Defective Default Notice received from MBNA

[charlie*]

The Moving Finger writes; and, having writ,

Moves on: nor all your Piety nor Wit

Shall lure it back to cancel half a Line,

Nor all your Tears wash out a Word of it

 

OMAR KHYAM....

 

Around 1916 my mother was given a beautiful leather bound copy of Omar Khyam's verses by a young man she was engaged to, his photo still lives inside a silver cigarette case of the period.... sadly he was killed in France by the Boche.... happily, as she was in fact an orphan (and like many others scared of ending up inthe work house), about 1922 she met my father in the Crewe Working Men's Institute... my father was a pianist of some renown (amateur county cricketer too) and was always able to drink until closing time for free - as long as he played the piano. This is how they met.

 

TO BUSINESS.....

 

We have an MBNA card. We stopped paying before I found CAG and challenged them under Contract Law. Of course they did not comply, being an American firm, they knew exactly what we were after as this is how it is done in the US (no CCAct to stand in the way). Anyway, no contract, just lots of letters, threats and bull***t. We arrived at an impasse.

 

Cheeky s*ds even suggested we should mortgage our house or borrow off relatives.... how about that? We were well versed at keeping them at bay through the other method that many try to say it's American law... which is rubbish.... any excuse.

 

Then we found CAG and chanced our arm with a £1 PO...... loads of waffle, no real copy of anything.... then came a Default Notice.

 

Dated 99th aug it gave until 35th June TO PAY IN THE WHOLE DARNED LOT, some £10,000.... OKAY..... add 4 days to the statutory 14 for S class mail and they fail by a day. I think what's more interesting is that I THINK by demanding the lot they forewent it all, arrears as well. CAN ANYONE SAY IF THIS IS TRUE?

 

Anyway, I didn't have much of a grasp of Defaults then (still don't) so I went on ranting about contracts, validation, invoices and so on and in one letter I included this para....

 

"Banks create money by tricking the borrower into signing what they often refer to as “your contract with us”, the loan agreement. It is not what it seems and is unsafe for several reasons. For the bank however it is a promissory note (a bill of exchange, an IOU) which enables the bank to create new money/credit out of thin air on the surety of the borrower which it then credits to the borrower who is encouraged to believe the bank has loaned him its own money".. quote ends.

 

 

 

Banks do this by stamping the promissory note 'Pay to the Order of' and pay the £ value into an undisclosed transaction account as a bank liability (like any other cheque or cash paid into your own account where it is also a liability on the bank - in that you can withdraw it as you wish.... as the Bank of England says, "the banker can then give the borrower a cheque for that amount to pay away as he wishes".

 

 

Since a long time now, the only way money is created is by someone borrowing it,

a government, which underpins the loan on our surety (income tax - Gilts (IOU's) which themselves are bought and sold) and others by signing a surety, ie; the loan agreement. In both cases, new money is created.... old money is never loaned for it is already debt money, from earlier borrowings of one kind or another. This is broadly how the money supply increases

 

 

 

What the bank then does with your IOU is another story - it sells them.

 

The banker risks not a single penny of his own money nor anyone else's.

 

 

Anyway, getting back to our debt... a few days later we received a letter from MBNA thanking us for our request (of months earlier) for a copy of the agreement and they enclosed a typed copy of the details.... no form. They also included a statement showing that the account had been zeroed.... like, £0

 

 

 

The next month, Jan we received a letter from DCA stating that they had purchased the debt from MBNA . No advice, no proof. I sent them a rant about the usual things, unresolved dispute, invalid default notice (incidentally, there was no termination letter to follow the Default Notice) and threatened them with hell fire and brimstone if they continued to pursue us. That was last July. Not a squeak since.

 

 

What I would like to know, is it correct that by demanding the entire outstanding debt, of which 90% is demanded BEFORE IT IS DUE enough to lose them their rights to anything at-all. I am sure I've read something about this, but can't find it now.

 

 

Would appreciate any thoughts on this.

 

 

Thanks for reading..

 

 

charlie

Edited February 12, 2010 by charlie*

[cerberusalert]

I've created a new thread for you so you don't get lost within someone elses.

[cerberusalert]

You could tell them to read the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983, and that a failure of a Default Notice or Termination Notice to be accurate not only invalidates such notice (Woodchester Lease Management Services Ltd V Swain & Co NLD 14 July 1998 but it is an unlawful rescission of contract which would not only prevent the court enforcing any alleged debt (Wilson V First County Trust Ltd [2003] UKHL 40, Wilson V Robertsons (London) Ltd [2006] EWCA Civ 1088, Wilson V Pawnbrokers [2005] EWCA Civ 147) - but would also give the claimant a claim for damages in the sum of £1000 (Kpophraror V Woolwich Building Society [1996] 4 All ER 119).

[vint1954]

The Moving Finger writes; and, having writ,

Moves on: nor all your Piety nor Wit

Shall lure it back to cancel half a Line,

Nor all your Tears wash out a Word of it

 

OMAR KHYAM....

 

Around 1916 my mother was given a beautiful leather bound copy of Omar Khyam's verses by a young man she was engaged to, his photo still lives inside a silver cigarette case of the period.... sadly he was killed in France by the Boche.... happily, as she was in fact an orphan (and like many others scared of ending up inthe work house), about 1922 she met my father in the Crewe Working Men's Institute... my father was a pianist of some renown (amateur county cricketer too) and was always able to drink until closing time for free - as long as he played the piano. This is how they met.

 

The Rubaiyat

 

TO BUSINESS.....

 

What I would like to know, is it correct that by demanding the entire outstanding debt, of which 90% is demanded BEFORE IT IS DUE enough to lose them their rights to anything at-all. I am sure I've read something about this, but can't find it now.

 

 

Would appreciate any thoughts on this.

 

 

Thanks for reading..

 

 

charlie

Before they can demant payment in full or indeed terminate the agreement, they need to send a complient Default Notice. That is the key document to allow them to carry on to Defcon 3. Your DN is short by one day, in order to make it complient, assuming that it was posted second class, which they usually are. The second but more important point is that they have demanded payment in full to rectify the default. This is unlawful Rescission, which you need to accept.

Edited February 9, 2010 by vint1954

[charlie*]

Dear Dog of the Gods....

 

Thank you for your comments... this is what I wanted.

 

and

 

Vint.... of course, The Rubaiyat... the book is tucked away in a drawer

somewhere - I had forgotten - how could I, I read it oh 50 or 60 years ago

if not before then.

 

charlie

[charlie*]

Being a bit slow on the uptake, I have only just realised that as the Default Notice was seriously at fault in itself, then MBNA have shot themselves in the foot even moreso by selling the debt to CapQuest - a month AFTER the date on the Default Notice?

 

What then to do about CapQuest for I expect they will come back sooner or later. Later, much later could be bad news for my family so I need to do my best to kill it now.

 

Thank you.

[freethemice]

Since the Carey v's Hsbc case the mood has changed from one where you would be encouraged to press forward and attach this in court to one where you have to lie back take whatever is thrown at you (including adverse marks on your credit file) and defend if they take you to court.

This is because as defendant the burden of proof is upon Capquest but as claimant the burden of proof would be upon you.

I would suggest this will now go back to Mbna and another debt collector will be in touch within the next few months.

Really long process I'm afraid so you should decide wether a reduced amount as full and final settlement would suit you better.

[vint1954]

Being a bit slow on the uptake, I have only just realised that as the Default Notice was seriously at fault in itself, then MBNA have shot themselves in the foot even moreso by selling the debt to CapQuest - a month AFTER the date on the Default Notice?

 

What then to do about CapQuest for I expect they will come back sooner or later. Later, much later could be bad news for my family so I need to do my best to kill it now.

 

Thank you.

You need to accept that unlawful rescission in writing to MBNA.

 

If you search diddydicky's posts over the last couple of weeks, there will be a letter to use. Send it to MBNA head office, not one of the PO box numbers.

[charlie*]

Hi Vint, thanks for the heads up... I did find the

post after a while... phew!

 

Getting back to this MBNA DN.

 

It's dated XX June XX, states quite clearly that they

want every penny by the given date (one day

short tho allowing for 4 days postage) or, it

states....

 

"On or after the date shown your account will be closed....."

 

There is no mention of a T/letter and I never received one

anyway. What I got then was DCA demand dated early

XXX who only wrote that one letter.

 

So, question is, would it be safe to send to play 5 card stud

and send the diddlydicky letter as follows...

 

re your ref Account xxxxxxxxxxxxxxxxx-terminated agreement

 

i note that you have not advised me, subsequent to my acceptance of your unlawful repudiation of the alleged agreement in 2008 as to the genuine amount of arrears that were outstanding at the time of termination, against which i may have a counterclaim for damages. (assume lost in post!!!)

 

Appreciate any thoughts... ta.

 

Can't find my copy of The Rubaiyat... must be in a box in

the loft... I really must dig it out.

 

Charlie

Edited February 12, 2010 by charlie*

[vint1954]

Charlie,

 

You may find that this is the letter that you sent them around July time;) They are terrible with paperwork.

Dear Sir/Madam

 

Re account no xxxxxxxxxxxxxx Unlawful Rescission.

 

I refer to your Default Notice dated xxxxxxxxxxxx 2009, posted second class and received by me on xxxxxxxxxxxxx 2009, and your subsequent actions confirming your previous written intentions to terminate the agreement.

 

Notwithstanding that the default notice failed to give me the required statutory time in which to seek legal advice and/or remedy any alleged defect, as laid out in s87 of the CCA 1974. Your actions have resulted in insufficient time for me to even obtain an appointment with a solicitor let alone remedy the alleged default. The default amount is also grossly misstated. Your actions have lead to you unlawfully rescinding the agreement.

 

By way of this letter, I accept your unlawful rescission of the agreement I note that you are now entitled to claim those arrears genuinely due at the time of the termination (not including any unlawful charges ) and I would be obliged if you would advise me of the exact amount of those arrears, against which will be a claim for unlawful rescission

 

I look forward to hearing from you.

 

Yours faithfully

 

Your letter to them now may state:

 

Dear sirs,

 

Account xxxxxxxxxxxxxxxxx-Unlawfully Rescinded Agreement

 

Further to my letter dated xxxx July 2009, accepting your unlawful termination of the above agreement, I note that you have yet to advised me, of the true and genuine default sum at that time.

 

Until I am in receipt of this information, you will appreciate that I am unable to clear this matter and determine a sum of dammages against you for unlawful rescission.

[charlie*]

Oh yes, Vint, I seemed to have got my copy letters mixed up, I found it stuck to another copy letter, it was just a smigeon of rasberry jam and in another file. Thanks for reminding me.

 

I did more searching last night and came across the thread called..

 

ANATOMY OF A DEFAULT NOTICE....

 

It is very interesting and enlightening so I would suggest it as a 'must' for anyone intereted in Default Notices.

 

Along with the advices and suggestions herein, for which I thank you all, I now feel quite comfortable with proceeding ... if anything untoward happens, bearing in mind the caution by our colleague FREETHEMICE, I will open this again.

 

I have delibererately cocked up the dates and so-on in case there are spies.

 

Charlie

[vint1954]

Oh yes, Vint, I seemed to have got my copy letters mixed up, I found it stuck to another copy letter, it was just a smigeon of rasberry jam and in another file. Thanks for reminding me.

 

I did more searching last night and came across the thread called..

 

ANATOMY OF A DEFAULT NOTICE....

 

It is very interesting and enlightening so I would suggest it as a 'must' for anyone intereted in Default Notices.

 

Along with the advices and suggestions herein, for which I thank you all, I now feel quite comfortable with proceeding ... if anything untoward happens, bearing in mind the caution by our colleague FREETHEMICE, I will open this again.

 

I have delibererately cocked up the dates and so-on in case there are spies.

 

Charlie

I felt sure that you would have had it somewhere Charlie.

 

Yes, that thread is a long read, almost as long as Omar's jottings. Worth the time though. I would suggest reading and digesting over a period.

 

With regard to instigating court action, I think it has always been the case put forward here, that it is better to defend. The recent cases are those where CMC's have taken the OC's to court over s78. s 78 was only ever meant to provide information, as we all came to realise, not thet the OC's ever seem capable of replying properly.