MBNA SAR Request

[alfwithhair]

I've had a letter today from MBNA (who I thought had sold my account to Experto Credite) saying that "some of your personal data may have been compromised at one of our appointed vendors. The data may have included your name, address and telephone number as well as some of your personal security details."

 

They go on to say that they are placing a precautionary CIFAS marker on my credit file for 3 months and offering me 12 months free "Credit Expert" from Experian if I call and quote a reference number.

 

The letter is signed by Adrian Stearns, Director of Fraud.

 

Has anyone else had one of these? Anyone got an opinion if its genuine or a [problem] to make me call them?

 

No its genuine

 

http://www.consumeractiongroup.co.uk/forum/mbna/243559-mbna-credit-card-customers.html

[Stagparty]

MBNA have finally confirmed they sold my account to Experto in October 2009. They did this on the phone after I called to take them up on their offer of a years free Credit Expert after my private data was compromised and I have the call recorded.

 

Experto had written to me back in October saying they had bought the debt from MBNA so this does seem to be correct.

 

Unfortunately though MBNA didn't send a default notice until February 2010 which I think means they terminated the account unlawfully in 2009 when they sold it to Experto - is this correct?

 

I'm also getting letters from Experto which contain blatant lies - they say I have agreed a formal repayment plan with them. I haven't. I've only ever corresponded with them to seek confirmation that it was my MBNA account that they had bought. I still haven't had a satisfactory response. I wrote with a formal complaint but this hasn't been acknowledged. I called Consumer Direct but they weren't interested. Any suggestions as to how I proceed with them from now on?

 

I also have a PPI claim to make against MBNA, does them terminating the account have any bearing on this?

 

Thanks for your help!

[gezwee]

Get a sar off to MBNA, remember to include the comms log as a specific item within the request.

 

MBNA appear to only equitably assign accounts initially and complete deed to absolute/legal title when the DCA either begins to enjoy a return or seeks enforcement.

 

If MBNA issued DN after alleged sale then this would imply the above.

 

Not sure how they'd default an account which they hold no legal title to

 

Gez

[Stagparty]

Thanks for this Gez

 

The person I spoke to at MBNA was explicit that the debt had been "sold" not transferred and that MBNA had nothing more to do with it.

 

I know that MBNA have been lax with their paperwork before so was assuming (possibly incorrectly) that they had done the same again.

 

Maybe a letter to MBNA and Experto asking whether the account had been equitably assigned or absolutely assigned would also be in order?

 

Has anyone else been in a similar position?

[gezwee]

To my knowledge all MBNA accounts are disposed of in the same way.

 

Non compliant DN, 'sale' prior to remedy date, no NOA and no formal termination notice.

 

The best way to cover yourself is the comms log within SAR, indications are that you won't get a response to any enquiries outside of this request as they don't like putting much in writing.

 

If you have the comms log and screen dumps of the account status at sale you should have enough ammo for later if you ever need to defend enforcement on the basis of unlawful rescission.

 

They have a strange habit of implying that sold is not necessarily terminated and the agreement endures so that the incumbent DCA can attempt an arrears only claim on a s.98 notice. One to watch out for in the future, imho I'd want as much counter evidence in writing now as it'll be all forgotten in a year or 2 if they decide to file proceedings against you.

 

Gez

[Stagparty]

I've had a Notice of Assignment (i think) from Experto....

[gezwee]

I'm assuming its a paragraph at the bottom of their 'hello' letter?

 

There is a prescribed method of notifying assignment laid out within the law of property act and I don't think their efforts will suffice......however, it would be rare for a court to disallow if they can evidence they are the assignee by disclosing deed.

 

You'll need to get all paperwork together in date order to ensure you're not missing anything vital.

 

'If' the assignment were found to be absolute as Exspurto suggest and the DN was issued by MBNA whilst they held no legal title then the effect would be that you still have a live and persisting account. The DN would/could be seen as an administrative error and in light of the apparent assignment would probably be excluded from a defence.

 

The comms log and screen dumps will show you if credit limit was reduced to 0 prior to assignment.

 

If this is the case then they may try a s.98 and try to enforce arrears at full balance.

 

If you were in default prior to assignment then s.87 is still a legal requirement for them.

 

If they imply that the account persists then they have certain obligations within s.78 which they must comply with fully or lose entitlement to enforce.

 

Gez

[Stagparty]

I think I see what you are saying Gez, but if MBNA terminated the agreement (by selling it) without issuing a default notice first (I was having payment problems and making token payments only) then I'd agree there is a s87 requirement which they have missed.

 

If I understand things correctly that would be an unlawful rescission of contract meaning only the genuine arrears at the date of termination were due and they would also be liable for an action for breach of contract.

 

Are we on the same wavelength here?

 

 

The initial letter I got from Experto reads as follows "We are writing to advise you that Varde Investments (Ireland) Limited has bought the interest of MBNA EBL in the above referenced account, including the outstanding balance. Consequently, Varde Investments (Ireland) Limited is now the legal owner of your account"

 

That seems pretty explicit regarding the assignment don't you think?

[gezwee]

I think I see what you are saying Gez, but if MBNA terminated the agreement (by selling it) without issuing a default notice first (I was having payment problems and making token payments only) then I'd agree there is a s87 requirement which they have missed.

 

My understanding exactly, if a default was apparent a remedy should have been issued

 

If I understand things correctly that would be an unlawful rescission of contract meaning only the genuine arrears at the date of termination were due and they would also be liable for an action for breach of contract.

 

Are we on the same wavelength here?

 

Same wavelength

 

 

The initial letter I got from Experto reads as follows "We are writing to advise you that Varde Investments (Ireland) Limited has bought the interest of MBNA EBL in the above referenced account, including the outstanding balance. Consequently, Varde Investments (Ireland) Limited is now the legal owner of your account"

 

That seems pretty explicit regarding the assignment don't you think?

 

Looks explicit enough to me too

 

 

All you need is the comms log to evidence events (don't want them slipping additional fields in at a later date!)

 

You should have a list of data entries similar to below which will identify who, what, where and when

 

Meant to add, start the claim against MBNA for the PPI - if they have genuinely assigned all rights and duties to Exspurto they'll soon start squealing

 

Gez

 

 

S **DATE** 1732 AUTOCH CHARGE-OFF CODE A

P **DATE** 1742 CAEM07 NOD SENT 1/9/9 EXPIRES 18/9/9 0000.00

P **DATE** 1216 *RE920 ***SOLD TO ******** – REFER TO *********

P **DATE** 1216 *RE290 ***SOLD 9SEP2009 – BALANCE AT SALE WAS 0000.00

Edited February 18, 2010 by gezwee
PPI

[Stagparty]

Really appreciate your help Gez

 

So far I've refused to communicate with Experto except for letters asking them to prove that they have bought the debt as I haven't had anything in writing from MBNA to support their assertion. I guess I should continue this tactic until the DSAR comes back from MBNA. Does that sound a sensible course of action? Or do you have any better solutions?

[gezwee]

Really appreciate your help Gez

 

So far I've refused to communicate with Experto except for letters asking them to prove that they have bought the debt as I haven't had anything in writing from MBNA to support their assertion. I guess I should continue this tactic until the DSAR comes back from MBNA. Does that sound a sensible course of action? Or do you have any better solutions?

 

Sounds reasonable to me

 

I tend to do exactly the same, I generally time it to stop them in their tracks as soon as they start to get silly.

 

I usually start with the bemused 'I acknowledge no debt' one, by the time they've had the account for 3 months they tend to get a little testy so I send them the CCA request, swiftly followed by the dispute and a request for the return of my squid. Seems to drag things out long enough to get all material evidence in order should it be needed at a later date.

 

 

Gez

[Guest HeftyHippo]

I got my SAR from MBNA today. The general story is much the same as above, except that expeto intially said Varde had bought the debt, then that MBNA were their clients.

 

One entry in the log looks like the one above except it has a balance when sold

[gezwee]

I got my SAR from MBNA today. The general story is much the same as above, except that expeto intially said Varde had bought the debt, then that MBNA were their clients.

 

One entry in the log looks like the one above except it has a balance when sold

 

 

Strangely enough, mine had 2 values on the NOD line (removed when I posted on here)

 

When I queried it they responded that the second value was the arrears but the dodgy DN was issued with the first figure of the full balance which was repeated on the sold entry.

 

P 010909 1742 CAEM07 NOD SENT 1/9/9 EXPIRES 18/9/9 26789.10 1234.56

 

My statement for the same month showed a credit limit of 32k so I know they had not reduced the limit to 0 prior to issuing DN so......... notwithstanding the early disposal of the account, to be compliant the s.87 should have been issued at the lower arrears figure only.

 

Gez

[Guest HeftyHippo]

actaully gez, your'e right. Mine has 2 figures as well, the second I recognise as the arrears.

[tigercub]

MBNA – Experto Credit – Invalid Default Notice / notice of termination

I have been in constant communications with MBNA since Jan 2009 with regards to trying to get the Consumer Credit Agreement for an alleged account and several other accounts held with MBNA to the point where I have requested a Subject access report as a final straw. With reference to the report they have sent me some information however they have only supplied me 2 out of the 4 accounts in question, they are now ignoring my letters and have since sold the debt onto Verde Investments (Ireland) and Experto Credite have been appointed to recover the debt

 

 

There are a few things that need to be brought to the table initially so that I can hopefully get some help and support from fellow CAG Members.

• I have not received a letter of termination from MBNA telling me that the debt has been sold on.
  
• The initial Default Notice was sent to me 7th Sept 2009 (Standard Post NOT Recorded Delivery) and received by me 9th Sept 2009 however I had an open complaint which they were investigating a the time.
  
• The complaint was registered with them in a letter dated July 28th 2009 with a response due by August 18th 2009 however no response was received, I sent a follow up letter complaining that my initial complaint had not been looked into and I was sent another letter dated 18th August 2009 stating they would get back to me by 15th September 2009. However in the meantime a default was registered on the 7th September whilst the complaint was still being investigated!
  
• On the same day 7th September MBNA allegedly wrote to me however I only received a copy of this letter on the 26th November 2009 when Experto Credite supplied it to me. I had never seen this letter before this time however it was dated 7th September and it wasn’t on MBNA headed paper either. This letter was MBNA’s final response to my complaint funny though that I don’t get a copy until approx 7 weeks after it was allegedly written?!
  
• I have written to Experto Credite on several occasions and told them that the account was still in dispute and they have no legal right to the debt; however they have ignored my letters and have now sent me copies of statements for the account that is in arrears. According to the statements on 16th September the account was sold to Verde. Funny how they promised to get back to me by the 15th and then sold the debt on the 16th even though I never received any letter from them at all and even when I did receive the letter there was no mention of them selling the debt on.
  

Where do I now stand, they have not supplied me all the details requested in the subject access report and are ignoring my letters, Experto Credite are also ignoring my letters however as the Default notice was NOT sent recorded delivery and as I have not received any kind of termination letter informing me that the account has been ‘officially’ sold where do I stand.

Can I send an unlawful rescission of contract letter as the account has been unlawfully terminated and if so does anyone have a template?

 

Help, where do I go from here?

 

Any help greatly appreciated ;-(

[Guest HeftyHippo]

I also made a SAR to get to the bottom of what happened. As soon as MBNA sold the account, they started forwarding all correspondence to Experto, even those relating to events before the sale. Obviously, Experto cannot answer such questions, so they don't respond. MBNA didn't respond fully to the SAR so that is the subject of a complaint to the Info Commisioners Office. Do that yorself, the more people complain, the more chance MBNA will get their wrists slapped. In April, the ICO has the power to fine companies that don't obey the rules. Ask him to consider applying those powers

 

Have a search for my thread http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/238117-mbna-experto-credite-accounts.html

 

which details typical events. you'll find we're all in pretty much the same boat - a Default Notice is issued, usally non-compliant, and the account is sold to either Experto or Varde depending on who you believe a week later. You can get that info from the logs of the account. It doesn't matter if the DN is compliant or not if the account is sold before the time allowed for you to rectify the breach.

[tigercub]

Can anyone tell me is there anything in the law of property act or CCA1974 that states that default notices and or Termination agreements should be sent recorded delivery??

 

All mine were received standard post so how can they prove they actually sent them in the first place?

 

Thanks in advance

[Guest HeftyHippo]

law of property act applies to the sale of debts, and isnt applicable to Default or Termination notices.

 

Haven't seen anything in CCA or the SI dealing with Default Notices that mentions using recorded delivery. The CCA is available online from Opsi.gov.uk and there is a copy of the Default Notices Regs on-line also if you search so you can look for yourself. CCA (Enforcement, Default and Termination Notices) Regulations 1983 [sI1983/1561]

[Stagparty]

Guys

 

I have the SAR back from MBNA - can someone please help by telling me where and what I should be looking for re the assignment?

 

I think mine is complicated by it having 2 seperate account numbers caused by RMA losing data.

 

The Comms log does confirm the Default Notice was issued in January 2010 and has two amounts, what appears to be the full balance and what may well be the arrears.

 

The screen dump on the date of the SAR request shows Status - Charged Off, Outstanding Balance - nil, Credit Line - nil, Payment now due - nil, Statement last closing date - Oct 2009 (when they sold the account to Experto).

 

The Comms log specifically states "Sold to Experto" in Oct 09 but it does have the full balance as showing in the "Balance at Sale" field.

 

All help is gratefully accepted.

SP

[gezwee]

Hi SP

 

Check back through the comms log to ensure there is no other mention of NOD at an earlier date....... don't want them trying to pull the wool over anyones eyes later by implying they had already correctly served pre Oct '09 and the January effort was sent in error

 

Gez

[Stagparty]

Hi Gez

 

I've just been back throught the comms log in detail. There is no mention of a "NOD" until Jan 2010.

 

Do you think it's time to tell MBNA that the termination was unlawful? Any idea on what to send to Experto?

 

I also have a PPI Mis-selling claim to make - as Experto now own the account, should this claim be made against them or MBNA?

 

Thanks

SP

[gezwee]

Hi Gez

 

I've just been back throught the comms log in detail. There is no mention of a "NOD" until Jan 2010.

 

Do you think it's time to tell MBNA that the termination was unlawful? Any idea on what to send to Experto?

 

I also have a PPI Mis-selling claim to make - as Experto now own the account, should this claim be made against them or MBNA?

 

Thanks

SP

 

I'd think it prudent to advise MBNA now that their unlawful rescission has been accepted.

 

As for Experto, wait for them to write again, if it includes anything new then its worth a short response outlining that the account is in dispute with the original creditor and has been since MBNA decided to depart from regulations when disposing of the account.

 

One possibility is that MBNA wi'll state its an error and Experto were only collecting pre termination, depends how fast on their feet they are with reasoning an excuse a DJ may put up with further down the line. If they do come back with this line (MBNA that is) you can be fairly certain that Experto will pass the account back and your account will be terminated in 'accordance' with the act.

 

Not sure how they'll work around the October charge off issue now that they've released data to you evidencing same

 

Gez

[Guest HeftyHippo]

did you get a list of abbreviations in the pack? if so, it will say NOD. you can write and ask when the NOD was issued.

 

in mine, it said a NOD had been issued on xx/xx/xx. I wrote to them saying I imagined it stood for Notice of Default, but there wasn't one in the SAR. They helpfully replied saying they were system generated and they didnt keep copies!

 

Try something similar. Get them to say when the NOD was issued. You can write to them quoting the phone call and saying under the circumstances, you understand that the sale of the account means the agreement between you and them is ended and you accept such. NO NEED to use particular phrases, just make it clear to any one at a later date that you consider the contract ended.

 

You can do both at the same time - write confirming the end of the agreement to one person, to another, you request details of the NOD.

[Stagparty]

I did get a list of abbreviations with the SAR and indeed the NOD is listed in January 2010. The sale to Experto is listed as Oct 2009. Also a very kind lady at MBNA confirmed the account had been sold when I called them after they had potentially compromised my data when RMA lost a laptop (I do have a recording of that call).

 

A second wedge of information has just arrived in relation to the SAR and nothing contradicts the first batch of information.

 

Am I right in thinking I should now write to MBNA along the following lines....

 

"I have now had chance to examine the information send in response to the SAR made on X and finally complied with on Y. From this it is clear that the DN issued by MBNA on Z was defective as it breached s88(2) CCA 1974 as the account had been sold to a third party in October 2009. For the avoidance of doubt, MBNA's unlawful rescission of contract is accepted.

 

You will be aware that the failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but gives rise to a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119. In summary, the maximum liability I would have is the arrears at the date of termination of the account against which I can claim damages from MBNA. May I therefore have your proposals for settlement?"

 

Has anyone any idea of what to say in a letter to Experto please?

 

Thanks in advance for your help

SP

Edited April 25, 2010 by Stagparty
typo

[Stagparty]

Could someone give me a nudge in the right direction here please? My confusion is due to the fact the account was sold months before the DN.

 

This is also the first account I have that has been sold to a 3rd party so it's all a bit new!

 

Thanks in advance.

SP