Invalid DN and now passed to DCA - best course of action?

[jessie_girl6]

Hi all

 

Just looking for some ideas on how to proceed here.

 

We are now in a DMP with Payplan and about 50% of our creditors are OK with this. However, I had a card with MBNA for about £15K and they just wouldn't play ball and sold the debt onto a DCA.

 

I've just noted that the DN issued by MBNA was invalid for 2 reasons: (1) it didn't give me the prescribed 14 days and (2) it was asking for full balance not arrears.

 

So, given that MBNA no longer own the debt, what should I do now with the new owner? Should I point out that the DN was invallid? I don't have any other paperwork (original CCA, letter of assignment) - should I SAR MBNA or the new DCA?

 

Thanks in advance

JG

[willtheywontthey]

Do you not have a CCA because they did not send you one - have you requested one from MBNA at all?

 

I always send off the usual 'send me a CCA' letter to DCAs with £1 (recorded or special delivery)

 

I also send £10 for a full SAR to see if anything else turns up.

 

ps - am in similar boat with MBNA (illegible cca and a dodgy DN) as are many on here (several similar threads a month or two ago)

[willtheywontthey]

Also - who are DCA - and did they say they were acting on behalf of MBNA? Or have they bought it?

[jessie_girl6]

Hi there WillTheyWontThey

 

Funny that you should be the first to respond as I'm just reading your thread. Interesting reading, but I've got my head in my hands now because I have actually made one month's payment to the DCA (the same as yours!) via Payplan. So, it looks like I've gone and created a contract between us.

 

But to answer your questions, yes, they allege they have bought the debt (and again like yours before the DN was fully up); I haven't yet done either a CCA or SAR as I was preparing to repay via Payplan.

 

Do you think I have a chance to get this DCA off my back?

 

JG

[silverfox1961]

Hi

Keep quiet about the faulty DN for now. This is so you can definitely confirm the account has been terminated.

A SAR to MBNA should bring back screenshots of the account history.

CCA the DCA, This will slow them down and possibly put the account into dispute should they fail to supply the agreement.

 

If you need more help just shout.

 

 

fox

[silverfox1961]

Don't worry about the payment. Too late anyway:)

 

This isn't about the money. It's now about whether the DCA (WHO???) has the right to be collecting it.

 

Until you either receive a NOA or other proof that the debt has definitely been sold-keep schtum;)

[diddydicky]

when was the DN sent to you?

 

did you continue to make payments after you received it? if so then for how long?

 

A DN which claims the full balance of the account is in fact not a DN but a TN

 

unless the whole balance of the account was due by way of arrrears then the TN was an unlawful rescission (as it had not been preceeded by a valid DN giving you an opportunity to remedy any alleged default)

 

however when one party to an agreement steps outside of the cca and into contract law by an unlawful act such as rescinding the agreement then the injured (performing) party has two choices

 

he can ignore the unlawful act and insist by expressly saying so or by doing nothing that the contract must endure OR

 

he can indicate that he accepts the unlawful rescission and that the agreement is terminated

 

this can be for instance by some act such as stopping any further payments or by simply telling the other party that he accepts the unlawful rescission

 

there has already been one lost case where the debtor did not make it clear through his actions that he accepted the unlawful rescission and therefore the judge ruled that the agreement endured

 

(in this particular case the debtor was not making payments- so after the unlawful rescission he stayed silent and continued not making any payments

 

however the judge ruled that the debtor had not shown that his non payment after the rescission was any different from the reason that he had not been paying before the rescission and so he had not done an act which demonstrated that he accepted the rescission

 

in your case i would check your computer files to see if you actually wrote and accepted the unlawful rescission, and if you did - then i would print a couple of copies so that you can send one to the new owner of the debt and point out that they bought a debt that does not exist

 

after all the original creditor may well have not passed on your letter when he sold the debt due to the fact that such a letter would significantly reduce the value of the sale of the debt

[gezwee]

Hi

 

I've gone down similar route of unlawful rescission with 2 accounts both as yet uncontested.

 

MBNA issued DN for full balance before assigning to Capquest, no compliant DN, no NOA, no response to numptys at Capquest, SAR to MBNA (evidence of comms log needed, they may add pre dated entries) followed by letter agreeing to unlawful rescission and ceasing of payments.

 

AMEX issued DN registered post franked 7 days after issue thus allowing only 4 days to remedy. Followed same route as MBNA.

 

Both will become litigious at some stage so you will need to record and evidence all correspondence.

 

Gez

[jessie_girl6]

Thanks to all for your replies.

 

From what I'm reading, I absolutely must write and accept termination right away. As well as confirm that the payments made since the DN have been to pay off the Arrears. Tomorrow the letters will be in the post. Do you have any templates you could share to help me here?

 

And - a last thought - would you do this to a creditor who has accepted your DMP and frozen interest? Should I let sleeping dogs lie?

 

Thanks

JG

[diddydicky]

you do NOT need a template letter in this instance- what you need is to deal with it thus (IMO)

 

 

 

write to the dca thus:-

 

dear sirs

 

Re account XXXXXXXXXXXX MBNA

 

I refer to your letter of XXXXXXXXXX. Further to noting the contents of your letter I have noticed that Payplan inadvertently sent you a payment on this account. and i have taken steps to ensure no further payments are made in error and against my instructions.

 

The agreement ( if indeed a valid and legally enforceable agreement existed), was in any event unlawfully repudiated by MBNA and i accepted that unlawful repudiation therefore no agreement endures.

 

it is therefore of no concern to me that you have chosen(or have been misled ) to purchase an agreement which in fact does not exist and no doubt that is a matter between you and MBNA

 

for the avoidance of doubt, I have taken legal advice on this matter and i would advise you that I do not consider that there is any contractual relationship existing between us and no further correspondence will be entered into with respect to this matter.

 

Yours sincerely

 

 

 

also write a letter to payplan and note that they made a payment to XXXXXXXXXx DCA and would they kindly ensure that no further payments are made

[jessie_girl6]

Thanks Diddydicky - would have responded sooner but just reading around another thread (Re: Halifax - dodgy default - agreement now terninated, help! ) that you were involved in which has given me a lot of info

I will send this to the DCA and another letter to MBNA accepting termination. Fingers (and toes!) crossed!

JG

[diddydicky]

Thanks Diddydicky - would have responded sooner but just reading around another thread (Re: Halifax - dodgy default - agreement now terninated, help! ) that you were involved in which has given me a lot of info

I will send this to the DCA and another letter to MBNA accepting termination. Fingers (and toes!) crossed!

JG

 

no- dont bother writing to mbna- just send the letter to the dca and make sure you write to payplan and tell them not to make any further payments

 

send them both with proof of postage slips (free at the post office) and keep the copies

 

the stopping of payments is the "act" which signifies your acceptance of the termination and you have just covered the "accidental" payment that was made in the above letter

 

anything you write to mbna now that they do not own the debt would be irrelevant