MBNA offering Partial Settlement After CCA failures.

[BlueBox]

Oh and the twits registered the default on my credit file on the 31st july 09, thought they couldnt do that till after a valid notice was issued and the 14 days had elapsed.

 

Sadly not the case (and one which took me a while to work out!).

 

A CRA default is quite separate from a legal Default Notice. According to the guidelines, the OC should advise their intention to file a CRA default 28 days before doing so. However, there is no legal form for this notice - it could just be a line on your statement for example. Whilst the CRA filing may often correspond with a legal Default Notice, that does not have to be the case.

 

What's worse is that despite being contrary to the OFT/IC guidelines, you actually only have to miss one payment before a CRA default can be filed. Egg and HSBC are particularly good at this.

 

Considering the damage that a CRA default causes to your credit standing, I was rather surprised about the lack of legal constraint.

 

However, what they cannot do is terminate and sell on an account until the legal Default Notice has expired which is where MBNA seem to fall foul.

[vint1954]

Well basicly their was a case in manchester the over week that alot of cases between debtors and creditors were put on hold for while waiting the final outcome.

 

Alot are still trying to get their heads round it but their s a few posts regarding the case on the site. heres a link to just one of the post. http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/240186-dissecting-manchester-test-case.html

 

Personally from what i can make out myself it wont effect you if the DCA take you to court, but if you take them to court it basically now thanks to that one person legal team a whole lot harder. its basically to do with weather the creditor is required to have a copy of the exact original off the CCA that includes your signiture.

 

But to be honest am just waiting for someone to actually make a proper and clear post as to what the judge actually means for everyone.

It is quite simple. If you go on the offensive and try to make your agreement unenforcable, then the Judge is basically saying that you must prove your case and provide the documents, that is the CCA that you claim is unenforcable. It is not down to the defendant ( OC ) to give you the amunition to shoot himself with. The point made surrounding reconstituted agreements related to s77-79 requests, which the claimant based his claim on.

 

Nothing has changed regarding the CCA 1974 and the production of an original agreement by the creditor, when you are the defendant. This is an act of Parliament and would need another act to change it. There is also much weightier high court and law lords judgements that confirm this.

[Capricorn1601]

thanks vint.

 

Just a question, is there anything about lenders recreating a document to appear as an agreement when one never actually existed, ie the lender knowingly misleading lenders?

 

The reason I ask is the penny dropped why Lloyds cant send me my original agreement, although they havent admitted it yet. They have sent one of the reconsituted versions, yet I now remember that my card was part of an account (student account taken out in about 1996, the account itself was closed in 1998, but I kept the credit card). I did not sign any other document regarding the Mastercard, therefore the agreement did never exist.

[vint1954]

If they want to take you to court to enforce the agreement, they will need that agreement, otherwise they may as well say, dear mr judge, I wish to enforce the agreement between us and capricorn, here is a box of cornflakes as proof of that agreement.

[Basil Fawlty]

An update on my case with MBNA.

Did the s78 request over 6 months ago... nothing sent out to me since.

 

Default notice sent out 2nd class on Friday 4th December, received 9th december, giving me date of 21st December to pay arrears.

 

21st December went by, no termination notice.

 

Just received letter from Experto Credite ltd stating that ''Varde Investments (Ireland) Limited has bought the interest of MBNA in the above referenced account''.

 

Varde have appointed Experto Credite Ltd to recover sums.

 

They've given me a phone number to ''discuss options'' (yeah, right )

 

Questions:

 

1. Can I now take this as being definitely terminated?

2. If so, do I need to write to MBNA and accept their termination?

3. Is my next step a ''bemused'' letter to Experto Credite?

4. If it goes to court, is my defence the invalid DN/termination or the failure

to produce a CCA, or both? (in other words, can you have 2 separate defences?)

 

cheers

 

BF

[Capricorn1601]

me too. Received the letter yesterday, so If someone could answer the question for both of us as the dates are identical.

[Basil Fawlty]

Looks like we're part of a job lot

 

BF

[Capricorn1601]

So next steps would be?

 

Bemused letter to experto? I accept your duff DN and termination to MBNA?

[teaboy2]

exactly.

 

But make sure you state unlawful termination in the acceptance letter to MBNA.

[Capricorn1601]

Is there a template for that one?

[vint1954]

An update on my case with MBNA.

Did the s78 request over 6 months ago... nothing sent out to me since.

 

Default notice sent out 2nd class on Friday 4th December, received 9th december, giving me date of 21st December to pay arrears.

 

21st December went by, no termination notice.

 

Just received letter from Experto Credite ltd stating that ''Varde Investments (Ireland) Limited has bought the interest of MBNA in the above referenced account''.

 

Varde have appointed Experto Credite Ltd to recover sums.

 

They've given me a phone number to ''discuss options'' (yeah, right )

 

Questions:

 

1. Can I now take this as being definitely terminated?

2. If so, do I need to write to MBNA and accept their termination?

3. Is my next step a ''bemused'' letter to Experto Credite?

4. If it goes to court, is my defence the invalid DN/termination or the failure

to produce a CCA, or both? (in other words, can you have 2 separate defences?)

 

cheers

 

BF

A lot of it going on.

 

http://www.consumeractiongroup.co.uk/forum/mbna/225840-pumpy-tums-mbna-new-post.html

[vint1954]

Is there a template for that one?

No template but this is one of DD's.

 

Dear Sir/Madam

 

Re account no xxxxxxxxxxxxUnlawful Rescission.

 

With reference to the alleged debt to your company, I refer to your Default Notice dated xxxxxxxxxxx2009, posted second class and received by me on xxxxxxxxx 2009, and your subsequent actions confirming your previous written intentions to terminate the agreement.

Notwithstanding that the default notice failed to give me the required statutory time in which to seek legal advice and/or remedy any alleged defect, as laid out in s87 of the CCA 1974. Your actions have resulted in insufficient time for me to even obtain an appointment with a solicitor let alone remedy the alleged default. Your actions have lead to you unlawfully rescinding the agreement.

 

I accept your unlawful rescission of the agreement I note that you are now entitled to claim those arrears genuinely due at the time of the termination (not including any unlawful charges ) and i would be obliged if you would advise me of the exact amount of those arrears, against which will be a claim for unlawful rescission

 

I look forward to hearing from you.

 

Yours faithfully

 

[Basil Fawlty]

Brilliant vint (and dd) thanks for that, that'll be winging its way to MBNA.

 

Reference the part that says they can collect the arrears.... what if they dont have an enforceable CCA (they have never sent anything to me)? Should I leave that bit out, as I dont believe they have a right to collect anything?

 

BF

[Capricorn1601]

Thanks Vint and DD

 

Big hugs from Capricorn.

 

question also re arears, now I did receive what they claimed was my CCA, put it contained no PT's. The account was in dispute for 6 months, and isnt it correct that they cannot apply interest during this time, so what they may claim to be arrears would then be reduced once more?

[vint1954]

Brilliant vint (and dd) thanks for that, that'll be winging its way to MBNA.

 

Reference the part that says they can collect the arrears.... what if they dont have an enforceable CCA (they have never sent anything to me)? Should I leave that bit out, as I dont believe they have a right to collect anything?

 

BF

No, leave that bit in. You are saying that you will counterclaim against any lawful amount due.

[vint1954]

Thanks Vint and DD

 

Big hugs from Capricorn.

 

question also re arears, now I did receive what they claimed was my CCA, put it contained no PT's. The account was in dispute for 6 months, and isnt it correct that they cannot apply interest during this time, so what they may claim to be arrears would then be reduced once more?

It would depend on their POC if it goes to court.

 

Keep those DN's very very safe and the envelopes that they come in.

[Basil Fawlty]

thanks very much vint...

 

is it just me, or does anyone else get any pleasure from this ''fight'' against these companies?

 

Before I found this place, I expected the worst that could happen, but now I feel pretty confident, and even look forward to the letters coming through the letterbox.

 

BF

[Capricorn1601]

I know that feeling, but am still scared, probably even more now its vital for me. My OH lost his job Xmas week so we are really struggling.

[vint1954]

I know that feeling, but am still scared, probably even more now its vital for me. My OH lost his job Xmas week so we are really struggling.

Sorry to hear that cpricorn. I know that feeling.

 

Just take things calmly and one thing at a time.

[Basil Fawlty]

Sorry to hear that too Capricorn

 

Yes I'm still scared too, I have a house to lose, but there is so much great knowledge on this forum, I definitely feel more confident everytime I read more, and everytime companies like MBNA make a cock-up!

 

BF

[teaboy2]

Is there a template for that one?

 

I dont think their is. But basically somthing like this will do

 

Confirmation of Acceptance to your Unlawful Termination of Consumer Credit Agreement.

 

Dear muppet (dont actually include that lol)

 

I write to you in respnse to letter recieved from experto credit limited (date of letter) notifiying myself that you have sold the account to Varde Invesments (Ireland) Limited on (enter date they state the account was purchased).

 

I here by write to you confirming my acceptance of your unlawful termination of agreement.

 

Please be advised that failure of a Default or Termination Notice to be accurate not only invalidates such notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 199 but it is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt (Wilson v First County Trust Ltd (2003) UKHL 40, Wilson V Robertsons (London) Ltd(2006) EWCA Civ 1088, Wilson v Pawnbrokers (2005) EWCA Civ 147) - but would also give the claimant a claim for damages in the sum of £1000 (Kpohraror v Woolwich Building Society (1996) 4 All ER 119).

 

Also note that you may not reissue a valid Default Notice without first reinstating the agreement, in which you need my written consent to do so. So consent will not be given.

 

Therefore i expect your reponse to be confirmation that the balance has been cleared and is now ZERO, and that any notes or defaults placed on my credit file will be removed with in 1 month.

 

You have 14 days in which to response. Please be advised that i reserve the right to commence legal proceedings without futher notice.

 

Yours Sincerely

 

Sign using a computer based font and not by hand.

[Basil Fawlty]

Cheers teaboy. I thought it sounded better with ''muppet'' left in

 

BF

[Basil Fawlty]

Is it fair to say that going to court with faulty DN/Termination is more clear cut, and less open to the judge lottery, than unenforceable agreements?

 

BF

[teaboy2]

yes more then likley as theyd have to prove that they didnt terminate unlawfully yet you will have the dates and everything to say they did. Out of interest what date did varde investment purchase the agreement? was it before the 21st december? if so then thats all the proof you need.

 

Personnally though i would go to the FOS first i know some would disagree but end of the day FOS can not decide what the law is or should be. And you can still goto court afterwards if the FOS dont do anything or MBNA refuse to accept the FOS decision which is not likely.

 

P.s yes i thought muppet sounded better too as far as MBNA and the likes are concerned lol.

Edited January 12, 2010 by teaboy2

[Basil Fawlty]

yes more then likley as theyd have to prove that they didnt terminate unlawfully yet you will have the dates and everything to say they did. Out of interested what date did varde investment purchase the agreement? was it before the 21st decemeber? if so then thats all the proof you need.

 

P.s yes i thought muppet sounded better too as far as MBNA and the likes are concerned lol

 

They havent put any date on the letter from Experto Credite. I suppose I'll have to SAR MBNA to find out. If they sold it after 21st December, is it enough that they didnt give me sufficient days to rectify?

 

BF