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

[vint1954]

Certainly a different agreement number to the account number. Shhhhhhhh

[cadwallader]

Unless they sell the debt before the 14 days is up, as they did with mine!

 

C

[vint1954]

Unless they sell the debt before the 14 days is up, as they did with mine!

 

C

Then that is definite termination before the fact.

[willtheywontthey]

I need to check also.

 

Sshh!

[gezwee]

I need to check also.

 

Sshh!

 

Lol, sometimes its the simplest things that please us the most

 

Can you lot start spreading the word round the MBNA threads when you come across one.....sure we're not the only ones this month, or last month, or the month before, or.................

[Artie44]

Thought that they had to terminate to claim the full ballance.

 

REF the Consumer Credit Act:

87 Need for default notice

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default

notice”) is necessary before the creditor or owner can become entitled, by reason of any

breach by the debtor or hirer of a regulated agreement,—

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum,

 

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'.

[vint1954]

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'.

Demanding the full sum is termination.

 

And in depth from surfaceagentx20.

 

My fellow Caggers, back to the general issue ..

 

May be it was my doing or we've just hung on to this word 'termination' like Rotweillers. The thing is, at least as I see it is, that where a creditor seeks early repayment or the return of goods following service of an ineffective DN, he is by his words and conduct expressing in clear terms that he is no longer willing to perform the essential obligations he promised to provide under the credit agreement. True, these words and conduct ride on the back of the debtor's failure to perform the debtor's essential obligations. But in this event the creditor has only to follow the procedure laid out in the Act and Regulations. And the Act says unless and until he has met the requirements of the Act and the Regulations, he acquires no such entitlement. Accordingly, to withdraw from the debtor the right to pay sums due by instalments or withdraw the right to continue with possession of the goods is to withdraw in breach of the statutory code which regulates the agreement.

 

The withdrawal of the debtor's rights may in one person's parlance be the same as the creditor's termination of the agreement. Just like 'default' in the words of one person may amount to 'breach' in the words of another. Or 'repudiatory breach' in the language of lawyer A is 'renunciation' in the language of lawyer B. Let's say though, for the purpose of the stream of thinking which follows, that strictly and legally speaking, withdrawal of these rights in default (or breach) isn't a termination of the agreement and that for termination strictly so called to have occured, the creditor miut have served a notice of termination. Does that mean therefore that the creditor's withdrawal and demand for early payment and/or return of goods is something the court can waive? Something the debtor can be expected to have understood was a mistake and unintended? That it is of no consequence?

 

I've got Chitty on Contracts General Principles (26th Edition) (1991). A bit out of date but good enough on General Principles I would have thought. And I'd thought I'd open it. Always a good idea when examining the contractual relationship of parties. Interestingly, 'termination' does not have an entry of its own in the umpteen page index at the back. It says in relation to Renunciation (and if you look up Repudiatory Breach it refers to to the same page number) that:

A renunciation of a contract occurs when one party by words or conduct evinces an intention not to perform, or expressly declares that he is or will be unable to perform, his obligastions under the contract in some essential respect. An absolute refusal by one party to perform his side of the contract will entitle the other party to treat himself as discharged, as will also a clear and unambiguous assertion by one party that he will be unable to perform when the time for performance should arrive. Short of such an express refusal or declaration however, the test is to ascertain whether the action or actions of the party in default are such as to lead a reasonable person to conclude that he no longer intends to be bound by its provisions. The renunciation is then evidenced by conduct. Also, the party in default 'may intend in fact to fulfil (the contract) but may be determined to do so only in a manner substantially inconsistent with his obligations' [Federal Commerce & Navigation Co Limited v Molena Alpha Inc (1979)] or may refuse to perform the contract unless the other party complies with certain conditions not required by its terms. In such a case, there is little difficulty in holding that the contract has been renounced.

 

If one party evinces an intention not to perform or declares his inability to perform some but not all of his obligations under the contract, then the right of the other party to treat himself as discharged depends upon whether the non-performance of those obligations will amount to a breach of a condition of the contract or deprive him of substantially the whole benefit which it was the intention of the parties that he should obtain from the obligations of the parties under the contract then remaining unperformed.

 

The renunciation must be made quite plain. In particular where there is a genuine dispute as to the construction of a contract, the courts may be unwilling to hold that an expression of intentino by one party to carry out the contract only in accordance with his own erroneous interpretation of it amounts to a repudiation and the same is truew of a genuine mistake of fact or law.

The demanding of early payment is to my way of thinking the immediate withdrawal of consent to all the remaining credit provided for under the agreement. Further, that it substantially deprives the debtor of the prime benefit he was to derive under it. Such a demand constitutes a breach of the regulated agreement save where it is demanded in compliance with the Act. If the demanding of such things is not tantamount to the creditor terminating the agreement, it is, nonetheless in my opinion, the creditor's renunciation of it. in consequence and in my opinion, the debtor may fairly regard himself as discharged from the agreement.

 

Chitty has this to say:

 

Consequences of Discharge - Effect on Contract

It has become usual to speak of the exercise by one party to treat himself as discharged as a 'recission' of the contract but as Lord Porter pointed out in Heymans v Darwin limited (1942):

'To say that the contract is rescinded or has come to an end or ceased to exist may in individual cases convey the truth with sufficient accuracy, but the fuller expresion that ther injured party is thereby absolved from future performance of his obligations under the contract is a more exact description of the position. Strictly speaking, to say that on acceptance of the renunciation of a contract the contract is rescinded is incorrect.'

This statement was unanimously approved by The House of Lords in Johnson v Agnew (1980) where Lord Wilberforce emphasised that this so-called 'recission' is quite different from recission ab initio as may arise for example in cases of mistake, fraud or lack of consent. It has also become usual to speak of the contract as having been 'terminated' or 'discharged' by the breach. Again however, these expressions may be somewhat misleading for they might suggest that the contract ceases forv all purposes to exist in that event. Such an approach was indeed adopted by the Court of Appeal in Harbutt's Plastercine Limited v Wayne Tank & Pymp Co (1970) so as to prevent the party in default from relying on an expemtion clause inserted in a contract which had been 'terminated' by breach. But this case was overruled by the House of Lords in Photo Production limited v Securicor Transport limited (1980). The true position was there stated to be, where the innocent party elects to terminate the contrsct, ie to put an end to all primary obligations of both parties remaining unperformed - that (per Lord Diplock) '(a) there is substituted by implication of law for the primary obligations of the party in default which remain unperformed a secondary obligation to pay money compensation to the other party for the loss sustained by him in consequence of their non-performance in the future and (b) the unperformed primary obligations of that other party are discharged.'

Given Diplock's statement of the position, may be to describe the agreement as 'terminated' following the events we are describing is, to adopt the words of Lord Porter, '.. to convey the truth with sufficient accuracy.'

 

FURTER.

I am yet to be persuaded that in the context of a regulated consumer credit agreement and the receipt of an express notice or activity on the part of the creditor consistent with termination, that the agreement does not terminate unless and until the debtor signifies by word or deed that he accepts termination. The damned notice of termination says what it says.

 

For sure in those cases where the termination amounts to the anticipatory breach of the agreement by one of the parties to that agreement the law says the innocent party should elect either to accept the termination or inform the terminating party that he requires them to perform their obligations owing under the agreement. But we're not concerned with an anticipatory breach by the creditor. It's not as if the creditor having agreed to give credit has then decided not to loan after all. What the creditor is doing is calling in the loan he has already made ahead of the time when it would ordinarily have been repaid.

 

But in a regulated consumer credit agreement, what in reality can the court genuinely expect the innocent, ordinary and unsophisticated debtor to a consumer credit agreement, who is strapped for cash, do in response to the demands of the creditor? Write a letter saying 'I accept your repudiatory breach of contract'?. Of course not. Well I say of course not. That is a ludicrous expectation to hold. Was the Court of Appeal ever concerned to ascertain in Woodchester v Swayne & Co that Swayne had accepted Woodchester's termination on the back of their ineffective DN? Mais non. Swayne & Co had done nothing. Swayne & Co were a firm of solicitors in Cardiff for crissake. Yet they still were treated to the benefits of the Act as one intended for the protection of consumers. Swayne were, according to claue 9.1 of the terms of the agreement between Woodchester and Swayne, in repudiatory breach of contract, entitling Woodchester to immediately terminate the agreement. But all the same, Kennedy LJ held that the provisions of section 87 dictated what Woodchester were required to do in order for Woodchester to become entitled to claim early payment and demand the return of the photocopier let on hire under the agreement. This was regardless of what the agreement said.

 

Indeed in the context of activity, if Swayne & Co had paid some money to Woodchester they would have done themselves a favour because those payments would have been applied to the credit of the arrears.

 

I appreciate that counsel for banks are currently advancing that the absence of some clear acceptance on the part of the debtor operates to negate the meaning and intent of the creditor's express termination. The latest clever arguments seem to be that a DN is not required at all where the agreement has no fixed duration. But that's counsel pushing at the boundaries and thinking out the box in a novel way. All good lawyers do that. They invent and shape their arguments to distinguish their case from those which suggest they're on a loser so as to suit the requirements of their client. They have no idea as they're inventing and shaping that the argument they've conjured will succeed. But they sigh with relief when they appreciate their opponent is a LiP.

 

I do not buy in to the notion that unless the debtor is active or inactive in a way somewhat different to the way he was active or inactive prior to the termination, that the agreement has endured despite the delivery of an express notice of termination, or despite activity on the part of the creditor which is in keeping with the creditor having terminated the agreement. Remember this : when Woodchester v Swayne was first decided, before it got to the Court of Appeal, Assistant Recorder Higginbottom found for the creditor on the basis that

 

"A default notice served under Section 87 and Section 88 is not rendered defective merely because the action indicated as required to be taken to remedy the breach is in fact over and above the action necessary to remedy that breach."

 

The Assistant Recorder did not add 'and because the debtor had failed to serve a notice of acceptance of termination or had conducted itself in a way different to the way it had conducted itself before termination or before the creditor behaved as if the creditor had terminated.'

 

Kennedy regarded the Assistant Recorder's judgment 'as a model of clarity'. But he still found the decision was wrong. He held quite the reverse to the Assistant Recorder. He held the DN was rendered defective because the action indicated as required to be taken to remedy the breach was in fact over and above the action necessary to remedy that breach. He did not qualify that view by saying it was reached owing to the activity or inactivity of the debtor or that his view would have been different depending on what activity or inactivity there may have been on the part of Swayne & Co. As we know, because Swayne got hit with a judgment for the actual arrears, Swayne did nothing.

 

Woodchester v Swayne is still good law. Swayne & Co did the right thing. They were well placed to do the right thing. They were a firm of lawyers. The right thing they did was to appeal the decision. The result speaks for itself.

 

x20

[willtheywontthey]

Had letter from so-called 'Experto credite' (silly name from Reading) saying they have bought the interest of MBNA in the account including the oustanding balance.

 

So - is this letter the deed of assignment? What should each party send to me if they debt been sold on?

 

Also - I guess I send off a cca request do I - the MBNA one was illegible and had 2 pages missing. MBNA also sent me a notice to pay ALL the account within so many days but never sent a DN for the minimum just general letters.

 

What is this company like?

 

How best to get them off my back.... Id clim the account is in dispute because of non cca compliance on legibility and missin paperwork ie 2 pages BUT I guess they will disagree?

 

thanks

[angel_1]

hiya willtheywontthey

 

have had the same letter it appears, so im subbing if i may but i will asking the same question too

 

so catch up later to see what the responces from the experts are

 

have a sunny day later angel x:)

[nuke em]

You can ask for a copy of the Deed of Assignment to prove MBNA have sold the alleged debt on. However if MBNA have sold the debt on ( even if they accepted a reduced amount from a third-party DCA) then that alleged debt is now settled in full as far as account ledgering is concerned for MBNA & yourself. ( ie lets say they accepted 8% from the third-party DCA then the other 92% will be taken as “bad-debt relief” on their books, all legit under inland revenue accounting rules) All comes to the same thing – your account at MBNA is now at Zero! – therefore you have no liability to MBNA.

 

Now if a third-party interloper has purchased an alleged debt for pennies in the pound and is coming after you, then they are only trying it on.

 

Simply put the DCA to Proof of their Claim… because you have no contract with them, period. And if they think you have, ask them to prove it in writing! By the way if you enter into any telephone discussions with them and agree to pay them anything you will have created a contract with them, so don’t talk to them on the phone, also don’t offer them any payment in a letter. Put the burden of proof on them always!

[jed52]

Thats interesting nuke em, so, does that mean that even if the dca comes up with a legitimate credit agreement, they cant enforce it through the courts because the original agreement was made with the original lender? Or is this where 'absolute assignment' etc comes in? jed

[nuke em]

of course if they cant prove they have purchased the debt then they only are acting as agents of the OC in which case a go forth and multiply Notice is in order , something like this will surfice

 

Name:

Address

xxxxxxxxx

 

Date , 2009

 

Re: XXXXXX, dated 09/07/2009.

 

Notice of Request To Cease Harrassment.

 

To:

A n other debt collector

addess

 

Dear Sirs,

 

Please read the following notice thoroughly and carefully before responding. It is a notice. It informs you. It means what it says.

 

I refer to your letter dated xx/xx/xx.

 

As you are a third party intervener in this matter acting without authority, I DO NOT give you permission to interfere in my commercial affairs as you have no legal standing. I do not have a contract with you and any permission that you believe you may have from me is hereby withdrawn. If you believe that you have power of attorney to act on my behalf you are hereby fired, and any consent that you believe you may have, tacit or otherwise, is hereby withdrawn.

 

I am familiar with the terms of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997. And I believe, should you continue in contacting me after my request for you to cease your activity, that you will be guilty of harassment and blackmail, and you will be in breach of these acts, and you will be reported to the relevant bodies.

 

I am well aware of Section 40, sub-section (3) which you may consider entitles you to proceed. However upon full commercial liability and penalty of perjury you will need to supply the following Proofs of Claims:

 

1. Proof of Claim that your actions are reasonable.

 

2. Proof of Claim that any obligation on my part is due, or believed by you to be due to you, and not to some other party.

 

3a. Proof of Claim that any obligation on my part is to yourself by providing sight of the appropriate contract, or

 

3b. Proof of Claim that any obligation on my part to persons for whom you act by providing sight of the appropriate contract.

 

4. Proof of Claim that any obligation on my part protects you from any future loss.

 

5. Proof of Claim that any obligation on my part is enforcement of a legal process on a Human Being under Common Law jurisdiction, who cannot possibly have such liability under said jurisdiction.

 

You would of course need to provide these Proofs, including showing the full and audited accounting, if you chose to go to law.

 

Please also note that if you contact me by telephone, after a formal request not to, you will also be in breach of the Wireless Telegraphy Act (1949) and, as such, I will report you to both Trading Standards and The Office of Fair Trading. And take further note that continued telephone calls after the receipt of a request not to call may constitute a criminal offence under Section 127 of the Communications Act 2003.

 

Finally, you do not, nor have you ever had, my permission to use or process my personal data in any way, and so pursuant to the Data Protection Act 1998, I hereby demand that you cease use of any and all data with regard to me, and that you immediately destroy all of my data held on your records. Failure to do so will result in a report being submitted to The Information Commissioner for Data Protection breaches.

 

You will be deemed to have been served notice of my request and I will deem it served three (3) days from the date of this letter. This has been sent by recorded delivery. I am advising you that any communications from you including but not limited to letters, phone calls and text messages received after this date will be recorded/noted with the intention of them being used as evidence.

 

Do not contact me again.

 

 

your name

 

( sign with a digital signiture if you have one , or diagonally across a 1p/2p/5p etc stamp if you don't , so that no-one can lift your signiture)

Edited September 26, 2009 by nuke em

[nuke em]

Thats interesting nuke em, so, does that mean that even if the dca comes up with a legitimate credit agreement, they cant enforce it through the courts because the original agreement was made with the original lender? Or is this where 'absolute assignment' etc comes in? jed

 

"Legitimate" & "credit card agreement" is an oxymoron surely!

 

"They" can assign, sell, give away or do what they like, but YOU have not at any any time entered into a contract with with the "receiving" DCA . Therefore if you have no contract with a DCA, YOU can not be made to pay them any money. Of course if they phone & harrass you and you agree on the phone " er .. oh yes i'll pay a fiver a week, then bingo you just created a contract with them to pay !!!!! , thats also why they phone you and will record the calls, if you agree.. its evidence of CONTRACT between you and the DCA

 

Thats also the reason for 'orible IVA, payment plans etc, to get you into Contract to AGREE to pay them something per week/month!

Edited September 26, 2009 by nuke em

[jed52]

"They" can assign, sell, give away or do what they like, but YOU have not at any any time entered into a contract with with the "receiving" DCA . Therefore if you have no contract with a DCA, YOU can not be made to pay them any money. Of course if they phone & harrass you and you agree on the phone " er .. oh yes i'll pay a fiver a week, then bingo you just created a contract with them to pay !!!!! , thats also why they phone you and will record the calls, if you agree.. its evidence of CONTRACT between you and the DCA

 

Thats also the reason for 'orible IVA, payment plans etc, to get you into Contract to AGREE to pay them something per week/month!

 

Whats confusing though, nuke em, is when you get a letter from the dca after you CCA'd them, they allways say something like 'We have requested the document you require from the original lender, once we receive the document we expect to be paid in full'. If they have bought the alleged debt, and the agreement was with somebody else, how can they expect any money when their name is not on the document? jed

[nuke em]

Whats confusing though, nuke em, is when you get a letter from the dca after you CCA'd them, they allways say something like 'We have requested the document you require from the original lender, once we receive the document we expect to be paid in full'. If they have bought the alleged debt, and the agreement was with somebody else, how can they expect any money when their name is not on the document? jed

 

I think the CCA route is a bit of a blind alley, its a good way of stalling them from the enforcement point of view, ( as i dont believe there any ANY valid Credit Card agreements , from a Contract law point of view) but doesn't make an alleged debt go away. it just mean they cant enforce it through the courts.. thats why the OC's keep appointing different DCA... and thats why different DCA peddle their own particular brand of "pay up or else" crap!

 

as regards "We have requested the document you require from the original lender, once we receive the document we expect to be paid in full'. Who cares what their expectations are! They DO NOT have an contract with you, therefore YOU do not have to pay them a bean! and if they think they do have, again , let them provide proof of their claim.

 

remember DCA's are always trying to trick you into a Contract because they know that without it they have squat!

 

Remember: Agreement of the parties = Contract

REmember: Agreement of only one of the two parties = No Contract

Edited September 26, 2009 by nuke em

[jed52]

Thought so, nuke em. Thanks

 

Sorry willtheywontthey, didnt mean to hijack your thread.

jed

Edited September 26, 2009 by jed52
addition

[willtheywontthey]

am I right then to believe that the OC selling to a DCA a 'debt' is never valid / legitimate unless you somehow agree to it once it has happened??

 

IF the OC did have a legit. CCA then permission to sell debt would be in terms and conditions?

 

I notice how FOS and ICO constantly make reference to the fact that it is 'likely' that this or that is in T+Cs (usually the power to process data).

 

Nuke'em - thanks very much. Is that latter the first one to be sent off do you think? I note your comments regarding cca being a handy stalling tactic.

 

Also regarding the OC - should I be making reference to the DCA that the OC should not have sold debt because of dispute or is all that in the past now?

[willtheywontthey]

Thought so, nuke em. Thanks

 

Sorry willtheywontthey, didnt mean to hijack your thread.

jed

 

 

carry on - helps me that other people put questions and give reponses - no worries.

[Sunshine54]

good morning

 

don't want to hijack this thread but did MBNA write and tell you that they had sold your debt?

regards

[Sunshine54]

me again

 

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

 

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)

 

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

[willtheywontthey]

no MBNA did not write to tell me but there is a new thread below by me regarding Credito Expertos Biggus Di**us buying the account.

[nuke em]

am I right then to believe that the OC selling to a DCA a 'debt' is never valid / legitimate unless you somehow agree to it once it has happened?? Yes, read my earlier posts, if the OC HAS sold the alleged debt on then you owe the OC nothing, You do not have to agree nor do you care that they have sold it on ( actually it is in your interest that they have) BUt what you have not/should never agree to is a Contract with who else has purchased it to pay them any money !

 

IF the OC did have a legit. CCA then permission to sell debt would be in terms and conditions? again, You do not have to agree nor do you care that they have sold it on ( actually it is in your interest that they have)

 

I notice how FOS and ICO constantly make reference to the fact that it is 'likely' that this or that is in T+Cs (usually the power to process data). again see reply above

 

Nuke'em - thanks very much. Is that latter the first one to be sent off do you think? I note your comments regarding cca being a handy stalling tactic. Get used to sending "Notices", they send you Notices, you send them Notices back. The Notice above should be sent to them if you believe that they have not purchased the alleged debt. If on the other hand they provide proof that they have purchased the debt, then a Notice would need to be sent requiring Proof of Evidence of Contract etc between the two parties ie You and the DCA

 

Also regarding the OC - should I be making reference to the DCA that the OC should not have sold debt because of dispute or is all that in the past now? again, another blind alley, remember if they have really sold the debt that is great news for you as you can't owe the OC anything as someone else, in this case a DCA (say 8%) and the Inland Revenue, via Tax relief granted to the OC ( say the balance of 92%) have cleared it for you

[Sunshine54]

hi Will,

 

I'll look for the link

thanks

X

[willtheywontthey]

thanks again.

 

So if I don't believe they have bought the debt I send the letter.... in fact I'd be daft to believe they did buy the debt wouldn't I? I think I am understanding your logic.

[nuke em]

thanks again.

 

So if I don't believe they have bought the debt I send the letter.... in fact I'd be daft to believe they did buy the debt wouldn't I? I think I am understanding your logic.

 

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

 

why would you be daft? if you went down the CCA route with the OC, they know that they prob dont have a valid CCA agreement and therefore can't enforce it, so quite often they do sell on blocks of alleged debt en-mass

 

thats how the DCA's make their hugh profits, buying "debt" for pennies in the pound & Then scaring people into contracting with them to pay them money