Unlawful rescission or not?

[landy_alert]

Hi everyone:)

 

This thread is regarding my second MBNA account (OH's).

 

I am hoping for some guidance please regarding making a Full and Final Settlement offer as I hope to shortly be in a position to do this.

 

I am trying to establish whether in selling the account when they did, MBNA unlawfully rescinded the account or not.

 

I have attached the CCA which arrived on one sheet of A4 with the smaller section on the reverse side with current T&Cs on several separate sheets.

 

Also attached is the DN. I will attach the NOA in a minute.

 

Back in a mo...........

 

Landy x

Scan1.pdf

Scan10001.pdf

Scan10002.pdf

[landy_alert]

Righto.........here's the NOA.

 

Date-wise -

 

the DN gave a remedy date of 23rd Feb

 

the NOA says the account was sold to Apex on 18th Feb

 

and that it became active with Apex on 25th Feb

 

What is puzzling me is which date is the one to take into account for unlawful rescission to have been carried out?

 

As for the DN itself, I don't have the envelope unfortunately as back in my early Cag days I was unaware of the importance of keeping them

 

Could anyone advise me regarding my unlawful rescission query please?

 

As indicated in my opening post I am hoping to make a F&F settlement offer soon and understand if the account has been unlawfully rescinded the amount on the DN is the only sum I would be liable for.

 

As this will be my first attempt at offering anyone a F&F I obviously don't want to offer more than I should or indeed make any other fatal errors!

 

Many thanks as always,

 

Landy x

Scan10001.pdf

[pompeyfaith]

well it looks like they sold the account before the dn ran out others will be along to confirm this and offer further advice

[landy_alert]

well it looks like they sold the account before the dn ran out others will be along to confirm this and offer further advice

 

Thanks PF

 

It certainly looks that way - I'm just confused about the difference between the account being sold (before the DN ran out) and the account becoming active (after the DN ran out)

 

Landy x

[landy_alert]

Can anyone offer any further advice on this please as I'm hoping to make a F&F offer and don't want to make any mistakes?

 

Many thanks,

 

Landy x

Edited July 25, 2010 by landy_alert

[diddydicky]

please tell me if the noa was sent recorded/registered/signed for

 

have you corresponded in any way with the assignee

 

have you acknowledged to either assignee or assignor that you have received the NOA

 

did mbna write to you after the DN or demand payment in full or terminate?

 

forget about F & F offers at this time- it would not be appropriate

Edited July 25, 2010 by diddydicky

[landy_alert]

Hi diddydicky:)

 

Thank you for your response - it's most appreciated!

 

I will try as best as I can to answer your questions -

 

please tell me if the noa was sent recorded/registered/signed for

 

No, just straightforward second class mail - I still have the envelope for this.

 

have you corresponded in any way with the assignee

 

Yes, after the NOA was received I sent the account in dispute letter as I was then in the process of reclaiming charges and PPI on the account.

 

As this was early in my days on Cag, I was unaware of the significance of possible rescission of contract etc.

 

The assignee continued to ignore this and sent several demands for repayment of the full balance, to which I repeated my response in writing that the account was in dispute.

 

have you acknowledged to either assignee or assignor that you have received the NOA

 

No, I have not referred to the NOA in any correspondence to either assignee or assignor.

 

did mbna write to you after the DN or demand payment in full or terminate?

 

The only letter received from MBNA after the DN was the letter which accompanied the NOA (in the same envelope but on MBNA headed paper) stating that the account had been assigned to Apex. This has the same date as the NOA.

 

forget about F & F offers at this time- it would not be appropriate

 

Could you elaborate on why this would not be a good idea at the present time please?

 

 

Many thanks again for any guidance you can offer me with this.

 

I'm sure I made a complete mess of the way I handled this previously and hope it's not too late to rectify the situation now!

 

Landy x

[Dotty50]

Could you elaborate on why this would not be a good idea at the present time please?

 

The more they got wrong, the more discount you get, I guess!

[landy_alert]

Could you elaborate on why this would not be a good idea at the present time please?

 

The more they got wrong, the more discount you get, I guess!

 

Sure hope so Dotty

[landy_alert]

Waves to guests

[diddydicky]

if you received two letters in the normal post and one was a letter from mnba saying the account had been assigned (before the DN had expired i beleive) and the other was the NOA then by contacting the assignee with the account in dispute letter you are acknowledging receipt of the NOA (else how would you know they existed) therefore i think we have to take that as read

 

for the benefit of others (and yourself for future use) a NOA is an important document and has to be Served by registered/recorded or (personally) signed for post.

 

if it is sent under cover of ordinary post i would strongly urge those receiving it to file and ignore it.

 

if the assignee later takes court action- he will fail at the first hurdle since you have not been notified of the assignment therefore he would have no cause of action

 

 

you were unable to remedy the DN since before the time which the oc gavbe for remedy expired- they then assigned the debt to someone else therefore if you had paid money to the OC after he assigned the debt then you would have made them a gift

 

 

i will knock up a suitable letter to mbna

 

as far as F & F is concerned- if you attempt this now- the creditor will see it as a sign of weakness on your part

 

i would wait until such time as the CREDITOR suggests to YOU that a settlement is possible and THEN make the offer

 

 

it is

[landy_alert]

Hi diddydicky:)

 

Thanks for getting back to me on this.

 

 

you were unable to remedy the DN since before the time which the oc gavbe for remedy expired- they then assigned the debt to someone else therefore if you had paid money to the OC after he assigned the debt then you would have made them a gift

 

 

i will knock up a suitable letter to mbna

 

Thank you very much dd, that would be most appreciated!

 

as far as F & F is concerned- if you attempt this now- the creditor will see it as a sign of weakness on your part

 

i would wait until such time as the CREDITOR suggests to YOU that a settlement is possible and THEN make the offer

 

ok - I understand..............by the way I should have added, it is approximately a year since anything was heard from the assignee.

 

I'm sorry if I made a pig's ear of my previous responses and of course I realise now that by sending the account in dispute letter I was acknowledging receipt

 

 

it is

[Old Cogger]

Just to make comment:: ---- 6th feb (friday) always seems 2nd class UK mail say 10 feb 09 - 4 days to action UH? weekends & bank holidays are not used. as per Bickford Smith Queens Bench. and that is onlu DN situation. They do seem to sell on within DN period? must of been using 7 day DN (old).

[diddydicky]

dear assignee

 

your ref xxxxxxxxxxxxxxxx

 

 

the account to which you refer was in dispute with MBNA

 

MBNA failed to comply with their s78 obligations in that they :-

 

Have not provided me with a true copy of an executed credit agreement

 

What has been provided is far short of what is required to satisfy their obligations and consisted of a totally illegible pre contractual signed application form which did not contain any prescribed terms and was not in any event not binding on any future agreement - and therefore fails in this respect to comply with s78.

 

The application form appears to have had some (unreadable) terms and conditions "copied onto the back of it in what i contend is a self serving attempt to mislead me into believing they were there at the time that the application form was signed and which, had i not been aware- may have prompted me to make decisions which i otherwise would not have made (see OFT guidelines) .

 

MBNA were therefore prevented from enforcement whilst in continuing default of their s78 obligations

 

If it is your contention that you are now the owners of this alleged debt- - which itself is a matter of dispute - then you would then also be the owners of the entire debt, lock stock and barrel

 

You would therefore now be the owners of a debt who are in default of s78 Consumer Credit Act due to the ongoing failure to comply with s78 and you may not enforce what you allege is an executed agreement.

 

 

 

 

 

Notwithstanding the foregoing, MBNA have unlawfully repudiated the alleged agreement which i elected, in the circumstances, to accept and have relieved myself of any continuing obligations -should it transpire that the alleged agreement was properly executed and/or legally enforceable.

 

The owners of this alleged debt- should they be able to prove a properly executed and/or legally enforceable agreement would in any event therefore only be entitled to the amount of arrears genuinely outstanding at the time of termination - against which may be a counterclaim for damages which i suspect would exceed the amount of arrears that may be due.

 

yours f

 

 

xxx.

[diddydicky]

sorry i misread and thought you were being chased - if you have not heard from the creditor or assignee for a year then i would NOT send that letter- but instead sit tight and wait out the SB time limit (IMO) keep it for a rainy day

 

to clairfy the F & F bit

 

as a rule any party who believes they have a solid claim/or defence, would not normally offer to pay money to the other party

 

therefore it would (IMO) be unwise to make such an offer , and even more unwise to do so out of the blue- which would make the creditor ask questions as to why you wanted to do so

 

if THEY suggest a settlement then it is usually better to respond along the lines that you believe that they do not have a case and will vigoursouly defend any action they bring, however to rid yourself of the nuisance value of the claim you would be prepared to make a once only offer in full and final settlement of a few hundred pounds- this being equivalent to the upfront fee a CFA lawyer is likely to charge for conducting your defence

Edited July 26, 2010 by diddydicky

[landy_alert]

sorry i misread and thought you were being chased - if you have not heard from the creditor or assignee for a year then i would NOT send that letter- but instead sit tight and wait out the SB time limit (IMO) keep it for a rainy day

 

to clairfy the F & F bit

 

as a rule any party who believes they have a solid claim/or defence, would not normally offer to pay money to the other party

 

therefore it would (IMO) be unwise to make such an offer , and even more unwise to do so out of the blue- which would make the creditor ask questions as to why you wanted to do so

 

Hi dd:)

 

Okay - thanks very much once again for the letter and your advice on this!

 

I will do as you suggest then and hold fire with your excellent letter and any further action until such a time that they do come after payment.

 

With regards to the F&F, I quite understand and think your course of action (or indeed, no action!) at this time is for the best. It was only a wish to get any loose ends tied up whilst I was in a position to do so..............that said OH has today discovered our car needs a new engine - at a huge cost of £2k - so this will now have to be our priority with any available funds

 

Landy x

[landy_alert]

Hi dd, if you're still around.........

 

You're going to think me a right pain in the bum, but if it's not too much trouble I have a similar query on my other MBNA account which I would be grateful for your advice on please.

 

To simplify I will give a timeline of events (I can add the relevant docs in a mo, if necessary) -

 

Sept 2008 (pre-Cag) - Letter from MBNA account about to be written off as 'bad debt'

 

Oct 2008 - DN received requesting arrears of approx £500 - dated 3/10/08 with remedy date of 21/10/08 (I did keep the envelope for this one) I believe this is 2 days short.

 

Didn't pay arrears.

 

Nov 2008 - Last time a payment was made - £200

 

Jan 2009 - SAR and CCA requests sent to MBNA

 

Feb 2009 - Partial SAR received including notes which say that account was 'charged off' on 30/9/08 and 'zero curbl on sold acct' on 16/10/08

 

Also during Feb 2009 a 50% balance discount letter arrived from DCA - as far as I'm aware this was their first contact.

 

This 'offer' was ignored.

 

Mar 2009 - Letter arrived from DCA - MBNA have passed our CCA request to them, they in turn have requested the CCA from MBNA and account is on hold till they locate it.

 

Apr 2010 - More than one year on CCA arrives from DCA and a request for repayment of full balance.

 

Also during April 2010 requests for mis-sold PPI and charges on this account sent to MBNA.

 

Account in dispute letter sent to DCA - based upon ongoing PPI and charges complaints.

 

May 2010 - DCA demand repayment of full balance

 

Jun 2010 - DCA send letter with their proposed repayment plan - not requested by me.

 

Once again I have most likely totally ballsed this one up by acknowledging DCA in sending the 'account in dispute' letter.

 

To clarify, as far as I'm aware there has been no NOA received for this account.

 

They are actively chasing this account and therefore I would like some guidance on my next move please - again I was hoping to reach a F&F settlement.

 

I should add that the PPI refund has been received and that the FOS have upheld the charges complaint which MBNA rejected - this has yet to be paid though.

 

Many thanks in advance and do feel free to tell me off for going about this the wrong way (again) as I'm sure I deserve it............

 

Landy x

[diddydicky]

what have you got- a jag!!

[diddydicky]

Hi dd, if you're still around.........

 

You're going to think me a right pain in the bum, but if it's not too much trouble I have a similar query on my other MBNA account which I would be grateful for your advice on please.

 

To simplify I will give a timeline of events (I can add the relevant docs in a mo, if necessary) -

 

Sept 2008 (pre-Cag) - Letter from MBNA account about to be written off as 'bad debt'

 

Oct 2008 - DN received requesting arrears of approx £500 - dated 3/10/08 with remedy date of 21/10/08 (I did keep the envelope for this one) I believe this is 2 days short.

 

Didn't pay arrears.

 

Nov 2008 - Last time a payment was made - £200

 

Jan 2009 - SAR and CCA requests sent to MBNA

 

Feb 2009 - Partial SAR received including notes which say that account was 'charged off' on 30/9/08 and 'zero curbl on sold acct' on 16/10/08

 

Also during Feb 2009 a 50% balance discount letter arrived from DCA - as far as I'm aware this was their first contact.

 

This 'offer' was ignored.

 

Mar 2009 - Letter arrived from DCA - MBNA have passed our CCA request to them, they in turn have requested the CCA from MBNA and account is on hold till they locate it.

 

Apr 2010 - More than one year on CCA arrives from DCA and a request for repayment of full balance.

 

Also during April 2010 requests for mis-sold PPI and charges on this account sent to MBNA.

 

Account in dispute letter sent to DCA - based upon ongoing PPI and charges complaints.

 

May 2010 - DCA demand repayment of full balance

 

Jun 2010 - DCA send letter with their proposed repayment plan - not requested by me.

 

Once again I have most likely totally ballsed this one up by acknowledging DCA in sending the 'account in dispute' letter.

 

To clarify, as far as I'm aware there has been no NOA received for this account.

 

They are actively chasing this account and therefore I would like some guidance on my next move please - again I was hoping to reach a F&F settlement.

 

I should add that the PPI refund has been received and that the FOS have upheld the charges complaint which MBNA rejected - this has yet to be paid though.

 

Many thanks in advance and do feel free to tell me off for going about this the wrong way (again) as I'm sure I deserve it............

 

Landy x

 

 

the DN if sent second class was indeed two days short to invalid

 

but it also appears yet again that they sold the debt mid DN therefore the new assignee would have needed to have served a new dn in order to terminate/demand payment in full

 

again i would simply sit back and wait for them to take you to court if they commence proceedings and have not served a new DN then they will have to rely on the original on sent by the OC which is invalid and does not show a cause of action for sums that were not yet due under the agreement

 

in the meantime perhaps SAR whoever says they own the debt now

 

(what you want is confirmation from their records that 16/10/08 was the date of sale/assignment) as mentioned on mbna records

[landy_alert]

what have you got- a jag!!

 

I wish..............no, a 2007 Freelander 2

 

Apparently a piston has sheared off and pierced the engine!!!!!!!!!

Edited July 26, 2010 by landy_alert

[Guest HeftyHippo]

I disagree with some of what DD says.

 

I do not think that a NOA has to be sent by recorded/signed for. I believe this is an oversimplification. If you read the sale of property act which deals with this matter, it saves words to the effect that satisfactory service of the notice may be achieved by (recorded) delivery. The postal service mentioned isn't available any more. It says it "may/can be achieved". It does not say it MUST be sent (recorded) or that sending it without getting a signature isn't allowed. It also says (in some instances) proper service can be achieved by leaving the notice at the property entrance of the last known address.

 

I think its a simplification to say its invalid if not sent recorded. The Acts simply states that if you send it that way, there is no argument, service is achieved.

 

If they dont get a signature, they may have difficulty convincing a judge that service was achieved though.

 

My other comments are that a lot of MBNA agreements are invalid, and the letter refers to paragraph 8 - not all agreements had para 8.

 

The NOA must be issued by the seller - MBNA. I think it would be considered ok for the buyer to actually print it and send it, but it must be MBNA who actually state that it is sold - the buyer telling you they bought it is not the same as the seller saying they sold it! and its the seller's word that matters.

 

Also, in terms of the dates, IMHO it doesnt matter when the buyer says it became 'active' what the hell does that mean? Active on their computer system? Active on their 'chase list'? What matters is when ownership was transferred. If the buyer wants to sit on it for 8 months before making it active thats their business. Thats why you need to know when MBNA sold it.

 

If MBNA haven't told you of the sale, the NOA hasn't been issued. A judge may feel if you know its been sold, and you act like its been sold, then no harm is done.

 

The only reason you need to know the date of the sale is so you know if it was sold before the DN expired. Get a SAR, and make sure the Comms log is included, then go through it. Somewhere you will see an entry "sold to xxxx" with a date. THAT is conclusive, regardless of what the buyer says and no matter when MBNA write to you. The buyers letter mentions it was sold on a date, and that is the date IMO that matters. Their activity date is meaningless and could refer to any number of internal processes.

 

It does sound though like they know they may have messed up, so do not tip them off about MBNAs repudiation until you get proof, You dont want any changes being made to the info you get in your SAR, nor do you want any of it disappearing.

 

In the absence of an NOA from MBNA, get a SAR

[landy_alert]

the DN if sent second class was indeed two days short to invalid

 

but it also appears yet again that they sold the debt mid DN therefore the new assignee would have needed to have served a new dn in order to terminate/demand payment in full

 

again i would simply sit back and wait for them to take you to court if they commence proceedings and have not served a new DN then they will have to rely on the original on sent by the OC which is invalid and does not show a cause of action for sums that were not yet due under the agreement

 

in the meantime perhaps SAR whoever says they own the debt now

 

(what you want is confirmation from their records that 16/10/08 was the date of sale/assignment) as mentioned on mbna records

 

Thanks dd - most informative and helpful once again! Shame you can't fix the car too!

 

I will get a SAR off to the new owner and report back when it is received

 

Landy x

[Guest HeftyHippo]

if you SAR the new owner, you may not get all yu need. Maybe that what teh activation date means - the date it is active in their system. what you want is MBNAs records of when THEY sold it, not when someone else thinks they bought it

[landy_alert]

if you SAR the new owner, you may not get all yu need. Maybe that what teh activation date means - the date it is active in their system. what you want is MBNAs records of when THEY sold it, not when someone else thinks they bought it

 

Hi HH:)

 

Thank you for this and your previous post. The SAR will go to MBNA then, with a specific request for the Comms Log. I will do nothing further on either account until I have this information. If I hear anything from the owner of either account in the meantime I will report back.

 

Thanks again,

 

Landy x

[diddydicky]

I wish..............no, a 2007 Freelander 2

 

Apparently a piston has sheared off and pierced the engine!!!!!!!!!

 

ahhhhh

 

piston broke!

 

(so am I )