on must be worth you having a look

 

Peter

 

Yes facts all

 

TTFN

 

Peter

[gh2008]

Are you really iterested in facts?

 

NO the crditor can refuse to release funds even after execution of the agreement section 55-59 its in there somewhere either party can withdraw before the bargain is made.

 

I weill argue with reasoning if you do a little homework

 

I will just pick up on this 1. Please quote where in S55-S59 a creditor can refuse to release funds following an executed agreement.

 

and you may want to check Woodchester ..... I know the suns already due at termination were ordered to be repaid - but what was the original claim for ... I think you will find it was in excess of £13k rather than arrears .... (stopped payments after about 2 years on a 6 year lease)

 

Sorry Peter I do homework BEFORE posting ...

[gh2008]

 

KENNEDY LJ:

 

This is the defendants' appeal from a decision of Assistant Recorder Hickinbottom who, in Cardiff County Court on 3

October 1997, gave judgment for the plaintiffs in the sum of £13,453.07 with costs on the county court scale 2.

 

Facts

 

The factual background to the action can, for present purposes, be stated quite briefly. The defendant appellants, Swain & Co,

are a firm of solicitors in Cardiff who, in 1992, decided to obtain a new photocopier. The machine was supplied by

Photostatic Copiers Ltd, but Swain & Co required finance. So the plaintiff respondents, Woodchester Lease Management

Services Ltd ('Woodchester'), then Woodchester Equipment Leasing Ltd, became involved. On 7 April 1992 an agreement,

described as a rental plan, was made between Woodchester and Swain & Co which was for a minimum period of 72 months

and provided, inter alia, for quarterly payments of rental in the sum of £648 plus VAT with an increase of 7.5% at end of year

1. Payments were made normally until the end of 1994. Swain & Co then stopped payments and that, it is now common

ground, amounted to a breach of contract. Clause 9.1 of the contract set out what was to happen in the event of default by the

customer. So far as material, that clause provides:

 

 

'If: (a) the customer fails to pay rental or other sums payable under this agreement ... on the due date ... then and in every such case

(which, in the case of the events referred to in clauses 9(a), (b) or ©, will be deemed to constitute a repudiatory breach of this agreement

by the customer) an event of default shall be deemed to have occurred for the purpose of this agreement. On the occurrence of an event of

default the company may by notice in writing to the customer immediately or at any time thereafter and for all purposes terminate any

letting of equipment under this agreement.'

 

sorry Peter these are FACTS

[The Mould]

Hello Peter Bard

 

Can you please provide the legal basis that supports your contention, that is, that it is not possible for a creditor to repudiate a regulated credit agreement. Please do not refer to the CCA 74 (as amended) because said act only relates to any breaches thereof by the creditor, said act has nothing to say in respect of any breach of contract by the creditor. Please explain why a credit contract is the only contract under English law where it is only possible for one party to repudiate the contract, namely the debtor.

 

Kind Regards

 

The Mould

[Peterbard]

I will just pick up on this 1. Please quote where in S55-S59 a creditor can refuse to release funds following an executed agreement.

 

and you may want to check Woodchester ..... I know the suns already due at termination were ordered to be repaid - but what was the original claim for ... I think you will find it was in excess of £13k rather than arrears .... (stopped payments after about 2 years on a 6 year lease)

 

Sorry Peter I do homework BEFORE posting ...

NOt enough apparently

The sum dissalowed in woodchester was lost future income from the agreeement this was dissalowed because the DN was defective an thus the losses claimable under the contracct were only the actual losses not future income uder the hire agreement .

In a credit agreement all liabilities are actual.

57.-(1) The withdrawal of a party from a prospective regu- Withdrawal

lated agreement shall operate to apply this Part to the agree- from

ment, any linked transaction and any other thing done in antici- prospective

pation of the making of the agreement as it would apply if the agreement.

agreement were made and then cancelled under section 69.

So you really think that a creditor has to send you the money just because he signs on the dotted?

I pretty musch wrote the book on this stuff i am af actfraid you are on abig looser if you try to take me on on the

[car2403]

No need to hide.

 

I look forward to it.

 

I'd like to know though whether I was moderated for inarticulate drivel, bullying and/or flaming, I dont recognise any of the above in my posts.

 

Vdr

 

An explanation has been provided, I believe - of course these aren't the only reasons posts are moderated, but then you'd all already know that, having read the forum rules before posting...

 

For the information of those who have been cagbotted I have removed about 40 irrelevant posts ranging from banter to bullying which do nothing to help the OP.

 

This is unusual for me as I like people to thrash out a good discussion, but the OP needs help and the type of posts on here do nothing to help decide how to proceed.

 

Enough is enough.

[gh2008]

I would think the sums became due (depending on the terms of the contract) when both parties decided to terminate the agreement. Why would the creditor have to go through the DN process again prior to proper termination of the agreement when PH decided that was what she(?) wanted to do anyway? It would be a nonsense.

 

PH, as the innocent party of the creditor's material breach of contract, accepted their termination clearly on the understanding that arrears only were due (as per her letter)

 

What you are saying is that a creditor can terminate, a debtor can accept (and by not making furthe payments that acceptance is by deed) and then the creditor has fullr rights to teh balance of teh account without serving a Default Notice.

An interesting side stepping of the CCA, and one that would blow many High Court and CoA rulings out of the water

 

 

If not then, it must be when the judge ordered it.

 

Now that one is more interesting, under what powers and invoking what Law did the Judge Order it?

The DJ should not just be making up Law on the spot, but applying the Law to the arguments put forward.

 

I don't see a valid argument put forward by the Claimant for full rights to teh contract i.e. capital + full interest less early settlement + S69 interest following THEIR material breach of contract AND their major breach of the CCA

[gh2008]

I would think the sums became due (depending on the terms of the contract) when both parties decided to terminate the agreement.

 

The terms of teh contract were that the OP was to make payments as and when they fell due.

Other than that it was a regulated agreement.

 

The term the creditor used in Court was S4 termination when teh debtor was in default and the CCA S87 has strict rules regarding that as you know.

[gh2008]

The Claimant relied on it's rights prior to termination being intact following termination.

 

This is common ground and I think everyone agrees on this

 

What the parties do NOT agree on is what those rights were. The CCA is quite clear that the entitlement to sums not yet due is an entitledment that has to be earned.

 

DID the creditor EARN THOSE RIGHTS??

 

 

The creditor also relies on teh fact that in Woodchester they say the agreement was NOT terminated, but lived on .... TBH I doubt this, I doubt the defendant maintained their payments following the appeal in 1998 where they won.

 

Difficult as we don't have any evidence either way AFAIK - how can they rely on it then??

 

[Pumpkinhead]

Originally posted by Caro. What track was this? If under £5k it would normally be small claims, so costs shouldn't come into it. Was the interest section 69 interest?

 

It was small claims track and the interest was section 69 interest.

[Peterbard]

I would think the sums became due (depending on the terms of the contract) when both parties decided to terminate the agreement. Why would the creditor have to go through the DN process again prior to proper termination of the agreement when PH decided that was what she(?) wanted to do anyway? It would be a nonsense.

 

If not then, it must be when the judge ordered it.

 

Sorry PH, but as far as I can see you shot yourself in the foot with this one. I guess you know that though.

 

Obviously what you need is practical advice about how to deal with this now.

 

Just noticed that you have been awarded costs for a hearing in October. What's that about then?

 

Quite

 

Peter

[volvodriver]

Quite

 

Peter

 

Quite what Peter?

 

Which one of Caro's contentions do you subscribe to?

 

Both perhaps?

[Pumpkinhead]

Originally posted by Caro Just noticed that you have been awarded costs for a hearing in October. What's that about then?

 

There wasn't actually a hearing in October. There was going to be one because I raised an application to have the case struck out based on the Claimant's original POC. When they then requested to amend the POC the judge heard them first on the day and my case was dismissed without being heard. I was awarded costs thrown away by their action.

[Peterbard]

I disagree.

 

The OP accepted that the creditor had terminated the agreement on the back of a defective DN, which is not in dispute ( the defective DN). Its nonsense, as you call it, to say both parties decided. One decision was contingent on the other, and if it starts wrong it just gets worse.

 

You are arguing that the OP's acceptance of the claimants not having the right to bring the claim in the first place as the claim is contingent upon a valid DN, gives the creditor a get out of jail free card effectively to ignore the purpose of the CCA, which is consumer protection, with a most insistent emphasis in the act on the form and content of the DN.

 

If you are right, there is no longer any protection. I do not accept that is correct.

 

Vdr

Hi

I think you are over complicating this.

 

PH agreed to terminate the agreement,the agreement does not have to be terminated billaterally either side can do it at any time.

If the creditor did it without breach the court would not enforce because the debtor would be unfairly predjudiced under common law.

If the debtor does it or agrees to do it if you like,they are saying that the no longer wish to be or will be repaying the loan as per the agreed terms. At hat point all liabilities become due to the creditor. The default notice the breach al become irrelavent.

 

Peter

[Peterbard]

Quite what Peter?

 

Which one of Caro's contentions do you subscribe to?

 

Both perhaps?

 

Al of them

[volvodriver]

Al of them

 

Well here we have a clear case of inarticulate drivel.

 

Where are the moderators?

[gh2008]

PH's costs were for her Strike Out application.

The Claimant realised their argument was fatally flawed and at the last minute before the hearing submitted their own app to change their argument completely.

Their app to amend the POC was accepted and PH was awarded all costs to that point

 

Following AQ it was on SCT and as Caro has hinted at they should NOT have got costs.

(With the decision given, I agree on the S.69 interest though i.e. they should have it BUT I don't agree with the decision and the costs issue just adds another point to the argument as to whether the DJ really was on the ball)

 

S.69 interest is NOT payable on CCA Judgment debts i.e. following Judgment in CCA cases

S.69 interest is NOT payable when another rate of interest is applicable (i.e. in all CCA cases where the agreement is not terminated)

that follows that S.69 IS payable when no other rate of interest applies i.e. to a CCA debt on a terminated agreement as per Woodchester as well

 

The fact that Woodchester (or Swain as it happens) was awarded S.69 interest would indicate that the agreement was terminated ... makes the Claimants argument in PH's case less convincing

[volvodriver]

Hi

I think you are over complicating this.

 

PH agreed to terminate the agreement,the agreement does not have to be terminated billaterally either side can do it at any time.

If the creditor did it without breach the court would not enforce because the debtor would be unfairly predjudiced under common law.

If the debtor does it or agrees to do it if you like,they are saying that the no longer wish to be or will be repaying the loan as per the agreed terms. At hat point all liabilities become due to the creditor. The default notice the breach al become irrelavent.

 

Peter

 

You cant kill something twice, once its a dead parrot it's dead, terminated, shuffled its mortal coil etc.

 

The claimant killed it. If anyone tries to effect further death on it they are bound to fail.

 

Its not me who is complicating it.

 

My point is very simple, and I believe supported by the judge in Harrison v Link.

 

If the DN is bad, the claimant has no rights under the CCA.

 

What part of that is:

 

a) incorrect

 

b) complicated

 

Vdr

[gh2008]

Well here we have a clear case of inarticulate drivel.

 

Where are the moderators?

 

When someone has stated that if ANY of their statements could be proved wrong they would go away

And then at least one of those statements was proved wrong and they stay

 

then, in my mind, it just becomes background noise .....