MBNA/Restons claimform - old A+L Card **WON+COSTS**

[lexis200]

Why is one clause 3 and one clause 8? Which is worse for you?

[fairbyblue]

Clause 8 refers to termination clause 3 is about late charges.

In the 2nd DN there are no contact details to rectify.

[fairbyblue]

Sorry diddy, MBNA have actually said that Charge-Off Code A is the account closure.

 

H

 

I have that on comms log.

[diddydicky]

idont know if the lack of the total amount owed is a defect in itself

certainly there is no need for a contact number to be included

 

 

and you might like to check out the wording and fonts- isnt the word DEFAULT NOTICE supposed to be prominent and not squeezed in where it is?

[diddydicky]

certainly the arrears being the same so many months apart is a MAJOR confirmation that they regard the agreement as ended

[diddydicky]

have you investigated why there appear to be two seperate clauses in the agreement both dealing with the same thing ( 3 and 8)?

[diddydicky]

ahhhhhhhhhhhhh

 

ive just spotted something

 

most companies default notices are a standard form with the individual references auto filled into them from the computer

 

looking at the type spacing and the endings of texts it is clear that one of these (if not both) appear to have been individually typed out

 

why this would be baffles me

[gill5blue]

Hi FB

Did you actually recieve two DN's????

Because your second copy does not state who it is from, and it is NOT on mbna headed paper(which it needs to be to be a proper letter from them)

gill5blue

[fairbyblue]

Hi FB

Did you actually recieve two DN's????

Because your second copy does not state who it is from, and it is NOT on mbna headed paper(which it needs to be to be a proper letter from them)

gill5blue

 

I know. then they produce the second as the one they rely on. It is defective anyway, although their solicitor says its 're created copy' I did get the 2nd DN but it was without all the letterheading and contact details and it was in the format that they are relying on.

 

They have only mentioned it when pressed that the first one is defective.

 

It was terminated after the 1st DN!!!

[fairbyblue]

 

a properly drawn up DN will have the total amount owed on it whilst simply demanding the arrears.

 

 

and here 90 minutes later you say

 

idont know if the lack of the total amount owed is a defect in itself

 

So I am now confused cos you are saying things then changing the argument shortly after and is totally confusing me!!!!!!

[diddydicky]

and here 90 minutes later you say

 

idont know if the lack of the total amount owed is a defect in itself

 

So I am now confused cos you are saying things then changing the argument shortly after and is totally confusing me!!!!!!

 

 

OK let me un confuse you

 

yu made a statement eariler on that "a document with a total amount in it must be a termination"

 

i was showing you examples where a total amount is shown in a document (such as a monthly statement or a DN) but that did not mean that it made the documents into termination notices

 

the second reference was in answer to a different poiint as to whether the absence of a total in a DN makes it unenforceable

 

two different points

 

hopefully thats cleared that up in you mind

[Viscount Stair]

Lack of a total amount is a failure to serve in the prescribed form.

 

As for the has it or hasn't it been terminated question, the fact is that they demanded earlier payment, for which a DN is also required.

[underdog13]

Just to be clear; must a DN state the total amount owed and the arrears to be properly prescribed? Is the DN invalid if one is missing?

[AndyOrch]

See here Oct 8th 2008

 

 

 

A new amendment has been made in case of failure to give notice of sums in arrears in CCA 1974. Section 11 CCA 2006inserts a new section - 86D - that sets out the consequences for a creditor or owner if he fails to give a notice as required by sections 86B or 86C.

 

If the creditor or owner fails to provide a notice of sums in arrears when required to do so, then during the period of his failure to provide the notice (i.e. from the date that it was required to be given until the end of the day on which it is eventually provided), he is not entitled to enforce the agreement. In addition,

 

The debtor or hirer is not liable to pay any interest that relates to the period of the creditor or owner’s failure,

 

Notice of default sums

Section 12 of CCA 2006 applies to situations where a debtor or hirer under a regulated agreement incurs a default sum.

 

A creditor or owner must give the debtor or hirer a notice in the specified form when a default sum becomes payable as a consequence of a breach of the agreement. For example, you hire a car for the duration of your holiday. There will often be a penalty sum payable if you incur a fine from using the car. The car-hire company might say this is to cover, for example, administration charges. Either way, certain sums are payable if you breach the agreement. Where this applies, the creditor must provide notice to the debtor, of the amount they must pay. This only applies where the default sum exceeds a specified amount.

 

Additionally, a creditor may only require a debtor to pay interest (in connection with a default sum) 28 days after the day the notice was given to the debtor. So if the creditor fails to give notice to the debtor then he can not enforce the agreement until notice is given.

 

“Default sum”

The term ‘default sum’ has been redefined in s.18 CCA 2006.“Default sum” now means: a sum payable by a debtor or hirer in connection with his breach of a regulated agreement (e.g. a charge imposed for late payment of an installment due under the agreement or a fee imposed for exceeding a credit limit on a credit card). A default sum does not include sums that, as a consequence of a breach of the agreement, become payable earlier than they otherwise would have done. Nor does it include interest.

 

Interest on default sums

Section 13 has been amended so that a creditor or owner may only require simple interest to be paid in respect of default sums payable by the debtor or hirer. This includes sums payable under noncommercial or small agreements.

 

Minimum 14 days after Default notices

The new minimum period after which a creditor or owner may take action (in respect of the agreement after having issued a default notice) is now 14 days. It used to be only 7 days. Section 14 CCA 2006amends section 88 of the 1974 Act to create this extension.

 

Additionally, under s87, a creditor or owner must give the debtor or hirer a default notice in the prescribed form if he wishes to:

- terminate the agreement;

- demand earlier payment of a sum;

- recover possession of any goods or land;

- treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred; or to

- enforce any security

 

Section 88 is also amended to allow the Secretary of State to prescribe information in the default notice to include any matters relating to the agreement (e.g. information about whether the agreement includes a term providing for the charging of post-judgment interest).

 

 

 

Regards

Andy:wink:

[robcag]

I know that several excellent points regarding DNs have been put forward by x20 and others in various threads, but here's my slightly simplistic view on this situation.

 

I think we established much earlier in the thread that DN #1 was defective because of the dates/time given to rectify, and I think everybody would agree that point.

 

MBNA have said they will terminate the agreement if the sum demanded is not paid by the date given, so if the payment was not made then they should be taken at their word that they subsequently terminated (at least that logic was accepted by the Judge in my case against HFC/Restons).

 

Restons (and maybe others) like to argue the point between the word 'MAY' and the 'will' which is included in the threat of the consequences of not paying, but as has already been pointed out the word 'MAY' is part of the regulatory format of the DN.

 

Furthermore, I've seen 1 or 2 threads where Restons have used the feeble (IMO) argument that if the DN was defective then it follows (using their blinkered logic) that the threatened termination was therefore ineffective. I would counter that by pointing out the wording of s.87 which says that;

 

87. - (1) Service of a notice on the debtor or hirer in accordance with section 88 (a

“

default notice

”

) is necessary before the creditor or owner can become

entitled

, by reason of any breach by the debtor or hirer of a regulated agreement,

—

(a) to terminate the agreement, or

 

(b) to demand earlier payment of any sum, or

 

..... etc. etc.

The operative word being 'entitled'.

 

Because the DN was defective (i.e. not in accordance to s.88 ) MBNA were not entitled to persue any of the actions listed above, but this did not prevent them from going ahead and doing so. They just did something which they were not entitled to do, i.e. unlawfully terminated the agreement as per the case law mentioned further up the thread and elsewhere.

 

An analogy might be shoplifting. You are not entitled to take things from shops without paying for them, but this does not prevent shoplifters from doing so.

 

Cheers

Rob

[underdog13]

Well put, Rob:)

[robcag]

Well put, Rob:)

 

Thanks underdog

 

Just to add to what I said above; if the shoplifters deeds are not spotted by someone then s/he probably gets away with the goods, but on the other hand .....

 

In this case the shoplifter (MBNA) has been well and truly caught and (IMO) must bear the consequences of their action.

 

Tough luck MBNA!

 

Cheers

Rob

[blueboy987]

Is the information provided to the credit reference agencies from the creditor regarding defaults of any relevance?

 

For example, if the creditor registers the default for the full amount outstanding wouldn't this imply that termination has occurred? Firstly, as it is implementing one of the "may" clauses of the default notice and secondly, because it means they are demanding the full amount outstanding.

[cashins]

For example, if the creditor registers the default for the full amount outstanding wouldn't this imply that termination has occurred? Firstly, as it is implementing one of the "may" clauses of the default notice and secondly, because it means they are demanding the full amount outstanding.

 

Not as I understand it.

 

The entry means in effect that the loan, for X amount has defaulted.

 

David

[Dinkjames]

87. - (1) Service of a notice on the debtor or hirer in accordance with section 88 (a

“

default notice

”

) is necessary before the creditor or owner can become

entitled

, by reason of any breach by the debtor or hirer of a regulated agreement,

—

(a) to terminate the agreement,

or

 

(b) to demand earlier payment of any sum,

or

 

..... etc. etc.

 

I think we need to be really careful here on what is deemed to be termination of an agreement. The creditor has five options to exercise under S87(1) one of which is termination. The section states OR between (a) or (b) or © etc. So a default notice stating that they may or will terminate, does not in itself mean that they have terminated at the end of the 14 days. Similarly, demanding an earlier payment of ANY sum does not necessarily mean that the agreement has been terminated. I would even contend that passing the collection of any amount to a third party would not constitute termination. Also assigning a debt to a third party, IMO is also not termination.

 

Unless you have a clear statement from a creditor that the agreement is terminated, as Fairbyblue got on 02 December, then I would not regard an agreement as terminated simply by virtue of a default notice or demand for payment of the full amount.

[fairbyblue]

[/indent][/indent]I think we need to be really careful here on what is deemed to be termination of an agreement. The creditor has five options to exercise under S87(1) one of which is termination. The section states OR between (a) or (b) or © etc. So a default notice stating that they may or will terminate, does not in itself mean that they have terminated at the end of the 14 days. Similarly, demanding an earlier payment of ANY sum does not necessarily mean that the agreement has been terminated. I would even contend that passing the collection of any amount to a third party would not constitute termination. Also assigning a debt to a third party, IMO is also not termination.

 

Unless you have a clear statement from a creditor that the agreement is terminated, as Fairbyblue got on 02 December, then I would not regard an agreement as terminated simply by virtue of a default notice or demand for payment of the full amount.

 

In my letter it says that 'account has been terminated as you failed to comply with default notice'

 

So i am taking it that it occured an the 1/7/08 as thats what the 1st DN said 'that on or after that date the agreement will be terminated'

 

Although the letter is dated 2/12/08 (in response to my request) but all the evidence on Comms log and no change is amount to remedy between the 2 DN's certainly IMO that the account termintated when they said it would. On the 1/7/08.

 

[Dinkjames]

In your case, I think it is difficult to say exactly on what date the agreement was terminated. It is not definitive that it is 01/07/08, as the default notice states that the agreement will be terminated on or AFTER the date shown.

 

So, somewhere between 01/07/2008 and 02/12/2008, the agreement was terminated. I don't know if you have any other paperwork indicating when it may have been terminated.

[fairbyblue]

The amount to remedy is the same on the 2nd DN even though interest / charges and payments have been made. 5 offers of settlements at different %'s in July

and earlier in ths post

MBNA have said they will terminate the agreement if the sum demanded is not paid by the date given, so if the payment was not made then they should be taken at their word that they subsequently terminated (at least that logic was accepted by the Judge in my case against HFC/Restons).

 

Restons (and maybe others) like to argue the point between the word 'MAY' and the 'will' which is included in the threat of the consequences of not paying, but as has already been pointed out the word 'MAY' is part of the regulatory format of the DN.

 

[Dinkjames]

Putting aside the matter that the 2nd DN does not comply, it once again states that ON or AFTER the date shown, the account WILL be closed and the agreement WILL be terminated.

 

If it said "ON the date shown" then you can take it as gospel that the termination date was 13 November or 1 July, but the addition of the word AFTER changes the statement.

 

So, at some point between 13 November and 2 December, the agreement was terminated.

[fairbyblue]

Putting aside the matter that the 2nd DN does not comply, it once again states that ON or AFTER the date shown, the account WILL be closed and the agreement WILL be terminated.

 

If it said "ON the date shown" then you can take it as gospel that the termination date was 13 November or 1 July, but the addition of the word AFTER changes the statement.

 

So, at some point between 13 November and 2 December, the agreement was terminated.

 

I think it termintated 1/7/08 because of their deeds, the settlement letters, the charge off and the amounts the same.

 

And the 2nd DN is does not comply anyway.