Invalid Default Notices

[nks22]

"You have unlawfully repudiated the agreement and i accept your unlawful repudiation"

 

diddydick, I notice you used 'repudiation' rather than 'recission' here. Does it matter or are the words interchangeable?

[cab1ne]

diddydick, I notice you used 'repudiation' rather than 'recission' here. Does it matter or are the words interchangeable?

 

Rescission.

Is a common law term which makes a contract void (ab initio) It is as if the contract never took place. The terms coming closest to rescission are termination and cancellation,

The Latin term "Ab initio " means, in a UK legal context: "from the beginning".)

 

The difference between the two terms;

 

Cancellation,

Still gives one a remedy,

 

Termination,

Does not (except for earlier breaches in the same contract).

 

Rejection.

differs from these other terms in that tender must first take place in order for it to be possible to reject. Rejection then triggers remedies

 

Repudiation.

Occurs before time for performance is due.

An overt communication of intention or an action which renders performance impossible or demonstrates a clear determination not to continue with performance.

cab

Edited January 23, 2010 by cab1ne

[haggis1984]

Hey guys,

 

Recieved a DN dated 11/01/10 requiring payment of arrears by 28/01/10. On 19/01/10 recived letter saying account sold to DCA.

 

Unlawfull recission?

[MandM]

Hey guys,

 

Recieved a DN dated 11/01/10 requiring payment of arrears by 28/01/10. On 19/01/10 recived letter saying account sold to DCA.

 

Unlawfull recission?

 

I think so. Was it MBNA by any chance?

 

M

[haggis1984]

I think so. Was it MBNA by any chance?

 

M

 

What are the chances of you guessing that?! :grin:

 

http://www.consumeractiongroup.co.uk/forum/mbna/204693-haggis-mbna-enforceable-agreement-4.html#post2720749

[MandM]

What are the chances of you guessing that?! :grin:

 

http://www.consumeractiongroup.co.uk/forum/mbna/204693-haggis-mbna-enforceable-agreement-4.html#post2720749

 

They're a real class act lol.

 

They've did it to loads of us last October and November. good to see they're still making the same mistakes

 

M

[MandM]

Hey guys,

 

Recieved a DN dated 11/01/10 requiring payment of arrears by 28/01/10. On 19/01/10 recived letter saying account sold to DCA.

 

Unlawfull recission?

 

Did you keep the envelope? If it was 2nd class then they gave you 3 days to comply.

[haggis1984]

Did you keep the envelope? If it was 2nd class then they gave you 3 days to comply.

 

Yup ive got it

 

Theyve done the same to 3 others that I know off this week alone.

[MandM]

MBNA seem to be on a mission to off load as many of us as possible as quickly as possible. I'm sure that there's a reason for that that we're unaware of yet.

[MandM]

Might be this

 

EDITED - link removed - totally incorrect

 

M

Edited January 23, 2010 by MandM
link removed - apologies

[MandM]

But I don't understand whether or not this is related at all to MBNA Europe.

[haggis1984]

Will prob find out soon enough.

 

Im sure I read somewhere that if a creditor screws up the DN they're only able to recover any arrears due and nto the full balance.

 

Where can this be found (OFT guidance? Legislation? etc)

[nks22]

That news story is dated July, 2005.

[the_shadow]

But I don't understand whether or not this is related at all to MBNA Europe.

 

Bank of America made losses announced last week, most of the losses were from the credit card side... I would imagine they are attempting to close off as many "at risk" accounts as possible.

 

BBC News - Bank of America sees $194m loss

 

Bank of America's credit cards division made a quarterly loss of $1bn, while its mortgage business lost $993m.

 

I would think thats global credit card division rather than just american... if you ever get into negotiations with MBNA the people that make decisions all have email addresses within bank of america.

 

S.

[MandM]

That news story is dated July, 2005.

 

LOL I really should read all of it !!!!

 

My apologies. Will remove the link so as not to cause any confusion.

 

M

Edited January 23, 2010 by MandM
added a bit

[emandcole]

Will prob find out soon enough.

 

Im sure I read somewhere that if a creditor screws up the DN they're only able to recover any arrears due and nto the full balance.

 

Where can this be found (OFT guidance? Legislation? etc)

 

You're quite right and you can read up on it on these threads:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

 

Also, if you go back to page 44 onwards of the thread you're already on (Invalid Default Notices) you can pick up on the technicalities of accepting termination if it's offered after a faulty default notice has first been sent.

 

Post #941 by DiddyDicky is particularly helpful.

[haggis1984]

Thanks emandcole.

 

So.. would selling the account to a DCA prior to the recitification date on the DN invalidate the DN? Would this be unlawful recission?

 

This is a bit of a minefield!

[emandcole]

If the account was sold in it's entirety as an absolute assignment then I believe this would represent an unlawful rescission as they sold all rights to the third party, thus effectually demanding the full balance before you had exhausted the time to remedy the law says you must have.

 

On the other hand, if the assignment was just equitable and the DCA was merely being 'prepped' in the background for the expectation of you not providing remedy I suspect it would be overlooked as technically the creditor still has control over the account and hasn't demanded the full balance.

 

However, with the above scenario if you had actually received a letter demanding the full balance from a DCA before the time had expired on the default sent by the original creditor then I believe that would be an unlawful rescission as again, you have not been given the full time the law says you must have.

 

There is a difference between an unlawful repudiation and an unlawful rescission as well, something I am also getting my head round.

 

In order to be able to accept the creditors unlawful rescission/repudiation you either need to have an invalid default notice which they subsequently terminate on with a letter demanding the full balance or..

 

A correct/invalid default notice that they then don't allow you to act on by prematurely demanding the full balance before the remedy date on the default notice, either themselves, or via a DCA.

 

Think that's about the jist of it all. What's critical primarily is the validity of the default notice and secondary the termination letter sent on the back of that default notice.

 

If a creditor therefore merely sends an invalid default notice it is of little value in itself unless the termination follows. The creditor can merely re-issue the default, this time corrected.

 

The termination and how/when it's done is the actual 'icing on the cake'.

[Gazza112]

Hi Haggis

 

This happened to me, in that MBNA sold my Account to CL Finance 4 days before the remedy date.

The Notice of asignment was dated 4 days before the remedy day, also the Court papers that was submitted stated the date that the account was taken over.

So all in all they made a big B........up in asigning the account.

 

Gaz

[Jim Pike]

 

There is a difference between an unlawful repudiation and an unlawful rescission as well, something I am also getting my head round.

 

 

This is what I was wondering as the 2 words are used, I thought meaning the same thing?

Which word is to be used in what context.

 

Sorry for being a bit thick, but some words on here go straight over my head, tis only by reading them in the full sentence that one can guess their meaning.

If anyone can give example of when either words should be used in preference to the other I would be obliged.

Many Thanks in advance

Jim

[emandcole]

 

Rescission.

Is a common law term which makes a contract void (ab initio) It is as if the contract never took place. The terms coming closest to rescission are termination and cancellation,

The Latin term "Ab initio " means, in a UK legal context: "from the beginning".)

 

The difference between the two terms;

 

Cancellation,

Still gives one a remedy,

 

Termination,

Does not (except for earlier breaches in the same contract).

 

Rejection.

differs from these other terms in that tender must first take place in order for it to be possible to reject. Rejection then triggers remedies

 

Repudiation.

Occurs before time for performance is due.

An overt communication of intention or an action which renders performance impossible or demonstrates a clear determination not to continue with performance.

cab

 

 

This'll help explain a few things

[nks22]

In my case (and I believe that of a few others) MBNA sold the account before the DN's remedy date. (See letter here: http://www.consumeractiongroup.co.uk/forum/mbna/224927-mbna-cca-legal-2.html#post2718166 ). Does this count as termination? Or could the new owner issue their own fresh DN and terminate on the back of that?

 

Would Pinky69's advice here be applicable: http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/218582-mbna-default-notice-termination.html#post2412891

"You do not have to worry about the DN. Apex bought the account on 18 February, only 12 days after the Default Notice had been issued,so 18 February is the date of termination - the account is terminated at the point of sale. Thus MBNA terminated the account before the time required in law - 14 days after receipt of the Notice - to remedy the alleged breach on the account. That is unlawful rescission and all that can be claimed from you is the arrears..."

[nks22]

Or can I expect to receive a Notice of Assignment and hope that its date is equally premature?

[MandM]

Or can I expect to receive a Notice of Assignment and hope that its date is equally premature?

 

If they sell the account it is ended - period, finished, no more, TERMINATED!!

 

Get an SAR in and it will give you the true date of sale/assignment.

 

M

[MandM]

On my MBNA one I got a letter from the 'new owner' before the DN ran out. When my SAR came back it turned out they'd bought it 5 days before the date of their letter - just made it worse for them

 

M