yoyo v MBNA / Experto Credite

[yoyoscot]

Hi,

 

I’ll try to be brief.

 

I’ve read through many CAG threads on MBNA / Experto Credite. These have been useful (thank you CAG members).

 

I’m out of work, and have no income so I have to do the best I can to resolve my personal financial crisis with what I have (little to nothing). I’d prefer not to look at the small print of agreements and other technical issues, but I have no choice.

 

At the end of last year, I made an offer to MBNA (the best I could), but unfortunately they turned it down. Early in January I received a letter from Experto Credite just as others have received, stating that they’re pursuing a debt owned by Varde Investments (Ireland) Ltd (VIIL). As in other cases the account numbers don’t match. Experto Credite (EC) claim that the agreement number is the number registered with the Credit Reference Agency. This may well be the case, but nonetheless it’s still not my MBNA account number.

 

I am in the process of writing to ask EC for proof of their claims (e.g. Notice Of Assignment etc), as MBNA has not told me that my account has been sold to them or anyone else. I also intend to write to MBNA to ask if my account has been sold.

 

In the meantime, I’ve been examining recent paperwork from MBNA. I received a Default Notice (my original MBNA account number) issued early in December which gave me just over two weeks to remedy the situation. I also have a letter from MBNA dated mid-December. I didn’t notice at the time, but the account number MBNA quoted is NOT my account number (but looks remarkably similar to that quoted by EC). So there is some evidence to suggest that there has been a change (at MBNA) from my original MBNA account number PRIOR to the expiry of the Default Notice (DN), and (presumably???) prior to any sale to VIIL (I have no information on the sale or sale date). I’m unsure of the significance of this change, but there must be a reason. I’m wondering whether it might be an attempt to somehow assign updated/revised terms & conditions to my account.

 

Incidentally, I read on another thread that I should accept that the account has been sold to EC, although this is difficult when it’s not my account number …and impossible until such times as I receive confirmation of a Notice Of Assignment (NOA) from MNBA.

 

So far I have not Subject Access Requested (SAR) either MBNA or EC.

 

The 5 key questions I’d like to ask are:

 

* Any thoughts on why the last minute change to my MBNA account number?

 

* Should I contest the assignment or accept it?

 

* Should I Subject Access Request MBNA …or EC?

 

* If I should SAR, when should I SAR (before I accept that the debt has been assigned …or after I have proof and accept VIIL own the debt)?

 

* If you don’t think I should be doing any of the above, what do you think my next step should be?

Thanks in advance for any opinion/advice/feedback on any of the points above.

[supasnooper]

You should send a SAR to MBNA immediately and include a specific request for the Comms Log ( Customer Information System Log).

 

A good SAR Letter here - http://www.consumeractiongroup.co.uk/forum/legal-issues/216144-no-assignment-notice-set.html?highlight=diligence#post2385299

 

What is the date of the Default Notice and what is the date given to rectify ?

[yoyoscot]

@supasnooper: Thank you very much for your response and advice.

 

I'm a little paranoid about who might be reading these threads, and so I'm a little reluctant to give exact dates in case this facilitates EC in their efforts - the Default Notice was early Dec, then there was a couple of weeks within which I had to respond. Does the date make any difference?

Edited January 25, 2010 by yoyoscot
more detail

[Guest HeftyHippo]

its the exact time allowed thats important. if its wrong, as many are, the DN is invalid.

 

MBNA seem to change account numbers when they sell them - something to do with their accounts system. In my opinion, changing the number isn't important. No where in your agreement does it allocate a numer, andno where does it say you will even be given a number, let alone keep the same one for ever. In the same way,. you never promised to always live in the same address.

 

What is important is if they change the number without telling you, and then issue a DN with that new number. If they do, you cannot identify your account, ie you don't have a paper trail from the DN back to your statements. For a DN to be valid, it must contain information to allow you to identify your account (according to the regulations) In my opinion, using a unknown number on the DN makes it invalid

 

If they then close the account (which they must to sell it) then THEY have broken your agreement and the requirements of the CCA by not giving a valid DN before closing the account. If they do not allow enough time in the DN for you to rectify your breach of the agreement (usually the breach is arrears), then the DN is also invalid. If the close the account before the time allowed expires, then they break the agreement and CCA as above.

 

If the commit a breach of the agreement, it has the effect of releasing you from the future obligations of the agreement, ie no repayments. Any arrears, ie extant obligations, must still be honoured though. Their breach must be accepted. It is your acceptance of the breach of the agreement that ends it, not their breach.

 

The time allowed is 14 days from when you receive the DN. Often, they give you 14 days from the date on the DN and forget about postage. Postage is minimum 2 working days for first class, 4 for 2nd.

 

There are other conditions for a valid DN

 

If MBNA have sold the account, they have closed it. When you get confirmation that they have sold it, via a letter of assignment, yu need to write to MBNA and accept their closure of the account.

 

You need to scan and post your DN to see if its valid, after removing personal details.

 

yu can also see

 

SI 1983/1561_the regulations for Default_Notices

 

and go through it

[yoyoscot]

@HeftyHippo. Thank you very much for your detailed opinion and advice.

 

In terms of timescales it sounds to me as though the DN was properly executed: I had just over a fortnight to respond, and it related to my original account number.

 

I have received no notice of assignment from MNBA.

 

The only real question mark I have really is whether the account was closed before the DN expired, as my account number had changed on a letter that MBNA sent me six days prior to the DN expiring. From what you’ve written, that may mean that MBNA have broken the agreement and CCA.

 

Inline with supasnooper’s suggestion, it looks as though my key next step should be to SAR MNBA.

[Guest HeftyHippo]

Youre welcome

Timesscales for DN are a bit complicated.

 

If i remember correctly, time starts on the next working day after posting. If posted on Friday, time starts from Monday. If first class, its 2 days after that, so assumed received on Wednesday. If 2nd, its Friday. etc

 

Think thats it. Theres plenty of examples of invalid DNs, do a search and read the comments about time.

 

I would sit tight for a while and wait for the assignment. That way, yuo will know it gas been sold and the details will be in your records. If the assingment hasnyt been sent, it could be that the details of the sale haven't been completed and wont be in your records.

 

When you get the letter you can stall by asking experto when the sale happened and if anybody else has an interest in it. They will be reluctant to answer so that will get you a couple of weeks extra time.

[yoyoscot]

@HeftyHippo.

 

I didn't retain the envelope, so don't know whether the DN was sent 1st or 2nd class. On the surface, it seems to me to look as though they allowed enough time.

 

I'll put the brakes on giving MBNA time to send me a NOA. I would have thought that they should have done this by now, as it looks to me as though the account was sold on in December.

 

Therefore, I'll pop a letter in the post to EC asking for more info over the weekend, and put the MBNA SAR on hold until the NOA appears.

 

Thanks v much once again.

[pumpytums]

Hi yoyo,

can you post the dates for your DN we need the date on the DN and the date it must be sorted by? To see if its valid.

 

MBn@ send them 2nd class so thats 4 working (not weekend) days after its dated.

 

For example if it was dated jan 22nd it would have been deemed served on the 28th (as a weekend comes in the 4 days) its then 14days on from then.

 

Only respond to Exspurto by letter don't talk to them on the phone. Simple say all communication must be in writing.

 

 

Pumpytums

[supasnooper]

Just clear up any confusion over postage dates and details -

 

A 1st class letter is deemed served on the second working day after postage (or from the date of the letter if no date postmarked on the envelope).

 

A 2nd class letter is deemed served on the fourth working day after postage (or from the date of the letter if date postmarked on the envelope).

 

Working days are Monday to Friday but exclude Public Bank Holidays.

 

I would advise you get the SAR letter fired off to MBNA straight away.

 

I would think you'll be lucky to extract any response from EC by just a letter. You may need to send them an SAR letter as well to get sight of the NOA.

[pumpytums]

.

 

I would advise you get the SAR letter fired off to MBNA straight away.

 

I would think you'll be lucky to extract any response from EC by just a letter. You may need to send them an SAR letter as well to get sight of the NOA.

 

 

Very true Supa,

EC seem to be very lacking in the typing department.

 

Pumpytums

[yoyoscot]

@pumpytums & supasnooper. Thank you for your continued help and advice.

 

The math on the DN is that I was given 18 inclusive days in total, but that included a weekend shortly after the letter was dated.

 

Therefore, from what you're saying if I can prove that DN was sent 2nd class then the DN is not in fact valid.

 

However, if it was sent 1st class, then it's a closer call. Am I wrong? Are you saying that if a DN is posted first class on a Thursday it would be deemed served on a Monday, and if it was posted on a Friday, it would be deemed served on a Tuesday?

Edited January 27, 2010 by yoyoscot
refinement

[yoyoscot]

Hi…

 

I’ve been mulling my position over.

 

Thanks to forum members input, I'm now of the opinion that the Default Notice is invalid if MBNA sent it by second class mail, but at this stage I’m still not sure whether it’s invalid if they sent it first class.

 

I’ll need to investigate this further to establish whether the DN is invalid if it was sent first class.

 

- - -

 

Assuming that I get to the stage where I believe that the DN is invalid, do forum members have opinions on what steps [step-by-step] I need to go through to convert my position that the DN is invalid, into acceptance by MBNA / EC that they’ve screwed up?

 

- Do I simply inform both parties that the DN is invalid?

 

- Do I accuse MBNA of breaching our agreement, and at the same time accept their breach?

 

- Any other opinions on what to do next?

 

Just to say that I have found the advice and opinions from forum members really useful, and would welcome any and all feedback.

 

Many thanks

 

yoyo

[pumpytums]

Hi yoyo,

did they ask for the full balance on DN or just arrears?

 

Pumpytums

[supasnooper]

 

The math on the DN is that I was given 18 inclusive days in total, but that included a weekend shortly after the letter was dated.

 

Therefore, from what you're saying if I can prove that DN was sent 2nd class then the DN is not in fact valid.

 

However, if it was sent 1st class, then it's a closer call. Am I wrong? Are you saying that if a DN is posted first class on a Thursday it would be deemed served on a Monday, and if it was posted on a Friday, it would be deemed served on a Tuesday?

 

That's correct.

 

However, it is widely known that MBNA send 99% of their Default Notices by UKMail which is a second class mail service.

Remember, the onus would be on MBNA to prove that they sent it 1st class ......but how can they if they didn't send it by a Recorded or trackable delivery service ?

[yoyoscot]

@Pumpytums - it wasn’t the full balance, so perhaps it was arrears. I have uploaded the DN here:

http://farm5.static.flickr.com/4011/4310796629_d9ac30a57d_o.jpg

@supasnooper – I guess that I should claim that the DN is invalid, and then MBNA have to prove otherwise.

Thanks again…

yoyo

[yoyoscot]

Update: I wrote to MBNA and accepted their unlawful rescission. I also told Experto Credite about this. I have heard nothing from MBNA, but Experto call me regularly ...despite me signposting them back to MBNA.

 

Any idea what happens now?