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[pt2537]

I don't know if I agree with that - I'm just not sure that an absolute assignment is a termination. If it were the case then if the agreement were terminated the assignee would not be able to issue a DN at all, as the agreement had already been terminated by the actual assignment.

 

As I keep saying I honestly don't know if an assignment terminates an agreement - in principle I can't see why it necessarily should.

 

Can you point me to a bit of case law - cos it sounds like a really interesting issue

It cant be, otherwise Morgan Stanley, Goldfish , HFC Bank et al would have fallen into major difficulties when selling the credit card accounts to the purchasers, such as Barclays and HSBC. It is incorrect to suggest that assignment merely means that the account terminates, it can continue in operation even when sold to a debt purchaser

[Gazza112]

Hi Pt

 

I've got one accounrt that was served with two DN's which wasn't remedied. Then received a Termination Notice but that's the only one that i've received that notice on. All the other's just recived the DN.

 

Gaz

[WelshMam2009]

I don't know if I agree with that - I'm just not sure that an absolute assignment is a termination. If it were the case then if the agreement were terminated the assignee would not be able to issue a DN at all, as the agreement had already been terminated by the actual assignment.

 

As I keep saying I honestly don't know if an assignment terminates an agreement - in principle I can't see why it necessarily should.

 

Can you point me to a bit of case law - cos it sounds like a really interesting issue

 

Am conscious not to hijack PF's thread as he has got a big day looming

 

The scenario I'm interested in (as lots of MBNA debtors) is as follows:

 

a) The OC sells the debt on, such that it no longer belongs to them.

b) The DN is dodgy.

 

So,

 

c) Has the contract been unlawfully rescissed by the OC such that only the arrears can be claimed?

 

d) Is the assignment valid as the amount on the deed will be incorrectly stated?

 

 

EDIT: The reason I say this is that on my MBNA default, similar to PF's, it states that they "will terminate my agreement."

Edited May 17, 2009 by WelshMam2009

[I've got no money]

Am conscious not to hijack PF's thread as he has got a big day looming

 

The scenario I'm interested in (as lots of MBNA debtors) is as follows:

 

a) The OC sells the debt on, such that it no longer belongs to them.

b) The DN is dodgy

Do you mean that the DN is defective - if so why

 

So,

 

c) Has the contract been unlawfully rescissed by the OC such that only the arrears can be claimed?

 

I don't think that the assignment amounts to a recission of the contract

 

d) Is the assignment valid as the amount on the deed will be incorrectly stated?

There are two separate things - one is the Assignment the other is the Notice of Assignment - if the sum on the NoA is wrong then arguably the Notice is fatally flawed (I say arguably because of Rankine but I think that Rankine doesn't apply but I can see creditors arguing it)

 

 

EDIT: The reason I say this is that on my MBNA default, similar to PF's, it states that they "will terminate my agreement."

 

I don't think that saying that they "will terminate" if you don't do something is sufficient to terminate - I think that they then need to separately terminate - BUT I could be wrong on that

 

 

I've commented on some of your points in black bold

[pt2537]

Rankine does not apply here to Notices of Assignment

 

the leading case is still Harrison and Burke to that point even though i have had counsel try and argue that Manine investments and Eagle star is the lead case ( it is no as its landlord and tennant case law) if the amount stated in the notice differs from that on the deed it is bad, it is also worth noting that the bad assignment did not fall into equity either!!

[WelshMam2009]

I've responded below out of regard for PF's thread....but thank you all for your comments and contributions!!

 

http://www.consumeractiongroup.co.uk/forum/mbna/182509-help-should-i-cca-6.html#post2173339

[I've got no money]

Rankine does not apply here to Notices of Assignment

 

the leading case is still Harrison and Burke to that point even though i have had counsel try and argue that Manine investments and Eagle star is the lead case ( it is no as its landlord and tennant case law) if the amount stated in the notice differs from that on the deed it is bad, it is also worth noting that the bad assignment did not fall into equity either!!

 

I know it doesn't BUT I had a discussion with a Solicitor for a credit card company who tried to argue that it did - that's why I flagged it up as being an issue - its' also why I expect other creditors to try to argue the point especially where there are unlawful default charges

[banker_rhymes_with]

Hello PT!

 

It cant be, otherwise Morgan Stanley, Goldfish , HFC Bank et al would have fallen into major difficulties when selling the credit card accounts to the purchasers, such as Barclays and HSBC. It is incorrect to suggest that assignment merely means that the account terminates, it can continue in operation even when sold to a debt purchaser

I agree, when it's a case of a bank selling/assigning the Agreement to another bank, i.e. when both are capable of allowing the Agreement to continue.

 

However, I think there is some merit in questioning if an Agreement has Terminated or not when an Agreement is sold to a DCA, i.e. a DCA incapable of allowing the Agreement to continue as it was agreed at the outset.

 

IOW, if the DCA is in no position to run the Account/Agreement, then there could be an argument that the Agreement has indeed Terminated, and all the DCA has purchased is the potential right to collect the lump sum Debt that remains.

 

Thus, it could potentially be argued that they have bought a Debt, but not a live Agreement. The Debt is then only enforceable if the original Creditor has passed on a properly executed Regulated Agreement, and followed the steps outlined in s87/s88 if the Consumer was in default, i.e. to allow them the right via s87 to Terminate the Agreement when selling the remaining Debt to a DCA otherwise incapable of keeping the Account/Agreement running.

 

For example, for the DCA to issue a valid Default Notice, would that not suggest that the default must be capable of remedy? By that, I mean pay the Arrears and the Agreement goes back to normal as if the Default Notice was never issued? How can things go back to normal if a DCA is unable to let things go back to normal?

 

I appreciate that the DCA may say they have a right to limit the Account, but did they? When, exactly, was the Account restricted? Did the OC restrict the Account before Sale, where is the letter to advise that?

 

In summary, I fully accept that banks can sell Agreements to other banks, and that happens as a matter of routine, i.e. Amex to MBNA, or Abbey to MBNA etc.

 

But in a clear Consumer default situation where s87/s88 apply, then Sale to a DCA is not quite the same as a bank to bank sale when there is no default situation (or even when there is, provided the two banks can hand it over and the 2nd bank pick up the Agreement batton from there).

 

I think it's worth exploring that issue to see if some Agreements could be classed as Terminated once sold to a DCA. How the sale was effected, or how the OC conducted the Account prior to sale could well determine if the Agreement could be considered to be at an end upon the Taxpoint of Sale between OC and DCA.

 

Put another way, how many DCAs are we aware of that allow Consumers to keep using, say, a Credit Card/Credit Token linked to the Agreement?

 

Cheers,

BRW

[WelshMam2009]

Hello PT!

 

 

 

However, I think there is some merit in questioning if an Agreement has Terminated or not when an Agreement is sold to a DCA, i.e. a DCA incapable of allowing the Agreement to continue as it was agreed at the outset.

 

IOW, if the DCA is in no position to run the Account/Agreement, then there could be an argument that the Agreement has indeed Terminated, and all the DCA has purchased is the potential right to collect the lump sum Debt that remains.

 

BRW

 

In my case the assignee doesn't hold a consumer credit licence

[pt2537]

In my case the assignee doesn't hold a consumer credit licence

then they commit a criminal offence

[WelshMam2009]

then they commit a criminal offence

 

Sorry, perhaps my comment was misleading, they have a licence for debt adjusting but not for consumer credit.

 

In my case, the debt was sold prior to the end of the dodgy DN remedy date so, as far as I can tell, this would have been a live agreement at the time of assignment.

[I've got no money]

Hello PT!

 

I agree, when it's a case of a bank selling/assigning the Agreement to another bank, i.e. when both are capable of allowing the Agreement to continue.

 

However, I think there is some merit in questioning if an Agreement has Terminated or not when an Agreement is sold to a DCA, i.e. a DCA incapable of allowing the Agreement to continue as it was agreed at the outset.

 

IOW, if the DCA is in no position to run the Account/Agreement, then there could be an argument that the Agreement has indeed Terminated, and all the DCA has purchased is the potential right to collect the lump sum Debt that remains.

 

Thus, it could potentially be argued that they have bought a Debt, but not a live Agreement. The Debt is then only enforceable if the original Creditor has passed on a properly executed Regulated Agreement, and followed the steps outlined in s87/s88 if the Consumer was in default, i.e. to allow them the right via s87 to Terminate the Agreement when selling the remaining Debt to a DCA otherwise incapable of keeping the Account/Agreement running.

 

For example, for the DCA to issue a valid Default Notice, would that not suggest that the default must be capable of remedy? By that, I mean pay the Arrears and the Agreement goes back to normal as if the Default Notice was never issued? How can things go back to normal if a DCA is unable to let things go back to normal?

 

I appreciate that the DCA may say they have a right to limit the Account, but did they? When, exactly, was the Account restricted? Did the OC restrict the Account before Sale, where is the letter to advise that?

 

In summary, I fully accept that banks can sell Agreements to other banks, and that happens as a matter of routine, i.e. Amex to MBNA, or Abbey to MBNA etc.

 

But in a clear Consumer default situation where s87/s88 apply, then Sale to a DCA is not quite the same as a bank to bank sale when there is no default situation (or even when there is, provided the two banks can hand it over and the 2nd bank pick up the Agreement batton from there).

 

I think it's worth exploring that issue to see if some Agreements could be classed as Terminated once sold to a DCA. How the sale was effected, or how the OC conducted the Account prior to sale could well determine if the Agreement could be considered to be at an end upon the Taxpoint of Sale between OC and DCA.

 

Put another way, how many DCAs are we aware of that allow Consumers to keep using, say, a Credit Card/Credit Token linked to the Agreement?

 

Cheers,

BRW

 

I think that is an extremely interesting point

[I've got no money]

Sorry, perhaps my comment was misleading, they have a licence for debt adjusting but not for consumer credit.

 

In my case, the debt was sold prior to the end of the dodgy DN remedy date so, as far as I can tell, this would have been a live agreement at the time of assignment.

 

But potentially would that not result in their operating in breach of their licence and consequently make the agreement only enforceable with the consent of the OFT

[pompeyfaith]

I'm glad my post is causing debate although at a loss at the moment where this if all effects my case. Still keep going PF

[WelshMam2009]

But potentially would that not result in their operating in breach of their licence and consequently make the agreement only enforceable with the consent of the OFT

 

I believe that they were in breach yes. I want to complain to OFT but equally don't want to declare my hand regarding the dodgy DN incase there is a "get of of jail" card that I am not aware of.

 

Does OFT have jurisdiction in respect of the latter comment IGNM??

[WelshMam2009]

I'm glad my post is causing debate although at a loss at the moment where this if all effects my case. Still keep going PF

 

Sorry PF...think this is all my fault for saying that an absolute assignment meant termination!!

 

Did try and divert the comments but to no avail...sorry again!!

[I've got no money]

I believe that they were in breach yes. I want to complain to OFT but equally don't want to declare my hand regarding the dodgy DN incase there is a "get of of jail" card that I am not aware of.

 

Does OFT have jurisdiction in respect of the latter comment IGNM??

 

Woodroffe and Lowe on Consumer Law and Practice (Seventh edition at page 344) says that S40 CCA provides that where an unlicensed person makes a regulated agreement that it is only enforcdeable if the OFT makes a validating order.

 

Now I don't know what effect assigning a regulated agreement to an unlicensed (in these terms if their licence doesn't cover it I think that they are unlicensed) person has...

 

Any thoughts PT

[pompeyfaith]

no need to be sorry as it makes interesting reading

[joemay]

Sorry to butt in here, but am I missing something. I was of the impression that if the debt had been passed to DCA after a DN issed by oc for areas, then the DCA request the full amount o/s then the agreement had most certainly be cancelled. Is this not the case?

[pompeyfaith]

Hiya All

 

I've posted the alleged agreement, default notices and the latest court order again as this thread is getting big and hard to follow.

 

Now this order is the one i should be following and i did upto filling my defence , but as you know my dad became ill and subsequently died so this order got put on the back burner so to say the court is aware of this as i informed them of this when i applied for adjournment.

 

Now there are points on this order i wish to follow like calling D. Powell of MBNA to attend next hearing.

 

Sould i contact the court and asked them to re-issue the order? because the hearing date on it has passed.

 

Regards

 

PF:)

 

 

 

 

 

 

 

[pompeyfaith]

The claimants have also not carried out point 4.

 

The new hearing date by the way is 15th june 2009

[pompeyfaith]

Sorry about the agreement being unreadable but that is how it is the judge on the 3rd march did tell them to bring a better copy in to court next time but im not sure they can

 

PF

[I've got no money]

I thought that the claimant had filed a really dodgy case summary

[pompeyfaith]

Oh and that agreement is what they brought there claim on but then changed there minds then i picked holes in it and said it was a pre-contractual application the agreement they now say is a 3 page set of T&C's which has no signatures and is from a leter date i.e. different APR'S

 

Ill put the T&C's up again on here

[pompeyfaith]

Yup IGNM but no updated bundle sorry