Varde/Brachers claimform - MBNA card

[Smoothound]

In point 3 above they mention a letter confirming assignment of the debt on the 3/3/10, is that the Notice of Assignment I asked for? It looks to me just like a letter to me from them telling me they now own the debt not MBNA actually passing it to them! Have they done this to avoid showing that the date MBNA sold it to them was actually inside my DN remedy date?

Edited January 13, 2012 by Smoothound

[citizenB]

They mention the Default Notice dated 8th February.. what was the remedy date ?

[Smoothound]

25/2/10

 

 

According to my Comms Log the debt was sold on the 18th.

[car2403]

Have you received a Notice of Assignment?

 

Only the Court can demand to see the Deed of Assignment - they probably won't. The requirement is to send a NoA to the debtor. In theory, at least, there need not be a DoA, as there's no way to prove one exists or not. (s.136 Law Of Property Act 1925)

[Smoothound]

All I have received is as in the letter above.

 

1/ CCA same as the one near the beginning of this thread but with an additional 4 pages of terms and conditions and cancellation page

2/ Notice of Default which is worded identically to one I've got but it's signed by someone else

3/ Letter from Experto saying theyVarde have bought the interest in this debt, which should appear below:-

 

 

4/ Photocopied statements from August 2007

 

That is it. Not sure if that letter constitutes a Notice of Assignment or not?

[car2403]

1/ CCA same as the one near the beginning of this thread but with an additional 4 pages of terms and conditions and cancellation page

 

Which we decided was unenforceable, right?

 

2/ Notice of Default which is worded identically to one I've got but it's signed by someone else

 

So you can prove it's not a true copy of the original - is the one you received, correct? Dates of remedy, etc.

 

3/ Letter from Experto saying theyVarde have bought the interest in this debt, which should appear below:-

 

That is a NoA, but it doesn't comply with s.136 LoP Act 1925, as it's been sent by the assignee, not the assignor. Check the wording of s.136 to see what I mean: "under the hand of the [assignor]". If it doesn't comply with the LoP, it ain't been legally assigned. Varde, then, cannot bring a legal claim, as they are not the owners of the debt.

 

I feel another application coming on...

[Smoothound]

Which we decided was unenforceable, right?

 

 

Not sure on that there were conflicting views I seem to remember! I'll have to go back and read up on the early part of the thread!

 

 

So you can prove it's not a true copy of the original - is the one you received, correct? Dates of remedy, etc.

 

It is certainly a different signature to the one in this thread! Wording is at least very similar if not the same. Dates are identical.

 

 

That is a NoA, but it doesn't comply with s.136 LoP Act 1925, as it's been sent by the assignee, not the assignor. Check the wording of s.136 to see what I mean: "under the hand of the [assignor]". If it doesn't comply with the LoP, it ain't been legally assigned. Varde, then, cannot bring a legal claim, as they are not the owners of the debt.

 

I feel another application coming on...

 

I'll look up s.136 and have a read

 

Please feel free to expand on what you would do next please

[Smoothound]

I've read the pertinent part of s.136 and can see how the letter is wrong!

 

So what should I do now do you think? You've mentioned a couple of points but I'm not really sure how to proceed

 

I am thinking that Brachers/Varde have provided the info and the wording of the letter hoping I will cancel my application?

[car2403]

I think the best approach is to challenge this claimant's right to bring this claim in it's entirety. The challenge here is the unenforceability, or otherwise, of the agreement. If the agreement is enforceable, regardless of what's gone on since, the debt can be enforced - perhaps not by this claimant, but certainly another. If the agreement is uneforceable, the paperwork is dodgy and the claimant doesn't have a right to collect on the debt, then that's a different story.

 

What's your thoughts on enforceability, then?

[Smoothound]

I think the best approach is to challenge this claimant's right to bring this claim in it's entirety. The challenge here is the unenforceability, or otherwise, of the agreement. If the agreement is enforceable, regardless of what's gone on since, the debt can be enforced - perhaps not by this claimant, but certainly another. If the agreement is uneforceable, the paperwork is dodgy and the claimant doesn't have a right to collect on the debt, then that's a different story.

 

What's your thoughts on enforceability, then?

 

Honest answer is I'm not sure!

 

The CCA had conflicting thoughts at the beginning of this thread some saying it was fine others saying it wasn't!! The NoA is wrong as you said above because it's from the wrong source, plus their figure is going to be wrong again now because they are confused about the PPI payout.

 

Am I warm?

[Smoothound]

With all the above in mind am i right that Varde/Brachers are just trying to avoid the application on the 25th? Am I still right to let that run it's course and see what the Judge says or should I do something else?

[Smoothound]

Anyone?

[car2403]

I've been offline for a bit with a serious bout of man flu

 

From what I can see, this Claimant is not legally entitled to bring this claim by failing to comply with the LoP Act in the assignment of the debt. The OC probably can bring a claim in their own right, but it would fail as the debt is unenforceable for the reasons I've stated.

 

I think the next step is to prepare a statement to the Court, in addition to what you've already submitted on the Application, outlining all of this and asking the Court for directions on how to continue, based on your draft order for directions you will submit with the statement.

 

If the assignment issue sticks, the claim should be thrown out, but it's likely they are giving permission to amend the claim if the OC is willing to press the issue themselves.

 

I might not be back online for a few days (head spinning :() so feel free to push the triangle and ask for help from the other Site Team members if you're stuck and not getting anywhere. I'll try to get online when I can and have a look in.

[Smoothound]

Hi car thanks again for coming from your sick bed

 

So this statement(still unsure quite how to word and layout this) would need to be done and with the court before the hearing on the 25th?

 

Am I correct to assume a similar bundle to the one I received was sent to the court?

[citizenB]

Am I correct to assume a similar bundle to the one I received was sent to the court?

 

If you have received their bundle, then they should have filed it at court as well. You can always phone the court and confirm this is so.

[citizenB]

Smoothound, I dont know whether the letter below will help you draft something up regarding the assignment...

 

It is a letter that should be sent to any company claiming they are now the owner of the account.

 

Draft request for assignment - Amended Draft.doc

[Smoothound]

Hi citizenB,

 

Things have moved on slightly. I have received a letter today from Brachers that has supposedly also been sent to the court saying that now they have supplied appropriate documentation and I have been invited to withdraw the application and have not done so yet I am content to let the application continue. they go on to say that as this is the case they feel that since no order is required the application should be dismissed and that no order be made as to costs and they then apologise for not attending the hearing but that it is done to avoid costs not out of discourtesy.

 

I will put the letter up later if required.

[Smoothound]

Letter attached...

 

[citizenB]

But that isnt correct, is it? They havent supplied all the information requested ?

[Smoothound]

Well from reading above the only thing wrong is NoA because it comes from them not the OC. The DN is not the same as the original I have so is possibly made up or just a copy of a new one supplied by the OC. I have no idea if the CCA they supply is good or bad still

[citizenB]

I think you need to track down andyorch and or donkeyB.. see what they have to say.

[ims21]

Hi SH

 

Responding to your SOS.

 

Did you PM andyorch or donkeyB as CB suggested?

 

ims

[Smoothound]

Not yet no. I'm out currently but will do when I am in front of a proper computer with a full size screen! Pressed the panic button before I saw CBs post

[ims21]

Not yet no. I'm out currently but will do when I am in front of a proper computer with a full size screen! Pressed the panic button before I saw CBs post

 

Ah right No probs

[Smoothound]

I have now PM'd both.