Experto/Varde now Arrow/Shoos Claimform - old MBNA card debt

[slick132]

OK, so you're not worried about them.

 

It may be useful to you, however, if they Default you as the inclusion of unlawful penalty charges in the DN total would make the DN invalid.

 

[roygoodbeat]

Finally, they sent a copy of the original application form, not a fully compliant CCA in response to my original Subject Access Request on the 27th April (1st Oct received) This was after they regestered a default. I wrote to them stating that my CCA request under the consumer credit act was still outstanding and that they had not produced a document that fully coplies with this act. I advised them that I would take action and report them to the OFT, financial ombudsman and maybe court action as they had clearly broken OFT guidelines ect.

 

Their response. To sell this to a third party who are now demanding payment. Any advice??

[Dotty50]

Hi Roygoodbeat,

 

I see you sent the Account in Dispute letter back in July, if what they have sent still does not comply then use the letter in the link that Slick 132 put on post 14.

 

I used this with a couple of mine and not heard again from the DCA's since.

 

I am still waiting for response to my CCA request at the end of April! Similar to yours, it was originally with Beneficial.

[slick132]

Hi RGB,

 

If you're sure the credit agreement or application form is not enforceable, fine. Just send the DCA the "bemused" letter.

 

If you're NOT sure about the agreement, check it using Link No5 in my signature.

 

If still unsure, post a copy here so it can be checked.

Edited October 28, 2009 by slick132

[roygoodbeat]

They have sold the debt onto someone else who is demanding payment. I have written to them twice now, firstly with the bemused letter, but they have ignored these and their degrees of threats are increasing.

[pumpytums]

Did you get a DN from MBN@ prior to the sale?

 

 

Pumpytums

[haggis1984]

Is it Aegis chasing you?

 

If so MBNA only instruct them to collect arrears, and if they're unsuccesful they give up.

[vint1954]

They have sold the debt onto someone else who is demanding payment. I have written to them twice now, firstly with the bemused letter, but they have ignored these and their degrees of threats are increasing.

Hi RG,

 

Have looked back through the thread and connot see if you have posted the agreement that they have sent you. It would help if you can remove your details and post the agreement on here.

 

Can you advise of the company that have purchaced the debt and have they confirmed that they now own the debt and not MBNA. This should be a letter mentioning assignment of the debt. If not they may just be another debt collector.

 

In order to demand the ballance in full, sell the account or terminate the agreement. MBNA need issue a Default Notice under s87 of the CCA 1974. This is an important letter. If you have this, can you let us know:

 

1. When is the letter dated.

 

2. What was the date to rectify the default by.

 

3. Was the amount requested in the DN just arrears or the full ballance.

 

The best response can be formulated when you provide the above and a copy of the agreement.

[roygoodbeat]

I have attached a copy of the application form they sent. This was sent under my Subject Data Request, requested on the 27th April, but only sent by MBNA on the 25th September.

 

I made a consumer credit agreement request on the 10th June, which MBNA entered into default on the 1st July. To date, a part from the front copy of an application, they have not sent a true copy, no documents such as terms and conditions, no full statement of account and nothing else.They have ignored all requests or references to my request. I did receive a letter at one point saying that they were having trouble retrieving the documents.

 

Throughout and since this, MBNA have continued to send texts, calls and letters.

 

I wrote on the 29th September stating that this was an application, not a consumer credit agreement.

 

They acknowledged a complaint on the 7th October.

 

They then sent a default notice on the 8th Octoberasking for the full amount, to be paid by the 26th October

 

They sold the debt to Varde Investments (Experto) on the 23rd October.

 

To date, they have not responded to my complaint of the 29th September. All I have received is a letter dated 26th Nov saying that the complaint is taking longer than expected.

mbna29thsep internetcopy.pdf

Edited January 2, 2010 by roygoodbeat

[Dotty50]

Hi Roy,

 

Just thought I would let you know I have been waiting for my CCA since the end of April and put account in dispute at the end of May. I have had nothing from them apart from the standard letters, threats of default etc.

 

I sent in an Official Complaint on 11th December and finally had an acknowledgement on the 17th Dec and they are investigating and will issue a response within 28 days.

 

Only the odd few telephone calls, did try to offer F & F on phone after being given a contact name by another Cagger but it was a waste of time. One of the site team said mine was one of the slowest moving ones they had seen.

 

http://www.consumeractiongroup.co.uk/forum/mbna/201854-mbna-ex-hfc-beneficial.html

 

This is one of mine, if you want a read.

 

All the best

Dotty

[vint1954]

I have attached a copy of the application form they sent. This was sent under my Subject Data Request, requested on the 27th April, but only sent by MBNA on the 25th September.

 

I made a consumer credit agreement request on the 10th June, which MBNA entered into default on the 1st July. To date, a part from the front copy of an application, they have not sent a true copy, no documents such as terms and conditions, no full statement of account and nothing else.They have ignored all requests or references to my request. I did receive a letter at one point saying that they were having trouble retrieving the documents.

 

Throughout and since this, MBNA have continued to send texts, calls and letters.

 

I wrote on the 29th September stating that this was an application, not a consumer credit agreement.

 

They acknowledged a complaint on the 7th October.

 

They then sent a default notice on the 8th Octoberasking for the full amount, to be paid by the 26th October

 

The DN is faulty and fall on the dates alone. Issued on thursday 8th October 2009, deemed service would be 14th October 2009 by second class, which they usually use. Better still if you kept the envelope. date to rectify by should be the 28th October 2009. They also scupper their situation by demanding the ballance in full within the DN. They can only demand the amount required to bring the account back into line, the arrears and over limit amount. The DN is a final opportunity given to the debtor, to correct the account and rectify the default, returning the account to a state as if the default had no occurred.

 

They sold the debt to Varde Investments (Experto) on the 23rd October.

 

This proves unlawful rescission of contract, selling the account prior to the rectification date.

 

To date, they have not responded to my complaint of the 29th September. All I have received is a letter dated 26th Nov saying that the complaint is taking longer than expected.

This is usual and they will then find in their favour, obviously.

Have a read on the forum regarding unlawful rescission, then consider sending the letter below to MBNA.

Account in serious dispute. Unlawful Rescission

Dear xxxxxxxxxx,

Re account no xxxxxxxxxxxxxxxxxxxxxxxx

I refer to your Default Notice dated xxxxxxxxxx 2009, received by me on ( 14th October ) 2009 and your subsequent sale of this account to Varde investments, dated xxxxxxx 2009, an act which confirms that you have in fact terminated the above 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, your action confirming that you had in fact terminated the agreement, resulted in insufficient time for me to even obtain an appointment with a solicitor let alone remedy the alleged default. These actions by you, have resulted in you unlawfully rescinding the alleged agreement.

 

I accept your unlawful rescission of the agreement and 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

 

Yours sincerely

 

Follow this up with a letter to varde.

[roygoodbeat]

Can you explain what this means regarding my outstanding credit agreement and the rest. By admiting just the arrears, does this hold be liable to them for just this.

 

What if the credit agreement is unenforeable? Would I only be liable for the arrears?

[vint1954]

The arrears are all that they can then claim. This deals with the DN issue only. They have claimed the full sum in the DN, which is also wrong.

 

If you want to go down the faulty DN route, then you need to acknowledge the unlawful rescission and accept it in some way. In all probability, if you send this to MBNA then they will not understand and will ignore it. When you write to Experto\Varde, your letter will contain all of your arguments about the agreement, then mention the unlawful rescission. No need to send the acceptance letter to Experto as it was MBNA that unlawfully rescinded the agreement.

[vint1954]

A bit long winded, but have a read of this:

 

Previous posts by others.

 

*************************************************************************

 

There is nothing to sell on. The account is terminated after a faulty DN which means it has been rescinded ie puts both parties back where they were before the agreement, and the clause that states they cna sell it on is resinded with it. All they can claim after that is any arrears not the capital.

 

Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but gives rise to a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

 

It will be for them to prove they sent you a lawful DN and they have not one scrap of evidence that they did. Put them to strict proof of proof of postage as the key date in serving a DN is the date of receipt.

 

Just posting this up courtesy of The Shadow

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

6. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

[vint1954]

This is the letter that you can send to Experto. Adapt to suit your situation.

 

For Experto.

 

 

Ref Account xxxxxxxxxxxxxxxxxxxxxxx

 

Dear xxxxxxxxx,

 

I was somewhat bemused to receive your letter of xxxxxxxxx 2009, the content of which is noted. No debt to your company or Original Creditor is acknowledged.

 

On xxxxxxxxxx 2009 I made a formal request to your client pursuant to s.78(1) of the Consumer Credit Act 1974. MBNA have failed to comply within the statutory time limit, supplying only an illegible reconstructed agreement, that could not be linked to any agreement that MBNA claim that I have signed. In addition, this alleged account was placed in dispute on the xxxxxxxxx 2009. It should not be necessary to have to remind you that the provisions of s.78(6) now apply. These letters are enclosed.

 

Your attention is also drawn the Information Commissioner`s Office on Data protection, as passing details on to a third party while an account is in dispute is contrary to the Data Protection Act. I have previously issued letters to MBNA under s10 of this act. You may wish to refresh yourselves of the implications of ignoring the Data Protection Act.

 

In addition, MBNA have unlawfully rescinded this alleged agreement, which has been accepted by me.

 

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be considered vexatious and unlawful. The Court's attention will drawn to the above statutory breaches.

 

 

I would remind you that while this alleged account remains in dispute, that MBNA:

• May not ask for payment against this account.
  
• I am not obliged to offer any payment against this account.
  
• Cannot register any data with a third party.
  
• Cannot take any enforcement action, including registering Defaults.
  
• Cannot pass the account on to a third party for collection.
  
• Cannot sell the account.
  

MBNA have, by selling this account that remains in serious dispute and has been unlawfully rescinded, obviously chosen to ignore my lawful dispute.

I trust this out lines the situation and that you will take note of my comments, to avoid any further breaches of the Law, being committed by you.

[roygoodbeat]

Thanks Guys. Had a look at this and they passed the file to Varde on the 30th September, with the default being issed on the 8th, received on the 14th. I cannot confirm when the account was sold. According to Varde it was between the 30th September and Mid October.They wrote onthe 23rd October confirming it had been sold tothem.I had untilthe 26th October on the default notice. Willsend this:

Account in serious dispute. Unlawful Rescission

 

Dear xxxxxxxxxx,

 

Re account no xxxxxxxxxxxxxxxxxxxxxxxx

 

I refer to your Default Notice dated 8th October 2009, received by me on 14th October 2009 and your subsequent sale of this account to Varde investments.There letter wasdated 23rd October but they have confirmed that this was sold prior to this, an act which confirms that you have in fact terminated the above 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, your action confirming that you had in fact terminated the agreement, resulted in insufficient time for me to even obtain an appointment with a solicitor let alone remedy the alleged default. These actions by you, have resulted in you unlawfully rescinding the alleged agreement.

 

I accept your unlawful rescission of the agreement and 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.

 

Yours sincerely

[pumpytums]

Thanks Guys. Had a look at this and they passed the file to Varde on the 30th September, with the default being issed on the 8th, received on the 14th. I cannot confirm when the account was sold. According to Varde it was between the 30th September and Mid October.They wrote onthe 23rd October confirming it had been sold tothem.I had untilthe 26th October on the default notice. Willsend this:

 

Account in serious dispute. Unlawful Rescission

 

Dear xxxxxxxxxx,

 

Re account no xxxxxxxxxxxxxxxxxxxxxxxx

 

I refer to your Default Notice dated 8th October 2009, received by me on 14th October 2009 and your subsequent sale of this account to Varde investments.There letter wasdated 23rd October but they have confirmed that this was sold prior to this, an act which confirms that you have in fact terminated the above 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, your action confirming that you had in fact terminated the agreement, resulted in insufficient time for me to even obtain an appointment with a solicitor let alone remedy the alleged default. These actions by you, have resulted in you unlawfully rescinding the alleged agreement.

 

I accept your unlawful rescission of the agreement and 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.

 

Yours sincerely

 

 

Hi Roy,

have you sent a SAR to MBN@? I waited until I had my SAR info back so I had concrete proof of the date of sale. This info will be in the mbn@ comms log. I know its being a bit paranoid but I didn't want to tip them off until I had all the paperwork in my possession. I had exactly the same circumstances as you, dates were different but otherwise same result. Its interesting with Exspurto, letters have arrived a few calls and texts but nothing else. Hopefully they know they have bought a pup. Another interesting thing the letter says Varde bought it but the comms log states Exspurto.

 

Pumpytums

[roygoodbeat]

No, I have not done a subject access request. I last did one in April and only received the info end of July. Took them over the 40 days period.

 

Would you recommend I add the line.

 

All other defaults committed by you still apply and I still await the outstanding requests and resolution. This account still remains in dispute until such matters are resolved.

This covers the Consumer Credit Agreement default, and outstanding information still awaiting from my request in June. Also I believe that this is still unenforceable and still remains in dispute. If anyone can think of a better line to add, if at all, any help would be appreciated.

 

I am hoping to send this tomorrow.

[pumpytums]

I'm not sure about what to add to the letter. One thing I would suggest however apart from sending the bemused and I owe you nothing letters (which I believe you have) to exsprurto is don't answer their calls. I had a discussion with them the once they only seemed to what me to acknowledge their letter which I didn't. I simply told them I wouldn't talk to them on the phone, and to read my letters.

 

I'm about to start my PPI and charges claim with old MBN@. So the funs just beginning.

 

Pumpytums

[roygoodbeat]

Now sent the letters. Lets see what happens next.

 

I also have another MBNA card (Originally through BoS) They too have issued an incorrect default notice, but have not sold this one on. Does the law of unlawful rescission apply?

[MandM]

Now sent the letters. Lets see what happens next.

 

I also have another MBNA card (Originally through BoS) They too have issued an incorrect default notice, but have not sold this one on. Does the law of unlawful rescission apply?

 

It does once they terminate. Have they done that yet?

 

M

[roygoodbeat]

Not yet. Still chasing through a DCA.

[MandM]

Then keep that DN tucked away safely .

 

If they terminate i.e. sell the account for instance, you can use it later.

 

M

[roygoodbeat]

MBNA wrote to me yesterday to say that my letter was taking longer than expected.

 

The company that they have sold it to wrote today. They have ammended the correspondence number to the original account number and requested that I contact them.

 

Looks like they are going to continue demanding the full amount as the letter states full amount outstanding. I have already written to them advising them that MBNA have unlawfully rescended the agreement and that by continuing to write or contact me, they are breaking the law.

 

What next? Just send them a letter stating they I will not correspond with them anymore as not debt is acknowledged??

[roygoodbeat]

Another letter, this time from MBNA.

 

In regards to unlawfully rescending the agreement, they have stated that the account was identified for sale on the 17th October and sold on the 31st October. This is different to what Experto Credite have stated. They advised that this was sold end Sep/ beginning of October. They even wrote to me saying that this debt had been sold to them prior to the dtae MBNA said it had been sold. (Smell something fishy here)

 

They did not confirm the amount oustanding at the time of the default. They had put the full amount, not the amount that would have been outststanding. From what people have advised, this makes the default invalid.

 

They also commented on my outstanding credit agreement and they referred me to Rankine V American Express of 16 May 2008, where a cardholder is not relived from the obligation to maintain his account once a request has been made under section 78.

 

They also stated that even when a s78 request has not been complied with, these activities can be properly undertaken.

 

Advice would be appreciated. I also guess that I will need to spend more money in obtaining another subject accress request from the new company to confirm when this was sold. (There letter stated that it had been sold during the default notice and I was advised verbally that this has been sold during the beginning of October)