Brandon Case

[DonkeyB]

If you get off yer backside and pull yer neck in, you will find several threads on the forum covering exactly what you are talking about. This has been gone over so many times, by people with legal qualifications. Just do some reading first, and don’t clog up what is an essentially simple thread. Brandon had NOTHING TO DO WITH RESCISSION, so please leave the simple facts alone. You are grandstanding and needlessly confusing the issues.

[May Fly]

If you get off yer backside and pull yer neck in, you will find several threads on the forum covering exactly what you are talking about. This has been gone over so many times, by people with legal qualifications. Just do some reading first, and don’t clog up what is an essentially simple thread. Brandon had NOTHING TO DO WITH RESCISSION, so please leave the simple facts alone. You are grandstanding and needlessly confusing the issues.

 

you are being a pain in the ass. and acting like a donkey.

 

I was only responding to an invitation to discuss the implications. Nevertheless, you are just another example of why I don't post much on here, and why good members like pt have gone elsewhere. Moderator assistance sought.

[DonkeyB]

We need to look at the paths available in various situations where a creditor has defaulted badly then gone on to terminate. This is bound to form the substance of many threads as we all work to understand how this result influences various scenarios.

... this is the crux. You are assuming termination happened. It did not! Legally, it could not. xxx, read Harrison v Link.

 

You are falling in to the trap of what the DN is about – it protects the consumer. But not in the sense that he or she gets out of paying, which is all the rescission arguments seem to focus on. The DN affords the consumer the protection of statute. That same statute, followed properly, allows the creditor to enforce through the courts.

[dadofholly]

In short - an agreement cannot be terminated on the back of a faulty DN.

 

A creditor cannot enforce on the back of a faulty DN.

 

You cannot claim unlawful recission because of a faulty DN as the account is still live.

[DonkeyB]

you are being a pain in the ass. and acting like a donkey.

 

I was only responding to an invitation to discuss the implications. Nevertheless, you are just another example of why I don't post much on here, and why good members like pt have gone elsewhere. Moderator assistance sought.

 

Er, no, that’s not why PT has gone elsewhere. I’m sure he would agree with me on the issues you are discussing. I’ve discussed them with him at length. Call the moderators all you wish – it is you who have gone off topic and troughed up a load of stuff that was put to bed long ago.

[May Fly]

my argument if you bothered to try to understand it, is that by not fulfilling their side of the agreement, both stated and implied, that they HAVE broken the agreement, and after some time can be considered that they will not fulfil it. THAT is what I have said already.

 

But, I'll go away, and you can carry on being abusive to anyone who wants to consider all the options, and you can carry on making silly year 10 jokes

[Basil Fawlty]

In short - an agreement cannot be terminated on the back of a faulty DN.

 

A creditor cannot enforce on the back of a faulty DN.

 

You cannot claim unlawful recission because of a faulty DN as the account is still live.

 

 

What if the original creditor has served a faulty DN, then sold the account to another company (before the 14 days)? Is the account still live,

or is it terminated by their actions?

 

BF

[DonkeyB]

my argument if you bothered to try to understand it, is that by not fulfilling their side of the agreement, both stated and implied, that they HAVE broken the agreement, and after some time can be considered that they will not fulfil it. THAT is what I have said already.

 

But, I'll go away, and you can carry on being abusive to anyone who wants to consider all the options, and you can carry on making silly year 10 jokes

 

But your argument does not hold water.

 

Look, even a faulty DN is served BECAUSE THE DEBTOR DEFAULTED ON THE AGREEMENT! Forget the creditor breaking any agreement, as the agreement has already been broken by the debtor. A faulty DN does not alter the fact of default. It simply means it has no legal standing. It's like the difference between a creditor reporting a default with the CRAs, and the issuing of a DN. They are different things.

 

Brandon was about the need to follow statute.

Edited October 31, 2011 by DonkeyB

[DonkeyB]

What if the original creditor has served a faulty DN, then sold the account to another company (before the 14 days)? Is the account still live,

or is it terminated by their actions?

 

BF

 

It’s still live. The issue of a DN does not stop a creditor selling a debt. A debt can be sold at any time. All the new owner would legally have to do is issue a correct default notice, or else offer the original payment terms and reduce the credit limit to zero. They have more than one way of skinning their cat.

 

Faulty DNs are not a way of getting out of paying, and never have been. How can there be rescission by the creditor when the debtor has ALREADY defaulted on the account?

 

It took a long, long time and plenty of mistakes for me to get my head round the statute.

[Basil Fawlty]

So all Amex have to do now is to re-issue a correct DN and they will claim their money?

 

BF

[DonkeyB]

So all Amex have to do now is to re-issue a correct DN and they will claim their money?

 

BF

 

Yeah, have a read of the last few paras of the judgment. That’s effectively what the judge says:

 

The starting point here must be the reminder that this is a case where a major commercial enterprise is seeking summary judgment against a consumer. It is true that the underlying "merits" undoubtedly favour Amex, as already sufficiently canvassed. But it is also true that it is and was incumbent on Amex, especially when seeking summary judgment, to get its tackle in order. If it has not (or not sufficiently) done so then, however unfortunate, it should not have been granted summary judgment, so that it will have to start again or depend on its subsequent termination under s.98A of the Act.

[DonkeyB]

Whether they have the cojones to do this is another matter, of course, Basil. Knowing Amex, they’ll probably get it wrong again, and the publicity would not be good.

 

That para is why I say Brandon is not, and cannot be, about rescission, and why rescission by way of (non) termination on the back of a bad DN is a dead duck.

 

But a bad DN is a bar to enforcement, and that is a powerful, if limited, tool.

[rebel11]

Guys, can we all discuss in a respectful tone, it's been good so far, don't let it get out of hand.

[Basil Fawlty]

Whether they have the cojones to do this is another matter, of course, Basil. Knowing Amex, they’ll probably get it wrong again, and the publicity would not be good.

 

That para is why I say Brandon is not, and cannot be, about rescission, and why rescission by way of (non) termination on the back of a bad DN is a dead duck.

 

But a bad DN is a bar to enforcement, and that is a powerful, if limited, tool.

 

Thanks Donkey, so i suppose the best I can do is let them try take me to court on the back of a faulty DN (not enough time), they lose, serve a correct DN (the new owners) and we go to court again.

Brandon doesn't make a huge lot of difference, just extends the time and makes them work a bit harder for the money.

 

BF

[stone-broke]

From my own thread, posted by another.........

 

'As far as alternative pleadings are concerned, if a claimant should wish to amend his statement of case then he must comply with CPR Part 23 and file an application seeking the court’s permission to amend such (this applies to the defendant also). One cannot plead his claim in the claim form and argue with some other matter not set out therein(without compliance of said CPR).

 

Statute says it all; it really is quite simple, regardless of what others may ‘think’.

 

Default notices

87 Need for default notice.

(1)Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

(a)to terminate the agreement, or

(b)to demand earlier payment of any sum, or

©to recover possession of any goods or land, or

(d)to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e)to enforce any security.

(2)Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective.

(3)The doing of an act by which a floating charge becomes fixed is not enforcement of a security.

(4)Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.

 

Annotations:

Modifications etc. (not altering text)

C1S. 87 applied (1.11.2009) by The Payment Services Regulations 2009 (S.I. 2009/209), regs. 1(2)©, 52(d) (with reg. 3)

 

88 Contents and effect of default notice.

(1)The default notice must be in the prescribed form and specify—

(a)the nature of the alleged breach;

(b)if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

©if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

(2)A date specified under subsection (1) must not be less than [F114] days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those [F114] days have elapsed.

 

(3)The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the [F114]days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

 

4)The default notice must contain information in the prescribed terms about the consequences of failure to comply with it[F2and any other prescribed matters relating to the agreement].

[F3(4A)The default notice must also include a copy of the current default information sheet under section 86A.]

 

(5)A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

 

Annotations:

Amendments (Textual)

F1Words in s. 88(2)(3) substituted (1.10.2006) by Consumer Credit Act 2006 (c. 14), ss. {14(1)}, 71(2) (with Sch. 3 para. 10); S.I. 2006/1508,art. 3(2), Sch. 2

F2Words in s. 88(4) inserted (16.6.2006) by Consumer Credit Act 2006 (c. 14), ss. {14(2)}, 71(2) (with Sch. 3 para. 10); S.I. 2006/1508, art. 3(1), Sch. 1

F3S. 88(4A) inserted (1.10.2008) by Consumer Credit Act 2006 (c. 14), ss. {14(3)}, 71(2) (with Sch. 3 para. 10); S.I. 2007/3300, art. 3(3), Sch. 3

 

89 Compliance with default notice.

If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or © the breach shall be treated as not having occurred.

 

A default notice is not a Stay of Execution

During the course of considering an application for a stay in the proceedings, the court will consider the balance between the needs of the judgment debtor, and whether those needs displace the judgment creditor’s ordinary entitlement to prompt satisfaction of the judgment.

 

S87(1) clearly states the legislation applicable in respect of Statutory provisions imposed upon creditors relating to the ‘necessary’ service of a default notice, in such cases where the creditor fails to comply with said obligation, the needs of the debtor, protection granted by the statute, far outweigh any needs of the creditor, who, in his said failings, has displaced his ordinary entitlement, that is, his ordinary entitlement to demand and or enforce pursuant to s87(1)(a)(b)©(d)(e).

Failure, by any reason, of the creditor, to comply with said statutory requirements imposed, will not extinguish his termination of the contract nor shall such failure extinguish his demand(s) for earlier payment of any sum, the displacement of his ordinary entitlement remains out of reach to him.

 

Without the service of a valid said statutory notice, there can be no Judgment awarded to the creditor for the full sum claimed by him, he can of course claim for the arrears that were due before he terminated, however, since he failed to comply with the prescribed language (above), he has lost the entitlement afforded (again, above), the debt does still remain but the creditor cannot enforce.'

SB

[dadofholly]

What if the original creditor has served a faulty DN, then sold the account to another company (before the 14 days)? Is the account still live,

or is it terminated by their actions?

 

BF

 

Yes it is still live.

 

A Default Notice is just that - a notice that you have defaulted and a period of time for you to remedy the breach.

 

How many bites of the cherry they can get to put it right is something that has not been fully decided as yet.

[DonkeyB]

All I can say is, that if anyone wants to go to court and try and defend on the basis of unlawful rescission, you have every right to do so.

 

The judges in the recent – and binding – cases have taken the view that an unlawful act of termination is one that could not have happened, because it is unlawful. Don’t blame me for that – it’s just the way the judges have ruled. Whether it’s morally right or wrong is irrelevant, until and if these judgments are superseded.

[nks22]

I suppose the best I can do is let them try take me to court on the back of a faulty DN (not enough time), they lose, serve a correct DN (the new owners) and we go to court again.

 

The first thing the new owner will have done is demanded the full sum. And how can he issue a DN when if you complied he would not be licensed to provide the credit facility for which you have an agreement?

[Basil Fawlty]

The first thing the new owner will have done is demanded the full sum. And how can he issue a DN when if you complied he would not be licensed to provide the credit facility for which you have an agreement?

 

This is exactly the part that confuses me. The new owners (experto) cannot give me a credit facility, so how does the agreement remain live?

 

BF

[dadofholly]

The first thing the new owner will have done is demanded the full sum. And how can he issue a DN when if you complied he would not be licensed to provide the credit facility for which you have an agreement?

 

By purchasing the agreement they become the creditor. If the new owner therefore did not have a Consumer Credit Licence they would be breaking the law by purchasing the agreement in the first place.

 

As a creditor they are entitled to issue a new DN.

[dadofholly]

They do not have to actually issue credit to become the creditor - just purchse the agreement on which the credit is owed.

 

A loan agreement is an asset that can be bought and sold like any other assett. Live or not.

[stone-broke]

 

The judges in the recent – and binding – cases have taken the view that an unlawful act of termination is one that could not have happened, because it is unlawful.

 

:lol:Ha ha ha!!! That's sooooo funny! It is like saying "an unlawful act of murder is one that could have not happened, because it is unlawful".

[patrickq1]

And when they 'terminate' an account after a dodgy DN, is it actually terminated?

when they terminate the account and give it to the DCA you will see you have a nil balance on that account...

it is pretty difficult for the creditor to come back and change that nil balance ,especially if it was a dodgy DN..

[DonkeyB]

:lol:Ha ha ha!!! That's sooooo funny! It is like saying "an unlawful act of murder is one that could have not happened, because it is unlawful".

Please try and distinguish criminal from civil. Be my guest and take on the High Court and Appeal Court decisions.

[stone-broke]

Please try and distinguish criminal from civil. Be my guest and take on the High Court and Appeal Court decisions.

 

Oh no offence Donkey!! I literally meant it sounds funny! I am not trying to distinguish between criminal and civil law, just used it as an analogy!