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

[willtheywontthey]

How do I get the notice or deed of assignment and off whom? Should I SAR this DCA then for more detail?

 

I think there's obviously been a mass sell-off by MBNA in last dew days as it seems a few people who had the strange default letter which wasn't a default letter also got this letter from the DCA.

 

Perhaps I should ask to merge this thread now with my MBNA one... mods anywhere think this a good idea but with title change to MBNA sold debt to DCA or something like that?

[willtheywontthey]

If you dont believe they have purchased an alleged debt... then send the Notice, correct , thats what i would do

 

 

what should I do if I think they have bought the alleged debt then??

[nuke em]

How do I get the notice or deed of assignment and off whom? Should I SAR this DCA then for more detail? The OC would have to provide the evidence that they have sold the alleged debt on, so yes you would have to obtain this info from them, via a SAR if they wont play ball

 

I think there's obviously been a mass sell-off by MBNA in last dew days as it seems a few people who had the strange default letter which wasn't a default letter also got this letter from the DCA. its possible of course

 

Perhaps I should ask to merge this thread now with my MBNA one... mods anywhere think this a good idea but with title change to MBNA sold debt to DCA or something like that?

 

ok see above

[nuke em]

what should I do if I think they have bought the alleged debt then??

 

First: Establish via the OC if & when they have sold the debt, if they provide evidence that they have sold the alleged debt then do the second below

Second: When the DCA contacts you claiming money, put the DCA to proof of claim of a contract between you & the DCA

[willtheywontthey]

thanks

 

I have not received any notice of assignment from MBNA so I think I probably have to respond to the DCA (your letter) first as I basically do not have any evidence other than their letter that they bought it do I? The OC will take a while to get back to me so best I send something off to DCA in meantime?

 

Have also copy/pasted some information on NOA from elsewhere on CAG - seems MBNA should send the NOA registered? Somebody was asking if there should be prescribed layout and got no response - good question. Also would like to know if the DCA is allowed to communicate /ask for payment / process my personal data etc IF the OC has not sent me the NOA... Should I not get NOA first or is this just wishful thinking on my part?

 

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).

 

[nuke em]

thanks

 

I have not received any notice of assignment from MBNA so I think I probably have to respond to the DCA (your letter) first as I basically do not have any evidence other than their letter that they bought it do I? The OC will take a while to get back to me so best I send something off to DCA in meantime? yes i would, send my notice

 

Have also copy/pasted some information on NOA from elsewhere on CAG - seems MBNA should send the NOA registered? yes they should if they have sold it Somebody was asking if there should be prescribed layout and got no response - good question. Also would like to know if the DCA is allowed to communicate /ask for payment / process my personal data etc IF the OC has not sent me the NOA. The DCA is "Allowed" to do what ever they want, after all it is their business that they are running... but dont focus on trying to haul them over the coals for their bad biz practices, they all do that ..just keep your focus on whether you have a Contract with them or not Should I not get NOA first or is this just wishful thinking on my part? yes you should but in reality the DCA do not do any due dilligence of debts they purchase , they just want to come after you and create a contract between the parties

 

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).

 

see above for answers

[willtheywontthey]

Thanks again. It seems this contract aspect is not something mentioned much on CAG but seems ever so important and obvious so many thanks for the enlightenment.

 

I now have two letters sorted and will post on MOnday by special delivery. THe letter you suggested (thanks) and a SAR to them also.

 

Am also contemplating sending another SAR to MBNA and a letter to them asking for NOA in particular. Any links to letter template or suggestions for this document from MBNA? Shoulf I paste some fo the legal jargon above? MBNA have one hell of a reputation for not replying or admitting receipt of letters even after being sent by cpecial delivery.

[Basil Fawlty]

Sorry for asking, I'm quite new to all this at the moment and am going the CCA route with MBNA, but why would a DCA buy a debt knowing full well they cant legally enforce it because of no contract with the debtor? Is it purely just to try it on and frighten people into paying when they shouldnt be?

 

BF

[vint1954]

me again

 

I've just checked the DN and it's got the wrong card number on it

 

Did you expect them to get something right:D

 

I've also received a letter from another company saying that they've bought the debt and are now the legal owners and they quote the same incorrect card number as the DN (and they dated the letter before the end date to remedy the breach on the DN, which was also asking for the full amount)

 

Before they can sell the account they must a) send a valid Default Notice, b) terminate the agreement in writing, c) send you a legal notice of assignment.

 

not sure how many things they've got wrong on this.

 

I would try:

Dear Sir/Madam

 

Account no: New account Number

 

You have contacted me/us regarding the account with the above reference number, which you claim is owed by myself/ourselves.

 

I/we would point out that I/we have no knowledge of any such debt being owed With this account number.

 

I am/we are familiar with the Office of Fair Trading Debt Collection Guidance which states that it unfair to send demands for payment to an individual when it is uncertain that they are the debtor in question.

I would also point out that I am familiar with CPUTR 2008.

 

I/we would also point out that the OFT say under the Guidance that it is unfair to pursue third parties for payment when they are not liable. In not ceasing collection activity whilst investigating a reasonably queried or disputed debt you are using deceptive/and or unfair methods.

 

I/we would ask that no further contact be made concerning the above account unless you can provide evidence as to my/our liability for the debt relating to the above account number in question.

 

I/we await your written confirmation that this matter is now closed. Otherwise I will have no option but to make a complaint to the trading standards department and consider informing the OFT of your actions.

 

I/we look forward to your reply.

 

 

[nuke em]

Sorry for asking, I'm quite new to all this at the moment and am going the CCA route with MBNA, but why would a DCA buy a debt knowing full well they cant legally enforce it because of no contract with the debtor? Is it purely just to try it on and frighten people into paying when they shouldnt be?

 

BF

 

most people have no clue about all of this and it is this ignorance that they prey on , its very profitable for them! plus remember the DCA tries to make a contract with the alleged debtor, thats why they call you on the phone etc

[jed52]

Exactly B F, the tone of their letters and the jargon they use can, and does, sometimes frighten people into making arrangements with them, when 9 times out of 10, they havent actually got a legal leg to stand on.

jed

[nuke em]

Thanks again. It seems this contract aspect is not something mentioned much on CAG but seems ever so important and obvious so many thanks for the enlightenment.

 

I now have two letters sorted and will post on MOnday by special delivery. THe letter you suggested (thanks) and a SAR to them also.

 

Am also contemplating sending another SAR to MBNA and a letter to them asking for NOA in particular. Any links to letter template or suggestions for this document from MBNA? Sorry, i dont have a template for asking for the NOA, maybe there is one kicking around on these forums though Shoulf I paste some fo the legal jargon above? MBNA have one hell of a reputation for not replying or admitting receipt of letters even after being sent by cpecial delivery.

 

in my humble opinion the Contract route is the correct way to thwart these bandits

[nuke em]

Exactly B F, the tone of their letters and the jargon they use can, and does, sometimes frighten people into making arrangements with them, when 9 times out of 10, they havent actually got a legal leg to stand on.

jed

 

 

correct a mundo , fear & intimidation is their only weapon

[creditman09]

Just to say that I have had the same letter from Experto Credite. However, as I am with claims management company and now have solicitor in place, I have written to them pointing this out.

 

If you look at Tricky Dickie posts the route that I am going down.

[Basil Fawlty]

I'm shocked to be honest, that they are allowed to flaunt the law like this.

I've been reading this excellent forum for months now and thought I'd learned the major points but this is news to me, so I'm glad I stumbled on this thread.

 

So, if we are going through the CCA route, and they look like they dont have one (which appears to be the case with cards I have with Barclaycard and MBNA), chances are they will sell on to a DCA, and that should be the end of it? Obviously, its in our interests that they do sell on.

 

BF

[willtheywontthey]

well just checked the paperwork and the so-called DN that MBNA sent (details in another thread) did indeed have incorrect account number (have they sent same incorrect account number to everybody?) and this is the account number El Crudito are also using.

 

So I guess my account hasn't been sold if they've bought one with incorrect account number??? Or has it been sold even if account number incorrect? Puzzle.

[gezwee]

Doesn't this mean that demanding earlier payment of the full balance can be done separately from termination and it should not be construed to mean the creditor has terminated. Otherwise it would say 'to terminate the agreement and to demand earlier payment of any sum'.

 

S.88 identifies that the nature and sum of the breach (arrears) must be included. You cannot be in breach of the total account balance until said account has been lawfully terminated.

 

If the total balance is required this implies that the account has been terminated pre-default not post.

 

Gez

[alfwithhair]

This wrong account number stunt has been going on for years. I have MBNA default from 2007/8 with the wrong account number on it.

 

All they will tell you when you query it is the account number was changed when it went to the collection department.

 

However, I have been told by a reliable source that there is a bit more to it than just their incompetence.

 

They chrge the account off under the original acc number ,then issue the default notice with this new number that they never bother to tell you about (only found out myself after some idiot at Cabot sent me the screen dumps of the internal working of the account in reply to a CCA request)

 

It is then farmed out for collection under the new number before the remedy date of the default. then sold soon after.

 

I am led to believe the reason for this is a tax dodge as they charge off the original debt (tax loss) then invent a new debt with a different acc number, which is sold (more money back for the same debt) and if the do initiate court proceeding they will use the old acc number in their claim.

So all a con to recover as much as they can one way or they other.

 

I am not certain if this is 100% accurate, but have no reason to dis-beleive the person who told me

[willtheywontthey]

Should I bother sending MBNA a letter in response to their dodgy DN account number now that it seems they have sold it on to a DCA - is this advisable bearing in mind they sold the 'wrong' account or will they just send another 'correct' one ans sell my proper account. If they have sold incorrect account then that surely means they actually have not sold mine does it not?

 

I'm now getting confused due to this issue just when I thought I'd got myself clear on the issues....

[Artie44]

S.88 identifies that the nature and sum of the breach (arrears) must be included. You cannot be in breach of the total account balance until said account has been lawfully terminated.

 

If the total balance is required this implies that the account has been terminated pre-default not post. Gez

 

Just trying to understand this point with certainty.

 

If an unlawful DN, demanding arrears, is followed or preceded by a demand for payment of the full balance, is that definitely the same as termination and an unlawful recission of the contract?

 

Is a court likely to see it that way or would it be prudent to await the creditor stating that the account is closed or terminated?

Do 'closed' and 'terminated' have the same meaning here?

[gezwee]

RBS play the same game, assume most financial institutions will in order to recover tax and inflate book value on assignment.

 

Hard to see how they can lawfully issue new agreement number without a correctly consigned regulated agreement. Guess they could assign from one to the other with prior agreement from all parties but this would require a new signed agreement to be in place or a lawful termination pre assignment.

 

Think I'll stick with the same line I've taken with all of the others, no acknowledgement of debt with DCA

 

Gez

[gezwee]

Just trying to understand this point with certainty.

 

If an unlawful DN, demanding arrears, is followed or preceded by a demand for payment of the full balance, is that definitely the same as termination and an unlawful recission of the contract?

 

Is a court likely to see it that way or would it be prudent to await the creditor stating that the account is closed or terminated?

Do 'closed' and 'terminated' have the same meaning here?

 

They could issue a correctly prescribed DN stating all necessary info including breach and remedy prior to default and they can have numerous attempts to get this right prior to termination. They can ask for full balance at any time but it would not take precedence over a DN and you would not be lawfully obliged to pay the full balance at any time pre termination.

 

By issuing an 'invalid' DN ( i believe would be for a DJ to make the ultimate decision) followed by a notice of termination they would have unlawfully rescinded the agreement.

 

They may rectify the dodgy DN at any time prior to terminating although I personally wouldnt give them the heads up on yours being duff.

 

By assigning (selling) the debt to a 3rd party they are effectively rescinding/terminating the agreement prior to allowing a lawful remedy of any earlier breach.

 

Gez

[nuke em]

I'm shocked to be honest, that they are allowed to flaunt the law like this.

I've been reading this excellent forum for months now and thought I'd learned the major points but this is news to me, so I'm glad I stumbled on this thread.

 

So, if we are going through the CCA route, and they look like they dont have one (which appears to be the case with cards I have with Barclaycard and MBNA), chances are they will sell on to a DCA, and that should be the end of it? Obviously, its in our interests that they do sell on.

 

BF

 

Should be the end of it yes, but dont forget that the DCA's dont look at it like that, they think .. i purchased for pennies i want pounds back! its all a game really......... SO DONT PLAY!

[nuke em]

well just checked the paperwork and the so-called DN that MBNA sent (details in another thread) did indeed have incorrect account number (have they sent same incorrect account number to everybody?) and this is the account number El Crudito are also using.

 

So I guess my account hasn't been sold if they've bought one with incorrect account number??? Or has it been sold even if account number incorrect? Puzzle.

 

Well if they have not even got a valid account number then you cant owe anyone anything under that invalid account number now can you!!!

[nuke em]

Should I bother sending MBNA a letter in response to their dodgy DN account number now that it seems they have sold it on to a DCA - is this advisable bearing in mind they sold the 'wrong' account or will they just send another 'correct' one ans sell my proper account. If they have sold incorrect account then that surely means they actually have not sold mine does it not?

 

I'm now getting confused due to this issue just when I thought I'd got myself clear on the issues....

 

No, why help them with their administration ?

 

of course you could always send them a NOTICE of FEE SCHEDULE informing them that any correspondence you are asked to send them would be charged at say £250 per document!