Varde & old MBNA card Debt - scotland

[diddydicky]

i take you points but you are missing one vital point in all of this

 

you are assuming that these people have more than 2 brain cells- if they did they would truly be worthy opponents:)

[seriously fed up]

who do you mean DD?

 

1. the judges?
   
2. the DCAs?
   
3. both these things?
   

I really do take your point, and I quite accept that courts will allow them to say "yes we did send this" and it will just pass on. BUT

 

1. only if "we" allow this to happen. There should be challenge made as to the veracity of notices. They send the things out like bloody confetti, second class from mail centres. Why there? Because its cheap. Maybe if they were challenged in court about whether or not they were issued, and put on the back foot, they would feel obliged to at least think about doing the job properly and use registered mail (as would be the case for most documents designed to have legal effect). But that would cost money, so they might think more seriously about sending them out
   
2. its something else to lob at them, make them worry about what might happen in court. I have not long since written to one mob advising them that what they sent me as an "agreement" was an application form and void; had no prescribed terms so was unenforceable; was either not executed or no executed agreement had been sent to me when it becam executed (s63); and they hadnt sent a default notice, termination notice or notice of assignment (s87/88). I suppose they could argue they have at least been consistent! Now I might not have got all of these right, but I probably only need to get one right?
   

[diddydicky]

the Dca's

[seriously fed up]

under many circumstances I would be inclined to say "both" - a bit like Alice in Wonderland. "Sentence first, verdict afterwards.

[seriously fed up]

Have to fess up here that i got this one wrong and you were right DD. The relevant section of the CCA (and I only came across this looking for something else) is s176 (2), which says "The document may be delivered or sent by post to the subject, or addressed to him by name and left at his proper address."

So a notice can be sent by ordinary post, but this, it seems to me, does still create a problem of evidence. I had dealings with one DCA who insisted that they had written to me. In fact they had, but if the letter was posted on the day (or even the day after) it was dated, then it took two months to get to me! That section, I still think is most unsatisfactory, and at the very least I would challenge them to prove it (and remember, if they are after you, the onus is on them to provide proof, though it as DD says they can geet someone to stand up in court and say it was sent, or a sworn statement to this effect) then that wont be difficult.

Not satisfactory, in particular picking up on your point DD about the debtor not having a DN as it puts the creditor in a stronger position - what if none was sent? How do you prove that? They will assert that they did - always. So they can tie themselves in knots by sending one and getting it wrong, but home safe if they dont bother. The Act makes clear that they cant terminate, or demand full payment etc without one, so dont bother sending one, take the case to court and insist that you did. Simples, but doesnt seem logical to me. If someone else could comment on this apparent contradiction, I would be grateful.

However, we need to proceed on the basis of accurate information and I got this one wrong so this correction is important.

 

 

So, if we follow that through, it would seem to me that a creditor is better not to send a DN, as they can screw it up. Better, if it gets to court, to produce "something we made earlier" - ie mislead (so I dont get cagtbotted).

You are perfectly right the CCA says nothing about how notices should be served. It also says nothing - to my great frutstration on the consequences of just not bothering to issue such notices, leading to the contradictory outcome that its better to just not bother rather than try and get it wrong (best of all to try and get it right of course). The CCA is also rather quiet on assignment. But the LPA does

136 Legal assignments of things in action

 

(1)Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

(a)the legal right to such debt or thing in action;

(b)all legal and other remedies for the same; and

©the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice—

(a)that the assignment is disputed by the assignor or any person claiming under him; or

(b)of any other opposing or conflicting claims to such debt or thing in action;he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the M1Trustee Act, 1925.

 

 

My point is that if the CCA is silent, then the legal situation must be defined by earlier law (if such law exists). I think its arguable that assignment of debts from OCs to DCAs can be understood from within the above. Thus if 136 is relevant, why not 196? I respect and agree that this is how the courts are disposing of cases, but should they be doing this?

 

To allow OCs or DCAs just to stand up and say "oh yes there was a default notice issued on x/y/z" is getting pretty damn close to allowing them to stand up and say "oh yes there was an executed agreement signed by the other side, and it would look exactly like this reconstruction that we glued together in the taxi coming over to court today".

[diddydicky]

what if none was sent? How do you) prove that?

 

 

with great difficulty i am afraid

[diddydicky]

however, to embark on such a fraud on a scale would be very difficult- employees in these companies (clerks, computer operators and the like) would not go along with such policies and you can bet your bottom dollar that someone would blow the whistle

 

which in turn would devastate their industry since nothing they then said in court would be beleeved without cast iron proof

[seriously fed up]

The whistleblower - yes I suspect you may well be right if this was being done systematically. Or at least I hope so for the sake of humanity!

But what about the poor wee individual, facing the assertion by the multinational bank with the "large and sophisticated IT and managemen systems" (or something like that as Waksman puts it)? What about him/her? Well how about this? If there is a default notice issued then there would have to be - would there not - a footprint to this effect on your data record, because its not as if someone sits down and writes these things out long hand - they are computer generated and printed (possibly as a result of human intervention). So one way to show they are telling fibs about when/ if a DN has been issued might be through a SAR?

[tigercub]

Good Morning All,

 

I have just received a reply from MBNA in reply to a letter I sent them initially 1st December 2009 and then a follow up letter sent 1st February 2010. The letter states the following:

 

"I am confident that your concerns have now been addressed in full. I must make you aware that any further communications received, regarding an issue which has already been addressed, will be filed without reply"

 

With regards to the unlawful rescission letter I sent them special recorded delivery 2nd March 2010 I have had no reply to this at all!! Are they now using this letter as a way to avoid replying back to me.

 

What is my next move if they do not reply to the unlawful rescission letter? They have basically said that the account has been sold to experto credite and MBNA can no longer assist with the management of the outstanding debt?????

[seriously fed up]

its always a disappointment when they dont write back to say that they agree with you and accordingly will write off the account. Or that is how I always feel. I have one mob that when they write to me saying how disappointed they are that i have not chosen not to contact them, I write back setting out the dates of the letters i have sent to them (often with copies) and why I consider the account to be anything but unenforceable. They write back to say they are disappointed I have chosen not to contact them.

They wont agree with you - ever - and I think its fair to say particularly MBNA. I would assume that the letter you have received today is a reply to your December letter (got an acknowledgement from a lender yesterday to a letter I sent off early in March - if that's how long an acknowledgement takes, I am not holding my breath for the reply). You might want to reply repeating your case, but it wont make much difference other than to emphasise to them that you are sticking to your guns. Maybe in a couple of weeks send them a reminder - again recorded delivery - reminding them of their unlawful recission (your March letter). The important thing here is that you have notified them of your acceptance and can prove this to the court.

[tigercub]

Thanks for the info. I will wait a week or two and reply to them with a reminder letter.

 

I will also contact Experto Credite with the stance that: It is not my fault if they don't check accounts out properly before buying them. Perhaps they should request a refund from MBNA based on the unlawful recission situation.

 

I did notice that neither of the 3 credit reference agencies have the MBNA account logged on there system however the Experto account is showing! Is this not illegal for them to have this showing when I don't and never have had an account with Experto?

[seriously fed up]

since experto bought the account it would have been transferred to them and away from MBNA.

I would write back to MBNA, and copy this to experto with a covering letter saying that as a result of MBNA's unlawful recission the agreement is not legally enforceable and in fact has been terminated by your acceptance of their unlawful recission. Not sure if I would add the bit about getting a refund from MBNA (though it would no doubt be interesting to watch them try) - I think they will come to their own conclusion.

I was have a quick re-read of your thread and came upon the post again about being guarantor of a loan to your ex-company. One thing to watch here is that I would guess this loan was business and not personal, and so the CCA doesnt apply, which becomes clear in this thread http://www.consumeractiongroup.co.uk/forum/scotland/212092-bombshell-dropped-today-advice.html. On the other hand, assuming you have copies of the agreement with your ex-company partners to release you from the guarantee - which I would hope they would have taken on - should be the basis of a good defence. Might have been better to have notified the bank of change of guarantor. Or did this happen as well?

[tigercub]

Hi seriously fed up, thank you for your advice. The MBNA/Experto Credite situation is seperate from the thread regarding me being guarantor but both have somehow been discussed at the same time which is causing some confusion.

 

Let me deal with the MBNA situation first.

I totally agree I will send a letter to MBNA copying Experto and then let them fight it out amongst themselves.

 

The guarantor situation has developed with regards to Investec Asset Finance PLC. The agreement that was created through Investec Asset Finance PLC was done through the Consumer Credit Act 1974 so the unlawful rescission of the agreement comes into play. I brought this up at the court hearing and this is why the judge has set a minute of recall hearing in July which I am currently having to put all the paperwork together for in order to hand into the court. Just yesterday I had word back from the Pursuers solicitor stating that they are going to sist the action, essentially put it to sleep unless the original creditor stops paying again then they will bring it back into play. I have told them I don't agree with the action and will still be pursuing them in court for unlawful rescission and damages. This being the case the Judge has already removed the CCJ from my file. However I am continuing to push the case forward as I beleive that I have a clear case for damages.

 

I am in two minds now as the CCJ has been removed that was really all I was interested in however I am so annoyed with the whole thing I am still pursuing the case through court; In my opinion why should I let them get away with it and the solicitor has been totally underhand with everything I would hate both of them to get away with it and someone else has a similiar siuation in the future when I could have stopped it with this court hearing. I havent heard from the court yet regarding the pursuer sisting the action so have a little time to decide which way I am going to go with the action.......... As the CCJ has been removed I am happy; do i push it further in the risk that the judge doesn't agree and or something else is brought up in court and I end up with the CCJ again?

[seriously fed up]

Unlawful recission would arise anyway in a contract/ agreement, no matter what. What is a bit less usual is for a loan for a business (you refer to a company) to be within the CCA (unless the loans were personal loans for you to invest in the business, or it was a partnership).

Either way, though, I think you are right to get the thing straightened out, at least as far as your part in this is concerned, since if payments were to stop again presumably that would put you back in the frame, unless they recognise that you are no longer the guarantor.

I think you would need to agree to a sist, so I dont see a problem there. If the agreement is up to date with payments then they cant claim anything there, or at least not just now. What, I think, you would be looking for would be for the court to recognise the agreement that you made with your former partners when you left and thus that you are no longer the guarantor - its this bit here "I am taking Investec Asset Finance to court on 12th March 2010 for a minute of recall as they issued a decree against me as guarantor for an agreement my ex business had when I used to be a director in business with my friend. When I left the business they agreed to pay the debt and also look after all guarantees. This was agreed in a shares aquisition agreement drawn up between us on my departure;" in your post of 2nd March that I am thinking of. From what you say they dont have a claim - the payments are up to date - all you are seeking is an order that you are no longer the guarantor

The other thing to remember is that a sist only puts a temporary halt to a case - its not that the case is dismissed or anything like that, and they could seek to withdraw the sist at any time and its game on again. What you might do is to put a motion of absolvitor to the court on the grounds of the agreement you made with your partners when you left (Absolvitor - The judgement pronounced when a court assoilzies a party. Assoilzie Criminal - to acquit or find not guilty. Civil - to find for the defender/respondent.) This way the matter could not be brought back to court - or at least not against you.

[tigercub]

Thanks for that info - I certainly have them by the short and curlies now!

 

I like the idea of the motion of absolvitor, I will keep this up my sleeve for the time being, I get the impression that they are willing to do a deal to keep this out of court so will see what happens from here - I will of cours keep you up to speed with it all.

 

As an addition had a further letter from MBNA this morning telling me that there investigations are taking longer than anticipated and will get back to me by the end of April!!! funny that the last letter stated the same thing but said 30th March -Not surprised in the least - Still unsure though if this is in response to my unlawful rescission letter or previous letters which still remain unanswered

[tigercub]

Well well well....... MBNA letter received this morning with regards to my unlawful termination of contract letter sent to them 1st March 2010.

 

They have completely ignored the fact that they have terminated the account unlawfully with regards to the dates of the default notice and termination notice.

 

Please see letter from them below:

 

[seriously fed up]

The problem with letters like this is that when we open them we always hope that they will say "we surrender", but, of course, they never do and probably never will. Indeed even when they run away from court actions which they have initiated its never because they realise that they got it wrong or (more likely) they realise that you are well organized and will see them off, setting a precedent that they will have to live with. Its always "as a matter of commercial judgement"

What to do? Well first of all you need to write back, thanking them for their letter but pointing out, chapter and verse where they have got it wrong (even if you have done this already). Are their dates correct? Or are they making this up? You might find this thread relevant and of interest - http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html#post1837307

You will also want to hit them with no notice of assignment being served. I have had my own experiences of MBNA assigning debts and I dont think I have ever known about this till the new pond life appears. The law doesnt apply if you are MBNA - so they think. Oh, and ignore their invitation to phone them - by letter (but you know that)

I would copy experto in on anything you send to MBNA, and repeat the conclusion of unlawful recission to them just to be sure they dont miss the point.

Just dont expect that they will agree .....

[tigercub]

Thanks 'seriously fed up'

 

I will write to them as above - they are unbelievable and think they are above the law.

 

I will let you know how I get on.........

[diddydicky]

Good Morning All,

 

I have just received a reply from MBNA in reply to a letter I sent them initially 1st December 2009 and then a follow up letter sent 1st February 2010. The letter states the following:

 

"I am confident that your concerns have now been addressed in full. I must make you aware that any further communications received, regarding an issue which has already been addressed, will be filed without reply"

 

With regards to the unlawful rescission letter I sent them special recorded delivery 2nd March 2010 I have had no reply to this at all!! Are they now using this letter as a way to avoid replying back to me.

 

What is my next move if they do not reply to the unlawful rescission letter? They have basically said that the account has been sold to experto credite and MBNA can no longer assist with the management of the outstanding debt?????

 

as gloria estefan says "it cuts both ways"

 

if YOU send them a registered letter accepting their unlawful repudiation and it is not returned then it is deemed to have been delivered or served

 

whether they want to respond to that or not entirely a matter for them- save that the court generally takes the view that to stay silent on a matter could be an admission of its acceptance

[tigercub]

Morning Dicky Dicky - Thanks for your comments, can I just ask the question.

 

"It is deemed to have been served or delivered" is this to do with the Law of property act 1925?

 

I will write back to them again with a reminder of there unlawful repudition and also stick in the crucial part that there has been no notice of assignment.

 

Thanks again for everyone that has shown support on this matter

[diddydicky]

no, any letter or correspondence will be deemed to have been delivered to the recipient if it is sent registered(recorded) and it is not returned to the poster as undelivered.

 

 

as i said before- if they don't know you have the NOA and you haven't referred to it you would do well to stay silent on the matter until such time as a court claim is made (IMO)

 

Once you accept or acknowledge that you have received the NOA then any argument as to the fact that it was not served as prescribed is of no use to you in court- the fact that you have it- however that came about- is all that the court will be interested in

 

As to those who say that if the NOA comes from the assignee rather than the assignor- again whilst technically this is correct and whilst i agree that "technically" any "tom" or "Harry" (i have left dick out for obvious reasons) could have sent you that NOA and falsely claim payment- i would venture to suggest- as i have done before- that a difficulty would arise in court (IMO) where an LIP - who clearly has the nouse and the savvy to defend this matter and put together a defence- seeks to persuade the judge that he was not savvy enough to check with the OC before accepting the NOA at face value from the assignee.-and that the judge would be concerned only in establishing that the defendant had in fact been notified of the assignment

[MandM]

Hi tigercub.

 

have had a quick read through your thread so apologies if i'm missing something here .

 

In Post 80 the letter from MBNA says "The letter advised you that no further action would be taken if the payment requested in the letter was received on the account by 24th September 2009" obviously this refers to their DN.

 

However, in Post 1 you said

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

. (No further action !!!)

 

The way I read it, they seem to have shot themselves in the foot here IF they did sell/terminate the account on the 16th. Also, I see you got your SAR info back - the actual date of sale should be in the Comms Log (and if MBNA are true to form then there's a good chance that they sold you BEFORE the 16th.

 

Hope this helps.

 

M

[tigercub]

Thanks again - I never received a notice of assignation from MBNA however on the statement it shows the 16th as the date as the account was sold so definately unlawful termination.

 

Should I not mention the NOA?

 

I have not written back to them yet.......

[MandM]

Thanks again - I never received a notice of assignation from MBNA however on the statement it shows the 16th as the date as the account was sold so definately unlawful termination.

 

Should I not mention the NOA?

 

I have not written back to them yet.......

 

No. I agree with DD, keep quiet on the NOA unless they take you to court.

 

Can you find the Comms Log in your SAR bundle and check the sale date there, it's probably earlier than the 16th. All helps.

 

m

[tigercub]

Hi MandM I can't see a Comms log anywhere in the SAR I have received statements though funnily enough not from MBNA but from Experto Showing that there was a 'charge of adjustment' made 31st August for the balance and also a shed load of credits for the late default charges and overlimit charges then in the statement dated 28th Sept 2009 it shows Transaction date 16th September - ZERO CURBL ON SOLD ACCT then the amount that was transferred leaving the account with a zero balance.