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Default issued and debt sold. can someone check its legal.


paul_dv
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Hi

I had a credit card with MBNA and my hours of work where cut about 10 months ago so I told MBNA im struggling and they froze the interest. but the last 2 months I missed payments then

 

3rd july recieved this

noticetodefault.jpg[/img]

 

I called them on the 5th july and they said I could pay a direct debit of £40 a month starting this month and the first £40 was taken out 19th july then I recieved this on the sat 1st august

defaulted.jpg[/img]

so I called them Tuesday 3rd of August and they said the debt has been sold to a 3rd partie and a default issued on my account and I have to wait to here from the collection agency.

It seams unfair to me they agreed a payment then defaulted my account and sold the debt anyway.

 

Any help would be great Thank you.

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Hi

I had a credit card with MBNA and my hours of work where cut about 10 months ago so I told MBNA im struggling and they froze the interest. but the last 2 months I missed payments then

 

3rd july recieved this

noticetodefault.jpg[/img]

 

I called them on the 5th july and they said I could pay a direct debit of £40 a month starting this month and the first £40 was taken out 19th july then I recieved this on the sat 1st august

defaulted.jpg[/img]

so I called them Tuesday 3rd of August and they said the debt has been sold to a 3rd partie and a default issued on my account and I have to wait to here from the collection agency.

It seams unfair to me they agreed a payment then defaulted my account and sold the debt anyway.

 

Any help would be great Thank you.

 

Hello Paul

 

Where is the Default Notice?

 

What about the Termination Notice?

 

Have you received a Notice of Assignment?

 

This is a serious material breach of contract by MBNA, complete non-performance of the contract.

 

So you were in arrears, before a creditor or owner of the goods on hire can become entitled (lawfully) to terminate an agreement or repossess the goods on hire he must first serve a Default Notice.

 

MBNA have terminated the agreement and sold the debt, but they have done this without first serving the Statutory Instrument upon you and affording you the 14 clear days to remedy the breach of contract, they did not provide you with a chance to rectify the arrears owing on the account.

 

Did you receive anything in writing regarding MBNA's agreement to the £40.00 payments?

 

OK, fundamental brach of contract by MBNA, you are the non-breaching party in these circumstances, you are entitled in law to treat your obligations under the agreement as discharged.

 

You are no longer liable for any sum amount claimed by either MBNA or the assignee, this new party (the third party) who purchased the debt.

 

Write a short letter to MBNA stating that you, as the non-breaching party to the contract/agreement accept recission of the contract/agreement as the remedy for their fundamental breach of contract.

 

Copy the third party in on your short letter to MBNA and state to the third party that you do not acknowledge any debt owing to them under any contract/agreement.

 

Inform MBNA that they are to refrain from processing you personal subject data, the agreement has been terminated, therefore the purpose or purposes for which they could legitimately use for any such processing of your personal subject data has ceased to legally exist.

 

Also state to MBNA that they must remove the unlawful Default that they registered with the credit reference agencies without legal excuse, inform them if they do not remove the said Default then you will issue a claim in the County Court seeking damages under sec13 of the Data Protection Act 1998 as a result of their unlawful processing of your personal subject data.

 

 

Title your letter as:

 

REFERENCE: FUNDAMENTAL BREACH OF CONTRACT/COMPLETE NON-PERFORMANCE

 

Account no. xxxxxxxxxx

Ref: (if there is one)

 

Send the letter to their legal department and state that you require their written response to this communication within 14 days, should if they fail to respond then you will issue/serve a 'letter before claim' upon them and if their is still no satisfactory resolution forthcomming from MBNA within a further 14 days from receipt, then you will commence with legal action against MBNA seeking an action in Court to your entitlement of remedy as the non-breaching party for recission of the contract/agreement and for damages under sec13 of the DPA 1998 for the unlawful and defamatory Default registered on your credit files.

 

Godzilla to that.

 

Kind Regards

 

The Mould

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Hi

 

I haven't received a Default Notice (I thought the first letter was it) or a Termination Notice, Notice of Assignment I have never seen any but I assume I would know if I had received any. It seems very fishy to me I don't have the arrangement in writing for the £40 a month but when I called them last on the 3rd of august he said he can see the arrangement was made but "has likely failed a review afterwards" I said could I make a new arrangement he said "he couldn't now as the account has been defaulted and the debt passed to a third party" and I should wait and the collection agency would contact me shortly I also asked who has it been sold to he said he doesn't have that information and I would have to wait for them to contact me. He also said "Im really sorry about that" which made me think straight away he knows they have made a mistake.

Do you think I should do a subject access request? would this give me all their notes before it goes any further.

 

Thank you The Mould you have been a great help.

 

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OK Paul

 

Send in a Subject Access Request if you wish to.

 

Do not offer to pay any amount to either MBNA or whoever this third party is, make no arrangement to pay anything.

 

No Default Notice served then they terminate the agreement and sell the debt, as I have said in the earlier posting, you are entitled in law to treat your obligations as discharged, so send in your letter stating you accept recission of the contract as the remedy out of 3 alternative remedies that are available to you as a result of their fundamental breach of contract.

 

These are the remedies available to the non-breaching party after a serious violation of the contract by the other party to it:

 

1. Recission of the contract,

 

2. An action for money damages and/or recission of contract; and

 

3. An action for specific performance.

 

Godzilla.

 

Kind Regards

 

The Mould

Edited by The Mould
missed out the Y of the word party, why? because I just did
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Hi there

Your thread is exactly what happened with me with MBNA and my debt has also now been sold on to a third party. I have other debts too as a result of ill health and have entered into a debt management plan...however, I contacted the third party regarding the debt(very unhelpful) and said I am not aware of receiving notification of default being registered 2 years ago. (Only realised after looking at credit file recently). I was already making payments through debt management plan when they defaulted me 6 months into plan. If I am in a Debt Management Plan does it have any affect on my right to challenge this...and also can I do a subject access request to specifically request info relating only to default? One other thing...I appled for refund of ppi charges with mbna a few years ago and they were unable at that time to provide me with copy of original credit agreement. Should I look at tackling this first to possibly see if debt is unenforceable anyway? Paul_dv...best of luck...keep us informed?

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where does it say that MBNA have terminated the agreement- have i missed that?

 

MBNA are not obliged to terminate an agreement prior to selling it

 

also the unlawful repudiation argument is not one sided- it works both ways

 

the poster has - to my mind notified the creditor in writing that he is no longer able to perform his obligations under the agreement

 

the creditor could(may) take this as an unlawful repudiation and excercise HIS rights to accept that unlawful repudiation and relieve himself of his obligations under the agreement- but he retains the rights (as would the debtor if the shoe were on the other foot) to sue the debtor for his losses as a result of the debtors unlawful repudiation!

 

so i dont think the arguments are as clear cut as is being made out

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Hi just an update I received my Default Notice I have posted it below. I have also checked my credit file with Experian and a default was put on there on the 30/07/2010 10 days befor the default notice was sent out. MBNA told me the debt was sold to DCRI but I haven't heard from them yet. Also whats the further action they will take if I don't pay by the 26th they have already told me they sold the debt and I have been defaulted?

dn.jpg[/img]

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  • 1 month later...

On the tricky subject of a Default being required to be issued before an account is sold on and I imagine thus classed as terminated , when I got into arrears with an RBS backed credit card they sent me a letter which said the following

 

"Thank you for your letter telling us you are unable to correct the position on your account due to financial problems.

 

We think the best course of action now is to withdraw your credit card facility , so we enclose a Default Notice which you should read carefully.

 

We have to send you this Notice by law before we can terminate our agreement with you and arrange a repayment programme.

 

At the end of the stipulated period, your agreement will be formally terminated.blah blah blah etc."

 

 

From this letter , sounds to me like a Default Notice is required by law regardless of whether they've been told you're in difficulty or not. and also that they would have to have given you the correct stipulated time.

 

Or does the good old RBS have it all back to front yet again?

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