MBNA - say defaulted me but send a default notice???

[Undercover-Elsa]

Hi Willtheywon'tthey,

How you doing hon?

Could you post up your letter for more input from other Caggers before you send it...

Regards,

Elsa xx

[nuke em]

somehow got googled to the tpuc forum a few weeks back - ddn't read rest of site., go back to it , it has some v good remedys you wont find on mainstreeam sites Anyhow am sending off the contract 'prove it' letter to these Credite Experto lot. Am now wondering rationale ehind MBNA selling some to Link and some to Credite Expertos... ?

same method/Notice applies, have they sold the debt or are they just acting as agents....?

[willtheywontthey]

thanks all.

 

the letter is in this thread somewhere as posted by nuke em.

 

will try to read that site but find it difficult still sneaking on here so partner does not know details. our fiances separate so that is why. do not like him knowing and would be same way if I had savings so that is just me.

 

typing on mobile so apologies for typos and lack of links etc.

[willtheywontthey]

only letter so far is from credito expertiosus saying that oc sold it to them. also letter by experto crudito dated before oc's dodgy dn ran out.

[nuke em]

sounds like you need to send them the same Notice

[Undercover-Elsa]

Hi again Willtheywontthey,

The quote below by the venerable Richard Spud may throw more light on

Deeds of Assignment (the Deed being the document exchanged between the Bank and the DCA referencing the sale of the account)

The Notice of Assignment is the letter they are obliged to send to you notifying you of the assignment, and should, I believe, be sent by recorded delivery.

 

COPY OF DEED OF ASSIGNMENT OF A DEBT

 

It may help if I suggest that while there is no obligation for a Creditor Assignee to provide a copy of a DOA when a request is made by a Debtor under ss.77,78 of the CCA 1974, there is no restriction on requesting the voluntary production in support of a claim of assignment. However, I doubt if a Creditor Assignee (or indeed the Assignor) would provide this information as the DOA would undoubtedly contain the consideration (the sum) paid by the Assignee. Nevertheless, I submit that if proceedings have been instigated in the County Court by the Creditor Assignee, then I believe the Defendant Debtor could serve on the Claimant a Part 18 Request For Clarification And Further Information (under the Civil Procedure Rules) referring to the DOA and enquiring if it is to be pleaded. I understand that a response is required to by way of a Statement Of Truth and any copy documents on which the Claimant intends to rely should be annexed thereto –the original documents to be produced at a subsequent hearing for inspection by the Court and the Defendant.

 

I assume that it is known that for a legal assignment (as opposed to an equitable assignment) of a debt to have effect so that the Assignee can sue in their/its own name, the requirements of the Law of Property Act 1925 need to be fulfilled and that the assignment is not effective until the Debtor has received a Notice of Assignment – not the date when the Notice of Assignment was posted. Consequently, should a Creditor Assignee be unable to provide evidence of service and the Defendant has not received a Notice of Assignment when proceedings have already been brought in the County Court then, I suggest, it might be reasonable to file an application for the Claim should be struck out on the grounds that Assignment has not been pleaded and that proceedings cannot be brought prior to the service of a Notice of Assignment.

 

Authorities to check:

 

Law of Property Act 1925 s.136

 

Holt v Heatherfield Trust Ltd [1942] 2 KB 1; Holwell Securities Ltd v Hughes [1973] 2 All ER 476 [1973] 1 WLR 757

 

Having read through your whole thread I don't feel you should acknowledge the NOA if it wasn't sent recorded. If this goes to court they would need to prove you got it, as above.

Just my opinion, and I would welcome other input, but I would hang fire on this until they write again and show their hand.

Then send them the recommended CAG dispute letter on debt being passed on (HERE) on the basis that an illegible Credit Agreement does not fulfil your CCA request. Amend it carefully to suit and post on here before you send.

You should also plan to send MBNA a SAR at some stage soon, using THIS CAG template to get the full picture, making sure you also specify on there that you require a copy of the SIGNED credit agreement.

Hope this helps,

Understand completely about your OH..apart from anything else they just wouldn't understand what/why you're doing anything without genning up on Consumer Law on CAG first as we do!

Take care hon,

Elsa x

Edited September 29, 2009 by Undercover-Elsa

[vint1954]

Hi Willtheywon'tthey,

How you doing hon?

Could you post up your letter for more input from other Caggers before you send it...

Regards,

Elsa xx

Hi wiltheywontthey,

 

Elsa is right, belt and braces, best to post the letter before it is sent. It is important to get the right letters to the right people and in the right order.

 

I have just quickly read through your thread. Excuse me if I have got it wrong.

 

In your first post, you ask if the letter that you have received from DCA is the deed of assignment. The Deed is between MBNA and the DCA. You are unlikely to get sight of this, until near the court case, if ever. They will kick and scream.

 

What you are looking for is a Notice of Assignment. This should have been sent to you by registered post, prior to MBNA selling the debt, advising you that they are selling the debt.

 

Sorry if I am going over old ground but:

 

1. Have you made a CCA request to MBNA or DCA. This is where you send £1 in an effort to gain a copy of your agreement.

 

2. Have you received a Default Notice from MBNA. This will make reference to being served under s87 of the act.

 

3. If you have received a Default Notice, there are 2 important dates on there. First is the date that the letter was sent, second is the date that they gave you to rectify the default by.

 

4. In addition, the amount required to rectify the default in the notice. Was it the full amount of the debt, or just arrears.

 

And finally for now, there are 2 types of assignment. You need to find that point out.

 

Vint

[willtheywontthey]

thanks. had liked the Idea of sending the contract letter (see pages 2 I think on this thread) but since I had not received anything from oc and this dca letter was not registered then possibly you are right that I should ignore. or should it be a cca to the dca... or the contract letter.... or even nothing. am confused which route to take now with this dca.

 

1. cca asked, got from mbna ages back. two pages missing and not legible. also dodgy on prescribed terms so far. not sent to this dca.

 

2. DN of sorts from mbna. wanted total of debt not balance. dca wrote letter saying debt sold before pay by dnotice date. no termination letter or anything from mbna since this default notice.

 

3. think I did a thread at the time about dates and think date out by day or two because of post etc but pay in full biggest issue I think in what is allowed?

 

4. full amount,

 

I need to find stuff out you are right but being told also not to remind them of noa if they have not sent one if that makes sense? guess a sar should sort that out without being obvious??

 

thanks ...

[Undercover-Elsa]

Hi hon,

I'd personally not acknowledge the NOA and just wait till they show their hand, but I would definitely send a SAR to MBNA.

Elsa x

[vint1954]

thanks. had liked the Idea of sending the contract letter (see pages 2 I think on this thread) but since I had not received anything from oc and this dca letter was not registered then possibly you are right that I should ignore. or should it be a cca to the dca... or the contract letter.... or even nothing. am confused which route to take now with this dca.

 

1. cca asked, got from mbna ages back. two pages missing and not legible. also dodgy on prescribed terms so far. not sent to this dca.

 

So this is faulty. Did you put the account in dispute?

 

2. DN of sorts from mbna. wanted total of debt not balance. dca wrote letter saying debt sold before pay by dnotice date. no termination letter or anything from mbna since this default notice.

 

I have looked again at the DN. This is faulty on 2 counts.

 

3. think I did a thread at the time about dates and think date out by day or two because of post etc but pay in full biggest issue I think in what is allowed?

 

4. full amount,

 

I need to find stuff out you are right but being told also not to remind them of noa if they have not sent one if that makes sense? guess a sar should sort that out without being obvious??

 

thanks ...

If you want, I can draft a simple letter for the DCA, just to tease the current situation out from them.

 

Just to simplify things.

 

1. MBNA have a faulty and illegible agreement.

 

2. MBNA have issued a faulty default notice, faulty on 2 counts.

 

3. Need to find out if DCA owns the debt.

[vint1954]

I would be inclined to send this to the DCA to start with.

 

Ref Account xxxxxxxxxxxxxxxxxxxxxxx

Dear xxxxxxxxx,

 

I was somewhat bemused to receive your letter of xxxxxxxxx 2009, the content of which is noted. No debt to your company is acknowledged.

Your letter states that you are the new owner of the alleged debt. Please confirm if this debt was sold to you under a Deed of Assignment, Absolute, or as an equitable assignment. Please note, I do not require sight of a copy of this deed, at this point, just confirmation of the type of assignment.

 

On xxxxxxxxxx 2009 I made a formal request to your client pursuant to s.78(1) of the Consumer Credit Act 1974. MBNA have failed to comply within the statutory time limit, supplying illegible and inadequate documentation. This alleged account was placed in dispute with MBNA on the xxxxxxxxx 2009. It should not be necessary to have to remind you that the provisions of s.78(6) now apply. These letters are enclosed.

 

In the circumstances, your current threat of legal action would appear to be a breach of the Consumer Protection from Unfair Trading Regulations 2008 and the Office of Fair Trading Guidance on Debt Collection and your attention is drawn to this guidance document.

Your attention is also drawn the ICO on Data protection, as passing details on to a third party while an account is in dispute is contrary to the Data Protection Act. I have previously issued letters to MBNA under s10 of this act. You may wish to refresh yourselves of the implications of ignoring the Data Protection Act.

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be considered vexatious and unlawful. The Court's attention will drawn to the above statutory breaches . Furthermore, I reserve the right to bring the conduct of your client to the Court when the issue of costs is being considered.

I would remind you that while this alleged account remains in dispute, that MBNA or indeed yourselves:

• May not ask for payment against this account.
  
• I am not obliged to offer any payment against this account.
  
• Cannot register any data with a third party.
  
• Cannot take any enforcement action, including registering Defaults.
  
• Cannot pass the account on to a third party for collection.
  
• Cannot sell the account.
  

I trust this out lines the situation and that you will take note of my comments, to avoid any further breaches of the Law, being committed by you or MBNA.

 

[willtheywontthey]

Thank you. That's great - but could you have a look at the 'contract' letter and tell me if that's to be sent at all?? It is different to usual method and has dfferent rationale so thought perhaps that would be a good one to use. see no 5 post on this thread..

[willtheywontthey]

Just read the letter from this DCA again and they say it debt was bought by Varde Investments (Ireland) Ltd and under terms of agreement they (the DCA) has been appointed to recover any and all debt.

 

so do I send the letter from Vint (above) to these Varde people whoever they are or to the DCA - asking this because the DCA is acting on their behalf so I guess they do not have this assignment - unless of course they are in-house. Sorry not to have noticed this before even though it was in front of my face!

[vint1954]

Thank you. That's great - but could you have a look at the 'contract' letter and tell me if that's to be sent at all?? It is different to usual method and has dfferent rationale so thought perhaps that would be a good one to use. see no 5 post on this thread..

Well, bears no relationship to any debt related letter that I know of.

[vint1954]

Just read the letter from this DCA again and they say it debt was bought by Varde Investments (Ireland) Ltd and under terms of agreement they (the DCA) has been appointed to recover any and all debt.

 

If they are the owners of the debt, then letter in post 5 most inapropriate. Your original creditor would need to issue you with a Notice of Assignment, informing you that your debt was being transferred. Do you have one of these?

 

so do I send the letter from Vint (above) to these Varde people whoever they are or to the DCA - asking this because the DCA is acting on their behalf so I guess they do not have this assignment - unless of course they are in-house. Sorry not to have noticed this before even though it was in front of my face!

Send the CCA request letter to the DCA chasing you and wait 14 working days.

[Undercover-Elsa]

Hi Willtheywontthey

In the light of what you've said, I totally agree with Vint.

I'd personally go with his advice

Elsa x

[willtheywontthey]

thanks - that makes sense. Don't want to encourage a legal NOA. Am thinking of sending three letters to overdose the DCA.

 

1. SAR (it creates work for them)

2. CCA - gives them extra hassle although they'll probably send illegible copy etc

and

3. the letter above with some additional information about other ongoing complaints about MBNA with ICO, FOS and the log OFT made about an MBNA complaint I made some while back. This should give them a picture that I'm not a push over?

 

Do I need to mention anything about their clients at all in the letter??

[willtheywontthey]

then again maybe one letter for now?

 

Am used to sending CCAs but thought I'd blast them with other requests? Good / bad idea / indifferent?

 

ps 'am almost there'!

[willtheywontthey]

somebody linked earlier today to the correct updated CCA template - cannot find it. I need nappies I think as am absolutely useless today. I don't think it's the template library one?

 

On separate issue I thought they did not need to supply a 'true' copy of a cca???

[Undercover-Elsa]

Hi Hon.,

As far as I know, THIS is the current CCA.

Until we see what they send back, it's suck it and see, as some have wised up to the "true copy" loophole but some haven't.

If you send a SAR too, which I would advise, it needs to go to MBNA this also should include the agreement.

It's an evolving situation..largely thanks to CAG, because the more people who challenge and show they know their rights, the more the DCA's wriggle and squirm and try to find ways to avoid the issue.

Just stick with the tried and tested CAG templates, unless anyone proves to you that they've actually had success by other routes

Elsa x

[GirlAloud]

Great post - MBNA told me my debt (10k - mastercard) has been sold to Hilsden securities/DLC. They have written to me today saying ring now and enclosing a payment options form - which amongst other things asks about employment details/do I own my house etc. Idiots. My letter (or shall I just not bother sending!):

 

I am presuming that having purchased this alleged debt; you have also purchased the history, so I will ask that review all previous correspondence with MBNA for further detail.

 

I require you to supply the following documentation before I will correspond with you further on this matter.

 

1. You must supply me with a true copy of the agreement related to this account. This is my right under your obligation to supply a copy of the agreement, under the legislation contained within s.78 (1) Consumer Credit Act 1974.

2. A full statement of account.

3. A copy of any other documents referred to in the agreement.

I understand that under the Consumer Credit Act 1974 (Sections 77−79), I am entitled to receive a copy of our credit agreement on request. I enclose a payment of £1.00 which represents the fee payable under the Consumer Credit Act. Please note that under no circumstances should this payment be set aside any alleged debt. If you are unable to supply the documentation requested, this fee should be returned.

I understand a copy of our credit agreement should be supplied within 12 working days.

Please note that I am making a specific request that contact with me is in writing only and I will not deal or discuss this matter over the telephone. I will consider any contact by telephone as harassment and will make an appropriate complaint via my solicitor. Other actions I will consider harassment include (but not limited to):

- Threats of ‘home visits’ (you have absolutely no legal right to attend my home without my express permission)

- Attempts to contact any third parties without my express permission, including but not limited to my employer, neighbours or family

- Repetitive contact by post

- Any type of ‘postcard’ or similar sent without envelope

Please be aware, I have recently claimed (and won) a case for harassment against a company who breached the above requests.

I am presuming your company adheres to the OFTs Guidance on Debt Collection, together with those issued by the CSA.

I note your inclusion of a payment options form, which I have returned as I do not consider any of the questions on that form of direct relevance to you.

[willtheywontthey]

right got one letter sorted and have added the cca at the bottom.

 

phew and thanks ever so much to everybody. Much appreciated. Will update when I hear more from any of the parties. Now I'm off to hassle the CRA people on another thread!

 

Would be interested if others want to add to this thread regarding the topic of 'debts sold to dcas' as all advice and opinions always helpful.

[willtheywontthey]

just found this identical situation - any ideas as to what MBNA are playing at?

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/219440-default-notice-received-mbna.html

Have they sold it or is the DCA lying?

 

Is an overseas company allowed to buy / pursue etc?

[jed52]

This is a bloody interesting thread, everyone. Its certainly learnt me a thing or two about the 'contract' aspect. Its a side I hadnt considered before.

 

Scales tipped nuke-em.

jed

[vint1954]

then again maybe one letter for now?

 

Am used to sending CCAs but thought I'd blast them with other requests? Good / bad idea / indifferent?

 

ps 'am almost there'!

You have already sent CCA requests. No need to do it again.