MBNA SAR response - is CCA enforceable please?

[cadwallader]

Yes, the default notice came via UKMail and there is an S on it. Is this significant?

 

Thanks

 

D

[vint1954]

Another point - as the DN from MBNA effectively terminates the account and they have forfeited the right to collect future due payments and can only collect arrears (which are not detailed in the DN) and as the account has, in my view, been in dispute since early May because of non-compliance with my s78 request, does that mean that the arrears I have to pay would be those due as at the date of dispute? (Always assuming the CCA is enforceable).

 

Thanks

 

C

I think that the DN falls on its content. It is a bit of a mess. I have just received one of these.

 

The usual and legal way is DN issued with details of the breach and ammount ( arears ) to be paid to remedy the breach and by when. I think if they ask for the full ballance in a DN, it is pure and simply defective. I am waiting for a further act of termination.

[cashins]

Yes, the default notice came via UKMail and there is an S on it. Is this significant?

 

 

YES - very significant!!

 

UKMail is regarded as 2nd class post - you need to allow 4 days for delivery.

 

sent on the 7th + 4 days means that the 24th Sept only gave you 13 days to remedy the breach - oh dear, they need to allow 14 days.

 

David

[uptoeyeballs]

I believe UK Mail items take an extra day as they have to be delivered to a Royal Mail hub. If I find where I read it I'll post it up.

[uptoeyeballs]

YES - very significant!!

 

UKMail is regarded as 2nd class post - you need to allow 4 days for delivery.

 

sent on the 7th + 4 days means that the 24th Sept only gave you 13 days to remedy the breach - oh dear, they need to allow 14 days.

 

David

 

Snap!

[cadwallader]

Thanks

 

C

[uptoeyeballs]

From UKMail website:

 

"We offer a Business Class, two day definite delivery service, or you can choose our Economy three day definite option."

 

Business Post | Services | Mail

[vint1954]

But the laws on service class their mail as second class. 4 days.

[supasnooper]

Hi supasnooper. Is s second class?

 

 

Yes, if the UKMail envelope has an "S" then it is deemed second class.

 

If you check the UKMail website it allegedly offers a three day timescale on this service.

 

A court would deem this as 2nd class and allow 4 days for deemed service.

[vint1954]

Thanks Supasnooper.

[cadwallader]

HAve now received letter dated 16 Sept (ie before expiry of 14 days given to rectify under DN) from mbna stating they have sold outstanding balance to Direct Legal.

 

Should I now write to mbna asking for a notice of assignment? If so, is there a recommended template for doing this? I can't see anything in the CCA 1974 about this so can anyone please tell me where the regulation sits?

 

Many thanks

 

C

[cadwallader]

OK, have found out that Sect 136 of Law of Property Act 1925 deals with the need to give notice of assignment. However, I can't see anything about any prescribed form or content. Does a letter that simply states the debt has been sold and who to count as a Notice of Assignment?

 

Sorry, can't scan letter at present but it is addressed to me, reference account: XXXXXXXXXXXXXX

 

Your outstanding balance due under the above account has been sold to Direct Legal-Dtl.

 

Direct Legal-Dtl's address is:

 

 

All enquiries regarding this account, including accurate balance information, together with future payments, should be made directly to this company.

 

Yours sincerely

 

Paul Campbell

 

 

Thanks

 

C

[cadwallader]

Have now scanned letter received from MBNA about sale of debt (see above).

Does anyone have a template for requesting the Notice of Assignment or is it a simple 'send me the notice of assignment as required under Sect 136 of Law of Property Act 1925' ?

 

 

Thanks

 

C

[lilly white]

136. Legal assignments of things in action.

— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

 

21. However, it is Section 196(4) that prescribes the requirements for giving sufficient notice by post:-

 

196. Regulations respecting notices.

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

22. It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

 

 

23. For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action.

 

 

24. Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that I am entitled, in any event, to view the document of assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824)

 

 

 

 

25. It is further averred that to be valid the the alleged notice of assignment must accurately describe the assignment including the date (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169).

 

 

Sums Claimed

 

 

 

[cadwallader]

Thanks lilly white. Looks like there may be plenty of opportunity for the creditor to screw up on this one!

 

C

[cadwallader]

Have now heard from Direct Legal advising they now own the debt.

 

 

Presume my first move is to CCA request them and NOT to tell them at this stage that there has been no notice of assignment & the Default Notice was invalid?

 

Thanks

 

C

[Pinky69]

You don't need to send them a CCA request as you have already done that with the OC. I think what you want to argue that Part 1 and Part 2 are not connected - a judge may not share that view. However, the heading on the alleged agreement is wrong - it should be "Credit Card Agreement" - not "Credit Agreement." I would dispute the debt on more solid ground - that the DN is unlawful in that it demands the full balance of the account and does not give you the opportunity to remedy the alleged breach of arrears. Selling the account is an act of termination by MBNA and selling an account after issuing an unlawful DN is unlawful rescission of account - end of. Don't tell Hillesden that all you need to pay are the arrears as they probably don't know.

 

Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but gives rise to a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

 

Now, this will eventually be passed to Tony Locke at Hillesden. He will try all sorts of tricks to get you to pay, including claiming to be a third company, MDB - that too is Hillesden. He uses a false address on MDB's stationary - it doesn't exist and that will be a complaint to the OFT. I think the easiest thing to do is just take one step at a time and post as you go along.

[cadwallader]

Thanks Pinky. Will work on the letter and post for comment before sending. May be a couple of days as working long hours at the moment!

 

C

[teaboy2]

LOL atleast you recieved a notice of assignment as i have invalid DN and only found out the account was sold when the DCA phoned me and told me, even then it was sold prior to the DN being issued. Naughty naughty MBNA.