'Claimants consent to Judgement set-aside...??'

[chez262]

HI

The facility to terminate or under section 98 without a default is enabled by the provision of section 88(3), the breach if mentioned in the agreement as a trigger for the section can be applied without as notice as section 87(1) does not apply

However this only applies to the termination in whatever form, it does not entitle them to any other of the enforcement options of section 87

I notice the section says terminate the hiring not the agreement

Peter

 

PB,

 

Yes thats correct, the exact wordings are as I wrote earlier. Does this change things at all?

 

Regards,

C

[chez262]

Ok I have to make the decision as to whether I should apply to have the judgment set aside, which right now would be going against my solicitors advice based on what he claims 'is just a technicality and won't be deemed prejudice enough to be winable' but I am swayed towards thinking of taking the risk.

 

I have just read a few posts on the following thread which are quite concerning as they do favour my solicitors opinion of DJ's ruling in favour of creditors when the defence is seen as a 'technicality'.

 

I do not want to disregard this opinion and would be naive to do so, so what I want to know is what is peoples opinions on a technicality? A what level is it presumed a DJ would deem the defence just a technicality?

 

Thanks

C

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?208663-Tale-of-a-Dodgy-DN-Further-Discussion&p=3144997#post3144997

[Peterbard]

Ok I have to make the decision as to whether I should apply to have the judgment set aside, which right now would be going against my solicitors advice based on what he claims 'is just a technicality and won't be deemed prejudice enough to be winable' but I am swayed towards thinking of taking the risk.

 

I have just read a few posts on the following thread which are quite concerning as they do favour my solicitors opinion of DJ's ruling in favour of creditors when the defence is seen as a 'technicality'.

 

I do not want to disregard this opinion and would be naive to do so, so what I want to know is what is peoples opinions on a technicality? A what level is it presumed a DJ would deem the defence just a technicality?

 

Thanks

C

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?208663-Tale-of-a-Dodgy-DN-Further-Discussion&p=3144997#post3144997

 

HI

They sent you this after missing just one payment they really are sh1ts aren’t they.

The thing is and please excuse me being blunt, your chances of success are governed by what you did after this termination.

You say you accepted the termination if this was the case you should have returned the object and applied for a certificate of termination of account. They had no right to terminate without notice and certainly no right to demand full payment as they did.

If you did not return the goods and continued to withhold payment on the mistaken belief that the contract was terminated and the creditor could not enforce the agreement then you are stuffed.

The only thing that can hold up proceedings is if the details of the Dns are incorrect but that will only be putting things off.

Sorry I would much rather tell otherwise and I am sure some on here will but that is my opinion.

Best regards

Peter

[chez262]

HI

They sent you this after missing just one payment they really are sh1ts aren’t they.

The thing is and please excuse me being blunt, your chances of success are governed by what you did after this termination.

You say you accepted the termination if this was the case you should have returned the object and applied for a certificate of termination of account. They had no right to terminate without notice and certainly no right to demand full payment as they did.

If you did not return the goods and continued to withhold payment on the mistaken belief that the contract was terminated and the creditor could not enforce the agreement then you are stuffed.

The only thing that can hold up proceedings is if the details of the Dns are incorrect but that will only be putting things off.

Sorry I would much rather tell otherwise and I am sure some on here will but that is my opinion.

Best regards

Peter

 

Ok thanks PB,

 

I was told, on here actually, to write to them reminding them they need a court order to collect the goods on the back of their termination and that had had paid them any arrears over due.

They did just this but their claim was not only for the goods but for all the remaining sums due after sending a DN and a TN (they used the 3rd set in their claim), I filed a defence to say they had terminated at an earlier date and therefore believed I owed them nothing.

Surely they should have on this basis been granted the return of goods but not the remainder of the sums on the now terminated contract?

Thanks

C

Edited October 2, 2010 by chez262
mis-spelling

[chez262]

Sorry I should have pointed out that I had paid over half of the sums owed already and therefore accepted this advice however, if I did indeed with hold the eqiupment wrongly then fair enough I thought I was right at the time and the court should tell me I'm wrong and order me to return the goods as they have. Resulting in me walking away with my tail between my legs.

Just like if they terminate wrongly, they should be informed by the courts that they also were wrong and be told to walk away with their tail between their legs. No?

Regards,

C

[Peterbard]

HI

Yes they were in the wrong by attempting to terminate your account the way they did, they where not entitled to demand the payments on the account or the recovery of goods. If at that point you would have took them at their word and returned the goods I do not believe they would have been able to chase you for any further payments.(Sction100)

Unfortunately I think you where given to believe that the account was terminated just because they said it was, it wasn’t because no DN had been sent at that point. This enabled them to send a DN and terminate it properly, effectively letting them off the hook.

Best regards

Peter

[chez262]

Ok another point, a creditor or owner is only entitled to a number of benfits if a certain process if followed, this being a valid DN and a TN. One of which being the termination of the agreement.

If they do terminate the agreement they have effectively given up their right to demand earlier payment or recover the goods.

So in this case they terminated without a DN but demanded full payment and the recovery of the goods.

Why would an ordinary person believe they have to pay in full immediately and return the goods at will?

They more than likely will argue that the wrongful termination does not count as they then sent a DN and second TN, even a second DN and third TN. If the court grants them a judgment on these grounds by disregarding the first wrongful termination does this not mean they can breach an agreement that is regulated by law and requires processes be followed but just forget they did it?

One could suggest that the act says the creditor is not entitled to terminate without a DN therefore the termination can not exist in this case however, as gh2008 states, just because the law says you can't do something does not mean you can not physically do it, it just means if you do it you have to face the consequences surely?

If I punch someone in the face and get arrested can I therefore go back to that person, shake their hand and apologise but then demand that I be un-arrested because I have corrected my mistake? I doubt very much that the courts can overlook a breaking of a law so easily.

C

[chez262]

HI

Yes they were in the wrong by attempting to terminate your account the way they did, they where not entitled to demand the payments on the account or the recovery of goods. If at that point you would have took them at their word and returned the goods I do not believe they would have been able to chase you for any further payments.(Sction100)

Unfortunately I think you where given to believe that the account was terminated just because they said it was, it wasn’t because no DN had been sent at that point. This enabled them to send a DN and terminate it properly, effectively letting them off the hook.

Best regards

Peter

 

Well yes of course I thought it was terminated but then why would I think anything else?

The fact is I was indeed prejudiced against due to the fact that they didn't act in the manner that was expected of them by not giving me my rights as they were obliged to do in the CCA. Wasn't this put in place to prevent debtors being taken advantage of by creditor and protect us 'ordinary' people from the powers that be in the creditor world?

 

My creditor disregarded the CCA in this case and just resorted to bullying tactics.

 

If I was speeding and was caught in the act by the law, but admitted to it and apologised, and the police officer accepted my admission. Would I then get off the hook? Well no because regardless of what I did after breaking the law and regardless of the fact that the police officer accepted that I was sorry and even if the police officer said "I believe you didn't mean to speed and I beleive it was an accident and I also believe you'll never do it again", I'm pretty certain I would still be charged with speeding.

[Peterbard]

Ok another point, a creditor or owner is only entitled to a number of benfits if a certain process if followed, this being a valid DN and a TN. One of which being the termination of the agreement.

If they do terminate the agreement they have effectively given up their right to demand earlier payment or recover the goods.

So in this case they terminated without a DN but demanded full payment and the recovery of the goods.

Why would an ordinary person believe they have to pay in full immediately and return the goods at will?

They more than likely will argue that the wrongful termination does not count as they then sent a DN and second TN, even a second DN and third TN. If the court grants them a judgment on these grounds by disregarding the first wrongful termination does this not mean they can breach an agreement that is regulated by law and requires processes be followed but just forget they did it?

One could suggest that the act says the creditor is not entitled to terminate without a DN therefore the termination can not exist in this case however, as gh2008 states, just because the law says you can't do something does not mean you can not physically do it, it just means if you do it you have to face the consequences surely?

If I punch someone in the face and get arrested can I therefore go back to that person, shake their hand and apologise but then demand that I be un-arrested because I have corrected my mistake? I doubt very much that the courts can overlook a breaking of a law so easily.

C

 

 

 

Hi

I realise how frustrating this must be for you but we are talking about the legislation here not necessarily what is right or wrong and even if we where this is such a subjective concept depending on which side of the fence you are on.

There is a certain latitude in the act for cases to be decided on prejudice but unfortunately this is not one of them.

I personally would agree that it is not fair but experience and knowledge of the way the act works says that it is the case as I say I wish it where otherwise.

Regards

Peter

[chez262]

HI

Yes they were in the wrong by attempting to terminate your account the way they did, they where not entitled to demand the payments on the account or the recovery of goods. If at that point you would have took them at their word and returned the goods I do not believe they would have been able to chase you for any further payments.(Sction100)

Unfortunately I think you where given to believe that the account was terminated just because they said it was, it wasn’t because no DN had been sent at that point. This enabled them to send a DN and terminate it properly, effectively letting them off the hook.

Best regards

Peter

 

Correct me if I'm wrong but what your saying is I had to physically demonstrate acceptance of their wrongful termination otherwise it can be seen as not happening?Imo I think the collecting of the goods and demanding full payment is just the second unlawful act here, I believe it is the wrongful termination that happened before without a DN that is the first unlawful act, is it not? As the law states they are not allowed to terminate in the same sentence as them not being allowed to collect the goods or demand full payment.

I didn't give them the full payment and didn't allow them to take the goods because the first unlawful act had already taken place.

Thanks

C

[chez262]

Hi

I realise how frustrating this must be for you but we are talking about the legislation here not necessarily what is right or wrong and even if we where this is such a subjective concept depending on which side of the fence you are on.

There is a certain latitude in the act for cases to be decided on prejudice but unfortunately this is not one of them.

I personally would agree that it is not fair but experience and knowledge of the way the act works says that it is the case as I say I wish it where otherwise.

Regards

Peter

 

Ok, thanks for help PB, much appreciated.

I guess I have a bigger decision to make than first thought!

C

[chez262]

Ok next question for anyone who can forge an opinion

 

In the case of a termination following a faulty/no DN, when it is, lets say a credit card regulated by the CCA and therefore no goods to return comparing this to the same case that does have goods to return.

If PB is right and due to the fact that I didn't allow them to come and just take the goods from me it is therefore deemed non prejudice, then how do the former cases (of no goods) succeed in defending cases if they have no goods to return?

 

I am trying to determine how a case where it is clear that the debtor has been treated unfairly and terminated unlawfully cannot claim prejudice??

 

Thanks

C

[Peterbard]

Ok next question for anyone who can forge an opinion

 

In the case of a termination following a faulty/no DN, when it is, lets say a credit card regulated by the CCA and therefore no goods to return comparing this to the same case that does have goods to return.

If PB is right and due to the fact that I didn't allow them to come and just take the goods from me it is therefore deemed non prejudice, then how do the former cases (of no goods) succeed in defending cases if they have no goods to return?

 

I am trying to determine how a case where it is clear that the debtor has been treated unfairly and terminated unlawfully cannot claim prejudice??

 

Thanks

C

 

Hi

Don’t see how there can be an unlawful termination on an agreement regulated under the Consumer Credit act

Any party can terminate at any time

Even after a faulty DN a creditor can terminate under section 98 if he wants to..

Regards

Peter

[Ford]

Hi

.........Even after a faulty DN a creditor can terminate under section 98 if he wants to..

Regards

Peter

 

not necessarily. if there is a default, then s98 doesn't apply!!

[Peterbard]

not necessarily. if there is a default, then s98 doesn't apply!!

 

Section 98 is about the need to give notice on none default and fixed term casses the credit card is niether so can be terminated at any time(without notice) so can a default cases.

 

Peter

[chez262]

I think the opperative part of this arguement is whether the agreement in question actually has a clause stating it can be terminated at any time. However, to suggest that section 98 allows creditors to terminate at any time regardless of a default on the case would also suggest that section 87 is now a pointless section of the act.

Edited October 3, 2010 by chez262
typo

[Peterbard]

I think the opperative part of this arguement is whether the agreement in question actually has a clause stating it can be terminated at any time. However, to suggest that section 98 allows creditors to terminate at any time regardless of a default on the case would also suggest that section 87 is now a pointless section of the act.

 

 

 

 

Hi

A creditor can terminate a running credit account at any time because the act says nothing to the contrary. It is purely contractual(down to what it says in the agreement).

However if the reason that he wishes to terminate is because of a breach by the debtor he must first issue a compliant DN and give the debtor time to remedy.

After this period has passed the creditor can issue the termination, it makes no difference if the termination is because of the DN or because he is contractually allowed to do so ,a termination is a termination, he has given the required notice that is al that the act needs in the case breach.

Because of this there can be no unlawful termination. If the termination was on the back of a defective DN and the creditor wanted the termination to stand he would simply say it was a termination under contract.

If he did no want it to stand and the DN was fault then he would say it was a default termination and therefore along with the default itself invalid this would leave the account still live and him free to issue a new DN.

This whole approach is really a loose loose situation

Best regards

Peter

[chez262]

Hi

A creditor can terminate a running credit account at any time because the act says nothing to the contrary. It is purely contractual(down to what it says in the agreement).

However if the reason that he wishes to terminate is because of a breach by the debtor he must first issue a compliant DN and give the debtor time to remedy.

After this period has passed the creditor can issue the termination, it makes no difference if the termination is because of the DN or because he is contractually allowed to do so ,a termination is a termination, he has given the required notice that is al that the act needs in the case breach.

Because of this there can be no unlawful termination. If the termination was on the back of a defective DN and the creditor wanted the termination to stand he would simply say it was a termination under contract.

If he did no want it to stand and the DN was fault then he would say it was a default termination and therefore along with the default itself invalid this would leave the account still live and him free to issue a new DN.

This whole approach is really a loose loose situation

Best regards

Peter

 

How can a creditor terminate an account then change his mind, deciding he doesn't want it to stand?

In my case there was a default and a termination due to the default (as stated in the TN) there is no DN at all.

There are 3 benefits that can the creditor is eligible to claim after a default and with a valid DN, these being a termination, recovery of goods and all money owed.

If they do any of these 3 things after a default and without a DN they surely they are acting unlawfully? Whether that be terminate the agreement, recover the goods or demand all money owed?

Regards,

C

[Peterbard]

How can a creditor terminate an account then change his mind, deciding he doesn't want it to stand?

In my case there was a default and a termination due to the default (as stated in the TN) there is no DN at all.

There are 3 benefits that can the creditor is eligible to claim after a default and with a valid DN, these being a termination, recovery of goods and all money owed.

If they do any of these 3 things after a default and without a DN they surely they are acting unlawfully? Whether that be terminate the agreement, recover the goods or demand all money owed?

Regards,

C

 

Hi

As explained the creditor merely has to say the default termination was defective along with the default, this is what is happening all over the place.

In the case of your first termination it was I agree not in accordance with the act, it was the result of a breach and should have been preceded by time to remedy. Had you acted on that breach by challenging it perhaps under section 140 I believe the court would have found in your favour, perhaps they still would, it is clearly an attempt to opt out of the at and therefore void, the resulting notice would have been unfair.

Unfortunately the creditor would probably plead mistake and then it is down to predjudice, and point out that when it was rectified you still defaulted.

There is in my opinion no getting past the fact that the first termination was void in respect of the CCA

Incidentally a creditor can demand all of the action you stated without a default he just cannot sue foe them.

Best regards

Pete

[chez262]

Hi

As explained the creditor merely has to say the default termination was defective along with the default, this is what is happening all over the place.

In the case of your first termination it was I agree not in accordance with the act, it was the result of a breach and should have been preceded by time to remedy. Had you acted on that breach by challenging it perhaps under section 140 I believe the court would have found in your favour, perhaps they still would, it is clearly an attempt to opt out of the at and therefore void, the resulting notice would have been unfair.

Unfortunately the creditor would probably plead mistake and then it is down to predjudice, and point out that when it was rectified you still defaulted.

There is in my opinion no getting past the fact that the first termination was void in respect of the CCA

Incidentally a creditor can demand all of the action you stated without a default he just cannot sue foe them.

Best regards

Pete

 

Thank PB,

So we agree that by terminating without a DN they chose to ignore the act which is a breach whether they like it or not and therefore they have terminated unlawfully.

As an ordinary person one would no doubt take it as it says and believe the agreement no longer exists. Why think anything else?

As one would expect from an ordinary person, the termination is believed to be lawful at this time and now has to pay all money back immediately, nightmare! Upon seeking advise at this point, it becomes apparent that the creditor had no right to do this and it is therefore an unlawful termination.

I'm sorry but the act is not just a set of instructions, it is legislation! If not followed there has to be consequences. I fail to see how a DJ can accept the 'it was a mistake' excuse. This is law, not school!

The law states one can not steal the same way the law states a creditor can not terminate without a DN.

Lets say I steal and then claim in court it was a mistake, I didn't mean to take anything and gave it all back. The creditor does the same and says, it was a mistake, I didn't mean to terminate I sent a DN and terminated again correctly.

In my stealing case would the Judge say "fair enough, we'll disregard your actions because you didn't mean it and you gave everything back" or would he say "you have broken the law regardless, you will have to be punished"?

Lets say I steal from a shop and the till worker doesn't realise, so I get away with it or so I think I have until security catch up with me. They take me back into the shop and I say sorry it was a mistake, have it all back. Have I still committed a crime or have I not because I have given the stuff back?

Edited October 3, 2010 by chez262
typo

[Peterbard]

Hi

 

Mistake is a legal term.

 

Peter

[chez262]

Another example to consider, lets say the creditor recovered the goods after a default but no DN. So in effect exactly the same as a termination in regards to it being a benefit granted to the creditor throught s87 but as we know only if a valid DN is sent.

They then send a DN and a TN, then another DN and another TN. You acknowledge no debt so they then seek a judgment for full payment.

Is this any more or less prejudice, and can the creditor make the same claim that it was a mistake when challenged in court?

 

Thanks

C

[Peterbard]

Hi

 

 

MISTAKE, contracts. An error committed in relation to some matter of fact affecting the rights of one of the parties to a contract.

2. Mistakes in making a contract are distinguished ordinarily into, first, mistakes as to the motive; secondly, mistakes as to the person, with whom the contract is made; thirdly, as to the subject matter of the contract; and, lastly, mistakes of fact and of law. See Story, Eq. Jur. Sec. 110; Bouv. Inst. Index, h.t.; Ignorance; Motive.

3. In general, courts of equity will correct and rectify all mistakes in deeds and contracts founded on good consideration. 1 Ves. 317; 2 Atk. 203; Mitf. Pl. 116; 4 Vin. Ab. 277; 13 Vin. Ab. 41; 18 E. Com. Law Reps. 14; 8 Com. Digest, 75; Madd. Ch. Prac. Index, h.t.; 1 Story on Eq. ch. 5, p. 121; Jeremy's Eq. Jurisd. B. 3, part 2, p. 358. See article Surprise.

4. As to mistakes in the names of legatees, see 1 Rop. Leg. 131; Domat, l. 4, t. 2, s. 1, n. 22. As to mistakes made in practice, and as to the propriety or impropriety of taking advantage of them, see Chitt. Pr. Index, h.t. As to mistakes of law in relation to contracts, see 23 Am. Jur. 146 to 166.

 

 

Peter

[chez262]

Hi

 

Mistake is a legal term.

 

Peter

 

Hi PB,

 

Granted but it still has the same defination. It is stil an action, decision or judgment which produces an unwanted or unintentional result.

Whether the result is unintentional, the action still has to be considered as it still happened.

The person who steals uses the work mistake, does that mean he can retract his actions at any point? I am not putting the questions out there to be answered, I am not claiming to have any sort of answer. Just an opinion.

 

Thanks

C

[chez262]

Hi

 

 

MISTAKE, contracts. An error committed in relation to some matter of fact affecting the rights of one of the parties to a contract.

2. Mistakes in making a contract are distinguished ordinarily into, first, mistakes as to the motive; secondly, mistakes as to the person, with whom the contract is made; thirdly, as to the subject matter of the contract; and, lastly, mistakes of fact and of law. See Story, Eq. Jur. Sec. 110; Bouv. Inst. Index, h.t.; Ignorance; Motive.

3. In general, courts of equity will correct and rectify all mistakes in deeds and contracts founded on good consideration. 1 Ves. 317; 2 Atk. 203; Mitf. Pl. 116; 4 Vin. Ab. 277; 13 Vin. Ab. 41; 18 E. Com. Law Reps. 14; 8 Com. Digest, 75; Madd. Ch. Prac. Index, h.t.; 1 Story on Eq. ch. 5, p. 121; Jeremy's Eq. Jurisd. B. 3, part 2, p. 358. See article Surprise.

4. As to mistakes in the names of legatees, see 1 Rop. Leg. 131; Domat, l. 4, t. 2, s. 1, n. 22. As to mistakes made in practice, and as to the propriety or impropriety of taking advantage of them, see Chitt. Pr. Index, h.t. As to mistakes of law in relation to contracts, see 23 Am. Jur. 146 to 166.

 

 

Peter

 

Hi

 

Apologies but this is over my head.

I assume this says a court will disregard a mistake in a contract if good reason is provided?

 

Thanks

C