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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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I have a court case coming up with a DCA pursuing me for

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Hi, I have a court case coming up with a DCA pursuing me for a Credit Card debt that I know was unlawfully terminated by the Original Lender after failing to issue a Default Notice first, this alleged account has changed hands 3 times since Sept 2009, the first Assignee wrote advising that an assignment had been agreed and they now own the rights etc, etc. However the OC had issued a DN a week after the unlawfully termination but quoted a different account number to that of my original agreement and the DCA (1st Assignee) quoted the same incorrect account number on their correspondence, my question is this, Would the original creditor have had to provide the Assignee with a copy of the original executed agreement and correct Default notice for an assignment to be legally binding on the debtor?
Submitted: 2 years ago.
Category: Law
Expert:  Ash replied 2 years ago.
Hello my name is ***** ***** I will help you with this.
What was the basis of your defence submitted at court please?
Customer: replied 2 years ago.

Court case is on the 21st, I have SAR response from Original Creditor which included screen prints of various pages, all confirmed the charged date as 31/08/2009, OC then issues a DN dated the 07/09/09 which states wrong account number, screen prints confirm date sold to DCA as 15/09/2009 under correct account number and a separate screen print stating the incorrect number.

So DCA send what they refer to as a Notice of Assignment dated 23/09/2009 quoting incorrect number followed by further letter wanting me to call them and start paying, in Feb 2010 DCA writes saying the due to internal error they had been corresponding using an internal account number! strange it was the same number OC stated on DN!

my question is as OC had charged off account before issuing DN then this would be an unlawful termination and so assignment would not possible as there would be no agreement to assign and if there's no current agreement then an assignment can't be legal or am I way off base?

Expert:  Ash replied 2 years ago.
Yes but what was the basis of your defence. What did you say to the court?
Customer: replied 2 years ago.

Sorry my original reply was typed at gone 11pm late night.

Original Credit Card Agreement from 25/11/05 got in to dispute with OC over interest rate increases and OC then failing to provide copy of executed original agreement (CCA 74 s61(1)), stopped paying OC in 02/2009 advised them that until they provided a copy of EOA I will with hold payment, no agreement has ever received OC Charged off 31/08/09.

OC than issued a DN on 07/09/09 with demand for full balance (indicates termination has already taken place) or remedy by 24/09/09 but stated incorrect account number, then sold alleged debt/assigned to a DCA on 15/09/09.

My defense will be based upon the following, of which I would ask for your comments on:

1. If OC charges off/writes off/terminates original credit card agreement under CCA 74 before issuing DN is this unlawful termination?

2. As OC had terminated original agreement on 31/08/09 under correct account number, can he then sell/assign a dead agreement to a DCA using the incorrect account number stated on the DN issued 07/09/09?

3. If DCA does not hold a valid agreement (as OC had terminated original) can the DCA inturn enforce and/or sell on to another DCA?

Kind regards

David

Expert:  Ash replied 2 years ago.
1. Yes the default notice MUST be issued first, otherwise its breach of contract.
2. No
3. No
It is a simple matter of contract. It should be the original lender pursing you and not the DCA
Can I clarify anything for you about this today please?
Alex
Customer: replied 2 years ago.

Hi Alex,

Thanks for your response, that is good news indeed, would there be any points in law that I can refer to come the big day with regard to termination before default notice and then follow with assignments that have been proven to be flawed due to no agreement being held or provided by the assignor that leaves the assignee not entitled to pursue or enforce?

I also want to bring a counterclaim in against the current DCA who is the third owner in the near six years that this alleged debt has been floating around and they are not very nice people I can tell you.

Many thanks for your assistance.

David

Expert:  Ash replied 2 years ago.
It's mainly contract and the terms of that, the agreement should say they should issue a default notice before termination. This is also included in the consumer credit act 1974
If they terminate the agreement and then issue a default notice then it's a breach of contract.
Does that help?
Alex
Expert:  Ash replied 2 years ago.
Hi
I am just following up to see if there is anything else I can help with?
If this answers your question might I ask you to rate my answer before you go today please, the button should be at the bottom of the screen.
If you need more help please click reply.
Alex
Customer: replied 2 years ago.

Sorry Alex for my later response just been putting the final touches to my defence for the 21st, could I be a pain and just clarify a couple of points (my heads shot, don't know if I'm coming or I've already gone!)

Original Creditor terminates agreement and never issued Default Notice in effect a breach of contract and he can't enforce or sell on the agreement to a third party because it's legally dead

Would this then release me from any liability and the debt?

If agreement is dead due to original creditors actions then agreement can't be assigned?

Or can original creditor still assign the terminated agreement but he can't directly enforce it and needs as assignee to perform the enforcement?

If the assignee was never given and therefore does not hold a compliant credit agreement (CCA 74 s61(1)) then would that mean NO assignment took place and therefore does not exists and that there is nothing that could be assigned on to another?

Thank you for your assistance, David

Expert:  Ash replied 2 years ago.
1. No you would still be liable for the debt it is just how it ended.
2. The original lender would still need to bring a claim. It hasn't been assigned properly as far as I can see.
Does that help?
Alex
Customer: replied 2 years ago.

Hi Alex, sorry been at work, so I'm a little confused but here goes:

1. If Creditor terminates the agreement without issuing a Default Notice first he is in breach of the contract?

2. Once terminated does this mean the agreement is unenforceable and a court could not impose an order against the debtor?

3. If he is in breach of the agreement then he cannot assign said agreement due to the breach?

4. A third party cannot become an Assignee of the agreement as it's the subject of the breach of contract?

5. Without a copy of a properly executed credit agreement an assignment cannot take effect?

6. If an Assignee does not hold a copy of a properly executed credit agreement then any collection activity's are illegal?

I know I'm pushing my luck with all these questions but if I don't ask I could charge in to court and get shot down in flames just because I misunderstood how the process works, thanks for your help and support,

Regards

David

Expert:  Ash replied 2 years ago.
1. If Creditor terminates the agreement without issuing a Default Notice first he is in breach of the contract?
Yes
2. Once terminated does this mean the agreement is unenforceable and a court could not impose an order against the debtor?
Yes
3. If he is in breach of the agreement then he cannot assign said agreement due to the breach?
Yes, unless the agreement allows it
4. A third party cannot become an Assignee of the agreement as it's the subject of the breach of contract?
Yes
5. Without a copy of a properly executed credit agreement an assignment cannot take effect?
Correct
6. If an Assignee does not hold a copy of a properly executed credit agreement then any collection activity's are illegal?
Not illegal no.
I know I'm pushing my luck with all these questions but if I don't ask I could charge in to court and get shot down in flames just because I misunderstood how the process works, thanks for your help and support,
You are not permitted flames in Court.
Can I clarify anything for you about this?
Alex
Customer: replied 2 years ago.

Hi Alex, could you just clarify 3.

3. If he is in breach of the agreement then he cannot assign said agreement due to the breach?

Yes, unless the agreement allows it

Would the Assignee have had to be named on the original agreement as the Assignee or can the Original Creditor just pick anyone at random regardless of them proving that the original credit agreement even exists?

Thanks for you help

David

Expert:  Ash replied 2 years ago.
No. It would just need to say it can be assigned.
Alex
Customer: replied 2 years ago.

Hi Alex,

1. so even if the original agreement can't be found or proof that it even exists it could still assigned?

2. Can the Assignee take me to court and try to collect without the true agreement?

Bit late to ask really as I filed my defence about 40 minutes ago, lol

Regards

David

Expert:  Ash replied 2 years ago.
1. Only if you have a properly executed agreement
2. They can take you to court but they are not likely to win.
Please do rate my answer so I am credited for my time. Thanks.
Alex
Ash and 2 other Law Specialists are ready to help you
Expert:  Ash replied 2 years ago.
Hi
I am just following up to see if there is anything else I can help with?
If this answers your question might I ask you to rate my answer before you go today please, the button should be at the bottom of the screen.
If you need more help please click reply.
Alex
Customer: replied 2 years ago.

Hi Alex

Just had an email from Claimants solicitors

We are in receipt of your revised Defence and Counterclaim and revised Witness Statement both dated 13 May 2015
Pursuant to CPR 20 4 you may only make a counterclaim against the Claimant at the time you filed your defence or else with the Court's permission

With regard to your witness statement dated 13 May 2015, in a similar fashion pursuant to CPR 32 10, you may not rely on a witness statement filed out of time without the permission of the Court
For the avoidance of doubt you have not been granted permission to file either of these documents
Given that the final heanng for this matter is in 6 days we will request that the Court disregards ***** ***** and that your Counterclaim not be allowed to stand It is unreasonable and disproporbonate
that you have waited until 6 days before the final heanng tn this matter to file your Counterclaim and that you expect us to file and serve a response to either of these documents at this late stage
The Court has already refused your apphcation for an adiournment and stay and given that substantial preparations have already been made we expect the heanng at 10 00 on 21 May to proceed as ordered
Our Counsel is prepanng his skeleton argument in advance of the heanng on Thursday We have been ordered to exchange and file these by 4 30pm on Monday, 18 May 2015 Please confirm d you intend to file a skeleton argument and whether you are happy for exchange to occur by email on Monday
Yours sincerely

Can I challenge this?

They revised their witness statement and bundle after receving my original defenece, surely I'm allowed in turn to revise my original defence?

Thanks

David

Expert:  Ash replied 2 years ago.
1. If your defence has been filed then you do need permission
2. They should be permitted 14 days to file a defence to the CC. You need to ask that the hearing is stayed. But you can submit documents for a strike out application.
Alex
Customer: replied 2 years ago.

Hi Alex

So back from court, won on failure to issue correct notice of default, that took claimant down to just Arrears outstanding.

Then came the argument regarding Unlawful Termination, I said that MBNA had added a default to my credit file on the 31/08/2009, and "charged off" the account then issued an incorrect default notice 07/09/2009 demanding full balance, with a remedy date of 24/09/2009 but sold the debt on the 15/09/2009.

Therefore Unlawful Termination! NO not according ot the judge, the debt still current just because they sold it does not matter, "but the incorrect NoD and selling it on whilst in default under the CCA 1974" I replied.

well that p***ed on my chips, the Judge stated that I had defaulted on the agreement and was therefore in breach of the agreement by letting the account fall into arrears, I replied with".

Judge "why not"? "selling the agreement before issuing s98A" I replied, Judge then said, you seem to be a little confused about what the creditor can and can't do, for an assignment to be effective it only requires acknowledgement from the Creditor that a debt exist, there's no need for an agreement to be past over, the creditor can assign the performance and right to receive to another, as these debts are sold in bundles the Assignee is not required to inspect everyone, the Assignee will just process the debt as if he were the original creditor.

But the Assignor/Assignee agreement makes reference to T's&C's of the Account agreement so surely they need to hold an agreement? Judge NO.

So my short lived victory ends with the Judge not prepare to accept that MBNA had performed an Unlawful Termination and therefore that agreement is still current and the DCA claiming the Arrears with SIX years worth of Interest and minimum payments which after a quick calculation by the other sides Barrister equaled about 3 times the original claim! so good news is that they can only have the value of the original claim plus interest at 2% plus costs which I got reduced by 25% due to winning the faulty Notice of Default argument.

I don't understand how if the agreement between MBNA and I was a contract how can MBNA not be in Breach by "Charging-Off" the account and then selling it to a third party?

Should I consider an appeal?

A shoulder to cry on would be handy about now :C

Expert:  Ash replied 2 years ago.
You could appeal on the basis it wasn't in the t&c and they didnt do what they said.
Alex
Customer: replied 2 years ago.

Hi Alex

I pointed out that the limited T&C's that were present on the application form (now being referred to as the Agreement by Judge) did not refer to how termination would be handled.

Judge, the "Agreement" meets the prescribed terms and I'm satisfied with that. Claimant is entitled to Arrears at last know interest rate plus unpaid minimum payments of 2.5% of balance plus default sums of £24.00 per month. Aug 09 - Apr 15 = £92,628.17 thank god their original claim was for £12,957.27

I'll sleep on it and see how I feel, thanks for you help








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