Issue With a Default Notice

[pos]

Hi All,

Hope someone can advise


I have just finished scrutinsing a massive mound of info received from my SAR request to MBNA. I have some issues with a few things but would be grateful for any advice, at all, relating to the default info.

A default notice was issued by MBNA on 7th October 2010.
The Remedy date was 26th of October 2010

However, SAR Info shows that MBNA closed the account on 18th October 2010 and sold the account.

Don’t they have to wait (before taking any action) until the Remedy date has expired?

BTW no Notice of Assignment was issued to me by either the OC or the company they sold the account to?

The account has since been passed to a couple of DCA’s, most recently to Fredricksons.

Could this Default ‘issue’ cause a problem for MBNA? Any advice would be much appreciated.
Thanks

Pos

[teaboy2]

Re: Issue With a Default Notice

Hi All,

Hope someone can advise


I have just finished scrutinsing a massive mound of info received from my SAR request to MBNA. I have some issues with a few things but would be grateful for any advice, at all, relating to the default info.

A default notice was issued by MBNA on 7th October 2010.
The Remedy date was 26th of October 2010

However, SAR Info shows that MBNA closed the account on 18th October 2010 and sold the account.

Don’t they have to wait (before taking any action) until the Remedy date has expired?

BTW no Notice of Assignment was issued to me by either the OC or the company they sold the account to?

The account has since been passed to a couple of DCA’s, most recently to Fredricksons.

Could this Default ‘issue’ cause a problem for MBNA? Any advice would be much appreciated.
Thanks

Pos

Unlawful rescission for selling prior to the remedy date on the default notice. They therefore can not enforce the debt as the default would become invalid if sold prior to the remedy date.

Heres some good reading for you thar will be useful - http://www.shweb.pwp.blueyonder.co.u...0sched%206.pdf

[Guest]

Re: Issue With a Default Notice

HI
Yes they should have let the statutory period expire before terminating the agrement, if they wished to enforce they should pass it back to mbna to first issue a valid default.

THis is the usual proceedure in these cases. Ignore any of the information about unlawful rescission of agreement, it does not apply to consumer credit agreements.

THer was much discusson about the claims made in the above , it has been proven incorrct on many occaisions and to the detriment of many people.

Your situation is that the agreement has not been properly terminated by the sound of it, this means that the creditor would have to issue a correct default notice and then terminate. It is however up to the judge to decide on the day, he may decide to allow enforcement anyway.

Sorry to be blunt but i would not want you making matters worse for yourself by labouring under a false premise.
Peter

[pos]

Re: Issue With a Default Notice

Thank you for your response. I thought that was the case but needed to double check

I need to have a really good think about how to deal with this.

Should I write to them, or wait and see what they do next?

I don't, and haven't, in any way or form ever tried to avoid my debts but over the last 3 years I have only had very sporodic employment (always brought the account up to date when I found work.) This particular OC was dreadful.

They broke so many regulations eg offering a loan to pay the full balance , passing my my personal details/data on to others, constant phone harrassmement (6 times a day) from morning to night.


They set B Carter onto me who then went on to send me numerous threats, 7 Days to pay' court' Letters.' etc

I suffered many, many sleepless nights and dents to my personal and professional confidence because of these awful, awful people.

I had forgotten how scary and totally dehabilitating it was.

I intend to write to my MP et al with a list of breaches. Will give his feedback on the forum as soon as possible.

Any advice at all would be appreciated. Cheers

Pos

[CleverClogs]

Re: Issue With a Default Notice

I don't, and haven't, in any way or form ever tried to avoid my debts but over the last 3 years I have only had very sporodic employment (always brought the account up to date when I found work.) This particular OC was dreadful.

In my considered opinion, they should never have been granted the requisite licences to trade in the UK.

They broke so many regulations eg offering a loan to pay the full balance , passing my my personal details/data on to others, constant phone harrassmement (6 times a day) from morning to night.

Such abuses are, alas, not unusual from the Mafia Bank of North America. Still, at least they no longer threaten to set one's feet in concrete, etc.

They set B Carter onto me who then went on to send me numerous threats, 7 Days to pay' court' Letters.' etc

As you may read here, Carters do not always seem the most competent of solicitors.

By selling the alleged debt before the end of the notice period, the only debt that could have been lawfully assigned would be the sums of money demanded under that default notice. See attached PDF file: W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169

[pos]

Re: Issue With a Default Notice

Hi all,

thanks for the info and advice. Have spent the weekend researching this subject. So a bit Brain Dead!! Just a quick couple of questions so that I can decide how to move forward on this one:

'Yes, if they wished to enforce they should pass it back to MBNA to first issue a valid Default.' The defective default did come from MBNA???

Does anyone know (100%) for sure 'That by selling the alleged debt before the end of the Default notice period, the only debt that could have been lawfully assigned would be the sums of money demanded under that default Notice'?Is this correct?? I Searched hours looking for any decent info. Could not find any definative info!

Does anyone know How many times are they allowed to reissue a defective DN?

As they sold my account (without telling me) what happens to the remaining balance?
Need to point out again that I have not received any Notice of assignment. Not from anyone!! I am awaiting the dreaded drop of the next DCA letter!!

Should I contact MBNA to let them know that they issued me an invalid DN and that they sold the account before the remedy date.

Would appreciate any info at all. Thanks


Pos

[teaboy2]

Re: Issue With a Default Notice

Since before i started my company in 2009 MBNA defaulted me

DN dated 12th august 2009, received on 18th august 2009
before date for remedy was 28th august 2009
Sold on 17th august (am in receipt of written confirmation of such from MBNA) to experto credite

Experto credite claim that Varde investment (Ireland) Limited own the debt and they are acting on Verdes behalf. I have argued successfully Unlawful rescission as so far despite my invitation, inviting them to take the matter to court, they have instead reverted to sending just 1 letter every 6 months, the last being in Feb 2011 so i geuss they given up on it now as they know they would lose.

So basically MBNA did the same to me as they have done to you, and i bet they issued the DN on your credit file prior to the date of the DN too like they did me.

Below is a copy of the last letter i sent to them that you may find useful:

Experto Credite Ltd
Windrush House
24 Portman Road
Reading
Berkshire
RG30 1EA

Dear Mr xxxxx

Thank you for your letter dated 23rd February 2011, received today the 26th February 2011, the contents of which are noted. However I most point out to you that your views are disastrously wrong in regards to the points you make in the letter.

Firstly the Financial Ombudsman Service could not rule on a point of law (see attached letter dated 24/02/2010) where it makes it clear they are only able to determine complaints on grounds of fairness and reasonableness. Therefore as my complaint was in regards to a breach of law, the Financial Ombudsman Service was only able to determine MBNAs actions for fairness and unreasonableness prior to the date of MBNA issue an invalid default notice, subsequently followed by an unlawful rescission/repudiation of contract by way selling the account to Varde investment Ireland ltd. So, basically they were not able to legally able to decide on a matter of LAW and as MBNA conducted them self’s fairly and reasonably prior to issue the invalid Default Notice, then that is all the Financial Ombudsman Service was legally able to make a decision on. So the unlawful rescission /repudiation of contract weren’t something that they could legally determine and as such it was not taken into account.

Secondly, you say the default notice does not prevent the sale of the debt – well I never said it did! I just said that selling the account on the back of an invalid default notice is a breach of statutory law under the Consumer credit act 1974, as the act prevents them from selling such debt when a default notice fails to be accurate or valid. So the fact the default notice was inaccurate/invalid means their subsequent selling of the debt/account was a repudiatory breach of contract but also a breach of statutory law that prevents them selling/terminating accounts when the default notice fails to be accurate/invalid - Hence my claim of unlawful termination/rescission/repudiation.

As for the default notice itself, (please find a copy attached) you will see it was Dated 12th August 2009 and was sent second class post, which by law is not deemed served until 4 working days from date of postage, (Weekend days do not count). However it was received on the 18th August 2009, yet as on the attached letter from MBNA dated 11th September 2009, the account was sold to yourselves on the 17th august 2009. That means the account was terminated on the date it was sold, it also conflicts with your statement that Varde investment Ireland Limited purchased and own the debt/account. Because of this I did not receive my legally entitled to statutory 14 days to remedy the default notice, also note the remedy date was before the 29th august 2009 making the last day to remedy that of the 28th august, so the default notice was invalid on 2 points:

1 – the account was sold (therefore terminated) on the 17th august 2009, denying me my statutory right to 14 days to remedy, and;

2 – Even if the account had not been sold till after the 29th august, the default was still invalid as between the 18th august and 28th august 2009, is just 10 days, therefore 4 days short of my legally entitled to statutory 14 days to remedy, putting you in breach of the CPUTR 2008 as well.

There is also a third point in which the default notice is invalid, and inaccurate, as it asks for the full amount and not the arrears, when it should only ask me for the arrear, in order to remedy the default. As for the default being reported to the credit reference agency on the 31st of july 2009 – well MBNA are in breach of ICO guidelines for failing to allow for 28 days AFTER the default notice was served before reporting the default to the credit reference agencies, which I believe may put them breach of the data protection act 1998. Also the date they reported the default is irrelevant where the issuing of a default notice is concerned.

As for myself not suffering detriment, well what to you call the loss of my statutory right to remedy the default, is that not detriment?. Have I not suffered detriment by way of stress and anxiety in regards to you letters and phone calls threatening legal action to enforce an agreement/contract that was unlawfully terminated/rescission/repudiation?. Is it not detrimental towards myself for an inaccurate default to be reported to credit reference agencies, limiting my ability to gain future credit and thrashing credit file? Is it also not detrimental to myself that such reporting of the default to the credit reference agencies was in breach of ICO guidelines and the data protection act but also by means of reporting it prior to any valid default notice being issued? – The answer yes, I suffered detriment on all points, also the reporting of an inaccurate default to the credit reference agency is also derogatory and therefore an act of libel.

Now Thirdly, you state in your letter about threats of legal action, well the last correspondence I had with yourself or one of your representatives, not only did they attempt to mislead me by stating new legislation entitled them to enforce the debt regardless of the unlawful rescission/repudiation/termination, and they pointed me to the OFT’s website. Yet when ask to name the legislation you/he (as it was a he) was unable to do so, off course being a member of consumer action group I would have been aware of such legislation if it existed, which clearly it did not - you/he then cheekily asked me to make a donation payment. It was then that you/he threatened to take me to court, and I said ok do it. Yet funnily enough, 6-8 months down the line I still have not received any POC from the court regarding your claim against me.

So as you state that if I do not make any proposals to repay the debt in the next 14 days, you will pass it on to your solicitors (will that be Internal or external solicitor?). Well ill save you the wait, go pass it on to them now I’ve been waiting 6-8 months for your POC after our last communication. But when you do pass it on to them, give them a copy of this letter (as I will also be sending a copy of this to them) and tell them from me, to think very carefully about it first, as I will report them to the solicitors regulation authority for unlawful attempts to enforce via the courts an unenforceable agreement. Not only that I will counter claim for the unlawful rescission, breach of data protection, request that MBNA be made a joint claimant, apply for damages, sue for detriment I have suffered and sue for libel for recording an inaccurate/invalid default notice to the credit reference agencies. I will also make reports to the ICO (expect a substantial fine), OFT for clear breaches of the guidelines, the police (as I now few any threats you make of legal action as false empty threats putting you in breach of section 40 of the administration of justice act, the protection from harassment act and in breach of the malicious communications act for make a false threat to take me to court over the phone the last time we communicated.

So, what’s it going to be? Is this yet another false empty threat or am I finally going to get the long awaited POC from you? Either way I don’t care, though I suspect the fact you have so far failed to make good your threats is because you know as well as I do that you haven’t got a leg to stand on. As such I shall end this letter, by making it clear that as you continue to send false empty threats of legal action to myself and attempted to previously mislead me, you are formal informed to cease and desist from all forms of communication with myself. Therefore I expect not to hear from your company again and that our next communication between myself and your company to be POC.

Yours Sincerely and without Prejudice

xxxx xxxxx.

P.S. now go sit on your middle finger and swivel on it, and while you’re doing that you should consider whether or not to stop acting the like the legal we know it all’s, that you clearly are not. As you clearly have a very dangerous misguided interpretation of the law, that may well turn out to be your company’s downfall.

Some would argue unlawful recission as a result of the Harrison V link court case is no longer a valid defense (i disgree as i believe the case strenghens the case for unlawful rescission), but as the harrison case was about an MBNA debt, then why if unlawful rescission was not a valid point have they backed off and not taken me to court - Obiviously it must be because unlawful rescission is still a very much valid point.

[pos]

Re: Issue With a Default Notice

Wow! Thank you for the information that you sent me.

I am going to make a cup of coffee and read it all very slowly in order to fully digest the info.

Will give you some feedback as I agree with you that what they have done to me seems to be very similar to the issues that you had with them.

The research that I have had to do to fightback against bad financial providers has shown me they don't give a toss about the law and just seem make it up as they go along!

Once again, thanks

Pos

[teaboy2]

Re: Issue With a Default Notice

Wow! Thank you for the information that you sent me.

I am going to make a cup of coffee and read it all very slowly in order to fully digest the info.

Will give you some feedback as I agree with you that what they have done to me seems to be very similar to the issues that you had with them. - Warning it contains bad spelling and grammer. Being dsylexic and angry at the same time makes my spelling and grammer go downhill fast. lol

The research that I have had to do to fightback against bad financial providers has shown me they don't give a toss about the law and just seem make it up as they go along! Yep, but then they get letters from me and they run a mile lol

Once again, thanks

Pos

Keep is updated on this Pos.

[pos]

Re: Issue With a Default Notice

Thanks, I promise I will give feedback.

No sweat with spelling issues, I promise that I wont do a 'cut and paste job.

I currently also suffer really bad insomnia, It's almost always by the time I go to bed!! LOL

I will need to slowly digest all of the info and then look at how I move forward.

Just a quick question. When I have got my head round it all and if I decide to move this up a step (which I am fairly sure that I will) who should make initial contact with to in order to address the issue(s)?? MBNA, Arrow or Fredricksons.

I would hazard a guess at MBNA as I have not recieved any Notice of Assignments from anyone.?? Cheers!

Pos

[teaboy2]

Re: Issue With a Default Notice

Thanks, I promise I will give feedback.

No sweat with spelling issues, I promise that I wont do a 'cut and paste job.

I currently also suffer really bad insomnia, It's almost always by the time I go to bed!! LOL

I will need to slowly digest all of the info and then look at how I move forward.

Just a quick question. When I have got my head round it all and if I decide to move this up a step (which I am fairly sure that I will) who should make initial contact with to in order to address the issue(s)?? MBNA, Arrow or Fredricksons.

I would hazard a guess at MBNA as I have not recieved any Notice of Assignments from anyone.?? Cheers!

Pos

Yes MBNA - thats how i got letter telling me the date it was sold but misleadingly stating it was sold to experto credite, when it was verde investment ireland limited that MBNA sold too.

Yeah its a bugger when you can not sleep lol. I tend to only get about 4 - 5 hours some nights.

[pos]

Re: Issue With a Default Notice

You're right, lack of sleep is an awful thing.

I also have OCD. Used to have it real bad when I was younger (mind you I was always very successful cos I absoulutly had to check and double check that everthing was 'tip top' in order.

I built a fantastically successful career in the Armed Forces because I mangaged to turn the OCD into a positive and not a negative.

Those were the days!!

Used to really, really fear OC's, DCA,s et al but finally worked out they couldn't take what I don't have.

Whatever they theaten eg defaults etc I ask myself this question 'Can I eat it? If the answer is no then I am not interesed and they can get lost. It keeps me sane!! LOL

Will keep you posted on how this goes. Cheers

Pos

[pos]

Re: Issue With a Default Notice

I was just researching the Law of Property Act regarding info on Debt Assignment.

I came across Sub Heading 19 - Title is 'Infants and Lunatics'

Call me cruel but the moment I read that sentence MBNA sprung to mind!

[CleverClogs]

Re: Issue With a Default Notice

I was just researching the Law of Property Act regarding info on Debt Assignment.

I came across Sub Heading 19 - Title is 'Infants and Lunatics'

Call me cruel but the moment I read that sentence MBNA sprung to mind!

Why?

Does the Mafia Bank of North America employ any infants?

[pos]

Re: Issue With a Default Notice

Not to my Knowlege

But they certainly act in an infantfile manner! LOL