Lender has terminated my loan in error, where do I stand

DevCoder

Which is why I said

All the parties to the contract must assent to its rescission because mutual rescission involves the formation of a new contract.

Has the other party assented?

Conrad2

krisdorey wrote: »

All the parties to the contract must assent to its rescission because mutual rescission involves the formation of a new contract.

Has the other party assented?

But as the OP is a troll/WUM (or delluded if s(he) thinks s(he) is going to win this case) I'm watching in amusement.

If you are interested in an answer to the question, here it is.

Their breach constituted willful and unlawful repudiation of the contract. In doing that, they allowed me to lawfully accept their repudiation as an offer of (meaning assent to) rescission, even though that is not what they intended; once they have done this though, they cannot return to the original contract without my consent, or actions that imply my consent, such as allowing a payment via DD. I then lawfully rescinded the contract, providing mutual assent. When rescission is reached, the parties involved are returned to a state before any element of the contract was initiated, meaning no debt, and no agreement to pay.

So yes, they did assent lawfully.

DevCoder

Their breach constituted willful and unlawful repudiation of the contract. In doing that, they allowed me to lawfully accept their repudiation as an offer of (meaning assent to) rescission

No it didn't and no they didn't

You probably havent had a response from them because they haven't picked themselves off the floor yet.

jonesMUFCforever

This is getting more and more like a college assignment whereby OP is getting all the answers here.

somethingcorporate

Conrad2 wrote: »

If you are interested in an answer to the question, here it is.

Their breach constituted willful and unlawful repudiation of the contract. In doing that, they allowed me to lawfully accept their repudiation as an offer of (meaning assent to) rescission, even though that is not what they intended; once they have done this though, they cannot return to the original contract without my consent, or actions that imply my consent, such as allowing a payment via DD. I then lawfully rescinded the contract, providing mutual assent. When rescission is reached, the parties involved are returned to a state before any element of the contract was initiated, meaning no debt, and no agreement to pay.

So yes, they did assent lawfully.

Pre-contractual position was they had the money and you didn't.

To get back to that position you need to pay it back, it doesn't mean the parties are treated as if nothing happened, the transaction simply needs to be unraveled.

You keeping the money and them losing it is not the pre-contractual position.

Which is what I put in one of my first posts

Janie4Now

This is what is going to happen:

OP is going to continue to maintain that the lender is entirely in the wrong.
The lender will eventually take him to court for not reaping the loan.
The court will order the OP to repay the loan because he does after all owe the money. They may give him extra time to pay and may not award costs and interest against him given the circumstances (though they may not on the basis that nobody likes a smart alec).
The OP will then have to get a loan from an alternative lender but now has a ccj against him so no lender will consider him.

Just a thought.......

somethingcorporate

It's unlikely he will get a CCJ but certainly a default is a strong possibility.

Still, being a stubborn fool is worth it, right Conrad2?

Conrad2

somethingcorporate wrote: »

So I have talked to my wife and she thinks you are talking cobblers.

Thank you. That is a good post with informed information and some reasoning behind it and it deserves a thoughtful reply.

The scenarios are not identical though, as my lender's breach followed a lawful repudiation, when they attempted to collect from me unlawfully. But, please ask your wife to have a browse of the following, as I would be very interested in her honest opinion. I already have the opinion of a barrister friend, and he believes it is sound, though consumer credit is not his field.

Rescission is able to 'write off' (for want of a more appropriate term) the debt because it is always a mutual agreement between the debtor and the borrower to do so. In my case, the lender's repudiation (termination) of the contract was legal* and binding. Their problem is that they had no lawful reason to collect from me**, and thus may not do so legally. In other words, they voluntarily cancelled my obligation to pay them back by removing the agreement, with no legal recourse to collect. This left me with the opportunity to accept their repudiation, which I have done, thus putting the contract into rescission through mutual agreement.

The Breach only actually occurred after their repudiation, which they have a right to, when they attempted to collect from me unlawfully, which they don't. So in reality, they had already, legally, removed my obligation to pay even before they attempted to collect.

* any party is entitled to repudiate an agreement during the course of a contractual agreement.

** This has to be established through CCA74 whilst the agreement is still in place.

somethingcorporate

I've asked her to have a look and she agrees (with me) that your interpretation is incorrect (although this is based purely on contract law and nothing to do with the CCA).

Her interpretation is the actions of the lender do not represent repudiation but do appear to be a (minor) breach. The remedy of which is damages to cover your losses. Further to this any "rescission" is likely to be prospective rather than retrospective which means you still need to adhere to the major future elements of the contract on your side (which is payment of the agreement) rather than putting you back in the position you were both in at the start (which coincidentally be payment of the agreement...ahem.).

It's a minefield and a mess (as most of law is) and on the balance of probabilities I can conclude I have quite enjoyed this debate, you've remained quite reasonable throughout despite not a single poster agreeing with your stance.

If you really think you can win I suggest you take specialist legal advice. I think you are trying to argue a technicality that may just not be there (I don't see it and nor does my wife) but whether you can get an expert to agree should sway any further action you take. It's easy for our contacts (my wife and your barrister friend) to give an opinion openly knowing it does not come with any consequences (i.e. having to defend that position in a court of law).

Keep us up to date, I do think you're on to a loser but I'd happily spend your money to test that theory. (which could actually have enormous ramifications for any lender that makes minor administrative errors that could result in the write-offs of millions of pounds of secured and unsecured lending - which is for why I just cannot see it happening for you).

Conrad2

jonesMUFCforever wrote: »

This is getting more and more like a college assignment whereby OP is getting all the answers here.

It isn't a college assignment, and I really did have a lender after me (I say did, because I honestly believe that my acceptance of rescission is legal and binding) but I have to say that every response I have made in this thread has either improved my understanding of the law surrounding my case, or frankly get some weight and frustration off of my chest.

It has been the better responses, like some from Simon the Poet and most recently SomethingCorporate that have actually most helped me gain understanding of the situation. Tackling a (sometimes) civil response with reasoning behind it requires the most effort and therefore the most knowledge is gained. Although I still believe their arguments (I don't mean that in an antagonistic sense) are fatally flawed on the main subject, they have forced me to become more succinct in my understanding and response. I have to say that in many respects they have actually been a great help, albeit that the improved understanding has come after appropriate action was taken.

It was my instinctive response to the collection notice that brought this case in my favour, but it has been the discourse on this site that has brought a greater understanding of why.

I know everyone thinks I am deluded, but thanks anyway.