Invalid Default Notices

[nks22]

Still this second letter stating "we have been instructed by or client to collect this debt on their behalf" would pehaps lend weight to the non existence of any assignment letter ?

By client they may mean Hillesden rather than MBNA.

[egg-sterminator]

By client they may mean Hillesden rather than MBNA.

Quite right NK just checked letter and thanks . Fustrating as it is with dodgy dn, missold ppi and no proof of assignment i can just concentrate on other cards .

As a side just received offer from barclay shark 40% full and final, have 2way dodgy dn [13 days no address for barclays] should i use this to try and negotiate settlement figure down or is it best to always keep invalid DN as your ace . thanks guys and guyesses

[egg-sterminator]

Heyyy E-S

 

Sorry I was multitasking, leaving myself apparently but not actually

sat sitting in here, LOL

 

I agree with DD..wait for their next move. If they've just said either pay full balance OR contact us..etc I'd personally wait for a definitive demand stating amount of full balance owed.

 

Elsa x

Thanks Elsa will do wont be long before they get fustrated . E-s x

[Mozz1]

just received offer from barclay shark 40% full and final

 

If yuo accept be careful this isn't marked up as a "partial settlement" on your credit file. From what I can gather this is a bad thing.

[molly13]

Originally Posted by Lord_Alcohol

DD - that's a very helpful summary of the situation.

 

I would just add one point - that the debtor is likely to be "unsophisticated" and not aware of legal terms/concepts such as "unlawful rescission". It is very likely, therefore, that his actions will be heavily influenced by the information given to him by the creditor. If the creditor tells him that its actions were completely lawful (honest guv!) and this is backed up by the usual barrage of legal-looking recovery letters, the debtor may agree to any repayment plan on offer if he can.

 

But he then learns of UR years later. He looks at his DN and finds it is faulty and that s87(1)(b) and © were therefore not available to the creditor at termination. He realises that he was only lawfully obliged to pay the arrears at termination, but he's since paid a lot more than that.

 

If the debtor then decides to invoke CCA by confronting the creditor, but the creditor says "sorry, you did not accept my unlawful rescission and under contract law your subsequent payments cause the agreement to endure even though I terminated it", he is immediately placed at a disadvantage because (a) how on earth will he understand the meaning of this unless he is "sophisticated" and (b) why was this not made clear to him at the outset?

 

I therefore think that it is perfectly reasonable for the debtor to state that he has uncovered the UR after "taking advice" and that he feels he was misled by the creditor into entering into a repayment plan when the regulating statute (CCA) clearly shows that the creditor may not seek sums unpaid. Therefore the debtor can reasonably state that he didn't know his lawful rights at the time (because the creditor hid them from him) and so he now seeks from the creditor the balance between arrears at termination and the total paid since.

 

The fact remains that it was the creditor that made the mistake in the first place and then subsequently hid his mistake from the debtor (deliberately or not), removing his lawful entitlement to (a) remedy the breach and (b) to lawfully rely on s87(1)(b) and © where s88 is breached by the creditor.

 

The OC can't have his cake and eat it. He can't lawfully end an agreement without full compliance with s88 and then expect the debtor to overlook his actions and comply with any old repayment plan he comes up with.

 

Just a thought (or two...).

 

LA

 

i understand fully the scenario you have described and imagine it would be quite common

 

alas, i fear that the courts would rule that the DN itself gave advice as to its importance and the need to seek advice if the recipient did not understand its meaning and therefore i think that the plea would fall on deaf ears.

 

 

 

Hi,

 

Could I ask for some clarification please?

 

The scenario above by LA, is very similar to what I have just discovered in regards to my Credit card Account.

 

The account is still with OC.

 

Invalid DN issued 2008( dated 14xx, payment by 28xx)

 

Nov 08 Final Demand issued for total amount.

 

I was ignorant to the repudiation thing then, and I have carried on paying up until recently, when I put the account in dispute due to non compliance of CCA agreement.

I only queried this account due to the stupid amounts of interest being added month by month. (OC refused to stop the interest)

So, looking through this thread, did they then actually repudiate the contract when they issued the Final Demand?

And if so, am I now within my right to write and accept it?

I'm really quite confused by this one.

 

Thank you in advance:)

 

Regards

Molly:)

[lexis200]

Originally Posted by Lord_Alcohol

 

i understand fully the scenario you have described and imagine it would be quite common

 

alas, i fear that the courts would rule that the DN itself gave advice as to its importance and the need to seek advice if the recipient did not understand its meaning and therefore i think that the plea would fall on deaf ears.

 

 

 

Hi,

 

Could I ask for some clarification please?

 

The scenario above by LA, is very similar to what I have just discovered in regards to my Credit card Account.

 

The account is still with OC.

 

Invalid DN issued 2008( dated 14xx, payment by 28xx)

 

Nov 08 Final Demand issued for total amount.

 

I was ignorant to the repudiation thing then, and I have carried on paying up until recently, when I put the account in dispute due to non compliance of CCA agreement.

I only queried this account due to the stupid amounts of interest being added month by month. (OC refused to stop the interest)

So, looking through this thread, did they then actually repudiate the contract when they issued the Final Demand?

And if so, am I now within my right to write and accept it?

I'm really quite confused by this one.

 

Thank you in advance:)

 

Regards

Molly:)

 

My take on that would be that you are fully understanding of the contents of the DN, as they clearly tell you x, y and z. As such why would you need legal help as you're not an idiot and this document has told you what will happen and when.

 

What you wouldn't know in the first place, and therefore wouldn't know you'd need to get advice for, is that they might not have fulfilled the DN requirements. After all, the DN has informed you that things will happen, so when they do as per that legal document, of course as a lay person dealing with a legal document apparently written by a team of bank lawyers, you will think it is all above board. What part of that would make you think you needed legal advice?

 

Your assumption as a consumer is that large institutions will be acting within legal constraints; only an assumption on your part that they are not in fact trustworthy would make you think you needed legal help to understand a fairly plain and simple DN. I don't think this would be a hard point to put across as a lay person, and for a judge to assume you would have gone immediately to a lawyer is for them to assume you are a)not capable of understanding the terms of a DN or b)that you for some bizarre reason would have known the intricacies of contract law before being served with the DN and so knew to get it checked.

[diddydicky]

Thanks DD having reread the letters The NOA states "mbna no longer own the account and your account is owned by dlc" letter yesterday "we have been instructed by our client to collect the outstanding balance on their behalf . Also states " to avoid further action you must either pay debt in full or contact our recovery department" so i'm wondering now if this would be taken as demand for full amount ?

 

 

personally i would write to MBNA along the following lines

 

Dear Sirs

 

Your Ref XXXXXXXXXXXXx

 

i note that since accepting your unlawful repudiation of the above agreement, you have, despite my request not yet informed me of the genuine amount of arrears that were due and payable at the time of termination of the agreement.

 

If i do not know this amount then i cannot work out if money is owed to you or if, due to the possibility of a claim by me for your unlawful repudiation, money is owed by you to me.

 

 

Your confirmation of the outstanding arears- as at the time of your unlawful repudiation- would therefore be appreciated.

 

Y F

[Dotty50]

personally i would write to MBNA along the following lines

 

Dear Sirs

 

Your Ref XXXXXXXXXXXXx

 

i note that since accepting your unlawful repudiation of the above agreement, you have, despite my request not yet informed me of the genuine amount of arrears that were due and payable at the time of termination of the agreement.

 

If i do not know this amount then i cannot work out if money is owed to you or if, due to the possibility of a claim by me for your unlawful repudiation, money is owed by you to me.

 

 

Your confirmation of the outstanding arears- as at the time of your unlawful repudiation- would therefore be appreciated.

 

Y F

 

Hi DD,

 

What if MBNA have denied invalid DN, denied UR and stated that account only considered for sale before remedy day and not sold till the end of the month (not given a specific date)?

[diddydicky]

the letter carefully avoids any recognition of any assignment

 

who cares if mbna deny invalid DN

 

The purpose of the letter is to show to a court at a later date (if necessary) that UR was accepted

 

i would simply file it and sit back and wait for whoever to light the blue touchpaper

 

if someone other than mbna started an action against me i would immediately seek a strike out on the basis that the person has no cause of action- they would then have to produce to the court to support their claim- an assignment and proof that I had been notified of the assignment

[egg-sterminator]

personally i would write to MBNA along the following lines

 

Dear Sirs

 

Your Ref XXXXXXXXXXXXx

 

i note that since accepting your unlawful repudiation of the above agreement, you have, despite my request not yet informed me of the genuine amount of arrears that were due and payable at the time of termination of the agreement.

 

If i do not know this amount then i cannot work out if money is owed to you or if, due to the possibility of a claim by me for your unlawful repudiation, money is owed by you to me.

 

 

Your confirmation of the outstanding arears- as at the time of your unlawful repudiation- would therefore be appreciated.

 

Y F

Thanks DD the client referred to is hillingdon securities not Mbna i assume this accepts the demand for full payment lost in the files of a large oganisation should i also mention the ppi they we,re asked to investigate only this time send recorded for my records

[egg-sterminator]

the letter carefully avoids any recognition of any assignment

 

who cares if mbna deny invalid DN

 

The purpose of the letter is to show to a court at a later date (if necessary) that UR was accepted

 

i would simply file it and sit back and wait for whoever to light the blue touchpaper

 

if someone other than mbna started an action against me i would immediately seek a strike out on the basis that the person has no cause of action- they would then have to produce to the court to support their claim- an assignment and proof that I had been notified of the assignment

I have of course kept the invalid DN and envolope as guided by this thread , in any case if i were to claim miselling of ppi would not the award deducted render the DN amount totally inacurate and as i accept their termination a new DN could not be issued ? Will send letter tomorrow assignment isn't something i ve looked into is it a powerful defence ? anyway as i see it i have a deffective DN, missold ppi, unfair relationship and old faithfull cca of which i have original card carrier though as you point out with all the bad decisions against us no room for smugness . Thanks as always DD Edited July 7, 2010 by egg-sterminator

[molly13]

Thank you lexis 200.

 

So I take it then that I write and accept their repudiation?

 

Regards

Molly:)

[Dotty50]

the letter carefully avoids any recognition of any assignment

Why should we not acknowledge this?

 

who cares if mbna deny invalid DN

 

The purpose of the letter is to show to a court at a later date (if necessary) that UR was accepted

As I have already accepted UR is it still advisable to send another request even when MBNA have denied UR? Vint has posted a more in depth letter for me to send on my MBNA Virgin thread, so now wondering which is the best way to go, as I value both yours and Vints excellent advice.

 

i would simply file it and sit back and wait for whoever to light the blue touchpaper

 

I am quite happy to do this, as long as I had dotted all the i's and crossed all the t's, so to speak

 

if someone other than mbna started an action against me i would immediately seek a strike out on the basis that the person has no cause of action- they would then have to produce to the court to support their claim- an assignment and proof that I had been notified of the assignment

 

I have been notified of assignment/purchase on both of mine, and I have responded accordingly to Hillesdens & Experto. Hillesdens keep writing but Experto not communicating

[Melbel]

Hi everyone

 

I bumped my thread earlier - simply be/reliable collections. they have admitted there is no cca agreement, refused to remove my default issued roughky 2 years ago and have not sent me a copy of the valid DN (i suspect there isnt one)

 

where to go from here???

[Duffers Mum]

Am I being stupid? (Ok please don't all rush at once to answer that )

 

What is this unlawful rescission? Appreciate its to do with dodgy DN's but don't understand it properly...anyone care to explain in simpleton terms as I'd be interested to know..also do you have to have received a Formal Demand after the dodgy DN?

 

Thank you

[Undercover-Elsa]

Hi Duffers Mum,

No you're not stupid, LOL. It's confusing becase it passes from Consumer Law to Common Law.

The creditor MUST issue a valid DN under the Consumer Credit Act, giving the debtor time to remedy the breach of terms of the agreement, eg arrears, before he can proceed to the next stage and either terminate the agreement or demand moneys not yet due, ie the full balance

If he messes this up and demands this without a valid DN, he commits a repudiatory breach of agreement. In common law, the injured party (now the debtor) can choose to accept this breach, which rescinds the agreement,

The effect of this is that both parties are relieved from their obligations in relation to the agreement from the point of repudiatory breach. ie Only arrears due up to that date are payable by the debtor. Against this he can claim for damages for breach of contract.

 

Up until the point of termination and/or demanding the full balance, the creditor can issue a new DN if he realises his original is faulty.

After that point he cannot. The agreement is ended.

 

Hope this helps..I'm sure others will illustrate further.

 

PS Not necessarily a formal demand..any demand for payment of sums not yet due..ie full amount owed.

 

Elsa x

[Duffers Mum]

Elsa - thank you so I get a DN which doesn't give me the correct amount of days....I make token payments of £X and a default is registered at the CRA's...however..don't DN state if you don't pay the arrears by XX date then we will terminate and the full balance will be payable immediately? so presuming you don't pay the full amount are they still effectively asking for full payment? Oh dear, I think i'm even more confused now!

[Undercover-Elsa]

How long ago was the DN issued, and have you continued token payments since then?

Better yet, do you have a thread on this with an image of the DN?

If so throw us a link and we'll take a look.

Going out for a while now though..bbl

[Duffers Mum]

Elsa thank you..link is as follows:-

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/262556-sainsburys-bank-now-assigned.html

 

The DN's (I received 2, one in September 2007 and the other in April 2008 ) are in #14.

 

I carried on with token payments, the last one going out this month (thought I'd cancelled the SO when it was bought by Crapot, but cancelled something else instead doh), have now cancelled it as don't intend paying Crapot a penny!

 

Your time is much appreciated

[diddydicky]

ok, i must admit to being a little confused- tends to happen when more than one subject on a thread

 

in general terms

 

A NOA has to be sent by registered mail- therefore if you have been advised by normal mail then you have not been properly served with a NOA (of course if you write and refer to it in any way then clearly you have been served- since once you acknolwedge it - the purpose is served- irrespective of if the creditor did not do so properly)

 

the idea behind not acknowleddging improperly served NOA is that if the assignee then starts an action he will be B888gered.

 

if it then transpires (during any proceedings) that the assignment took place whilst the original creditor was still trying to default- then it all adds to the confusion and the difficulty for the party attempting to sue you

 

to answer the above question-my letter in 3493 was merely one to confirm that UR had been accepted - in a circumstance where the debtor had left some time since the UR and was not sure if he had

 

clearly if UR has been accepted already in wiriting then that is fine

 

however it does not harm (for later use) to show that you have TRIED to resolve the arrears situation but the creditor has not played ball

[Dotty50]

Hi DD,

 

Thanks for the clarification.

 

[lord_tiger_putin]

Dear DD

 

Is it possible to provide where it is stipulated that a NOA must be served by recorded mail, will be good to keep for reference...

[charlie*]

Having embarrassed myself for being so seemingly thick in understanding Default Notices, it comes as a welcome 'phew', I'm glad I'm not the only one. Indeed, I was starting to think I had 'early onset' ... my father suffered senile dementia, so as you can imagine, the thought petrifies me.

 

So Duffers Mum, welcome to our Club of '2' that I know of... we're a pretty exclusive membership

 

charlie

Edited July 7, 2010 by charlie*

[lexis200]

Everyone was in that club at the beginning;) A lot of us are still there:D

[charlie*]

Thanks lexis, but I'll bet not many tested the goodwill and patience of our very generous experts as I have