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

[Dinkjames]

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

 

Yes, but what proof do you have that it was the 1/07/08? None IMO. As has been stated before, settlement offers are not an indication of termination, neither does the charge off. The incorrect amount makes the 2nd DN non-compliant but does not indicate termination. I don't believe that the termination date actually matters. Just prove that the 2nd DN they are relying on is non-compliant. Fairly easy to do.

 

Fact: The Agreement is terminated - letter 02/12/08

Unknown: Date of termination, sometime between 01/07/08 and 02/12/08. Try and get them to disclose on exactly what date the agreement was terminated.

Fact: The 2nd DN is non-compliant. Addresses and amount demanded - Woodhouse v Swayne(?)

[banker_rhymes_with]

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.

I'd caution against being too quick to dismiss all of these as being termination.

 

It depends on each case. However, in terms of demanding earlier payment of any sum, if that is not something covered by the Agreement, and yet they crack on and do it anyway, i.e. without the benefit of s87, then I would argue that does signify the end/termination of that particular Agreement (repudiatory breach)

 

I would even contend that passing the collection of any amount to a third party would not constitute termination.

Agreed.

 

assigning a debt to a third party, IMO is also not termination.

I think that would depend on who the debt was assigned to and if it was an Absolute Assignment or not. Just getting a DCA to chase is the same as above, so not termination.

 

Likewise, selling to another bank capable of keeping the Agreement going and/or capable of honouring the chance to remedy a live Default Notice that was in hand mid-transfer, is also not termination.

 

But, if they sell to a DCA wholly incapable of keeping the Agreement going then, depending on the circumstances, that could well be regarded as termination.

 

For example: the bank issues a valid Default Notice, then sells the Agreement to a DCA on day 5 of the 14 days. If the Consumer then remedies that Default Notice on day 13...what happens then? If the DCA says: so what, we can't issue you with new Credit Cards and allow you to splash it about with them...we just want the lot payable now! Then I'd argue the Agreement was terminated upon sale to the DCA and confirmed when they demanded earlier payment of any sum.

 

OTOH, if the bank constrained the use of the Card, then sold to a DCA, then it's possible the DCA can take it over from there. That would need careful discussion I think.

 

Hope this helps.

 

Cheers,

BRW

[banker_rhymes_with]

...settlement offers are not an indication of termination

That's a complex one, if the settlement offer is wanting a Consumer to pay a sum that was not otherwise due...i.e. earlier payment of a sum.

 

For example: if the Arrears were £1k and the Balance £9k, and they say we'd like to offer you a deal to settle at 50% of the total (£10k), then the 50% settlement offer of £5k (50% of £10k) would be made up of £1k that was due (the Arrears), and £4k would be a sum that was not, at that time, due. Indeed, if we apply 50% to each sum, then it's £500 of Arrears (£1k discounted by 50%) and £4.5k of a future sum (£9k discounted by 50%)!

 

It does suggest they regard the Agreement has ended, and are trying to obtain earlier payment of a future sum. If that ties in with, say, a Charge Off in their books, and other factors, then it builds a case that the settlement offer is at the very least a confirmation of termination, even if it does not say exactly when termination happened.

 

Cheers,

BRW

[Dinkjames]

That's a complex one, if the settlement offer is wanting a Consumer to pay a sum that was not otherwise due...i.e. earlier payment of a sum.

 

For example: if the Arrears were £1k and the Balance £9k, and they say we'd like to offer you a deal to settle at 50% of the total (£10k), then the 50% settlement offer of £5k (50% of £10k) would be made up of £1k that was due (the Arrears), and £4k would be a sum that was not, at that time, due. Indeed, if we apply 50% to each sum, then it's £500 of Arrears (£1k discounted by 50%) and £4.5k of a future sum (£9k discounted by 50%)!

 

It does suggest they regard the Agreement has ended, and are trying to obtain earlier payment of a future sum. If that ties in with, say, a Charge Off in their books, and other factors, then it builds a case that the settlement offer is at the very least a confirmation of termination, even if it does not say exactly when termination happened.

 

Cheers,

BRW

I see you point. I am looking at it as an offer. IOW we would like to end your agreement and as an incentive we are willing to settle for 50% of the total amount outstanding. Your agreement continues, but if you would like to settle then we are happy to do that. The offer in itself does not indicate that the agreement has been terminated, only that they would like to terminate it.

 

Similar to what Northern Rock has been doing to mortgage accounts. If you refinance or settle your mortgage, then we will incentivise you to move and waive cancellation fees, etc. None of those mortgages have been terminated because they made the offer.

[banker_rhymes_with]

Hello Dinkjames!

 

The offer in itself does not indicate that the agreement has been terminated, only that they would like to terminate it.

What may well complicate it for them, is if the Consumer was already in default at the time of the settlement offer. For example, they cannot use s76 or s98 to end the Agreement, because those sections of the Act can only be used in non-default situations, see s76(6) and s98(6).

 

So, here we have a banker wanting to bang out of an Agreement where the Consumer is already in default, who is supposed to follow s87/s88. The Act gives them that opportunity...so why don't they just use it and then make a settlement offer?

 

How does a settlement offer square with s87/s88 if the offer is made before they follow s87/s88? If you see my point.

 

It may seem polite and innocent, but a settlement offer without them having the benefit of a s87 Default Notice is just a pretty please thinly veiled demand for earlier payment of a sum that is not yet due.

 

It's the sort of offer you should only expect to see after the expiry of an un-remedied valid Default Notice period, when they would indeed be entitled to make discount offers on the whole balance. By then, if they had a valid Agreement and s87(1) Default Notice, the full amount would be fully due and they can make whatever discount offers they want to make.

 

Until then, I think it could be used to argue they have already terminated if there is other evidence to back that up. Say, no interest appearing on statements suggesting they have already clicked the big off button, or perhaps a Charge-Off date revealed in a SAR response.

 

I don't have all the answers, so please do pull this apart if it is weak.

 

Cheers,

BRW

[cashins]

Never stop learning on this site.

 

Been wading through my MBNA SAR ie the Comms Log

 

This shows 1 DN issued, (which I never saw ), followed by 'correction' and another issue date, (which I did get - and fails on the dates). This left me thinking there could be a problem if they produce the 1st one, which having a Tuesday issue date, probably would work.

 

Going back through this thread, specificaly post 701 concerning 'notice of arrears'. The 1st DN date is before they sent the 'notice of arrears' letter, effectively screwing up the DN, hence the change. Phew!

 

Good to know that as of DEC 2008 (when these events occurred), MBNA were just as shambolic as ever.

 

David

[Dinkjames]

Hello Dinkjames!

 

What may well complicate it for them, is if the Consumer was already in default at the time of the settlement offer. For example, they cannot use s76 or s98 to end the Agreement, because those sections of the Act can only be used in non-default situations, see s76(6) and s98(6).

 

So, here we have a banker wanting to bang out of an Agreement where the Consumer is already in default, who is supposed to follow s87/s88. The Act gives them that opportunity...so why don't they just use it and then make a settlement offer?

 

How does a settlement offer square with s87/s88 if the offer is made before they follow s87/s88? If you see my point.

 

It may seem polite and innocent, but a settlement offer without them having the benefit of a s87 Default Notice is just a pretty please thinly veiled demand for earlier payment of a sum that is not yet due.

 

It's the sort of offer you should only expect to see after the expiry of an un-remedied valid Default Notice period, when they would indeed be entitled to make discount offers on the whole balance. By then, if they had a valid Agreement and s87(1) Default Notice, the full amount would be fully due and they can make whatever discount offers they want to make.

 

Until then, I think it could be used to argue they have already terminated if there is other evidence to back that up. Say, no interest appearing on statements suggesting they have already clicked the big off button, or perhaps a Charge-Off date revealed in a SAR response.

 

I don't have all the answers, so please do pull this apart if it is weak.

 

Cheers,

BRW

Hello, BRW. I see your point, but I don't think that S77/78 has any bearing on a settlement offer. A settlement offer could be made at any time by either party. It is up to the creditor/debtor to accept or reject the offer. Should the creditor/debtor accept the offer, pay the amount, then the agreement would be terminated by mutual consent ie both parties agreeing to terminate the agreement and I believe that that would be acceptable. If the creditor/debtor declines the offer, then the agreement simply continues as before.

 

A settlement offer would be a mutually agreed termination of the agreement if accepted, regardless of the state of the agreement.

 

Section 87 applies where the termination / demand for payment is one sided ie the creditor wishes to terminate the agreement.

 

The settlement offers just cloud the issue and as has been seen before, is an attempt by the creditor to engage the debtor. More often than not, they don't keep to the settlement amount when you contact them.

 

Section 76 and 98 seems to refer to instances where the creditor wishes to terminate the agreement unilaterally. A settlement offer is not IMO a unilateral termination attempt.

[banker_rhymes_with]

Hello DJ!

 

A settlement offer could be made at any time by either party.

Up to a point, but other factors have to be taken into account if the Creditor makes a settlement offer whilst a Consumer is in default.

 

I feel that is the key.

 

In a default situation on the part of the Consumer, the Creditor cannot bang out of the Agreement via, say, s76 and s98. The Act gives them only one way to extract themselves when things have gone pear shaped, and that is to follow s87/s88. Even then, if the Consumer remedies the default, the Act makes it clear the Creditor has to allow things to continue as if no default had occurred. How inconvenient for them.

 

In the case of a settlement offer made while in default, they are saying: look, it's all gone horribly wrong, your fault not ours, and we want to bang out. Pay us, say, 50% of the total debt, and we can both walk away.

 

All well and good, but that 50% is still highly likely to be made up of sums that are not actually due for payment. It's still a demand for earlier payment of a sum, which is not allowed in a default situation unless they are in a position to enjoy the benefits of s87. At the very least, it could be argued that a settlement offer made whilst in default is an attempt to duck s87/s88.

 

To stress, I am referring to a settlement offer made during a Consumer default situation, not an offer that was made whilst both sides were happy and the Agreement was in good standing...

 

...although how happy someone would be to wake up one morning to receive, out of the blue, a settlement offer saying they could pay £5k to end their Credit Card Agreement and walk away with no Credit Card Account thereafter and an unexpected £5k dent in their short-term finances! How one-sided would that be!

 

In many cases, these offers tend to be made by people like MBNA and/or DCAs, when they have already shot themselves in the foot by doing something silly beforehand. Or, as you have mentioned, they are not sincere in any event, and are just a ruse to get people to call them! But how silly would they feel if a settlement offer made mid-default also served to terminate the Agreement!

 

Assuming the settlement offer was genuine, but was made in a default situation, then it's quite likely that this offer will form a very large piece of the default termination jigsaw.

 

Especially if it can be combined with other factors, such as, if they have already stopped adding interest to the Account, and/or there is a Charge Off date as well that ties in with the halting of interest charges. A settlement offer made at such a time may be argued to be a link in the chain that confirms they have handled the Agreement as if they had terminated, and as if they had every right to do so.

 

Any Creditor with half a brain cell would simply follow s87/s88 and gain the benefits of s87 and only then make settlement offers. They can also then ask for 100% and/or go to Court.

 

The problem we have on CAG is many of these settlement offers are popping up at very odd stages in the course of events. I still feel it can be argued that if one were to pop up at around the same time as other factors, then they may well combine to prove termination has indeed taken place.

 

I do fully agree that a nice letter that confirms termination is the best, but I think there are other ways to nail it.

 

Cheers,

BRW

[fairbyblue]

Cheers BRW. That makes sense.

[diddydicky]

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

 

havn't had time to go back over the thread HOWEVER if my memory serves me correcly what the DN ACTUALLY said was

 

we WILL terminate the agreement

 

but then said AT THIS OR A LATER TIME

 

for what it's worth my opinion is that you should go into court with much more than ASSUMPTIONS

 

there's an old legal maxim which says

 

A S S U ME makes an ASS out of U and ME!

 

i

[fairbyblue]

Thanks DD but all you comments have been negative and seem to go around in circles.

 

what shall I do? Just assume they have done everything correctly and let them do what they will.

[diddydicky]

well you NEED someone to flag up the flaws in your own arguments (devils adviocate) in order to make you aware of what the other side might come at you with

 

im sorry you feel my comments are negative and don't help you therefore i will make a note not to post on your threads!

[lexis200]

I'm a little lost as to why this argument is going on at the moment.

 

As far as I can tell from the last couple of pages (I have read the lot, but I can't remember that far back now!), both DN's were ineffective, and there is a definite 'we have terminated you' letter. What is the rest of this 'what constitutes termination' all for?

 

Have I missed something?

 

Also, DD's comments may not be what you want to see, but he's not saying to give up, just to make sure all your ducks are in a row. Would it honestly be better if everyone just said the positive bits and missed out the possible flaws? That could well leave you merrily going off to court thinking you're 99.9% safe, but ending up with points that can be dismissed out of hand by the judge or their sol.

 

I think it may be beneficial to you and the people trying to help if you can go through and post up a timeline of everything that has happened - letters sent and received, notices and their failures, terminations etc - everything.

 

With massive threads like this it's easy for issues to get sidetracked as (as has happened to me reading this) you forget what's happened earlier, and getting them all into a simple dated list can really help.

[diddydicky]

I'm a little lost as to why this argument is going on at the moment.

 

As far as I can tell from the last couple of pages (I have read the lot, but I can't remember that far back now!), both DN's were ineffective, and there is a definite 'we have terminated you' letter. What is the rest of this 'what constitutes termination' all for?

 

Have I missed something?

 

Also, DD's comments may not be what you want to see, but he's not saying to give up, just to make sure all your ducks are in a row. Would it honestly be better if everyone just said the positive bits and missed out the possible flaws? That could well leave you merrily going off to court thinking you're 99.9% safe, but ending up with points that can be dismissed out of hand by the judge or their sol.

 

I think it may be beneficial to you and the people trying to help if you can go through and post up a timeline of everything that has happened - letters sent and received, notices and their failures, terminations etc - everything.

 

With massive threads like this it's easy for issues to get sidetracked as (as has happened to me reading this) you forget what's happened earlier, and getting them all into a simple dated list can really help.

 

thanks for the support lexis- i think its just a generational thing - i was brought up to show good manners.

 

i am happy if the advice is not taken but the lack of manners offends

 

i was always told that if you asked for advice and then didnt like/agree with what was given that you should politely thank the person and then ignoe the advice

 

on forums you don't even need to do the polite thanking but i do think people should not ask for advice then insult those who give it

 

in their defence i got the impression that they did not understand what "devils advocate " means

[fairbyblue]

thanks for the support lexis- i think its just a generational thing - i was brought up to show good manners.

 

i am happy if the advice is not taken but the lack of manners offends

 

i was always told that if you asked for advice and then didnt like/agree with what was given that you should politely thank the person and then ignoe the advice

 

on forums you don't even need to do the polite thanking but i do think people should not ask for advice then insult those who give it

 

in their defence i got the impression that they did not understand what "devils advocate " means

 

DD, I do know what a devils advocate is. I also show good manners. I'm struggling to find the insult.

 

Lets just leave it at that. I have many other things on my mind and I have taken some advice on board. I had it clearly set in my mind complete with what they could throw at me and i keep having to go over whats already been said.

[supasnooper]

FB,

 

You have been offered advice from both sides of the fence and it is your option to follow which ever path.

 

However, I would point you to Viscount Stairs earlier post at #699 and also point you to the post below which is on the site on several threads -

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2257987.html

[banker_rhymes_with]

I would point you to Viscount Stairs earlier post at #699

 

Here it is...

 

Post #699

 

Cheers,

BRW

[fairbyblue]

Thanks for the links.

[lexis200]

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.

 

From supasnooper's post -

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement

 

Can I just ask if this early repayment thing is still relying on the offer letter they sent, or if they did actually send a formal demand at some point? It's just the wording in both of these posts states 'demand' not 'request' or 'make an offer'.

 

And again, if both DN's are ineffective and there is a definite termination letter, does all this really matter as it seems to just be muddying the waters?

[summerbreeze]

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.

 

 

I am looking for where in the legislation it states the total owing must be on the DN

Can anyone help ?

[AndyOrch]

I am looking for where in the legislation it states the total owing must be on the DN

Can anyone help ?

 

 

See Post 701

 

 

Regards

 

Andy:cool:

[fairbyblue]

See Post 701

 

 

Regards

 

Andy:cool:

 

So for definate in 2nd DN because they failed to put total amount owed that in itself makes it a defective DN.

The amount is on the 1st but somehow disappears on 2nd.

 

[summerbreeze]

See Post 701

 

 

Regards

 

Andy:cool:

 

Thanks Andy

 

I have read that post but I dont see where it says that the total Balance owing must be on the DN just the total of the arrears owing.

 

I appologise if I am not reading it correctly.

I think both Fairbyblue and I need to clarify this point

[AndyOrch]

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.

 

So once the DN states the arrears to rectify the breach it should then move on to:-

 

If you don not pay the aarrears by the date shown above the Creditor intends to:-

 

1.Require immediate payment on the Total Amount Ouststanding 9as set out below if ness by Court Action

 

Total Amount Outstanding £ xxxxxxxxx (inc arrears)

 

Rebate allowable (if any) £ xxxxxxxxxx

 

Net Amount Outstanding £ xxxxxxxxx

 

providing the above is laid out in that form then the Termination is complete (legally)

 

Regards

 

Andy

[steven4064]

The first DN in post #734 is invalid. It is dated 18 June 2008 and would therefore be deemed served on Friday 20 June. 14 clear days from then is Friday 4 July. They have only given you until 1 July.

 

The second is OK. It is dated 27 October 2008 and would be deemed served on Wednesday 29 October. 14 days from then is 12 November and youhave been given until 13th. Having said that, they cannot they send a second DN for the same default, so that one is dead too.