Default Notice received from MBNA

[rainbow moon]

I received a default notice yesterday (10/9/09) from MBNA and would be greatful for any comments on whether this is a correct one or not.

 

I have never received a copy of my cca from them despite sending the request to them way back in April this year - I sent recorded delivery and know they have received it as they have credited my card account with the £1 postal order.

 

I placed the account in dispute at the end of May, again sent to them by RD. They have continued to add on interest/charges from then which has meant that the account is now nearing a £1000 just in charges alone.

 

I am stuck as what to do now - re-send the cca letter or just hold fire and see what they send next? any ideas greatfully recieved as always. Rainbow x

 

[WelshMam2009]

Yep, that's a default notice!! Keep the envelope it came in...what postage was used??

 

I would SAR them now as that appears to be the only way that you can get hold of the documentation that they have. Make sure you specifically state what info you want...will try and find you a link for the letter...

 

http://www.consumeractiongroup.co.uk/resources/templates-library/86-debt-collectors/576-subject-access-request-debt-a-dca

[rainbow moon]

Hi welshmam, thanks for the reply, I have kept the envelope and believe it was sent second class - the usual "S" print where the stamp should be. Rainbow x

[WelshMam2009]

Also, note they are referring to para 8f which is a contentious issue in itself!!

 

Have a read of these posts regarding the clause...

All MBNA Caggers Fight Against MBNA's underhand tactics - Page 54 - The Consumer Forums

 

http://www.consumeractiongroup.co.uk/forum/general/204502-defaulted-before-receiving-default.html#post2228865

 

 

and this in respect of the format of the DN...

http://www.consumeractiongroup.co.uk/resources/templates-library/86-debt-collectors/576-subject-access-request-debt-a-dca

 

Best of luck!!

[RIAZZIG]

I've just received a default notice from MBNA, but I dont think I've kept the envelope! why is this significant?!

[cerberusalert]

I've just received a default notice from MBNA, but I dont think I've kept the envelope! why is this significant?!

 

A default notice must allow you a minimum of 14 days to remedy from receipt, if it was posted 1st class service is seen as two days, 2nd class four days. So you add the service time to the date of the notice + 14 days and if it doesn't add up to the remedy date it will be defective.

[rainbow moon]

Right guys - any ideas what my next move should be considering they have clearly ignored my cca request? Should I just go down the SAR route - bit annoying when they have already ignore the first letters - or just wait it out?

Thanks for any replies Rainbow x

[cerberusalert]

Since you've already sent the 'in dispute' letter the balls in their court now, there's no point in getting into a game of postal ping-pong. I'd wait until they make there next move.

[WelshMam2009]

Based on my own experience of MBNA, their next step will be to either pass this debt on to a DCA or to Restons solicitors. In fact, if and when you undertake a SAR, you may discover that this process will have taken place prior to the expiration of the DN period. Hence, it may be prudent to hold off on the SAR for a while as you will discover more information in respect of dates sold/assigned etc

 

By the way, if you get a letter from Debt Clear Recoveries and Investigations that is actually MBNA's own in house DCA....so same people!!

 

Best of luck

[rainbow moon]

Just an update, before I have had chance to send off the sar request for my cca which I still haven't received from MBNA, today I have received this letter. MBNA have sent no cca or told me they were going to sell the account on. The figures quoted on this letter have more than a thousand pounds in charges added to it. Any idea what to do next would be very much appreciated. Thanks Rainbow x

 

[WelshMam2009]

Normally I ignore the first DCA letter and once they send a second I reply with the account in dispute now bog off letter!!

 

However, what I find interesting with yours Rainbow is that Experto Credite Ltd state to have been appointed by Varde Investments (Ireland).

 

I think it's fairly common knowledge that MBNA have an arm in Ireland but am not sure of the implications regarding jurisdiction / securitisation etc.

 

Also, did you receive a notice of assignment from MBNA or Varde for this account?

 

Now maybe the time to send off the SAR to find out what's been going on behind the scenes.

[rainbow moon]

Hi welshmam, thank you for your reply. I haven't received anything re notice of assignment, the last thing off mbna was the default notice - do you think the account is still held with MBNA or have they sold it to Experto? With the letter saying they have bought the interest I just took it as it being sold to them. Rainbow x

[WelshMam2009]

Hi welshmam, thank you for your reply. I haven't received anything re notice of assignment, the last thing off mbna was the default notice - do you think the account is still held with MBNA or have they sold it to Experto? With the letter saying they have bought the interest I just took it as it being sold to them. Rainbow x

 

It will either be an equitable or absolute assignment.

 

In an absolute they have the interest and obligations as I understand it and hence, would sue in their own name.

 

With equitable they have an interest but cannot bring an action in their own right.

 

Re-reading the letter, it could probably be taken to be a notice of assignment except that it should really have been sent by registered post.

 

It only seems as if Varde have bought the interest and not obligations but it isn't clear.

 

There seem to be a number of Caggers who have also had their debts sold to Varde this summer...all seem equally as bemused as you Rainbow!!

[WelshMam2009]

Varde Partners licence expires on 2 October 2009...no doubt will be renewed...but if you want to check them out then their licence number is 0560425

 

Public Register

 

I'm sure that Varde Partners is connected to Varde Investments...

[rainbow moon]

Thanks welshmam - it doesn't take much to confuse me I will have a look at the link and wait to see what they do next. Rainbow x

[willtheywontthey]

subbing aka 'snap'

[vint1954]

Hi welshmam, thank you for your reply. I haven't received anything re notice of assignment, the last thing off mbna was the default notice - do you think the account is still held with MBNA or have they sold it to Experto? With the letter saying they have bought the interest I just took it as it being sold to them. Rainbow x

NOA needs to come from MBNA

[WelshMam2009]

NOA needs to come from MBNA

 

Well you'd think so wouldn't you?!!

 

I'm pretty sure that there is case law to the contrary even though I thought the Property Act stated that it should be the assignor (not the assignee).

 

Please excuse the vagueness of this post but I'm not on my pc and hence, can't refer back to my documentation.

[vint1954]

Hi WelshMam,

 

I was only reading a document today, I think from the ICO, where it stateed that the NOA had to come from the OC.

 

I will try and look it out.

 

I dont think it could work the other way round. The person who owns the debt, must srely be the one to notify you to pay someone else.

[cerberusalert]

See; http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/170251-forged-letterheads-serious-offence.html

[vint1954]

Establishing that they have a right of action to the debt.

 

If the original creditor is the claimant, they almost certainly have a right of action to the debt.

If the DCA is the company that is suing, then, they must fulfil certain technicalities:

• They must have sent you a notice of assignment.
  

• They must have a Document (or deed) of assignment.
  

A notice of assignment must be served upon you in order for a DCA to have a claim to the debt.

This Notice of assignment must be absolute (that is they must have all the rights and duties of the contract) in order to sue in their own right.

If the notice of assignment is not absolute, you have every right to object if any case that does not include both the original creditor, and the DCA.

Further, if the notice of assignment is not correct, that is it includes unlawful charges or incorrect data, it spells your name, account number, address, or any other detail incorrectly, it is likely to be invalid.

Lastly, in your disclosure request, you have already asked for a copy of the document of assignment. I would suggest that, if a DCA were to fail to provide such a document, there would be no case to answer since they would have no clear right to the debt.

These are maybe technical points, but they are vital points – no notice of assignment = case struck out.

[WelshMam2009]

Hi WelshMam,

 

I was only reading a document today, I think from the ICO, where it stateed that the NOA had to come from the OC.

 

I will try and look it out.

 

I dont think it could work the other way round. The person who owns the debt, must srely be the one to notify you to pay someone else.

 

I agree...that's the way it should be Vint...otherwise anyone could send out bogus demands.

 

I've just got this nagging doubt in the back of my mind that I've read differently somewhere...there again, I am rather tired!!

[vint1954]

See; http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/170251-forged-letterheads-serious-offence.html

Thanks cerberusalert. An interesting read:)

 

WelshMam,

 

Found this link on the above thread. The modern law of contract - Google Books

 

It firstly seems to say that the assignor must issue the notice to the debtor, then contradicts this.

 

Just from a logic basis, if I said to you that creditor xyz has assigned your debt to me, you say ok vint, here is my cheque for £100k. I then leg it to the south seas, maybe in search of another bubble, when the OC contatcts you to say hey WM, you still owe me £100k. I think there may be trouble in trying to convince your OC that it was ok to do that without instruction from them.

 

I could of course be wrong, quite often am. I was sure however, that I had this one bottomed out from what I had read today, that NOA had to be sent from the OC and by registered post.

[vint1954]

I agree...that's the way it should be Vint...otherwise anyone could send out bogus demands.

 

I've just got this nagging doubt in the back of my mind that I've read differently somewhere...there again, I am rather tired!!

I will look again tomorrow.

 

Sleep well.

[WelshMam2009]

I will look again tomorrow.

 

Sleep well.

 

Thanks Vint!!

 

Ok, now back on my pc and these are the extracts from quotes that I have kept for reference, so apologies to anyone who recognises their scribe but I didn't retain posters details!!

 

Not according to one DCA solicitors they reckon that the following case

Bateman v Hunt [1904] 2 KB 530 CA provides the authority for the proposition that the notice from an assignee is efffective for the puposes of s136 of the law of propeerty act 1925 and they quote Halsbury Law vol 6 (2003 reissue) /2 and also Van Lynn Developments Ltd v Pelias Construction Co Ltd [1969] 1 QB 607

Hmm, how interesting so, a case decided before the LoPa 1925 was passed is a binding authority on the proposition contained within s136?

To my mind, the two keys cases are Harrison v Burke and the Van Lynn case. Both cases are from the Court of Appeal and the court's leading judgment was given by Lord Denning, as Master of the Rolls. The junior judge in the Van Lynn case questioned whether the NOA had to be in writing at all, let alone that it had to come from the OC. This has led some CAs to use Van Lynn to say they can send the NOA instead of the OC.

 

In Harrison v Burke, Denning MR was saying that if the date of the actual assignment was stated wrongly on the NOA, the NOA was ineffective. Whereas in Van Lynn, the assignment might be OK if the date of assignment was not stated at all, not that it was incorrect. In both cases, the court applied the test from an earlier case, Denney, Gasquet and Metcalfe v Conklin [1913] 3 KB 177. This test was whether the debtor had a 'reasonable' expectation that the debt had been assigned to the assignee.

 

Now if you re-read s136 (which I've just realised I've misunderstood!!) it says...

 

section 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

What I think that means is that the deed of assignment has to come from the assignor but there appears to be no such restriction on the express notice in writing (NOA) to the debtor, only that it must occur.

 

Hope this helps explain where I was coming from Vint and sincere apologies to Rainbow for hijacking the thread!! :oops: