MBNA/Experto Credite - accounts mixed up & incomplete agreement, funny one

[MandM]

 

It would be far more effective in a defence to evidence the physical assignment date in order to reject a causal action by the alleged assignee.

 

The problem that most of us see is a complete failure by either the assignor or assignee to issue a NOA.

 

A SAR to the OC should bring this to the fore, my own opinion of this is that an equitable assignment initially takes place, with an insured put-back option valid for x number of months - on a DCA instigating proceedings a hurriedly drawn up absolute assignment is then effected..... it does not state in the act when the NOA should be issued only that it must, so I am fairly certain that those calling documentation into evidence will find a copy NOA entered and dated as little as 48 hours prior to start of proceedings.

 

Gez

 

 

Hi Gez, so are you saying that if you have evidence of the assignment date from the OC to the DCA then that is your key piece of evidence, regardless of how the assignment was done at the time or anything done (paperwork wise) afterwards?

 

And i'm assuming in this, of course, that the assignment was done before the DN had expired - as is the case in many of these MBNA efforts.

 

thanks,

 

M

[gezwee]

Hi MandM

 

Its what I'd be looking for in any comms log from the OC (Not sure if MBNA are exclusive to this issue).

 

For a layperson, the term 'sold' within any comms log is in my view proof positive of termination. There are more than enough threads on here to show that the average DJ/CJ is also in agreement with this.

 

The OC will rarely confirm the type of assignment as the assignee will have a put-back option valid for a predetermined period - lets be honest if you knew you were selling worthless securities would you tell the assignor or want some horrible little debtor advising them they've been sold a pup?

 

Its my opinion but I think its a valid argument that the actual termination date evidenced by the OC by way of the 'sold' date is an effective defence for any action brought by a third party.

 

If you have a 50/50 chance of the agreement being enforced then you should be looking to add as much weight as possible to failings in S.87 and early/unlawful rescission.

 

This at the least allows you the option to invite the claimant to amend their poc to arrears only and counter claim for damages.

 

The assignment itself is secondary to this and will probably be allowed assuming the claimant can 'evidence' the assignment took place prior to issue of N1. If they can't evidence this in any way after instigating proceedings then they'll be in deep doo doo anyway

 

Gez

[big.syd]

i have just typed a letter to MBNA informing

them that by selling and requesting full amount

on the back of a incorrect D/N that they have

unlawfully recsinded the agreement.

i have also told them that they acted against

s78 guidlines by selling the debt before rectification

date.

experto have also been sent a copy of this letter,

and i have requested by vitue of the fact the account should

never have been purchased by them before rectification date,

that they cease any further activity on this account

 

will probably take a couple of weeks to get any response

but i will post up their replies when i recieve them.

[MandM]

Thanks Gez, sounds out my own thoughts too.

 

 

Hi syd

i have just typed a letter to MBNA informing

them that by selling and requesting full amount

on the back of a incorrect D/N that they have

unlawfully recsinded the agreement.

i have also told them that they acted against

s78 guidlines by selling the debt before rectification

date.

experto have also been sent a copy of this letter,

and i have requested by vitue of the fact the account should

never have been purchased by them before rectification date,

that they cease any further activity on this account

 

will probably take a couple of weeks to get any response

but i will post up their replies when i recieve them.

 

The response is likely to be total ignorance of whatever you have written lol. But whether they then refrain from court action is another thing and much more likely IMO;)

 

M

[Guest HeftyHippo]

further to what gez says, I read in a post on here that the dca buys accounts on 6 months sale or return. If they can't make progress on them within 6 months, they are passed back to the OC.

 

stands to reason that unless you check out all the details before you buy and are able to make sure they are valid, you will want a guarantee about a refund on any duds

[big.syd]

at least they now know that they will have to

come up will a lot more than they have.

guess its just their way of seeing how strong

each individual is:)

thanks to all on this site, everyone is a little

stronger but a lot wiser.

[MandM]

further to what gez says, I read in a post on here that the dca buys accounts on 6 months sale or return. If they can't make progress on them within 6 months, they are passed back to the OC.

 

stands to reason that unless you check out all the details before you buy and are able to make sure they are valid, you will want a guarantee about a refund on any duds

 

So, if after 6 months it goes back to the OC, what happens then? If the OC sell the debt again, and you are taken to court, how does this hold up against your original argument that the debt was sold 1st time before the DN expired? Would that still be relevant?

[MandM]

My own opinion btw is that you are safe provided you have written and accepted that termination has been applied.

[Ron 2015]

20% if settled by lump sum, 15% if on instalments

 

 

 

both time limited....

 

This is an dreadful offer. It should be 80% and 85% IMHO.

 

Don't go Vint , we need your knowledge.

 

Cheers Ron

[pumpytums]

Hi Hefty,

I understand your point of view regarding the type of assignment, and the advantage for it to be absolute. Myself and Vint are only trying to help, I certainly don't think any of the advice we have given you is in error. I'm sorry if it's not what you want to hear and I will not comment on the registered post on your thread again.

 

Pumpytums

[gezwee]

So, if after 6 months it goes back to the OC, what happens then? If the OC sell the debt again, and you are taken to court, how does this hold up against your original argument that the debt was sold 1st time before the DN expired? Would that still be relevant?

 

I think its safe to say if you have evidence from the comms log of sale/termination it can't become unterminated at a later date.

 

If I accept unlawful rescission I tend to add the following line for good measure.......

 

 

Take notice that I hereby reject any subsequent unilateral offers to re-instate the agreement or indeed to instate a new agreement at any time in the future.

 

They'll still sell it on again and again and.............. but just how much of the debt is enforceable is another matter - from a legal standpoint you would have to assume they can sell all, but - if you have a sound paper trail and can evidence your position they will only have an option on enforcing the arrears with the risk of counterclaim.

 

The issue that I'm sure many are aware of is that this type of defence rarely (if ever) gets a hearing, the claimant discontinuing early in proceedings so it does need a full test at hearing for us all to be certain of our position

 

My opinion would be that any and all evidence of the claimants failings would be beneficial, but it will be up to the individual how they weight those failings in their defence. Clearly it would not be a good option to centre your defence on an unenforcable agreement if it looked likely that it would pass close scrutiny.

 

Track will always have a bearing as well, if your argument is weak but the claim is for 2k its worth having a go. If the claim is for say 10k and again your defence is weak do you risk possible costs or do you bow out of proceedings if it appears likely the DJ will bolt you up with several k of costs and interest by virtue of part 36....

 

Gez

[Ron 2015]

Hi

 

I had an Abbey card ( MBNA ) and experto wrote to me on 23/10/2010 saying Varde had bought the interest from MBNA. No default notice in sight.

 

29 Jan 2010 I recieve a default notice from MBNA ( bit late , hopefully fatal ) dated 25 Jan 2010 giving me until 12/02/2010.

 

I rang MBNA within this time and they told me it had gone to Varde/ Experto and gave me the phone number.

 

So should I send the acceptance of unlawful recision?

 

I have recently sent off the SAR with the £10 cheque by special delivery.

 

Is there anything else I need to do?

 

Many Thanks

 

Ron

[big.syd]

ron,

mbna have again put the cart before horse:D.

my advice would to be patient and await the

SAR before planning your next move.

you can easily keep expurto at bay by writing to them

explaining you are awaiting sar from mbna.

now, keep a organized file of all letters sent and recived

DO NOT discard any envelopes but attache them to the letters

that accompanied them.(i prefer to also write date i recived on letter),

as some correspondences will undoubtly cross in the post.

this when dated and filed properly will help you build your defence .

DO NOT talk to them on the phone. a polite sorry but all correspondance

by letter only to them works for me. be firm but not hostile.

read all comments both positive and negative and draw from

the experience of other in similar situations.

this wont go away overnight, be prepared for long

slog:D

it would also be a good idea to start your own thread and post

up your circumstances, why the account was placed in dispute

in the first place (etc)

you will then be able to receive advise specific to your own case

and will not hi-jack this one, which causes this to deviate from the

original post.

good luck:)

[Ron 2015]

Thanks Syd

 

I thought I would post here as it is relevant to the whole thread. Between them MBNA / Experto & Varde seem to have made a pigs ear out of things. I have all the paperwork and letters and do not talk on the phone ( well not much ).

 

Is there any way of finding out if Varde have bought the absolute interest or not ?

 

Cheers Ron

[big.syd]

ron,

i would wait to see what shows up in SAR.

who owns it may not be that critical as

the account was sold to a third party before

rectification date on D/N.

this should also show up on your sar.

as a layperson you are not expected to

understand assignment/ absolute, but you

already have written proof that you were not given

time to rectify any d/n as pescribed.

[Ron 2015]

Hi all

 

I just got a letter before action from Fairfax , experto's chosen solicitors ( or should I say DCA's , they are open on Saturday's ) .

 

take a look at my thread Re: MBNA CCA is it enforceable ?

 

Any advice as to what to do now would be welcome.

 

ron

[Guest HeftyHippo]

got my SAR from MBNA today. Its not complete I think, just a standard print out of statements and comms log etc.

 

Flipping through it (things just lumped together, not sorted by account etc), I can see these entries in a log:

 

Default notice issued XX/XX/XX expires ZZ/ZZ/ZZ

 

SOLD to Experto Credite YY/YY/YY balance £xxxx, £yyy

 

The £yyy I recognise as the arrears, £xxxx off the top of my head looks like the account balance

 

Proof that they sold the account before the DN expired.

[Ron 2015]

Hi Hefty

 

Does it say sold to Experto?

 

I would have expected it to say sold to Varde.

 

From the letter Experto sent to me they make it clear that Experto are the DCA and Varde are the owners of the debt.

 

All very confusing? I wonder who actually owns the alleged debt ?

 

Ron

[Guest HeftyHippo]

I had the same letter from Experto (see earlier in the thread) so did Mand M I think

 

the log says SOLD TO EXPERTO CREDITE

 

so I dont know who owns it. I think they sell it on a sale or return basis. if EC cant collect, they sell it back to MBNA

[tranders]

I had the same letter from Experto (see earlier in the thread) so did Mand M I think

 

the log says SOLD TO EXPERTO CREDITE

 

so I dont know who owns it. I think they sell it on a sale or return basis. if EC cant collect, they sell it back to MBNA

 

HH, I got the same letter, as indeed did M&M. I'm curious as to why you think it's a sale or return though?

 

The whole business of who owns the debt is mystifying though. When I made my F&F to experto, the response was "Our client has rejected your offer", which indicates to me that Experto are not the owners.

[gezwee]

DCA's will have an insured put-back option on assignment, I think the general concensus is 6 months although never evidenced on here.

 

The onus being on the assignor on transfer to have all documentation in order the assignee has no control over whether they've bought a pup within a bulk debt book.

 

As far as I understand it the reason why so many records come back marked as 'sold' is because the OC wants to remain vague on the type of assignment effected.

 

Gez

[Guest HeftyHippo]

I'm curious as to why you think it's a sale or return though?

 

I read it from a post made by someone who worked in the industry. as gez alludes to, the DCA buys any old form of rubbish. are they going to take all the risk? presumably the OC knows the score with the debtor - out of work, ill, moved away, no agreement, in a mental hospital etc, the DCA doesn't know that till he chases the debt.

 

if you were in the DCAs shoes, wouldn't you want some guarantee that you haven't bought a crock of rubbish?

 

as gez says and as i read elsewhere, maybe also from gez, they mark it sold intially, and if its rubbish, they 'buy' it back. if legal action is required, the 'sale' is actually made ie absolute allowing the dca to go to court

 

Thats why despite 3 letters to MBNA and one to EC asking who owns the debt, neither will reply - they don't want to tell the truth and reveal the weakness of their positions, but don't want to lie in case they get caught. In MBNAs case I think its also a case of they dumped this account and don't want any admin work for it. In the SAR log, I saw one of my letters was received, and the comment was along the lines of "Experto responsbility, forwarded on"

 

Going to be interesting when the head honcho at MBNA has to reply and say who owns the debt and who has an interest in it! if he doesn't reply, hes been told a complaint to the FSO will be made without further notice.

[MandM]

Hi Hefty

 

Does it say sold to Experto?

 

I would have expected it to say sold to Varde.

 

From the letter Experto sent to me they make it clear that Experto are the DCA and Varde are the owners of the debt.

 

All very confusing? I wonder who actually owns the alleged debt ?

 

Ron

 

And if you check your credit file now you will find that MBNA have dropped off and it now reads 'Exspurto Credit ViL' which indicates that EC/Varde have the interest. When EC refer to 'our client' I wonder if they are referring to Varde.

 

M

[pumpytums]

I read it from a post made by someone who worked in the industry. as gez alludes to, the DCA buys any old form of rubbish. are they going to take all the risk? presumably the OC knows the score with the debtor - out of work, ill, moved away, no agreement, in a mental hospital etc, the DCA doesn't know that till he chases the debt.

 

if you were in the DCAs shoes, wouldn't you want some guarantee that you haven't bought a crock of rubbish?

 

as gez says and as i read elsewhere, maybe also from gez, they mark it sold intially, and if its rubbish, they 'buy' it back. if legal action is required, the 'sale' is actually made ie absolute allowing the dca to go to court

 

Thats why despite 3 letters to MBNA and one to EC asking who owns the debt, neither will reply - they don't want to tell the truth and reveal the weakness of their positions, but don't want to lie in case they get caught. In MBNAs case I think its also a case of they dumped this account and don't want any admin work for it. In the SAR log, I saw one of my letters was received, and the comment was along the lines of "Experto responsbility, forwarded on"

 

Going to be interesting when the head honcho at MBNA has to reply and say who owns the debt and who has an interest in it! if he doesn't reply, hes been told a complaint to the FSO will be made without further notice.

 

Very good hefty that explains a lot it also explains the topic that I wont talk about and why they don't do it as they should. It gets them out of the equatable/absolute assignment mess.

 

I wonder if it did go to court they would have to back date their deed of assignment, would that be considered legal? Also explains why they really don't want you to see it as in most cases in never existed. I have only seen one Deed of assignment on a thread and it actually had the dates written in by hand very dodgy indeed.

 

 

Pumpytums

[pumpytums]

And if you check your credit file now you will find that MBNA have dropped off and it now reads 'Exspurto Credit ViL' which indicates that EC/Varde have the interest. When EC refer to 'our client' I wonder if they are referring to Varde.

 

M

 

I wonder with regards to the information filed to CRA does it have to be the owner? Might be worth an email. Also with equatable assignments do they get the rights to process your data?

 

I wonder.

 

Pumpytums