MBNA sold account

[Roadrunner]

Hi All

I need some help please.

I received a DN from MBNA (dated 9/8/10), giving me until 26/8/2010 to remedy. I then received a letter from EC dated 1/9/10 informing me that Varde Investments (Ireland) Ltd "has bought the interest of MBNA Europe in the above account...."

Letters are attached below.

I received no notice from MBNA regarding the assignment / sale etc of my account.
I then sent a SAR to MBNA and a “prove it” letter to EC. I have just received my SAR reply which contains a comms log and screen shot print outs which show that my account was sold to EC during the DN remedy period!
I have also received a letter from EC with a “deed of assignment” attached from MBNA dated 28/9/10 which states “please accept this letter as confirmation that your outstanding balance due under the above account has been assigned to Experto Credite:” with their address listed. This letter states no date of assignment!


Can MBNA sell the account during the DN remedy period? Does this constitute unlawful termination of my agreement?



What is my next best course of action?

[middenmess]

Re: MBNA sold account

Have a read of this thread...

Varde Investments, Experto Credite Overseas Companies

[Caspar]

Re: MBNA sold account

Beat me! Was just about to post the same link! lol

Some interesting reading over the validity of an overseas company collecting a UK debt as well. A bit more knowledge stored away (till I forget it!!!!)

[basa48]

Re: MBNA sold account

This stuff is all very cloak & dagger!

I never got a proper notice of assignment, just a letter from Experto enclosing a letter (supposedly) from MBNA saying the debt was assigned to Experto (not Varde).

Experto had also written to me 3 days before the remedy date on the DN to say Varde were the assignees !!

Oh and BTW the DN from MBNA asks for the full balance as per their T&Cs para 8f !

[Roadrunner]

Re: MBNA sold account

Hi and thanks. Interesting reading about overseas etc. I'm still confused about MBNA selling my account during the DN remedy period! surely this must invalidate the DN and also be an unlawful termination of the agreement? Is this unlawful rescission / repudiation?

Comments and advice welcomed

[middenmess]

Re: MBNA sold account

Hi and thanks. Interesting reading about overseas etc. I'm still confused about MBNA selling my account during the DN remedy period! surely this must invalidate the DN and also be an unlawful termination of the agreement? Is this unlawful rescission / repudiation?

Comments and advice welcomed

Much debate about the unlawful rescission / repudiation especially after recent decisions in the courts but what the position is when the a/c is sold on during the 14 day 'remedy' period is another argument altogether.


As a 'foreign' company is also involved in your case I think that you need legal advice from a company that is conversant with the CCA ---[like Watsons?]

Others might be able to offer better advice or point you in other helpful directions.

[Caspar]

Re: MBNA sold account

Unfortunately I did read somewhere last night that it is legal for them to collect your debt despite being overseas. Never take that as 100% though! I'd be glad to be proved wrong.

[paulb2905]

Re: MBNA sold account

Hi RR, sorry no idea on the overseas thing although i have read the various posts.

Might be a good idea to contact the OFT regarding this though and get their "understanding" on it.

I would suggest that whatever you decide to do, that if you do decide to make payment to them send the first payment with a covering letter (Chq or P/O) stating that you are making payments against the lawful arrears only.

This at least gives you some cover against the Unlawful Termination route if you decide to pursue it - and i think you would have to go to court to determine this as not aware of any rulings, specific to CCards, having been made on it yet.

There are cases relating to Unlawful Termination see the DN time to remedy thread

[Roadrunner]

Re: MBNA sold account

Hi all, thanks for your replies. I'm still unsure what to do next so I guess I'll wait n see what happens re: EC.

I really would appreciate some more opinion / guidance on the termination during remedy period as the DN clearly states a date until which I can remedy the fault without any further action. It also doesnot state under "further action" that may be taken anything about selling the account! Therefore, to sell the acccount during the remedy period must surely constitute an unlawful termination of the agreement and invalidate the DN?

Help

[Godzilla]

Re: MBNA sold account

Hi all, thanks for your replies. I'm still unsure what to do next so I guess I'll wait n see what happens re: EC.

I really would appreciate some more opinion / guidance on the termination during remedy period as the DN clearly states a date until which I can remedy the fault without any further action. It also doesnot state under "further action" that may be taken anything about selling the account! Therefore, to sell the acccount during the remedy period must surely constitute an unlawful termination of the agreement and invalidate the DN?

Help

Hello Roadrunner (beep, beep)

Well undoubtedly the creditor [did] terminate the agreement during a period when he was not entitled to, however, as far as 'unlawful' is concerened, the CCA 1974 (as amended) does not impose any sanctions (civil or criminal) upon the creditor if he should do something that the said act clearly states he is not entitled to do, so 'unlawful termination' is not the description that best define what his actions amount too old boy.

Repudiation of the agreement/contract is the correct way to describe what the creditor has done (in circumstances such as yours).

Did you make any effort to bring the arrears/account up to date before the creditor sold/assigned the agreement/contract?

How many months of due payments had you actually missed by the time the DN was issued/served upon you?

Kind Regards

Godzilla

[Roadrunner]

Re: MBNA sold account

Hi Godzilla

Thanks for clarifying that. I had been on a harship programme with MBNA for several months prior to them issuing the DN. I had been making token payments and had told them that I could not yet increase the amount as my situation hadnot improved.

They sold my account 5 days after I received the DN.

Should I write to the OC accepting their repudiation of the agreement? Should I write to EC or wait to hear from them?

RR

[Godzilla]

Re: MBNA sold account

Roadrunner

I shall be back, hopefully tonight. Beep, beep.

Kind Regards

Godzilla

[Godzilla]

Re: MBNA sold account

Roadrunner beep, beep

Yes, I think you should write to them and inform them of their incompetence, ooops er, I mean 'mistake/admin error' (favourite saying of all creditors).

I have come back on a bit late tonight, so I shall return to your story very shortly (try to do that within the next couple of days).

Kind Regards

Godzilla

[Godzilla]

Re: MBNA sold account

Hello Road Runner - beep, beep

Sorry for the delay in comming back to you old boy.

Did you send a letter to MBNA informing them of their 'error'?

EC, according to that letter, have a right under the terms of the assignment to Varde to collect any monies due/owing from you.

You need to request a copy of the Deed of Assignment from Varde in order to determine EC's rights, as claimed by them.

EC are clearly a third party and so Contract (Rights of Third Parties) Act 1999 will apply in order to confirm EC's claim.

There must be an express term in the contract purporting to confer a benefit upon the third party and the third party must be expressly identified in the contract.

If upon requiring sight of the said Deed, EC are not expressly indentified in the contract (if there is a term purporting to confer any right contained therein) then, Privity of Contract will prevail, that means that only Varde can make contact with you as the agreement is now between you and Varde, EC would be a stranger to the contract and therefore such contract is none of their business.

Besides the above, as you say, MBNA sold (assigned) the said contract/agreement 5 days after you received it! Therefore, the assignment is not valid, not in equity or legal.

I hope that will help you somewhat.

Kind Regards

Godzilla

[Roadrunner]

Re: MBNA sold account

Hello Godzilla

Thanks for getting abck to me. I haven't written to anyone yet as i was waiting on comment (yours) which is gratefully received.

I have attached the "deed of assignment" from EC / MBNA. They state that the "outstanding balance due has been assigned to EC" but the first letter (NOA) from EC states that Varde has bought my account and that under the terms of the assignment EC has been appointed by Varde to recover any and all outstanding sums???

So I will request the deed of assignment from Varde and will write to MBNA informing them of their error and accepting their repudiation of the agreement. Is that correct? Should I go into detail or just keep it nice and simple?


Thanks

RR