Varde & old MBNA card Debt - scotland

[Capricorn1601]

Fantastic news Tiger..... well done

[tigercub]

My only issues now is that it still shows on my credit file even though they are not the Original Creditor they still have it listed as a debt in default. I don’t think I have much chance in getting it off my file even though they don’t legally have any entitlement to the debt?

Any thoughts?

[tigercub]

I am in an ongoing dispute with Equifax regarding a debt which I do not acknowledge to the current DCA

 

The alleged account in question was unlawfully terminated by MBNA by way of passing the debt to Varde Investments (Ireland) Ltd (With Experto Credite acting on there behalf) prior to the rectification date of the default notice thus unlawfully rescinding the agreement and the account in question therefore Unlawfully Repudiated.

 

Varde have no legal right to the debt and in turn if Aktiv Kapital wish to pursue this debt on there behalf they will have to apply to court in order to lift the stay which was put in place by the Judge when we went to court.

 

With this in mind and the fact that this debt is associated with MBNA and no one else this should show as an MBNA defualted debt not Varde or Aktic Kapital.

 

I do not recognise Aktiv Kapital or Varde as I accepted MBNA’s unlawful rescission of the agreement and as such the debt still lies with MBNA and no one else

 

Equiafax have this debt listed under Aktiv Kapital and are unwilling to remove the debt or the default even though they have no legal entitlement to the debt.

 

Do I have a leg to stand on?

[silverfox1961]

Hi

I think you may be getting your wires a bit crossed with unlawful rescission. On tha assumption that you are correct, this just means that the debt would be very hard to enforce through the courts. The debt itself is still outstanding (or did you not have the benefit of the funds)

 

MBNA have every right to do what it wants to do with an outstanding debt, including selling it to whomever they choose.

 

As for the default, Equifax cannot remove the default. Only the current creditor can do that. If you disputed it with Equifax, they would have raised a query with the current owner and if they told equifax that the data is correct, there is nothing they can do.

 

If you really feel the default should not be there, complain to the new owner and if they refuse, take them to court.

[tigercub]

Thanks for the reply - Varde tried to take me to court a few years back and I sent in a defence letter to the court ( see below ) which then lapsed as they failed to take it any further and the court 'stayed' the case which cannot be opened again unless they reapply to the court in question. I have not heard from Varde for 3 years and the debt drops off my credit report in approx 18 months.

 

AccountNo. **************** Unlawfully Repudiated

As defence to the action being raised by VardeInvestments (Ireland) Ltd the defendant notes that the claimant has stated inthe particulars of the claim that monies are due under a regulated creditagreement between MBNA and the defendant the benefit of which was assigned tothe Claimant. The defendant also notes that the claimant has stated that theagreement terminated upon the defendant(s) failure to comply with the terms ofthe agreement and/or the statuary notice of default served by MBNA.

To cover the particulars of the claim the defendantwould like to draw attention to three separate points of defence which thedefendant will cover individually on there own merit.

1. Jurisdiction
   

Denied that this court has jurisdiction. Thedefendant resides at XXXXXXXXX This is his principal or main home and thedefendant has domiciled here for the purpose of section 41 of the CivilJurisdiction & Judgments Act 1982 ('the 1982 Act'). The defendant enteredinto a contractual agreement with the original creditor as a consumer.Paragraph 3(4) to schedule 8 of the 1982 Act provides as follows: "(4)Proceedings may be brought against a consumer by the other party to thecontract only in the courts for the place where the consumer is domiciled orany court having jurisdiction under rule 2(i)". Rule 2(i) concerns moveable property whichhas been arrested and is not applicable. Paragraph 3(6) does not apply.Accordingly, this action is incompetent for want of jurisdiction and should bedismissed with expenses in favour of the defendant. The defendant formally requests that the case be struck out due to lackof jurisdiction.

1. Unlawful Termination of Account
   

The defendant states that the alleged account inquestion was unlawfully terminated by MBNA by way of passing the debt to Varde Investments(Ireland) Ltd (With Experto Credite acting on the claimants behalf) prior tothe rectification date of the default notice thus unlawfully rescinding theagreement and the account in question therefore Unlawfully Repudiated.

The defendant refers to an MBNA Default Notice dated7th September 2009, received by him on 11th September 2009 with a rectificationdate of 24th September 2009 demanding payment of the full balance whichwas sent to the defendant whilst there was an open dispute with MBNA, Thedefendant also refers to MBNA’s subsequent actions confirming their previouswritten intentions to possibly terminate the agreement. The defendant refers toa point noted in a letter from MBNA dated 31st March 2010 furtherproviding evidence of the rectification date "The letter advised you thatno further action would be taken if the payment requested in the letter wasreceived on the account by 24th September 2009" MBNA fail to notethat they sold the account to a third party prior to this rectification datethus the agreement is unlawfully repudiated. (The account was sold to Varde Investments(Ireland) Ltd 16th September 2009)

Further more MBNA demanded payment in full of theentire balance of the account in order to remedy the Default Notice and whichincluded payment of sums not yet due under the agreement.

The intent and purpose of the Default Notice is thatif the debtor remedies the default by the date shown (s89) then the status quois preserved - that is to say that if he pays the amount demanded it will be asif the breach had never occurred.

In order to remedy the default notice the defendantwas required to pay all of the sums not yet due under the agreement and towhich the failure by the defendant to comply with the default notice is a precursor to the claimant being entitled to claim those sums not yet due under theagreement. The result was that the defendant could not lawfully comply with thedefault notice.

Notwithstandingthat the default notice sent by MBNA failed to give the defendant the requiredstatutory time in which to seek legal advice and/or remedy any alleged defect,as laid out in s87 of the CCA 1974 (as amended by the Consumer Credit Act 2006)their actions resulted in insufficient time for the defendant to even obtain anappointment with a solicitor let alone remedy the alleged default. MBNA’sactions have led the agreement to become unlawfully repudiated.

Thedefendant has stated in many previous pieces of correspondence to MBNA, ExpertoCredite; who act on behalf of Varde Investments (Ireland) Ltd; and H L Legal& Collections that he has accepted MBNA’s unlawful rescission of theagreement and the defendant has informed MBNA that they were entitled to claimthose arrears genuinely due at the time of the termination (not including anyunlawful charges) The defendant has requested on many occasions for MBNA to advisehim of the exact amount of those arrears, against which the defendant wouldraise a claim for unlawful rescission. These pieces of correspondence were allsent 1st Class Recorded Delivery proof of which can be seen onrequest.

Basedon the facts stated above and in previous correspondence sent by the defendantto MBNA, there actions have lead to the agreement becoming unlawfully repudiated.The default notice failed to give the defendant the required statutory time aslaid out in s87 of the CCA 1974 (as amended by the Consumer Credit Act 2006)

Thefailure of a Default Notice to be accurate not only invalidates the DefaultNotice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR2255) but is an unlawful rescission of contract which would not only preventthe Court enforcing any alleged debt, but give me a counter claim for damagesKpohraror v Woolwich Building Society [1996] 4 All ER 119.

I therefore put the Claimant to strict proof that any Default Noticesent to the defendant was valid and allowed the statutory 14 clear days torectify the breach. I also note that to be valid, a Default Notice needs to beaccurate in terms of both the scope and nature of breach and include anaccurate figure required to remedy any such breach. The prescribed format forsuch document is laid down in Consumer Credit (Enforcement, Default andTermination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulationsthe Consumer Credit (Enforcement, Default and Termination Notices) (Amendment)Regulations 2004 (SI 2004/3237).

 

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

 

For a Creditor to be entitled to terminate a regulated Credit Agreement wherethere is a breach, demand repayment in full or take any legal action to recoverany monies due under the Agreement, a creditor must serve a Default Notice undersection 87(1) of the Consumer Credit Act 1974which 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 canbecome 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 asterminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the DefaultNotice 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. Thereforeit cannot be dispensed with as a De Minimus issue.

 

I note that the regulations do not allow any variation in the form of thesestatements and therefore it is suggested that where the statements are not aslaid down in the regulations the Default Notice is rendered invalid as aconsequence.

 

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 somedetail the issue of the contents of a Default Notice and should the notice failto comply with the Consumer Credit (Enforcement, Default and TerminationNotices) Regulations 1983 (SI 1983/1561) it would render the Default Noticeinvalid The defendant quotes the comment of KENNEDY LJ: "Thisstatute was plainly enacted to protect consumers, most of whom are likely to beindividuals" the judgment appears to confirm the consumer creditlegislation made under the Consumer Credit Act 1974 asplainly enacted and set out to offer protection to the consumer. Therefore itis suggested that the failure of the Claimant to set out the Default Notice inaccordance with the Consumer Credit (Enforcement, Default and TerminationNotices) Regulations 1983 (SI 1983/1561) could unduly prejudice the defendantas it failed to allow the required time to remedy the alleged default.

 

The Claimant’s failure to issue a valid Default Notice must surely prevent aright of action and would make any termination of the Agreement unlawful, asstatute provides the procedure that must be followed. Since the Claimant hasfailed to adhere to statutory procedure it is averred that the Claimant doesnot have a right of action, and can never now have a right of action havingterminated the Agreement unlawfully.

 

Furthermore, the Arrears Total cannot be accurate, as the Balance on theAccount was at least partly comprised of Unlawful Charges plus additionalCharges and interest added unlawfully whilstthe Account was in Dispute. Therefore, the Arrears claimed cannot be accurate,as they are themselves calculated using a total that was itself inaccurate.

 

This is at all times an Agreement Regulated by the Consumer Credit Act1974. There is no provision in the Act thatallows a large financial institution to terminate an Agreement that is inalleged default or breach simply by giving notice to the Consumer. Section98(6) makes that quite clear. The Creditor must follow the steps outlined inSection 87 and Section 88 if they are to lawfully Default and Terminate, andenjoy the benefits of Section 87.

 

Finally, an invalid Default Notice cannot be remedied by simply issuing a newDefault Notice.

 

The Claimant may not serve a second effective default notice in prescribed formpost-termination of the agreement. Any such second default notice will necessarilystate a date by when the defendant would be required to comply after which indefault the agreement would terminate. The second default notice wouldtherefore contain the fiction that the agreement endured when that cannot bethe case, as it was terminated on 16th September 2009. Terminatingan Agreement on the back of a defective Default Notice, simply confirms theundeniable truth that Termination of the agreement by the Claimant was carriedout in circumstances which then prohibited them from enjoying the benefits ofSection 87, namely the opportunity to seek early Payment of a sum that was,prior to Termination, only payable in the future.

1. Notice of Assignment
   

Further more the defendant has never had a notice ofassignment served as per the legal requirement of the Law of Property Act 1925and as such the defendant is unaware of any debt with Varde Investments(Ireland) Ltd and the defendant does not acknowledge this debt to them. By MBNApassing the defendants information on to Varde Investments (Ireland) Ltd andsubsequently Experto Credite Ltd. not only is this a breach of OFT collectionguidelines, but also in breach of the CCA 1974. Whilst the defendants disputewas clearly in place with MBNA at this time and his Consumer Credit Act requestremained in default; enforcement action is NOT permitted, under s127 thisconstitutes a complete defence at law.

The defendant has been in constant communication withMBNA through written correspondence since January 2009 with regards to requestsfor a true and signed copy of the alleged agreement they refer to. This was hisright under MBNA’s obligation to supply a copy of the agreement under thelegislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) forrolling sum credit) - their obligation also extends to providing a statement ofaccount to which to date the defendant still does not have all the information.

Furthermore MBNA have not fully complied to aSubject Access Request which was sent to them 20th October 2009 (Data Protection Act disclosure request)Experto Credite have also failed to provide the defendant the requested information under a formalinformation request sent to them in a letter dated 4th October 2010.With this in mind Experto Credite have also recorded a default against thedefendants credit file with all three of the credit reference agencies which thedefendant believes have been applied unlawfully as Experto Credite have nolegal right to the debt.

I trust that thisclarifies the defendant’s position and if there is any further informationrequired the defendant can send copies of all documentation that have been sentto MBNA,Experto Credite; who act on behalf of Varde Investments (Ireland) Ltd; and H LLegal & Collections.

[BRIGADIER2JCS]

In simple terms, if the debt is in dispute the creditor or its successor should still report the conduct of the account to CRAs.

 

 

Your first move is to add a "notice of correction" to every entry made on the 3 main CRAs.

 

 

As silverfox has said the way forward is to make a formal complaint to the current listed owner of the debt, this should be addressed to The Data Controller.

 

 

Imo there is little chance of success the debt may or may not be enforceable through court action but it still exists.