Northern Rock dodgy default and termination - advice needed

[Peterbard]

Hello Peter

 

With respect, I simply do not agree with your comments regarding the defence to this claim.

 

I seek no argument with you Peter, so please do not miscontrue my posting here on this case/story.

 

The claimant issued a claim against the defendant on the foundation of an invalid Default Notice.

 

The serving of the claim upon the defendant [was] the commencement of legal proceedings and therefore Termination of the contract/agreement without the required legal excuse, non-compliance of s87(1) of the CCA 1974 (as amended) by the claimant (who is a creditor).

 

First time round, the defendant acknowledged and defended the claim.

 

The solicitors acting for the claimant realised that the Default Notice was defective and so prevented the claimant's entitlement in law to the amount claimed, the defectiveness of the said Default Notice was communicated to the defendant.

 

The defendant acted swiftly and accepted recision of the said contract/agreement as one of the remedies available to him/her (the defendant) as he/she was (and still is) the non-breaching party.

 

The agreement from the point of the initial legal poceedings remains in a permanent stated of Termination, it is no longer 'Live'.

 

In order to be able to re-issue a valid Default Notice, Termination Notice and commence with the action all over again, the contract/agreement needs to be reinstated 'Made live again'.

 

Both parties to the said contract/agreement would need to give their express consent to reinstatement of the contract/agreement.

 

The defendant (debtor) is not going to cure the impossible task that the claimant now faces, the defendant is not going to agree to reinstatement.

 

The defence to this particular claim is complete and recognized in law and does so undermine the claimant's cause of action in its entirety.

 

Case closed/dismissed.

 

Please explain Peter, why you believe that such defence as this one is not viable and that it does not release the defendant from liability.

 

Discuss.

 

Kind Regards

 

The Mould

 

Hi

 

No of course discussion not agument.

 

My contention has alway been that if the default is invalid then so is the termination if this is the case then the debtor cannot accept it because it is not available.

 

Also i do not consider the termination of an account to be rescision, the term refers to the voiding of an agreement this cannot happen whilst there are outstanding monies due on the contract.

Peter

Edited October 1, 2010 by Dodgeball
valid invalid doh

[Guest]

Hi

 

No of course discussion not agument.

 

My contention has alway been that if the default is invalid then so is the termination if this is the case then the debtor cannot accept it because it is not available.

 

Also i do not consider the termination of an account to be rescision, the term refers to the voiding of an agreement this cannot happen whilst there are outstanding monies due on the contract.

Peter

 

but, it then is an 'unlawful termination'! which could result in so called 'rescission for breach' ie 'rescinded' to the point of the UT/breach. (although not 'rescission' in the normal sense!)

 

imo

[Peterbard]

but, it then is an 'unlawful termination'! which could result in so called 'rescission for breach' ie 'rescinded' to the point of the UT/breach. (although not 'rescission' in the normal sense!)

 

imo

 

Well no there is no termination because the DN was defective and even if there was since either party can terminate ata any time how can it ever be unlawful

[Guest]

well yes. they have then gone on to terminate! if the dn is non compliant (and is required) then it is unlawful because they have not complied with the statutory requirements for termination! an agreement can be 'terminated' without it being lawful! ie it is unlawful.

imo

Edited October 1, 2010 by Ford
typo

[emandcole]

I do find this issue confusing and to me it doesn't make sense that any other contract can be ended unfairly by either party allowing the injured party to pull out, however when the CCA is involved (that quite clearly demands a valid DN is produced) such an option to pull out remains elusive.

 

I entirely understand the fact that 'technically' if a valid DN has not been served then 'technically' anything after that should not actually be available, however there are many comparitive examples, contract and not contract related that do not prevent one party from doing something after the other has done something they shouldn't have done.

 

This is simplistic I accept but if I have a contract with a window cleaner and he fails to turn up it doesn't change the fact that because he hasn't turned up I could do them myself. I'm not prevented from doing them myself simply because the contract expressly states that my window cleaner will do them.

 

People drive about without a licence - when they get caught they can't claim that as they don't have a licence they are somehow exempt from prosecution stating that the act of driving they were caught out doing is irrelevent as technically they aren't allowed to drive. Therefore, as they have no licence the court should be prevented from endorsing their future licence with points.

 

I appreciate this is a matter of law but at present I don't understand how the act of 'technically being prevented from doing something' renders the actual act of them actually doing it as unimportant.

 

If I sign a contract with someone and then ignore the law (whatever type of law that may be) how can I then expect the law to come to my rescue, as a priority over the innocent party, when my actions demonstrate I had no regard for that law before I decided to step outside of it?

 

Explanations very much welcomed

[Peterbard]

well yes. they have then gone on to terminate! if the dn is non compliant (and is required) then it is unlawful because they have not complied with the statutory requirements for termination! an agreement can be 'terminated' without it being lawful! ie it is unlawful.

imo

 

Hi

section 87 says the creditor cannot terminate not he must not terminate.

 

The termination is void it does not exist in the eyes of the law.

 

Peter

 

 

Any t

[The Mould]

In this case the creditor has terminated the agreement, he can do that if he wants to, but if he wants to terminate and enforce the agreement and demand the full balance, he must comply with legislation (CCA 1974 - as amended), if he does not, he is not entitled in law to enforce the agreement, nor is he entitled to the full balance (Woodchester case).

 

One cannot or rather should not argue 'unlawful termination', the implications of that argument would go against the debtor (defendant), the Court would agree that it is unlawful termination and therefore the agreement endures, the creditor can then re-issue a valid Default Notice.

 

In this case, the creditor commenced with proceedings on the foundation of a defective Default Notice, his Solicitors noticed this and realised that he was not entitled to claim the full outstanding balance on the agreement, they discontinued with the action.

 

From the point of proceedings commencing, the creditor had terminated the agreement, if he now wants to enforce the agreement and be entitled to the full balance outstanding, he must issue a valid Default Notice, but he needs the agreement to be reinstated first, the creditor and the debtor must give their express consent to reinstatement of the agreement as such agreement cannot be reinstated unilatterally, it is a bilatteral agreement.

 

The agreement is in a permanent state of termination, the creditor can bring an action for any arrears that were due before termination and that is all he is entitled to in law.

 

The creditor cannot not have it all his own way, the CCA 1974 amended, was enacted to protect the consumer, it was not enacted to be used selectively by the creditor.

 

CG has a defence against this claim, the creditor and his Solicitors are taking unfair advantage, this claim will fail against this defence.

 

Kind Regards

 

The Mould

[Guest]

Hi

section 87 says the creditor cannot terminate not he must not terminate.

 

The termination is void it does not exist in the eyes of the law.

 

Peter

 

 

Any t

 

? incorrect re 'termination is void'. an agreement can be unlawfully terminated! if a cr fails to comply with the termination requirements of the cca, and therefore the agreement that it regulates, then it is 'unlawful'! it is a breach of statute.

imo

Edited October 1, 2010 by Ford
typo

[The Mould]

Yes it would be 'unlawful', I agree, but if that is used by the defence, the defence will fail.

 

This is non-performance by the creditor, breach of contract.

 

If the creditor in the first instance had served a defective Default Notice and then issued a demand for the full balance rather than bringing the action, whether or not he had issued any termination notice, then it still amounts to non-performance, this entitles the other party (the debtor) to treat his obligations under the agreement as discharged.

 

A creditor cannot endlessly issue Default Notices until he gets it right, especially if the agreement has been terminated, that is not just.

 

CG, have you checked all three of your credit files recently?

 

Kind Regards

 

The Mould

[crowgal]

I had not updated on this thread as everything had gone quiet after my latest communication with NR's solicitors where I had written and told them as far as I was concerned the contract between us had ended etc. When I wrote to them I also mentioned that even if it still existed I had two differing versions of the T&C's and sent them copies. Since then I have received yet another (the third one) DN from NR and a letter from the solicitors advising that the second version of the T&C's I had been sent was incorrect (even though they were previously quite adamant that they were the correct version - and I have that in writing), they also advised that the second DN NR had sent was incorrect and they were preparing to send me the third one. I think it looks like they are on the road to the whole court thing again so it looks like they aren't prepared to give up on the basis of faulty DN's and terminations.

 

No I haven't checked my credit file. I am reading all this debate but I can't seem to find any recent cases where this argument has stood up. And I am afraid now Peterbard's comments have made me feel more negative about it all. The whole thing seems to ride on how SEction 87 is interpreted and Peterbard seems to be taking the same line as NR's solicitors.

[crowgal]

Yes it would be 'unlawful', I agree, but if that is used by the defence, the defence will fail.

 

This is non-performance by the creditor, breach of contract.

 

If the creditor in the first instance had served a defective Default Notice and then issued a demand for the full balance rather than bringing the action, whether or not he had issued any termination notice, then it still amounts to non-performance, this entitles the other party (the debtor) to treat his obligations under the agreement as discharged.

 

A creditor cannot endlessly issue Default Notices until he gets it right, especially if the agreement has been terminated, that is not just.

 

CG, have you checked all three of your credit files recently?

 

Kind Regards

 

The Mould

 

By the way when I wrote to NR to accept the termination I did state that I accepted 'their unlawful termination' so I suppose based on what you say above I might have have shot myself in the foot also.

[Peterbard]

? incorrect re 'termination is void'. an agreement can be unlawfully terminated! if a cr fails to comply with the termination requirements of the cca, and therefore the agreement that it regulates, then it is 'unlawful'! it is a breach of statute.

imo

 

Yes it was a bit of a sweeping statement but was trying to get a point across.

 

Most agreements have in the t and cs the clause that permits the creditor to terminate, this can be cone without notice on open ended accounts currently and with notice on fixed sum accounts, if a breach occurs no notice is needed given this it is very difficult to se where an illegal termination would take place and how statute would be breached.

 

Peter

[Peterbard]

Yes it would be 'unlawful', I agree, but if that is used by the defence, the defence will fail.

 

This is non-performance by the creditor, breach of contract.

 

If the creditor in the first instance had served a defective Default Notice and then issued a demand for the full balance rather than bringing the action, whether or not he had issued any termination notice, then it still amounts to non-performance, this entitles the other party (the debtor) to treat his obligations under the agreement as discharged.

 

A creditor cannot endlessly issue Default Notices until he gets it right, especially if the agreement has been terminated, that is not just.

 

CG, have you checked all three of your credit files recently?

 

Kind Regards

 

The Mould

 

 

 

HI

I do not see why the none performance of the creditor would render the obligations of the debtor discharged. This is a credit agreement you cannot apply this logic.

Whether we like to admit it or not as far as the court is concerned the creditor is the one who is prejudiced here.

I guarantee that the court will not be as concerned with the none performance of the creditor as it is with the none performance of the debtor in breaching the agreement and not paying his debts these are the facts I am afraid.

From the debtors perspective all the court will want to know is if he was given the prescribed information and period to remedy before the agreement was terminated.

If not then yes the DN will have to be reissued and yes the termination would have been invalid, just because proceedings have commenced doesn’t change that.

If the creditor has to do this a number of times then so what the debtor gets more time to pay and the creditor cannot collect his money this is all the sanction against the creditor that the act permits.

This is the function of the legislation. The act is not designed to sanction the creditor for “none performance”, unpleasant as it may be if you go back to contract law you will find that the creditor has rights and the debtor has obligation.

It is the Consumer credit act that gives the debtor rights but these rights do not include depriving the creditor of his.

 

Regards

Peter

[The Mould]

CG

 

I would be grateful if you could please answer a few questions in relation to your case/story.

 

1. What were you going to defend the action with, first time round?

 

2. The T + C of the agreement, what does the creditor say he will do before he Terminates the agreement?

 

3. As far as the Default is concerened, how much do you actually owe in arrears?

 

4. What amount does the creditor claim you owe?

 

5. What period of time had elapsed, after service of the original DN, before the creditor commenced with proceedings?

 

6. Did the creditor serve a Letter Before Claim upon you before bringing the action?

 

OK, a credit agreement [is] a contract and therefore subject to The Law of Contract.

 

The fact that you sent a letter to NR accepting 'unlawful termination', is irelevant.

 

I stand by what I have stated previously on this subject, there is no longer a live agreement to default on again, the agreement was Terminated by the time of the initial (discontinued) proceedings, the creditor remains entitled to the arrears that were due before Termination, he is not entitled the full balance, the agreement needs to be reinstated, then a valid Default Notice issued, if you CG want to give your express consent to reinstatement of the agreement, then you should contact the claimant (creditor) or his Solicitors and state that you will agree to do this, the creditor will then have the full legal right to follow the correct procedures and secure success for his claim.

 

The Court cannot force your hand to reinstatement, the creditor has deprived himself of his entitlement to enforce (sue) you for the full balance.

 

If you know the exact amount of arrears, then I advise you to pay those arrears and nothing more, as you are liable for those arrears.

 

Come back, when you can, with some answers to those questions please.

 

Kind Regards

 

The Mould

[crowgal]

1) First time round I was going to defend on the basis of a) a defective DN b) secondly I ? the validity of the agreement because there were two different sets of t&c's one sent to me following a CCA request to NR the second as part of their court papers, both are separate sheets difficult to prove which would belong to the agreement, the solicitors were quite adamant that they had sent the coorect version and then retracted this to say the first ones sent with the CCA request were. Also the original agreement contains no cancellation box.

 

2) the first lot of t&c's sent aren't legible to me, the second lot I can't see anything like that, some of it just dosen't make sense, but I have both sets of T&C's posted up in one of my earlier posts along with the DN's and agreement

 

3) the arrears were £384 on the first DN

 

4) Now on the latest third DN they are £2989.92 which includes A £500+ for the litigation fees for the failed court action

 

5) First DN was 16/9/09 court action 2/12/09

 

6) they wrote to me on the 24/11/09 to adivse that unless I repaid the full balance of the loan within 7 days they would issue court proceedings.

 

If I could repay the whole lot I still would I was never trying to shirk my responsibilities, but when I contacted NR last year to offer token payments they were so unsympathetic and awful to deal with. I was so angry I initially went down the road of a CMC who adivsed the agreement was unenforceable but I never got any further action out of them they were hopeless to deal with. At the moment I am still so rock bottom financially that I could not at this moment even repay those orignal arrears.

[Guest]

crowgirl - that's just it, contrary to the Banking Code etc, creditors are unsympathetic and just go on to default etc despite offers of payment. in some cases they just blatantly mislead people. it's a common theme!

mould - i agree with you in that a cr should not be able to rely on the argument that a dn can just be reissued again and again when an agreement has been terminated. i recall a case on cag where the ct specifically refused permission for the cr to issue a further dn. termination can still occur despite non compliance with s87/88. i was also pointing out that failure to comply with s87/88 (if s87 is in issue of course) is a breach of statute, and therefore a breach of the agreement that it regulates. any breach by a cr is relevant in favour of the debtor. imo

Edited October 2, 2010 by Ford
typo

[The Mould]

OK CG

 

Thank you for your response.

 

Firstly, I just want to give you some more good news for your case/defence.

 

That third (3rd) DN is also invalid, because you are not legally responsible for that £500+ litigation costs, as I have said previously, the agreement has been terminated therefore there is no live agreement for you to default on again, also, only if you agreed to pay the said sum, then and only then would you be liable for it, the Court did not award the said sum to the claimant as he did not succeed with his claim, there was no hearing because he discontinued with the action.

 

That £384 stated on the first DN, are you saying that figure is incorrect?

 

What exactly was the defect in the first (original) DN?

 

I have not yet read through the agreement that you have posted up, I will try and do this tonight.

 

Obviously the claimant has not complied with Practice Direction - Pre-Action Conduct and he should of done so before he served the claim.

 

How many months of missed payments had you actually missed by when that original DN was served upon you?

 

Do you have a relative or a very, very good friend who would be able to pay the original arrears?

 

Kind Regards

 

The Mould

[The Mould]

The failure of a creditor to serve a valid Default Notice, prevents him from entitlement to the full balance - Case Law - Woodchester v Swain Held on Appeal.

 

In that case the creditor (claimant) was only entitled to the arrears that were owing before termination, the agreement was no longer 'live' and so the creditor could not re-issue a valid Default Notice.

 

Kind Regards

 

The Mould

[The Mould]

Yes, Ford, you are correct, in this particular case the creditor has blown s87/s88 and the fruits thereof.

 

Kind Regards

 

The Mould

[crowgal]

Prior to the issue of the first DN I missed one full month's payment and had made a part payment for the month before. I alerted the solicitors to the fact that the stated arrears on the termination notice didn't match the arrears on the DN, it looks like they added an extra month to the termination notice. I think that's why they withdraw the second DN because it contained the legal fees for the failed court case. The latest one I've worked out is all the other month's payment's since I originally defaulted, but they sent me a statement of account just before they issued the third DN and the full balance of the loan is still showing the legal fees, the total balance on the latest DN does not, they really are all over the place with this. I can't see anything on the T&C's but I am no expert. Some posts I have seen suggest that you are not liable for any of the arrears if there is a question mark over the validity of the agreement, how would they ever be able to prove which set of T&C's is the correct one. Unfortunately I don't have any friends or relatives who would be that generous to help out with this. Thanks for your continuing help and advice not sure what I would have done without CAG it is a treasure chest of advice for people in my situation.

[Winged Piglet]

You are not alone - I am in exactly the same position albeit a little more advanced. Proceedings ended with a Notice of Discontinuance, the same letter (nearly identical) sent from NR's litigation idiots, and lots of DN's - three in all served post termination and post proceedings.

The DN they are using for the second set of proceedings is faulty too as it oversates the 'arrears'. I wrote to NR accepting their unlawful rescission and they kindly wrote back via Wallers saying so what!

They are able to bring second set of proceedings as I wasn't able to attend hearing when they applied - so I don't know what was said or how they persuaded judge to say okay to it as facts were the same.

I have issued a Defence on the basis of unlawful rescission etc but also that NR have stated in writing that they did not admit the first DN was not compliant. Surely NR would have to admit this to back up their only arguement that the first termination never occurred. I have also used the fact that the 2nd DN used is unlawful and are they then going to discontinue proceedings again. Hopefully judge will get the message that if he allows this once, he can set them up to go on and on until they get it right which is not in the spirit of the civil procedure rules or lawful under the CCA 1974.

I am also defending on the basis of the original defence too: no t and cs attached to agreement (I too have been issued with two sets claiming to be the correct ones), no cancellation rights etc

 

One thing I do question is how can they state on the post termination DNs and Final Demands that they will litigate or 'commence proceedings' when at that stage they( as it would be second proceedings) did not have the permission of the court to re-litigate. Just a wild point but at that stage threatening legal action when they technically were not able to is not right.

 

I will keep you posted but any further advice on how to play this will be useful.

[The Mould]

Winged piglet

 

Have a look at 'repudiation of contract' posted by turnaround in this legal issues forum, it might provide you with some further legal argument for your case, or rather it should.

 

Kind Regards

 

The Mould

[Peterbard]

Hi

I know I am probably incorrect here given if it is just by the volume of people who think otherwise but for the life of me I cannot understand how the termination of an agreement on a credit card can ever be unlawful.

Most agreements contain the ability to terminate in there t and cs.

This from Amesx v Brandon

"And that, I observe in passing, must apply in this case."It was !i running credit agreement which either party could terminate at any time. It follows that the claimants were entitled to terminate the

agreement, even though they had not served seven days notice of

termination. Mr Harrison has made the strong poim that they have

purported to serve a default notice. The default notice, because it was

served on a Sunday, did not give the adequate: seven days, therefore it

was not valid."

I am quite satisfied there is nothing in that point for the reason that is apparent from

the references I have already made."Section 10(2) provides that the claimants were entitled to terminate a.t

any time and that the Act does not prevent them from so doing. They

did purport to terminate this agreement. There had in fact been

breaches. It is asserted on the part of the defendant because of his non-payment but whatever their position they were entitled to terminate it as they did.

I am satisfied therefore there is nothing in the point advanced by Mr

Ha.rrison that they were required to serve a default notice and that the default notice was defective”

Looking back over the past few years on cases that used this as a defence, they seem to just disappear off their respective threads about the time the issue comes to court.

Woodchester Keeps being quoted I have read and re read this judgement and to me it was simply a case of the charges issued under a faulty notice being re funded, the refusal to charge future hire charges on the agreement if that is what happened is not the same as refusing the creditor his lawful entitlement to recover.

Khapour also this was a business transaction where a cheque was dishonoured the resulting action was one for damages, because of loss of trade. I do not see the parallel, I like I say am sure I am missing something I wish some one would logically explain to me what it is.

Regards

Peter

[Peterbard]

The failure of a creditor to serve a valid Default Notice, prevents him from entitlement to the full balance - Case Law - Woodchester v Swain Held on Appeal.

 

In that case the creditor (claimant) was only entitled to the arrears that were owing before termination, the agreement was no longer 'live' and so the creditor could not re-issue a valid Default Notice.

 

Kind Regards

 

The Mould

 

Hi

 

Respectfully would you link me to this part of the judgemn t"only entitled to arrears"

 

Peter

[emandcole]

for the life of me I cannot understand how the termination of an agreement on a credit card can ever be unlawful.

Most agreements contain the ability to terminate in there t and cs.

 

This from Amex v Brandon

"And that, I observe in passing, must apply in this case."It was a running credit agreement which either party could terminate at any time. It follows that the claimants were entitled to terminate the agreement, even though they had not served seven days notice of termination. Mr Harrison has made the strong point that they have purported to serve a default notice. The default notice, because it was

served on a Sunday, did not give the adequate seven days, therefore it

was not valid."

 

I am quite satisfied there is nothing in that point for the reason that is apparent from

the references I have already made."Section 10(2) provides that the claimants were entitled to terminate at any time and that the Act does not prevent them from so doing.

 

I understand the confusion that arises here and to my mind the amex case is not a typical one. For a start the express T&C's that clearly regulated the agreement undermine the protection of the consumer credit act that states, as we all know, that 14 days must be given. In the Amex T&C's it appears that they decided to run a parallel set of conditions that remove to some extent the protection that parliament declared we should have.

 

I would have thought that parliamentary intent would supercede or at least take priority over any conditions contained within a credit agreement but in this case it appears that the judge decided the express terms of the Amex agreement were more important than the CCA 1974.

 

Amex appeared to confirm it was a regulated agreement (despite their own perculiarities undermining CCA requirements as to default time) with the issue of a DN that to all intensive purposes was invalid and not complicit with the CCA, that should have, in my opinion at least have taken a higher priority than the T&C's in the specific Amex agreement. It is after all a law to protect the consumer from unscrupulous lending.

 

This then leads us on to your thoughts on how you find it hard to fathom how a credit card agreement can ever be terminated unlawfully. I for one can imagine many ways it could be terminated unlawfully. For a start if the creditor decides for no other reason than 'they just feel like it' would it be ok for them to just demand the full balance when the consumer expects to only pay the monthly minimum? In doing that I cannot see how that wouldn't be unlawful as it completely undermines the business model of the credit card system and stamps all over the conditions that underpin the contract.

 

If I was in that situation and the creditor just demanded the whole lot in complete defiance of the CCA I would certainly be of the opinion that they'd decided to terminate and I would probab;y elect to accept what can only be considered as an unlawful termination. What else could it be?

 

I agree that most agreements will contain, or certainly should contain, conditions and protocol for termination but the amex case does appear to have contained terms that conflict with the CCA 1974. The judge appears to reference a section 10(2) clause that is perhaps the partial cause of all of this. If the consumer agreed to effectively waive his rights under the CCA by accepting terms that gave him far less time to remedy a default situation I can understand how the judge had to decide between the express contract terms and the conflicting and protective nature of the requirements for default remedy as laid out in the CCA.

 

My personal view is that as the CCA is for the good of all consumers and indirectly creditors, is wholly impartial and specifically deals with default situations the court should have recognised that by giving the consumer less time to remedy the creditor was in effect doing little more than attempting to circumvene the overriding protection and intent of the CCA.

 

I have also seen in some agreements that the term 'we will abide by all appropriate legislation in terminating your agreement' or similar appears.

 

Perhaps the Amex agreement stated something along the lines of 'although we may pretend to adhere to the CCA 1974 by attempting to issue a token Default Notice we have in fact inserted various clauses in this agreement that actually remove all of your protection under this Act and should you accept our terms you should not expect to benefit from any statutory protection should we decide to end any agreement' or similar

 

As far as I can see, and I may be wrong of course, if the creditor after all these years cannot follow a simple default and termination process in order to then stand boldly with the backing and weight of the law behind it then it only has itself to blame when the consumer also bypasses 'what is expected'.

 

If the consumer subsequently adopts the philosophy of Goode, Bennion and Dobson who clearly allowed the notion of the creditor being deprived of their 'right' to collect any debt if they neglect to follow the rules then so be it.

 

I firmly believe any agreement can be unlawfully terminated and I also believe the Amex case is far from typical, hence the surge in DCA's throwing the case around like some golden ticket wherever a DN has not been correctly served.

 

Unless the express terms of the agreement concerned somehow allow the creditor to terminate in contrast to the provisions of the CCA any default that is not compliant with the same, once terminated upon denies the rights of the creditor to collect. The terms are quite simple and defiantly clear.

 

DCA's of course like to brush aside small matters and adopt the broad brush approach wherever it suits, even if the agreement they purport to have is clearly regulated by the CCA and contains no specific deviation from the CCA that would allow them to state a valid DN is not required.

 

As for the acceptance part I also find there is little in the way of case law to support this, however it does seem to fit well with contract law. The argument seems to be that if the provisions of the CCA have been brushed aside then contract law is applicable and one party can elect to accept the breach by the other and relieve themselves from the agreement also, you know all of this I'm certain. As for how it would stand in court I have no idea, however I am aware of acceptance being made to a certain high street bank who messed up a DN, terminated and then passed the debt to their solicitors to chase.

 

The facts of their failure were pointed out, the solicitors kept threatening (and this was for no small amount of money either, a substantial sum in excess of 15k) and the solicitors handed it back to the bank after nearly a year of threatening litigation. The bank is now silent on the matter and the clock is ticking.

 

Not sure how this will end but if they felt that strongly about their position they would have litigated by now. It does therefore have some weight behind it if a major bank is seemingly unprepared to test it before a court.

Edited October 6, 2010 by emandcole