The intended meaning of S87(1)(b)

[gh2008]

We all know what S87 says

 

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.

 

But what does that actually mean??

 

With reference to a fixed term loan agreement, debtor was in breach, creditor served a wholly ineffective DN, and then the agreement was terminated by bilateral agreement (let's ignore the details of that last bit please)

 

The result at trial was that the debtor was held to be liable to the full balance of the account less an early settlement rebate calculated to the date when the termination was accepted.

 

Now, bearing in mind this termination was wholly due to the debtor's breach and that no other notice under S98 or S76 was served

 

I wrote this in relation to the actions a creditor can do without having served a valid DN

 

Not having an entitlement to DEMAND sums not yet due, does not necessarily mean that they are not ENTITLED TO BE PAID sums not yet due.

 

So, they have an entitlement to be paid the sums, just not an entitlement to demand them

 

and it went totally unchallenged!!

 

I can think of at least 1 very real argument to challenge that position and would be interested in others' thoughts on the matter

[gh2008]

So does everyone agree that a creditor does NOT need to serve a valid Default Notice in cases where a debtor is in default in order to be paid sums not yet due?

 

I am surprised !!

[Peterbard]

So does everyone agree that a creditor does NOT need to serve a valid Default Notice in cases where a debtor is in default in order to be paid sums not yet due?

 

I am surprised !!

 

Dont see why you are supprised.

Secvion 87 says by virtue of breach

Nothing says the creditor has to consider the default a breach nothing says the creditor has to consider missing payments a default,his money can do what he wants with it.

Section 87 doesnt say anything about any of the following actions being restricted in a none breach situation.

Then it is down to common law.

Common law will enforce if the debtor terminates the agreement as we know.

 

Peter

[Peterbard]

Hi again

Funnily enough this illustrates very eloquently what you DD, The Mold, Elsa, etc. **EDITED**.

The creditor wished terminate but could not because of the defective notice, however when the debtor agreed to his term8ination he was evinced by his intent (isn’t that how it goes).The Mold has put it more eloquently, but words to the effect that both parties agree so why not.

Some of us have vainly been trying to point out a fact that seems to have escaped some of the above, and that is that if an agreement is terminated all liabilities under it become due and payable, oops

Peter

Edited March 14, 2011 by Dodgeball
removing inaccurate information

[vjohn82]

So does everyone agree that a creditor does NOT need to serve a valid Default Notice in cases where a debtor is in default in order to be paid sums not yet due?

 

I am surprised !!

 

I would think that to restrict the debtors ability to pay in instalments is a breach of 1 (d) should a demand be made without recourse to a valid default notice.

[diddydicky]

We all know what S87 says

 

 

 

But what does that actually mean??

 

With reference to a fixed term loan agreement, debtor was in breach, creditor served a wholly ineffective DN, and then the agreement was terminated by bilateral agreement (let's ignore the details of that last bit please)

 

The result at trial was that the debtor was held to be liable to the full balance of the account less an early settlement rebate calculated to the date when the termination was accepted.

 

Now, bearing in mind this termination was wholly due to the debtor's breach and that no other notice under S98 or S76 was served

 

I wrote this in relation to the actions a creditor can do without having served a valid DN

 

 

 

and it went totally unchallenged!!

 

I can think of at least 1 very real argument to challenge that position and would be interested in others' thoughts on the matter

 

didnt you have that the wrong way arouund

 

the creditor can demand payment (at any time he likes) but cannot legally enforce payment unless he complies with s87

 

i could demand that the creditor buys me a portion of fish and chips every Friday...........but i cant force him to do it!!

 

a claimant can bring ANY action to court that he cares to bring- no matter how hopeless or bizarre- but the system soon weeds him out and disposes of any trite action

 

the harrison judgement has made it as clear as a pikestaff that if the debtor is in breach- the creditor can ONLY terminate (take the next step) by following s87

 

the idea that the creditor can simply by pass the intentions of parliament and terminate anyway without using s87 - is i am afraid the doctrine of the creditor, dca , and their cohorts!

 

the creditor may well, in the case of a non default situation be entitled to terminate an agreement under a separate clause in the agreement- but he will NOT succeed- if he does- in legally enforcing payment of sums that were not yet due at the time of his termination.

 

The proposition that the provisions in s87 CCA- which is an act for the protection of consumers (usually of course when they hit trouble and default ) can simply be bypassed by some other contractual clause inserted by the creditor to enable them to get around the provision....and that parliament actually connived in that scenario is poppycock

 

The fact that responsible lenders have adopted a voluntary code of conduct that in a case of non default termination that the debtor would be allowed to continue paying any sums that were not yet due at the time of termination under a contract clause- as per the original agreement - is testament to the fact that they understand this proposition............ unless of course you believe that creditors are anything other than leeches! and have suddenly become caring custodians of their clients financial wellbeing

 

The number of occassions where a creditor would terminate a rolling credit agreement under a general clause in a non default situation would be, i propose- as rare as rocking horse poo

Edited March 14, 2011 by diddydicky

[diddydicky]

Hi again

Funnily enough this illustrates very eloquently what you DD, The Mold, Elsa, etc. have been telling us for two years.

The creditor wished terminate but could not because of the defective notice, however when the debtor agreed to his term8ination he was evinced by his intent (isn’t that how it goes).The Mold has put it more eloquently, but words to the effect that both parties agree so why not.

Some of us have vainly been trying to point out a fact that seems to have escaped some of the above, and that is that if an agreement is terminated all liabilities under it become due and payable, oops

Peter

 

and where, pray tell in s87(1) does it say that the creditor may "opt" in the case of "any breach by the debtor" to terminate the agreement or demand repayment of sums not yet due by any means other than by the s87(1)?

 

please don't tell us (as you have done before) that because the act doesn't say he can't - or is " silent" on the matter- that this means that he can

 

the act clearly states that in the case of "any breach by the debtor"- the creditor must act in the way the act directs him to act- and no other-

 

once the debtor breaches- the creditor is BOUND to follow s87 if he wants to "take the next step"

 

S87(1) is silent as to whether the creditor can come around and break your windows - or have a gunman come and kneecap the debtor .........or any other of a thousand scenario's - the fact that such is not "catered for" does not give the creditor the entitlement to do any of those things

[vjohn82]

Absolutely right DD

[Peterbard]

and where, pray tell in s87(1) does it say that the creditor may "opt" in the case of "any breach by the debtor" to terminate the agreement or demand repayment of sums not yet due by any means other than by the s87(1)?

 

please don't tell us (as you have done before) that because the act doesn't say he can't - or is " silent" on the matter- that this means that he can

 

the act clearly states that in the case of "any breach by the debtor"- the creditor must act in the way the act directs him to act- and no other-

 

once the debtor breaches- the creditor is BOUND to follow s87 if he wants to "take the next step"

 

S87(1) is silent as to whether the creditor can come around and break your windows - or have a gunman come and kneecap the debtor .........or any other of a thousand scenario's - the fact that such is not "catered for" does not give the creditor the entitlement to do any of those things

 

NO that would be criminal law and i think you will find that there are laws prohibiting kneecaping.

 

The law is not a list of thengs you can do.

You think that thereis a list of everything that you are allowed to do under the law and you cannot do anything else.

You may brush your teeth.

You may walk your dog.

 

Really

 

Peter

 

 

 

 

 

 

Section 87 merely says by becomes entitled to by virtue of the breach of the debtor, sorry but it does ot prohibit him terminating any other way. I know i have said it before but it is still true.

 

Any way it is irrelevent

 

The crediotor could not terminate under section 87 but he cauld agreee with the debtor to billaterally terminate the agreemant. You yorself have argued this many times when it suited you well you were right.

 

Peter

[Peterbard]

didnt you have that the wrong way arouund

 

the creditor can demand payment (at any time he likes) but cannot legally enforce payment unless he complies with s87

 

i could demand that the creditor buys me a portion of fish and chips every Friday...........but i cant force him to do it!!

 

a claimant can bring ANY action to court that he cares to bring- no matter how hopeless or bizarre- but the system soon weeds him out and disposes of any trite action

 

the harrison judgement has made it as clear as a pikestaff that if the debtor is in breach- the creditor can ONLY terminate (take the next step) by following s87

 

the idea that the creditor can simply by pass the intentions of parliament and terminate anyway without using s87 - is i am afraid the doctrine of the creditor, dca , and their cohorts!

 

the creditor may well, in the case of a non default situation be entitled to terminate an agreement under a separate clause in the agreement- but he will NOT succeed- if he does- in legally enforcing payment of sums that were not yet due at the time of his termination.

 

The proposition that the provisions in s87 CCA- which is an act for the protection of consumers (usually of course when they hit trouble and default ) can simply be bypassed by some other contractual clause inserted by the creditor to enable them to get around the provision....and that parliament actually connived in that scenario is poppycock

 

The fact that responsible lenders have adopted a voluntary code of conduct that in a case of non default termination that the debtor would be allowed to continue paying any sums that were not yet due at the time of termination under a contract clause- as per the original agreement - is testament to the fact that they understand this proposition............ unless of course you believe that creditors are anything other than leeches! and have suddenly become caring custodians of their clients financial wellbeing

 

The number of occassions where a creditor would terminate a rolling credit agreement under a general clause in a non default situation would be, i propose- as rare as rocking horse poo

 

I think it was 16000 terminated just that way Egg i think

 

A lot of poo

 

The rocking horse not your comment:lol:

 

Peter

 

Peter

[Peterbard]

I would think that to restrict the debtors ability to pay in instalments is a breach of 1 (d) should a demand be made without recourse to a valid default notice.

 

It would be if the debtor haddent dissowned the term that gave her that right as well as the rest of the agreement.

 

Nothing stopping the debtor from terminating any time no caluse in the act nothing in common law,and when they do liabilities undr the contract become immediately due,of course.

 

Peter

[diddydicky]

NO that would be criminal law and i think you will find that there are laws prohibiting kneecaping.

 

The law is not a list of thengs you can do.

You think that thereis a list of everything that you are allowed to do under the law and you cannot do anything else.

You may brush your teeth.

You may walk your dog.

 

Really

 

Peter

 

 

 

 

 

 

Section 87 merely says by becomes entitled to by virtue of the breach of the debtor, sorry but it does ot prohibit him terminating any other way. I know i have said it before but it is still true.

 

Any way it is irrelevent

 

The crediotor could not terminate under section 87 but he cauld agreee with the debtor to billaterally terminate the agreemant. You yorself have argued this many times when it suited you well you were right.

 

Peter

 

it would be useful if you would not go "off subject" - we are not interested in this discussion as to what the creditor can do in a NON default situation- ONLY where the debtor had defaulted

 

forget all about trying to obfuscate as to what i have said before about unlawful repudiations and acceptance thereof

 

forget about the lady who we argue voluntarily agreed to end an agreement or not

 

please stick to the ONE SINGLE FACT

 

i want to know your opinion ONLY in relation to a debtor (in general terms not this particular case) who has breached the agreement

 

If an act says that the creditor must act in a certain way in the event of a breach by the debtor (s87) -in order to become entitled to terminate...... are you SERIOUSLY suggesting that - the creditor can go and choose some other means of terminating RATHER THAN via s87?

 

if so please provide the authority

[Peterbard]

didnt you have that the wrong way arouund

 

the creditor can demand payment (at any time he likes) but cannot legally enforce payment unless he complies with s87

 

Yes he can if the agreement is legally terminated and common law does not prevent him

i could demand that the creditor buys me a portion of fish and chips every Friday...........but i cant force him to do it!!

 

MMM Fish and chips

a claimant can bring ANY action to court that he cares to bring- no matter how hopeless or bizarre- but the system soon weeds him out and disposes of any trite action

 

Yes absolutely

the harrison judgement has made it as clear as a pikestaff that if the debtor is in breach- the creditor can ONLY terminate (take the next step) by following s87

 

No not really it made it clear that the creditor can only terminate on breach of the debtor under section 87

the idea that the creditor can simply by pass the intentions of parliament and terminate anyway without using s87 - is i am afraid the doctrine of the creditor, dca , and their cohorts!

 

Yes this is the thing are you sure you understand the intentions of parliament

the creditor may well, in the case of a non default situation be entitled to terminate an agreement under a separate clause in the agreement- but he will NOT succeed- if he does- in legally enforcing payment of sums that were not yet due at the time of his termination.

 

NO he would not be able to recover any future interest on a loan if he terminates under a contractual clause, but he will still be able to recover the principle plus any interst already due.

Which really is the same thing as a termination on breach on a loan agreement considering that the 1983 reabte regulations would entitle the unpaid future interst to be refunded anyway.

BUt as you say the court would not enforce a none breach termination if there was no other reason for doing so.

The proposition that the provisions in s87 CCA- which is an act for the protection of consumers (usually of course when they hit trouble and default ) This sounds a bit like avoiding repayment to me, i thought it was there to protect sonsumers from crediotrs making unreason ,agreements ,

can simply be bypassed by some other contractual clause inserted by the creditor to enable them to get around the provision....and that parliament actually connived in that scenario is poppycock

 

Dont think anyone is trying to get aound any thng dont think they can, hardly the point

 

The fact that responsible lenders have adopted a voluntary code of conduct that in a case of non default termination that the debtor would be allowed to continue paying any sums that were not yet due at the time of termination under a contract clause- as per the original agreement - is testament to the fact that they understand this proposition............ unless of course you believe that creditors are anything other than leeches! and have suddenly become caring custodians of their clients financial wellbeing

 

Nothing against creditlrs we all need em, to say otherwise seems a little hypocritical, you must have needed them at one point or you wouldnt have took their money

The number of occassions where a creditor would terminate a rolling credit agreement under a general clause in a non default situation would be, i propose- as rare as rocking horse poo

 

Yes well as i said earlier they do all the time

 

 

 

Peter

[Peterbard]

it would be useful if you would not go "off subject" - we are not interested in this discussion as to what the creditor can do in a NON default situation- ONLY where the debtor had defaulted

 

forget all about trying to obfuscate as to what i have said before about unlawful repudiations and acceptance thereof

 

forget about the lady who we argue voluntarily agreed to end an agreement or not

 

please stick to the ONE SINGLE FACT

 

i want to know your opinion ONLY in relation to a debtor (in general terms not this particular case) who has breached the agreement

 

If an act says that the creditor must act in a certain way in the event of a breach by the debtor (s87) -in order to become entitled to terminate...... are you SERIOUSLY suggesting that - the creditor can go and choose some other means of terminating RATHER THAN via s87?

 

if so please provide the authority

 

Yes seriously do, provided that he has the contractural rght.

 

Sure the authority is section 87

 

It says that the entitlement to teminate due to breach of the debtor .

Doesnt say anything about not entitled to any other way.

 

THe creditor can terminate at any time,any time.It may not be the default termination but it does not mean it cannot lead to the liabilitie under the contract being enforced if there is another reason other than breach.

 

Peter

[diddydicky]

the harrison judgement has made it as clear as a pikestaff that if the debtor is in breach- the creditor can ONLY terminate (take the next step) by following s87

 

No not really it made it clear that the creditor can only terminate on breach of the debtor under section 87

 

isnt that what i said????

Edited March 14, 2011 by diddydicky

[diddydicky]

the creditor may well, in the case of a non default situation be entitled to terminate an agreement under a separate clause in the agreement- but he will NOT succeed- if he does- in legally enforcing payment of sums that were not yet due at the time of his termination.

 

NO he would not be able to recover any future interest on a loan if he terminates under a contractual clause, but he will still be able to recover the principle plus any interst already due.

Which really is the same thing as a termination on breach on a loan agreement considering that the 1983 reabte regulations would entitle the unpaid future interst to be refunded anyway.

BUt as you say the court would not enforce a none breach termination if there was no other reason for doing so.

 

 

you responded to a statement i made .........with a statement that has nothing do to with the statement i made.. (nothing new there then!).

 

nowhere in my statement did i suggest what the creditor could or could not claim..............i merely made the point that WHATEVER is owed to him he would be unable to lawfully enforce a demand for immediate payment ot it

Edited March 14, 2011 by diddydicky

[diddydicky]

The proposition that the provisions in s87 CCA- which is an act for the protection of consumers (usually of course when they hit trouble and default ) This sounds a bit like avoiding repayment to me, i thought it was there to protect sonsumers from crediotrs making unreason ,agreements ,

can simply be bypassed by some other contractual clause inserted by the creditor to enable them to get around the provision....and that parliament actually connived in that scenario is poppycock

 

 

well yes, i can see how a "creditor" or one in support of the creditors position might well twist the statement to the effect that someone seeks to avoid payment

 

whereas in reality all i was doing was pointing out that the creditor cannot simply choose to ignore s87 and seek to legally enforce immediate repayment

 

 

it seems to me that you are so fixated with the idea that every post or comment by caggers is an attempt to avoid paying the debtor- that you do not read the comments with a clear and opne mind

 

Myself and others are talking in the main about whether the creditor can legally demand IMMEDIATE payment of sums not yet due ............NOT that he might not be entitled to those sums

 

( whether he is entitled to sums not yet due by virtue of an alleged UR - is a totally different argument- which we have previously flogged to death)

[diddydicky]

nothing against creditlrs we all need em, to say otherwise seems a little hypocritical, you must have needed them at one point or you wouldnt have took their money

 

creditors, banks, financial institutions USED to have morals and standards

 

the morals and standards they have today are those of the guttersnipe!! in it ONLY for themselves and to hell with anyone else

 

the first ones to use "technicalities" as per your support of the lady's accidental acceptance of a termination...... and the first ones to accuse debtors of trying to use "technicalities" to avoid their liabilities

[Peterbard]

the harrison judgement has made it as clear as a pikestaff that if the debtor is in breach- the creditor can ONLY terminate (take the next step) by following s87

 

isnt that what i said????

 

 

No not really thern are two types of termination the one following a breach and the conrtactural one thist does not require a breach.

The second type can be done at any time even when the agreement is in breach this is the meaning of the words any time(sorry)

Peter

[diddydicky]

Yes seriously do, provided that he has the contractural rght.

 

Sure the authority is section 87

 

It says that the entitlement to teminate due to breach of the debtor .

Doesnt say anything about not entitled to any other way.

 

THe creditor can terminate at any time,any time.It may not be the default termination but it does not mean it cannot lead to the liabilitie under the contract being enforced if there is another reason other than breach.

 

Peter

 

there you go- introducing obfuscation- no one mentioned any "other reason" we are talking purely and simply that a debtor has breached (for example missed X months of payments) NO OTHER REASONS (whatever those may be) exist

 

and you STILL maintain that the creditor can simply BYPASS s87 and terminate in some other way ?

 

in post 13 you said:

 

 

 

No not really it (the harrison judgement) made it clear that the creditor can only terminate on breach of the debtor under section 87

now you are saying again that the creditor can terminate on breach of the debtor "other than" ONLY under s87

 

are you playing games?

Edited March 14, 2011 by diddydicky

[diddydicky]

Ever read Dickens no banking code then.

And really the ladies termination was not accidental was it.

 

I think we both know why whe terminatied ther are many many many threads and poste that illustrate the reason why she terminated and i think you are involved in most of them.

 

Peter

 

 

there you go again - THIS THREAD is not about the lady who (allegedly terminated) that was ANOTHER thread

 

why cant you stay on topic - which to remind you is about s87 (1) (b)

 

if you were in charge of national express - i doubt that one single bus would ever arrive at its intended destination- your propensity to go "off subject" and to refer to matters that were not even being referred to is truly breathtaking.

 

i need a satnav just to keep up with you:lol:

[DonkeyB]

Ever read Dickens no banking code then.

And really the ladies termination was not accidental was it.

 

I think we both know why whe terminatied ther are many many many threads and poste that illustrate the reason why she terminated and i think you are involved in most of them.

 

Peter

 

Please cease suggesting debt evasion.

[Peterbard]

there you go- introducing obfuscation- no one mentioned any "other reason" we are talking purely and simply that a debtor has breached (for example missed X months of payments) NO OTHER REASONS (whatever those may be) exist

 

and you STILL maintain that the creditor can simply BYPASS s87 and terminate in some other way ?

 

in post 13 you said:

 

 

 

No not really it (the harrison judgement) made it clear that the creditor can only terminate on breach of the debtor under section 87

now you are saying again that the creditor can terminate on breach of the debtor "other than" ONLY under s87

 

are you playing games?

 

No perhaps it would be clearer to you if i said the creditor could only issue a, default temination, on the breach of the debtor.

A contractural termination can be issued at any time even when the agreementis in breach.

Or perhaps being in breach does not preclude the crediotors option of issuing a contractural termination.

 

Peter

[Peterbard]

Please cease suggesting debt evasion.

 

 

I was talking about accepting the termijnation of the creditor in order to avoid setling the liabilities under the contract.

You may call it debt evaision.

Oh what the hell so do I

 

Peter

[diddydicky]

No perhaps it would be clearer to you if i said the creditor could only issue a, default temination, on the breach of the debtor.

A contractural termination can be issued at any time even when the agreementis in breach.

Or perhaps being in breach does not preclude the crediotors option of issuing a contractural termination.

 

Peter

 

yes,that is better put and explains the error in your first post

 

we are just going to have to agree to disagree on this one

 

i am always going to advise that a creditor cannot simply avoid his s87 route to termination in the event of a debtor breach- and no doubt you are going to argue the opposite

 

so for the sake of caggers reading the thread- they have two different opinions and in order not to bore them to death- they can choose which advice they prefer!! agreed?