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


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Guest HeftyHippo

To accept the recission, is it neccessary to refer to it as being "unlawful". Is it not sufficient to simply accept?

 

Reason I ask is that I have a couple of unlawfuls, plus other queries, and don't want to get bogged down straight away in too much aggro, esp if I have to prepare for court.

 

I feel that by just accepting it without challenging the legaility straight away, it will buy more time which i can use to sort out some of the other accounts

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To accept the recission, is it neccessary to refer to it as being "unlawful". Is it not sufficient to simply accept?

 

Reason I ask is that I have a couple of unlawfuls, plus other queries, and don't want to get bogged down straight away in too much aggro, esp if I have to prepare for court.

 

I feel that by just accepting it without challenging the legaility straight away, it will buy more time which i can use to sort out some of the other accounts

It has to be unlawful rescission

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Guest HeftyHippo

I called Consumer Direct today, to ask if Varde could sue in court. They said they could..... I don't believe that, but I looked at the OFT and credit licensing. Experto have a UK credit licence, but Varde are not prevented from getting one by virtue of being foreign. In fact, there is a specific provision for it in in the application process - see screen shot:

Licence2.jpg

 

A application costs £820, there is also a CCJ levy of £150. So, a licence costs only about a grand... chicken feed for vultures...

 

It's also possible to have a group licence, so EC and Varde could get together. Yes, there is an application process and their fitness to hold a licence would be examined - but look at the antics existing holders get up to. Can the criteria really be that stringently applied?

 

So, although Varde may be prevented from court action now, that could change pretty quickly, and if they don't have the qualifications to hold a licence, they could probably take the directors of EC and put them on the payroll of Varde (assuming they own EC). As Ec already hold a licence, and Varde have no existing bad record, it's a sure thing they could get a licence like that.

 

If anyone wants to look at the application process, its at

 

https://www2.crw.gov.uk/LIVE/CCL/OnlineForm.aspx

Edited by HeftyHippo
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Nice find HH, and still the plot thickens!

 

Ok, going back a bit and coming away from this point let's concentrate on them selling the debt before the time was up on the DN. We need to find cases that have fallen on their @r5e because of this very point.

 

happy hunting all.

 

M

________________________________________________________________

ALL unsolicited PMs and E-mails should be posted up - Not all on CAG are who they appear to be

 

 

My views are my own. If in doubt, seek professional advice. If I can help though, I will. CAG helped me!!

 

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Hi Hefty,

if is any conciliation I would have thought [email protected] would have taken action prior to selling it to Exspurto, if they thought they had a case. There are a few cases where [email protected] have done so but not many.

 

In most cases :-

 

Defunct or non-existent CCA

 

Huge amount of charges and miss-sold PPI. (if applicable)

 

Bobbins DN insufficient time, no arrears.

 

Account unlawfully rescinded due to sale to Varde while DN was active.

 

I would imagine they would get laughed out of court. I do wonder how many people have had their alleged debt sold to Exspurto/Varde and are paying.

 

The silence from Exspurto in my opinion is deafening, the talk about them being different and not want to enforce is laughable. A DCA not wanting to enforce a alleged debt is so funny it actually hurts so many analogies spring to mind I cannot be bothered.

 

At the end of the day DCA's lie or bend the truth to suit their needs. Another point surely Varde would need a Consumer credit licence prior to buying up all these lovely enforceable debts from the water tight [email protected]?

 

To quote from the OFT website

 

"Under the Consumer Credit Act, businesses that offer goods or services on credit or lend money or are involved in activities relating to credit or hire must be licensed by the OFT."

 

 

 

Pumpytums

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Defunct or non-existent CCA

 

Huge amount of charges and miss-sold PPI. (if applicable)

 

Bobbins DN insufficient time, no arrears.

 

Account unlawfully rescinded due to sale to Varde while DN was active.

 

 

Quite agree. Most of us (if not all within this small group) have all of the above for a start off.

 

M

________________________________________________________________

ALL unsolicited PMs and E-mails should be posted up - Not all on CAG are who they appear to be

 

 

My views are my own. If in doubt, seek professional advice. If I can help though, I will. CAG helped me!!

 

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Guest HeftyHippo
Hi Hefty,

Another point surely Varde would need a Consumer credit licence prior to buying up all these lovely enforceable debts from the water tight [email protected]?Pumpytums

 

Don't think so. When assigned, the debt is sold under the Sale of Properties Act (or whatever its called) so its just treated as another asset. Whether it can be pursued by a non-licenced company may be a different matter. Consumer Direct said if they could prove the debt existed they could start legal action. I'm not entirely convinced because as you say

 

Hi Hefty,

To quote from the OFT website

 

"Under the Consumer Credit Act, businesses that offer goods or services on credit or lend money or are involved in activities relating to credit or hire must be licensed by the OFT."

Pumpytums

 

Its not as if the legal action would be for damages for breach of contract or anything is it? It would be for the repayment of a debt, and at the start of the day, the Debt was regulated by the CCA, which implies that a licence is needed. So, I don't know. And I don't think Gavin at Consumer Direct actually did either, or more precisely, his boss didn't! :oops:

 

Anyway, am I right in thinking that if EC want to play, then if they initiate legal action, they will need to provide an CCA agreement? They will also have to explain who owns the debt? And why THEY and not the owners are in court? The first bit is easy. They either have an agreement or not. The second also easy (whether their explanation is true I don't know how to ascertain - Court Order for disclosure of Deed of Assignment from MBNA I expect), the 3rd bit as to why the debt owner isn't there? Well, as a 3rd party, I don't think EC have any rights (without seeing the agreement we can't be sure), unless Varde assign them.

 

As for MandM, yes, there's plenty of material here. Payplan told me that MBNA would probably sell the debt soon. Its what they do. Maybe thats because they don't have the paperwork and are ripping off EC and the like. Or maybe they don't have the stomach for the arm twisting involved

 

The problem is, there is so little documented cases showing how the creditors fail that we're all guessing to some degree or other and there's always the potential for folklore to grow up around what someone believes to be true.Still no word from MBNA from my 2 letters asking who actually bought this debt, the date and value when sold.... anyone know the complaints managers name?

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Don't think so. When assigned, the debt is sold under the Sale of Properties Act (or whatever its called) so its just treated as another asset. Whether it can be pursued by a non-licenced company may be a different matter. Consumer Direct said if they could prove the debt existed they could start legal action. I'm not entirely convinced because as you say

 

It is the law of Property act 1925. A debt is deemed property, not in the sence of bricks and mortar.

The sale of a debt needs to be under a deed if it is an outright sale, Absolute Assignment.

The notice of assignment needs to be delivered to the debtor by hand, or recorded delevivery, so that the debtor signs for it. THIS IS A LEGAL REQUIREMENT.

In order for them to own the credit debt and sue you, they need a credit licence. If they do not, then they cannot enforce the debt, not even therough EC.

If the assignment is equitable or simple, then they can sue, but only in conjubction with the OC, MBNA.

That is how I understand matters.

 

 

 

Its not as if the legal action would be for damages for breach of contract or anything is it? It would be for the repayment of a debt, and at the start of the day, the Debt was regulated by the CCA, which implies that a licence is needed. So, I don't know. And I don't think Gavin at Consumer Direct actually did either, or more precisely, his boss didn't! :oops:

 

Correct

 

Anyway, am I right in thinking that if EC want to play, then if they initiate legal action, they will need to provide an CCA agreement? They will need a cause of action, ie owning the debt or acting on behalf of the owner. The owner will need a credit licence. Even more complicated if Varde have securitised the debt, as the debt is part of another bond that is owned by yet another. They will also have to explain who owns the debt? And why THEY and not the owners are in court? The first bit is easy. They either have an agreement or not. The second also easy (whether their explanation is true I don't know how to ascertain - Court Order for disclosure of Deed of Assignment from MBNA I expect), Correct the 3rd bit as to why the debt owner isn't there? Well, as a 3rd party, I don't think EC have any rights (without seeing the agreement we can't be sure), unless Varde assign them.

 

As for MandM, yes, there's plenty of material here. Payplan told me that MBNA would probably sell the debt soon. Its what they do. Maybe thats because they don't have the paperwork and are ripping off EC and the like. Or maybe they don't have the stomach for the arm twisting involved

 

Not always, they do take action in court themselves. No rhyme or reason why they sell some and not others, maybe cashflow.

 

The problem is, there is so little documented cases showing how the creditors fail that we're all guessing to some degree or other and there's always the potential for folklore to grow up around what someone believes to be true.Still no word from MBNA from my 2 letters asking who actually bought this debt, the date and value when sold.... anyone know the complaints managers name?

Vint
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  • 4 weeks later...

seems this thread has gone a little quiet,

so i thought i might add the contents of letter

recieved fromExperto credite today.

 

"due to a technical error on our systems, we have been

corresonding with you under an internal account

reference number you may not have recognised".

 

"our legal advisors have directed us to communicate with you using the correct account number allocated to you as it relates to the original

credit agreement".

 

"the correct account number shown in this letter will be used in any

future correspondence".

 

"please contact our officetoday, if you need further clarifation".

 

so it looks like they are trying to tidy up account discrepencies.

good for them.

they might have bigger problems tidying up the fact they have

purchased account unlawfully rescinded due to faulty D/N and

purchasing this account BEFORE remedy date on default notice.

hope this helps8)

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Vint? Can I pick up on the legality or otherwise of the notice of assignment?

I understand that there are 2 forms of assignment:

 

  • Equitable - that is, they share with the OC the ownership of the debt but pursue the debtor instead of the OC?

 

 

  • Absolute - they buy the debt outright as an asset from the OC - at which point, anything to do with the debt is theirs alone?

 

With respect to the above, under which circumstance is the Notice of Assignment required, by law, to be delivered to the debtor either in person or by recorded delivery?

 

Tranders

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Vint? Can I pick up on the legality or otherwise of the notice of assignment?

I understand that there are 2 forms of assignment:

 

  • Equitable - that is, they share with the OC the ownership of the debt but pursue the debtor instead of the OC?
  • Correct

 

  • Absolute - they buy the debt outright as an asset from the OC - at which point, anything to do with the debt is theirs alone?
  • Again, correct

With respect to the above, under which circumstance is the Notice of Assignment required, by law, to be delivered to the debtor either in person or by recorded delivery?

 

Under absolute assignment the notice should be delivered by hand or recorded delivery. LPA 1925.

This is one of the bits that they get wrong.

 

Tranders

Vint

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Guest HeftyHippo

I've said this before, and I don't want this thread turning into a discussion on the LPA (anyone can start a new thread to do that), but nowhere in that Act does it specify that hand or any form of delivery MUST be used. It only says "suitable service may be ..." the argument used is that those words do not prohibit ANY kind of delivery, but simply say what may be regarded as an acceptable means of delivery.

 

If anyone can show me the paragraph that specifys any particular service method, or prohibits any, I'd be grateful because I keep seeing this quoted but no one has ever pointed to the exact paragraph that says "must" or "shall".

 

This is the relevant bit:

96 Regulations respecting notices

 

(1)Any notice required or authorised to be served or given by this Act shall be in writing.

(2)Any notice required or authorised by this Act to be served on a lessee or mortgagor shall be sufficient, although only addressed to the lessee or mortgagor by that designation, without his name, or generally to the persons interested, without any name, and notwithstanding that any person to be affected by the notice is absent, under disability, unborn, or unascertained.

(3)Any notice required or authorised by this Act to be served shall be sufficiently served if it is left at the last-known place of abode or business in the United Kingdom of the lessee, lessor, mortgagee, mortgagor, or other person to be served, or, in case of a notice required or authorised to be served on a lessee or mortgagor, is affixed or left for him on the land or any house or building comprised in the lease or mortgage, or, in case of a mining lease, is left for the lessee at the office or counting-house of the mine.

(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 [F1by 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.

(5)The provisions of this section shall extend to notices required to be served by any instrument affecting property executed or coming into operation after the commencement of this Act unless a contrary intention appears.

(6)This section does not apply to notices served in proceedings in the court.

 

Now, as I said, if you want to start a new thread to discuss where it says recorded delivery MUST be used, go ahead, I've asked several people on here to tell me where any form of delivery is prescribed, and no one has.

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Guest HeftyHippo

big.syd, I think everyone has had that letter, I think they must have learned something when everysaid the account was not theirs.

 

Today I got a letter offering me a big discount if I made a payment arrangement. Must be getting desperate methinks

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Guest HeftyHippo
HH - interesting that you got a large discount offer - can you tell us the percentage discount they offered?

 

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

 

both time limited....

 

They also threaten to appoint a DCA.......... hang on, thought THEY were the dca for Varde? There is a thread recently started by Pinky (I think) about a dca not being allowed to share data with another dca under the DPA. Anyone read that? Does it apply here?

 

Other developments... after 3 letters to MBNA and one to Experto to determine who the hell actually owns this account - MBNA EC or Varde, and with EC not being willing to clarify their earlier statements firstly that Varde own it, and then that MBNA own it, and with MBNA not replying to any of the 3 letters, another was sent to the head honcho at MBNA. He has replied that they are investigating my complaint and will respond within 28 days. My SAR request to MBNA expires 2 weeks before then (not acknowledged by MBNA despite a reminder half way through).

 

Sadly, without actually knowing who owns the account, I can't even contemplate settling it. I might ask EC if they'll hold their offer for a couple of weeks.

 

Have to think of a nice letter to EC explaining why I can't accept their very attractive offer...

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morning HH

I think you'll find that the 'other DCA' is just one of their trading names.

 

MBNA offered much larger discounts than 20% before they apparently sold the debt so I'm inclined to think that 20% isn't generous at all.

regards

S

=================================================================

remember

 

the Sun is always shining, it's just that you can't see it sometimes

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hello again

 

has anyone actually sent the 'acceptance of unlawful rescission' letter yet and if so, what response was there from MBNA?

 

I'm in exactly the same position re DN, Experto, Varde so just following progress. I didn't receive a notice of assignment - just the letter from Experto saying that Varde have bought the debt etc etc They are stepping up the phone calls now that they've corrected the account number. This may sound daft but I'd like to be absolutely clear that the debt was sold and can't be handed back to MBNA before I send my 'Unlawful so go away' letter.

regards

S

regards

=================================================================

remember

 

the Sun is always shining, it's just that you can't see it sometimes

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Hi Sunshine,

to be honest I would just send your "Unlawful rescission" letter it can do no harm you are simply accepting it nothing more. It would be prudent to send a letter to EC denying and debt to them, and simply leave it at that. A non verbal communication to Exspurto wouldn't hurt but them seem incapable or reading.

 

Hefty are you asking about the delivery of the Notice of assignment?

 

The absolute assignment is covered by the Law of Property act 1925 s136.

 

Any notice served under the act must be sent recorded post (s196 detailed in the thread below).

 

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/244843-registered-mail-definition.html

 

 

However if its an equatable one who knows.

 

 

Pumpytums

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if experto purchased this account from

mbna, how can we find out how much

they paid to mbna?

if we knew an exact fiqure, then it could

be used as a starting point regarding offer

of full and final payment,against the hassle

of both parties fighting as to what is or has

been done correctly.??

20% discount does not seem attractive to

many caggers that hold the trump cards;)

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Hi Syd,

I think the only way you would see that would be on the deed of assignment and it would be blanked out as "sensitive financial details" you can bet it will be around the 10p to 20p in the pound though.

 

To see the deed you would probably have to go to court. I believe some people have received them by accident in their SAR info though.

 

Pumpytums

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I've said this before, and I don't want this thread turning into a discussion on the LPA (anyone can start a new thread to do that), but nowhere in that Act does it specify that hand or any form of delivery MUST be used. It only says "suitable service may be ..." the argument used is that those words do not prohibit ANY kind of delivery, but simply say what may be regarded as an acceptable means of delivery.

 

If anyone can show me the paragraph that specifys any particular service method, or prohibits any, I'd be grateful because I keep seeing this quoted but no one has ever pointed to the exact paragraph that says "must" or "shall".

 

This is the relevant bit:

96 Regulations respecting notices

 

(1)Any notice required or authorised to be served or given by this Act shall be in writing.

(2)Any notice required or authorised by this Act to be served on a lessee or mortgagor shall be sufficient, although only addressed to the lessee or mortgagor by that designation, without his name, or generally to the persons interested, without any name, and notwithstanding that any person to be affected by the notice is absent, under disability, unborn, or unascertained.

(3)Any notice required or authorised by this Act to be served shall be sufficiently served if it is left at the last-known place of abode or business in the United Kingdom of the lessee, lessor, mortgagee, mortgagor, or other person to be served, or, in case of a notice required or authorised to be served on a lessee or mortgagor, is affixed or left for him on the land or any house or building comprised in the lease or mortgage, or, in case of a mining lease, is left for the lessee at the office or counting-house of the mine.

(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 [F1by 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.

(5)The provisions of this section shall extend to notices required to be served by any instrument affecting property executed or coming into operation after the commencement of this Act unless a contrary intention appears.

(6)This section does not apply to notices served in proceedings in the court.

 

Now, as I said, if you want to start a new thread to discuss where it says recorded delivery MUST be used, go ahead, I've asked several people on here to tell me where any form of delivery is prescribed, and no one has.

Well you have answered your own question, in red above.

 

When people first join the forums, they often post on others threads. As this is a self help forum, benefit is gained by people asking questions on all situations on many threads, which eventually benefits all that read them.

 

As you want to keep this thread totally for your benefit, I will push off, so to speak.

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Guest HeftyHippo
morning HH

I think you'll find that the 'other DCA' is just one of their trading names.

 

MBNA offered much larger discounts than 20% before they apparently sold the debt so I'm inclined to think that 20% isn't generous at all.

regards

S

That did occur to me, but they wouldn't do that because that would be misleading wouldn't it?

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Guest HeftyHippo

syd, I'm in the same situation, I want to know exactly what the situation is before I deal with them. Having asked both exactly who owns the account and got no replies I suspect something is up. That question has now been directed to the MD.

 

I also don't want them turning round and saying MBNA still own the account, and as far as I'm concerned, MBNA is the only one who can say that, so until they tell me who owns the account, I'm doing nothing, although I did accept the ending of the agreement anyway, in anticipation.

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Guest HeftyHippo
Well you have answered your own question, in red above.

 

When people first join the forums, they often post on others threads. As this is a self help forum, benefit is gained by people asking questions on all situations on many threads, which eventually benefits all that read them.

 

As you want to keep this thread totally for your benefit, I will push off, so to speak.

 

Well I don't mind others benefiting from my thread, not at all. But there is no benefit from hijacking a thread and turning it away from its objective, especially when the new discussion is about erroneous understanding of the law.

 

If you or anyone can tell me where the text you quoted prescribes any particular form of service, or proscribes any, I will be most grateful. You claim its in the red text. All I see is a statement that registered delivery is a satisfactory method. It does NOT rule out any other form of postal delivery. I've asked the question several times on here, and all people do is quote that paragraph, so quite frankly, I'm a little bit tired of seeing people quote it and claim it means something that it quite plainly doesn't (to me anyway). The argument I saw in court was that the Act didn't preclude any form of service, and as long as service was not denied, it had been accomplished.

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Method of service has to be an argument for the courts, there is no true definition within the meaning of the acts. It could also be argued that by attempting service on numerous ocassions it would then be sufficient to leave at the last known address of the alleged debtor.

 

I have seen this come up in numerous cases reported both here and on other forums and in all honesty the DJ/CJ's view has been pretty much one sided on this issue.

 

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

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